[This blog post holds my personal record for gestation of a blog post. The outline for this post traces back to a student talk I gave at Marquette University in 2004. I first started working on the post some time in 2005 or 2006. 7+ years later, I'm finally sharing it with the world. Sadly, I don't think the post is noticeably better for all of its incubation.]

This post provides my perspectives on the pros and cons of practicing law as in-house counsel versus at a law firm. Although my perspective is hardly unique, I am one of the comparatively few people who actually preferred practicing at a large law firm over in-house. When I tell people this, they almost always express surprise. My experiences may be colored by practicing in a start-up environment, with its advantages and disadvantages, and my conclusion may reflect my particular personality idiosyncrasies. Nevertheless, this post will provide my insider's view on life as in-house counsel.

Advantages of In-House Practice

The Lawyer Can Become a Business Decision-Maker. In-house lawyers take on business responsibility in several ways. First, to the extent the lawyer supervises outside counsel, the lawyer usually handles those vendor relationships. Second, the in-house lawyer often gap-fills any business decisions that aren’t owned by other people within the company. Finally, the in-house lawyer may share in making business decisions with the “business” people. Often, the in-house counsel’s co-workers prize the lawyer’s business input as much as his/her legal analysis.

The Lawyer Becomes Part of the Team. Most outside counsel have a “hired gun” relationship with their clients. The outside counsel is responsible for providing the best service possible, but then that lawyer flips his/her advice “over the wall” and leaves the implementation to someone else. In contrast, in-house counsel often become part of the execution team. Because in-house counsel are part of the team, they can be much more proactive than the outside lawyers. They can raise issues early and see the issues through to resolution.

In-House Counsel’s Interests Better Align with Corporate Objectives. Even with innovations in alternative billing and long-term multi-iteration relationships between companies and firms, usually an outside counsel’s interests do not align very well with the client’s. After all, the law firm has its own profits to manage, and doing so inevitably diverges with the client’s profit maximization. This is endemic to any customer/vendor relationship. Certainly hours-based billing creates numerous potential conflicts of interest between firm and client.

In-house counsel’s economic interests align much more closely with the client’s. There will never be perfect alignment, but the combination of being an employee plus possibly an equity interest makes a huge difference.

As an added bonus, usually in-house counsel don’t keep timesheets and don’t have billable quotas. This is often the #1 advantage cited by new in-house lawyers. However, this isn’t always the case. Some companies use a chargeback method to divisions/departments that requires keeping track of expenses; and companies may view in-house counsel as substitutes for outside counsel, which makes their goal to squeeze as much value out of the in-house counsel as possible.

Greater Ownership of Outcomes. It’s often easier for in-house counsel to point to specific favorable outcomes for the company and claim credit/ownership of those outcomes. A product counsel can point to a new successful product they guided through the development process and feel a sense of responsibility; a litigator achieving a favorable case outcome can have the same feeling.

Easier Prioritization. In-house counsel can often prioritize conflicting time demands easier because, after all, the requests are all coming from the same company and they can be prioritized based on profitability or the company’s strategic objectives. In contrast, outside counsel have a tough time prioritizing conflicting requests. Naturally, every client wants to be #1 but inevitability priority choices must be made, and telling a client that they aren’t #1 isn’t a path towards long-term client happiness.

On the other hand, it can be even harder for in-house counsel to tell a co-worker that they are not at the top of the priority list. So although it may be easier to prioritize tasks, it may be more painful to say no to people you have to work with the next day.

Better Work/Life Balance. The stereotype is that in-house counsel have a better work/life balance. I wonder about this in practice. Sure, in-house counsel can call up outside counsel and dump a project on them on Friday at 5pm while the in-house counsel goes on to enjoy the weekend. However, to the extent that in-house counsel are cost centers and the company is trying to maximize value out of a cost center, inevitably there will be significant pressure placed on the in-house counsel to do more and work harder. In the end, I think this is very specific to the company and the legal department. Some employers are going to provide better work/life balance than others.

Cons of In-House Counsel

You’re Answerable to a Boss. Some of you may find this an odd “con.” Doesn’t everyone have a boss? The answer, of course, is yes unless you’re self-employed. Even a CEO is answerable to the board or investors.

However, at some law firms, the supervisor/supervisee relationship can be quite attenuated. In firms with a power-partner model, the associate’s power partner is the boss; but at firms with a free-agency model for assigning new projects, it’s possible that no one partner views him/herself “responsible” for an associate. As it turns out, that was the situation I had when I was at the law firm. Although I had partners who nominally were accountable for my time, in practice I had a significant degree of autonomy. Partners have even more independence.

In-house, the lawyer will have a boss in the classic sense. The boss will conduct your performance evaluations, and your success will depend on doing what the boss wants you to do and keeping your boss happy. If the boss isn’t a lawyer but second-guesses your legal advice, that can get especially awkward.

Because bosses can change—they can leave the company or the position can be reorganized (a fairly common occurrence)—the job can change unexpectedly. Even if you love your current boss, your next boss may be a jerk. With a change in supervisors, a good job can become a terrible job overnight. There is almost nothing in-house counsel can do to avoid this risk.

Furthermore, job advancement in-house often requires a boss who will champion for your cause. Sadly, many bosses are not very good at being advocates for their supervisees, in which case in-house lawyers can get stuck in their career progression.

You’re Expected to Know the Answers. In-house, your clients expect you to know the law cold. Occasionally it’s acceptable to request some research time, but most of the time it’s not. In some cases, your clients will think you’re an idiot if you don’t know the answer off the top of your head. In particular, in-house can be a difficult place for newly graduated JDs because usually there’s no training.

Lawyers who start in-house face the added problem that the business clients don’t prize legal accuracy as much as they prize good business counseling. If anything, clients hate legally accurate answers that conflict with their business objectives. As a result, lawyers who start in-house, over time, often become more skilled at business counseling than legal counseling; they don’t necessarily know all of the relevant legal doctrine, and the clients don’t value that extra legal expertise. But in-house counsel are socialized to give clients what they want, which is that they want “yes,” not “no.” As a result, in-house counsel are constantly under pressure to distort their legal analysis to support a business conclusion of “yes.”

Finally, because in-house counsel often are viewed as more skilled at business counseling than legal analysis, their clients sometimes value outside counsel’s advice more than in-house counsel’s. (This is true with outside consultants as well, who often are hired to say exactly what someone internally has already said).

In-House Counsel as a Cost Center. As mentioned above, often employers hire in-house counsel to reduce expenditures on outside counsel. This means employers try to maximize the return from each in-house counsel and reduce in-house counsel’s ability to pay for outside counsel. In-house counsel are obvious targets in any layoff, and they are often expendable after an acquisition.

In-House Counsel as Too Generalist and Too Specialist. In terms of future employment opportunities, in-house counsel can end up in a weird squeeze. On the one hand, in-house counsel often are generalists. They handle any legal matters that appear on their desk, especially in companies where the legal department is small. Further, in-house counsel often are expected to keep up with a wide-ranging set of practice areas, making them the master of none. At the same time, in-house counsel can become incredibly specialized; they focus on the legal issues posed by a single company in a single industry, and thus they may lack the practice diversity across industries and competitors that outside counsel can develop.

Thin Infrastructure. Often, in-house legal departments provide light resources for attorneys. For example, secretarial staff may be spread thin or non-existent. The company may not subscribe to helpful publications or databases.

Consequences of Internal Conflicts. Inevitably, your clients will want to skirt the law, even if the company is fundamentally trying to be ethical. There are too many laws, too many stupid laws, too many laws that impose unreasonable compliance costs, and too many grey areas. In-house counsel have few good choices in these circumstances, especially if the lawyer advised the client on one course of action and the client rejected the advice. If the lawyer feels like he/she needs to “withdraw” from the representation because of the client’s now-possibly-shady behavior or because of the implicit vote of no confidence due to the client ignoring the lawyer’s advice, the lawyer’s options are limited. The lawyer can simply walk away from the job, immediately cutting off the salary (and foregoing any equity upside) and burning bridges with the remaining co-workers; or the lawyer can slowly try to find alternative employment, a time-consuming and costly transition. A standard “best practice” for law firms is to not become too dependent on any single client because it will create pressures to do unethical things. In-house counsel, by the very nature of the position, violate that best practice.

For more thoughts, see The Conglomerate.

Jaszczyszyn v. Advantage Health Physician Network, 2012 WL 5416616 (6th Cir. Nov. 7, 2012)

Another entry in the ever-popular series of litigants foiled by social media evidence. Sara Jaszczyszyn (an even more impressive name than Balasubramani...is this her?) took FMLA leave from work due to back pain. This FMLA leave was intermittent, allowing her to be out only on days when she had a flare-up, but the court says "Jaszczyszyn appears to have treated the leave as continuous, open-ended, and effective immediately." For a while, company employees tried to accommodate her ongoing absences, but apparently the mood soured after "Jaszczyszyn attended Pulaski Days, a local Polish heritage festival. Over a period of at least eight hours, she visited three Polish Halls with a group of her friends. One friend shared approximately 127 pictures from that day with Jaszczyszyn, who posted, on her Facebook page, 9 pictures featuring herself." During that same weekend, Jaszczyszyn left another voicemail with her supervisor indicating she was in pain and couldn't come to work on Monday.

Her managers summoned Jaszczyszyn into the office and confronted her with the photos. The court recounts what happened next:

Jaszczyszyn did not agree with their characterization of the pictures, but she did not voice that disagreement at the meeting. She defended attending the festival by arguing that no one had told her it was prohibited. When asked to explain the discrepancy between her claim of complete incapacitation and her activity in the photos, she did not have a response and was often silent, occasionally saying that she was in pain at the festival and just was not showing it.

Apparently not good enough. The employer terminated Jaszczyszyn. Jaszczyszyn responded with a lawsuit claiming FMLA violations. The Sixth Circuit (how in the world did this case get to the Sixth Circuit???) affirmed the legitimacy of the firing.

The subsequent news is mixed for Jaszczyszyn. In a seemingly gratuitous footnote, the court recaps the good--and miraculous?--news that "Jaszczyszyn appears to have made a full recovery very shortly after she was terminated," but also the bad news that she was subsequently fired from her next job for excessive absenteeism. Oh, those millennials!

Other posts in the series:

* Plaintiff's Claims to Be "Bedridden" and "Vegetative" Rebutted by Facebook Evidence--Cajamarca v. Regal Entertainment
* Facebook Jokes About "Naked Twister" Could Undermine Sex Discrimination Claim--Targonski v. Oak Ridge
* Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party--In re DLW
* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Cajamarca v. Regal Entertainment Group, 2012 WL 3782437 (E.D.N.Y. August 31, 2012)

Yet another entry in the running series of litigants getting ensnared by contrary evidence on social media. The underlying case involved a "break room incident." The plaintiff alleged that another employee masturbated in front of her in the breakroom; the other employee claimed "all that happened in the break room was that he gave plaintiff a friendly kiss" (note to employees: "friendly kisses" in the breakroom are almost always potential litigation bait). After the defendants got summary judgment, they turned around and sought sanctions for the plaintiff's evidence in the case. Among other things that emerged:

Plaintiff lied at her deposition, and to her own expert psychiatrist, in describing the emotional effects of the break room incident and omitting her own sexual history. In fact, she enjoyed an extraordinarily active travel and social life during the time she described herself as being “bedridden” and in a “vegetative state” as a result of the incident, including engaging in sexual banter with friends on Facebook.

Note to plaintiffs: Facebook will destroy any false claims of being bedridden and vegetative, except perhaps for a claim that using Facebook generally makes its users a bit vegetative.

The plaintiff's lawyer in this case also gets a bad benchslap:

plaintiff's lawyer should be roundly embarrassed. At the very least, he did an extraordinarily poor job of client intake in not learning highly material information about his client, and setting up an expert psychiatric interview where the psychiatrist, charged with diagnosing a claim of PTSD solely as a result of an alleged five minute instance of exhibitionism, had no idea that plaintiff was a former prostitute.

Prior blog posts in this series:

* Facebook Jokes About "Naked Twister" Could Undermine Sex Discrimination Claim--Targonski v. Oak Ridge
* Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
* Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party--In re DLW
* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

This post discusses how law students might pursue a career in advertising law. Immediately after law school, the two most likely advertising law job options are:

1) a position at a private law firm that has an advertising law department. The Bay Area doesn’t have many such firms/departments. Most advertising law departments are located in New York, Washington DC or Chicago. Elsewhere, most law firms don't have an advertising law specialist, but their trademark attorneys handle advertising review and counseling as an ordinary but small part of their practice. As a result, new attorneys seeking to build an advertising law practice may find it easier to start as a trademark attorney. Unfortunately, even new entry-level trademark positions are relatively rare in the Bay Area, and these positions usually don’t handle the full range of advertising law issues such as consumer class action litigation.

Alternatively, a new advertising law attorney can start as a litigator. If a firm doesn’t have an advertising law department, investigate its commercial litigation practice; firms may have an active class action defense practice that will present substantial advertising law crossovers. Sometimes, this work is housed in the firm’s antitrust/competition practice.

2) a government job with a regulatory agency that includes advertising oversight, such as the Federal Trade Commission (which has an honors program but otherwise may not regularly hire entry-level attorneys), the Federal Communications Commission (which covers lots of interesting broadcaster advertising issues), Department of Justice (its civil fraud division handles consumer fraud), other federal government agencies with an advertising law portfolio (e.g., the FDA), or state consumer protection agencies. Some DA's/prosecutor offices have dedicated divisions to consumer issues. Some state AG offices, such as New York and Florida, have particularly active advertising law dockets; and California's AG has a Privacy Enforcement and Protection Unit. A few city/county prosecutors’ offices have dedicated lawyers to consumer/advertising issues.

Many larger companies, especially those in the consumer products arena, have dedicated in-house counsel positions focused on advertising law. Like all in-house counsel positions, it can be difficult to get those positions as a new lawyer. Instead, those positions are typically filled by attorneys who take one of the two initial routes described above.

Another entry-level route is to seek out a position in a plaintiff-side litigation firm, such as those that specialize in class actions or other consumer-related litigation. It's rare for those firms to focus solely on advertising law issues, but it is common for those firms to regularly litigate, and become well-versed in, many of the advertising law statutes. These firms rarely do on-campus interviewing, so finding job opportunities with them requires independent legwork.

Finally, many public interest organizations address advertising law issues in one fashion or another.

Some resources you might use to help launch your career:

* the ABA Antitrust Section has several committees of interest, including the Private Advertising Litigation Committee. They have an email list and regular teleconferences.

* Consumer Attorneys of California is one of the major plaintiff-side bar associations in California. There are local analogues, such as the San Francisco Trial Lawyers Association, the Capitol City Trial Lawyers, Consumer Attorneys Association of Los Angeles, and Consumer Attorneys of San Diego. Nationally, the American Association for Justice is the leading plaintiff-side bar association, and it has various topical groups related to consumer and advertising law.

While in school, some of the courses worth taking include:

* advertising law (naturally!). If your school doesn’t offer it but you think a professor might be interested in teaching the course, I’d welcome the opportunity to talk with the prospective instructor. Consumer law may be a useful substitute for or complement to advertising law
* complex litigation courses, such as class actions or pre-trial practice
* research methods/statistics
* intellectual property courses, especially trademarks and publicity rights
* administrative law
* antitrust
* privacy
* Internet law

A few blogs you should consider reading:

* My blog, the Technology & Marketing Law Blog
* Rebecca Tushnet's blog, 43(B)log
* Kimberly A. Kralowec's blog, The UCL Practitioner

Johnson v. Ingalls, 2012 WL 1537480 (N.Y. App. Div. May 3, 2012)

The latest entry in my popular series of blog posts about plaintiffs burned by inconsistent evidence in their social media accounts. Today's case addresses the admission of about 20 Facebook photos in a vehicular personal injury lawsuit that resulted in a defense verdict from the jury. The court says the photos are admissible:

Plaintiff claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, that her anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication. The [Facebook] photos admitted were taken over a 1 1/2-year period beginning shortly after the accident. They depicted plaintiff attending parties, socializing and vacationing with friends, dancing, drinking beer in an inverted position referred to in testimony as a “keg stand,” and otherwise appearing to be active, socially engaged and happy. They further revealed that plaintiff consumed alcohol during this period, contrary to medical advice and her reports to her physicians.

Prior blog posts in this series:

* Protip: Kegstands and Vertigo Are Inconsistent With Each Other--Johnson v. Ingalls
* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Johnson v. Arlotta, 2011 WL 6141651 (Minn. App. Ct. Dec. 12, 2011)

Johnson and Arlotta dated. After the breakup, Johnson got a "harassment restraining order" (HRO) against Arlotta that:

prohibited him from (1) committing any acts "intended to adversely affect [Johnson's] safety, security, or privacy," (2) having "any contact" with Johnson "in person, by work or home e-mail, by telephone, or by other means or persons," and (3) visiting Johnson's Morgan Stanley "worksite."

Almost immediately thereafter, Arlotta created a blog titled "Help Ann Johnson," written in the third person. The blog "documented Arlotta's ongoing relationship issues with Johnson [and] discussed personal information about Johnson, including her involvement in sexually and physically abusive relationships, and questioned the state of her
mental health." Under pseudonyms, Arlotta then promoted the blog to Johnson's family, friends, contacts and employer as well as some unaffiliated parties, like the local media. Needless to say, many of these folks contacted Johnson regarding Arlotta's communications. The lower court found that Arlotta violated the HRO and ordered a new HRO that extended for 51 years (the appeals court adjusted this down to 50 years, the statutory maximum). The lower court also ordered the blog deleted (which has happened).

The appellate court agreed that Arlotta violated the prior HRO. Arlotta argued that his communications weren't directed to Johnson, but the court rejected that argument: "Arlotta intended his communications to reach Johnson and that they did, causing her humiliation and embarrassment." Johnson also argued that his information was truthful and lawfully obtained, but the court says harassment can occur even if those attributes are true.

The court rejected a constitutional challenge to the HRO, basically treating harassing speech as a class of content categorically excluded from First Amendment protection. I'm not sure about this approach. It seems like this was more appropriately treated as a situation where speech is also conduct, and the HRO regulated his conduct. I believe treating harassing speech as outside the First Amendment invites more mischief than playing with the speech/conduct divide.

The court also concluded that the HRO wasn't impermissibly vague. Arlotta argued that the HRO never expressly said he couldn't contact people in Johnson's network. The court says that's not a problem because the HRO

prohibits communications that are "intentionally calculated" to harass Johnson or have the effect of harassment, directly or indirectly, as exemplified by Arlotta's "Help Ann Johnson" blog and his contact with people close to Johnson.

Finally, Arlotta argued that Johnson could send takedown notices or sue for defamation or public disclosure of private facts, and these alternative ways of proceeding mooted the need for an HRO. The court rejected that based on the statute.

From my perspective, each of Arlotta's arguments had a point, in a tendentious sort of way. Yet, the arguments fell completely flat in light of the fact that Arlotta was, at best, trying to get around an existing HRO. We all know what Arlotta was trying to do, and his arguments felt very disingenuous.

This ruling leaves open a key question. Even under the prior HRO, could Arlotta have blogged about his dealings with Johnson if he did not try to bring it to the attention of others? After all, if his statements are true and not based on restricted information, Arlotta should be able to tell his story. Then again, a blog will show up in the search results, so a blog could be a passive-aggressive way of getting back to Johnson, and just as (if not more) effective as affirmatively reaching out to call attention to the blog. So try a different hypothetical: could Arlotta write and publish a book telling his story? I think the answer should be yes, so long as he lacked malicious intent (recall the initial HRO restricted him from intending to hurt Johnson's privacy).

This makes the court's remedy of ordering the blog deleted somewhat uncomfortable. Arlotta is allowed to speak his mind, and the court may have been able to excise the "harassing" component of the blog without wiping the entire blog off the Internet. Given the constitutional dimensions of this case, it's troubling that the court didn't evaluate that option more carefully.

Kash Hill's post on this case.

On the ever-popular subject of social media posts that belie the statements litigants make in court, consider Boudwin v. General Ins. Co. of America, 2011 WL 4433578 (La. App. Ct. Sept. 14, 2011). The litigation is the result of a serious car accident, and two of the injured victims (Jessi and Lee) believed the insurance company shorted them. In a jury trial, the jury didn't award anything to the litigants for loss of enjoyment of life or physical disability. The court recounts the situation:

At trial, both Jessi and Lee were specifically asked about how their lives had changed following the accident, and both of them gave very similar responses. Jessi, who at the time of the accident had just graduated from high school, testified that before the accident, she studied all the time. Following the accident, she stated she still studied, but it was painful. She said the only thing she could not do following the accident was sit ups and study for long periods of time. At the time of trial, Jessi was a senior at Nicholls State University maintaining a 4.0 grade point average.

Jessi was also questioned regarding some of her routine physical activities, especially in regard to entries she made on her Facebook page. She acknowledged that she runs, or rather jogs, regularly to stay in shape, and even attempted to do an exercise program called P9OX with a friend, which she described as being “really tough.”...

Lee likewise testified that his lifestyle before and after the accident were pretty much the same. He still participated in all the same activities and maintained his military commitment, including successfully completing physical aptitude tests required by the Army twice a year. Still, Lee testified that before the accident, he always stayed active and played a lot of sports, and following the accident, while he continued to stay active, it was “not as much, because I find that after activity that it's a lot more pain than usual.”

On cross examination, however, Lee acknowledged several entries from his Facebook page where he reported frequently “working out” and also playing sports such as basketball, tennis, “ultimate Frisbee,” and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial, which happened to be two days before his final visit with. Dr. Cenac. When asked if he had informed Dr. Cenac of any of injuries he had sustained while playing sports, he stated that he told Dr. Cenac that he stayed “active,” but that he was “not inclined” to tell Dr. Cenac that he was playing on softball teams.

Considering the testimony and medical evidence presented, we cannot say that the jury was manifestly erroneous in refusing to award any damages for physical disability or loss of enjoyment of life. The record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31, 2008 accident.

More examples in this line of cases:

* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Gillum (Davies) v. Gillum, 2011 WL 2084148 (Ohio App. Ct. May 27, 2011)

The parents are divorced, and mom has custody of the kids. The dad is now trying to obtain custody. There is some mildly amusing discussion about which parent is the bigger pothead, but the focus of this post is the family's use of MySpace. The dad makes two allegations: (1) the kids are posting inappropriate things, thus evidencing mom's lack of adequate supervision, and (2) mom is saying not-nice things about dad on her MySpace page, which the kids are likely to see, and in private MySpace messages. With respect to #1, the court summarizes:

The images to which Gillum objected included pictures of the thirteen-year-old daughter kissing one of her girlfriends on the cheek and pictures of the fifteen-year-old wearing a bikini and cowboy hat at the beach. The pictures of the younger daughter and her friend included the daughter's captions such as "sexii" and "kisses;" the pictures of the older daughter included her captions such as "one sexii cowgirl" and "im the hottest cowgirl you've ever seen." Gillum contends that Davies' failure to object to the girls' posting of such pictures or her ignorance of this fact shows that she was not adequately supervising the children's Internet usage and that she was "in denial that child predators exist."

The dad's argument failed to sway the trial court, and the appellate court didn't see any reason to overrule the trial court:

Although the wisdom of allowing Internet posts of a bikini-clad girl or of young girls kissing is certainly problematic, Gillum's characterization of the photographs as "sexually exploitive" is also debatable. The magistrate and trial court, as is unfortunately often the situation, had to weigh this and other conflicting evidence. Viewing the evidence as a whole, the trial court did not abuse its discretion in finding (implicitly) that the danger posed by such postings and Davies' knowledge of or failure to prevent such postings did not demonstrate that a change of custody was in the children's best interest.

My eldest is only 8 years old and has shown zero interest in social networking sites so far. I'm sure that will change soon enough. For now, I haven't had the personal experience of trying to manage my teenagers' use of social networking sites. However, I don't look forward to those days, because everyone who has had first-hand experience has told me it's effectively impossible. (As a separate matter, I had thought 13 year olds weren't allowed on MySpace, although we know social networking sites' efforts to screen out young teens have failed miserably).

Therefore, it would be odd, indeed, if a parent's inability to control a child's social networking site activity became a grounds for switching custody, because it's probable that neither parent can do better than the other at controlling kids' online behavior. While I can't say I would be excited if my kids did the things described in this court opinion, on the scale of good-to-bad teen usage of social networking sites, these kids look like they are doing OK, all things considered.

Meanwhile, if anyone has developed the elixir for causing teens to make adult choices when given the very adult publishing power of social networking sites, I'll pay a lot for a bottle. Or two.

State v. Komisarjevsky, 2011 WL 1032111 (Conn. Super. Ct. Feb. 22, 2011)

In a sexual assault and homicide case, the defendant asked the judge to ban the media from posting tweets from the courtroom. Connecticut court rules explicitly prohibit "broadcasting" of the trial. The defendant argued that tweeting the trial was "broadcasting"--an argument that has come up occasionally before. No media representatives fought this motion, but the court noted that they live-tweeted the hearing on the motion.

The court engages a typical statutory analysis of the word "broadcasting." It rejects Webster's Dictionary as a reliable source because it was written in 1971, and other statutory definitions of the term are similarly antiquated. Therefore, the court turns to first principles. It says the rule was designed "to spare a sexual assault victim from the indignity of having his or her ordeal vividly conveyed to the world by the use of actual voices and photographic or televised images projected from the courtroom." Because the rule protects visual images, it does not restrict textual accounts of the proceedings.

As a result, the rule doesn't ban live-tweeting from the courtroom. The court declined to block Twitter on an ad hoc basis either, although it reserved the right to bar disruptive behavior.

This is a sensible result. Indeed, it's so obvious to me that tweeting isn't "broadcasting" that I could have imagined an even more concise opinion reaching the same result. Still, however the judge got there, at least he got there. Kudos Judge Jon C. Blue.

My previous post on this topic: Courtroom Coverage in the Internet Era--a Conference Recap, which discusses US v. Shelnutt, mistakenly reaching the opposite result.

More on the ruling from CYB3RCRIM3, which points to a news story describing the underlying alleged crimes. See also this article on the co-defendant's fight against Twitter.

HAC, Inc. v. Box, 2010 OK 89 (Okla. Dec. 14, 2010)

I've repeatedly blogged on social networking sites providing evidence that undercuts a litigant's position (my last post on the topic). Today's example involves a minor working in a grocery store. A co-worker throws a roll of toilet paper at the minor. The minor responds to the provocation by going to the co-worker and yelling at him. They scuffle, tangle their feet, and fall down. The fall permanently injures the minor's arms.

The minor seeks workers' comp. The store responds that he was engaged in "horseplay" and therefore isn't entitled to compensation. The Oklahoma Supreme Court provides a detailed definition of compensable vs. non-compensable "horseplay" for workers' comp purposes, and voluntary horseplay isn't compensable. The court then further concludes that the minor had, in fact, engaged in voluntary horseplay. In support of this conclusion, the court cites (among other things) this part of the minor's deposition:

"At page 26, Box testified:

Q. And isn't it true that on your MySpace page and on their MySpace page, however that works, you told some of your friends that this accident happened when you were roughhousing and wrestling. Correct?

A. Yes."

Workers' comp claim denied.

I do love the technological savvy of the grocery store's lawyer in discussing MySpace: "however that works." Sounds like counsel was well-prepped for the deposition. Then again, I confess that I don't really understand MySpace either...!

I got the following email from an ex-employee of Phone to Phone Inc. (as usual, republished with permission):
____

I came across your website detailing your frustrations with phonetophone while checking around wondering how my old employer was doing. I saw you had an e-mail from one of the callers (i.e. telemarketers) and saw your speculations on how they make their money. Well, I wanted to let you know that you're dead on. I was hired as a writer for them and was generally expected to produce 13-15 articles per day. I did get to choose some of the content I produced, but mostly we were just coming up with articles for their medical and law related sites. My most uncomfortable moment came when Boris (the CEO) told me I needed to be writing content that doctors and lawyers would turn to for information. At the time I'd been out of college for approximately four months and had absolutely no experience in either field; therefore, I felt that it was not only an impossible task, but a dangerous one. If a doctor seriously looked to one of my articles for information, I would be extremely mistrusting of his or her knowledge. Anyway, the point was to build up content and eventually sell the websites to legitimate companies once they garnered significant hits.

I ended up quitting about a week after Boris decided to do a major overhaul to "weed out" the least productive members of his office. His first idea was to forbid us from leaving our seats except to use the bathroom. I was no longer allowed to walk over to other employees (including my direct boss) to ask questions, give them papers, etc. Instead, all questions were to be asked via e-mail. That led to the next rule where we were no longer allowed to speak to other employees unless it was absolutely necessary. Certainly I can see the value in using work time for, well, work, but outright forbidding human interaction seemed a little extreme. The final straw came when, arriving seven minutes late one day (because of an accident on the highway), I was sent home and told to come on time the next day. Suffice to say, I did not come back; the complete lack of respect seemed appalling.

In terms of other general marks against the company, I had a few complaints (of course). For one, lunch breaks were pretty much forbidden; I never saw anyone get in trouble for taking one, but neither did I ever see anyone actually leave their desk for an hour or stop working while they ate. In addition, we were expected to work weekend and late night hours as the only real way to impress Boris (weekends were unpaid) and move up the ranks. Everyone who was higher up than me worked, I would estimate, a minimum of 60 hours a week. In addition, all of the employees were required to make a gmail account to conduct work from - something which, for an internet company, seemed a little shady. I would have expected them to host a server instead.

Also, in response to your previous tipster's communications, I thought I'd give him some happy news: while I worked for them, Dominic did indeed get fired, with no fanfare, notice, or reason. Supposedly, he was "too intense" with his efforts to make his writers and callers produce. At that point he was working probably 80 hours a week, easy, rarely sleeping, and spending no time with his family, all of which contributed to him seeming to be at the end of his rope. I only had one complaint with him myself, which was that my interview for the job consisted of me showing up and being put in a cubicle to wait for a good half an hour (until the end of the day). When he finally came over, on his way out the door, he clearly had no idea who I was or who'd scheduled me, but he did ask me two questions: "can you write?" and "how well?" When I said yes, very well, he told me to show up the next day in time for work. That was, however, more interview than most of the writers got. Most of them simply showed up and were given article assignments. If they met their article counts, they were allowed to come back; if not, they were told to finish at home if they wanted to come back for day two of their three day unpaid trial period.

I know this much because, after two weeks, I was expected to both recruit and train new writers, in addition to my contributed article count. Even more disturbing, while doing so, I was told explicitly not to schedule interviews with any "old people" (most likely because they would see through the scheme) or anyone who asked too many questions. When I did schedule an interview with an older, more experienced man (40s-50s, I believe), I was told to tell him the position was filled (in fact, we hired constantly, even when there were no physical places to put people; turnover was so high, that we could not get enough people). This made me extremely uncomfortable as I'm fairly sure that's blatant age discrimination, and is quite illegal.

All in all, I can only say that I wish more people knew to avoid this company. They treat their employees terribly, keeping them motivated only with typical scam promises, and the work is not only meaningless, but potentially dangerous in its repercussions. In terms of all business dealings, I can say only this: stay away! Thank you for hosting this information; hopefully other people will avoid them, though they do abstain from giving out the name of the company in job postings or while scheduling interviews (sketchy much?).
____

A few things from this report stand out. First, the office environment does not sound like the kind I would enjoy. I tend to work pretty hard at the office, but it's also important to me to like and respect my co-workers and engage with them socially both at work and elsewhere. I can't really imagine being in an office where I didn't have casual spontaneous social interactions with my co-workers. That just doesn't sound fun to me.

Second, a company could maintain such an unappealing office environment only when so many smart people are anxious for *any* paying job.

Third, as with the prior email I posted, this email raises questions about some HR practices that may be interesting to employment lawyers.
____

My previous coverage of Phone to Phone Inc. and related entities:

* Another Unhappy Phone to Phone Inc. Ex-Employee Speaks Out (Sept. 7, 2010)
* A Report About a "Sketchy" Interview With Phone to Phone Inc. (May 19, 2010)
* Public Librarian Complains About Phone to Phone Inc. (Jan. 17, 2010)
* Phone to Phone Inc. is Spamming Again--This Time for Lawschool.org (Jan. 14, 2010)
* Another Phone to Phone Inc. Employee Speaks Out (Dec. 15, 2009)
* Questionable Employment and SEO Practices at Phone to Phone Inc.? (Dec. 10, 2009)
* Attorney.org is Latest Phone to Phone Inc. Website to Spam Me (Oct. 28, 2009)
* More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com (Oct. 23, 2009)
* Newlawyer.com Spams Me Again (Twice in One Day!) (Oct. 19, 2009)
* Newlawyer.com: Persistent Telemarketer, and Now a Spammer (Oct. 2, 2009)

I also wrote a review of Newlawyer.com at SiteJabber.

I got the following email (reposted with permission, of course):
_____

I responded to an ad from this company for employment on [day 1], 2010. Their ad requested paralegals for a legal writing position for a large legal online network (I have the ad). I was contacted on [day 3], 2010 and offered a position from the legal writing team from an email address that started with medicalnetwork.com. I was skeptical about the position from the beginning, especially when I asked for a firm name and number, but was provided only with an address. I was eventually provided with a number and I agreed to come down for an interview and when the human resources manager, answered the phone she stated, hello how can I help you, with no company name...

When I interviewed on [day 4], 2010 I was told I would need to write 3-5 articles about legal topics and was given the topic business attorneys to write about. She told me that their "editor" would review my article and get back to me. On [day 11], 2010 she offered me a position, starting on [day 18], 2010.

When I arrived that morning, myself and another Paralegal were advised that we would need to write 12 (not 3-5) legal articles per day. The first day we were given an allowance but after that we were expected to write 12. Obviously being new to these types of constraints as real Paralegals (not like the drones they have pumping out false legal information every day) the other Paralegal quit within a few days, and I was ready to walk out the door as well. I decided to stick it out, figuring that they would fire me soon anyway, because as a Paralegal and with the uprising that seemed to be going on between any employee that had over 3 months employment (that's when they agreed to provide benefits...but if you have a legal background you're aware that it's not in the contract) I knew they wouldn't be dumb enough to leave anyone who knew about the law around too long.

On [day 26], 2010 I was advised by the "head editor" or the loser who assigned the articles I would be writing "medical articles" with the rest of the office. They required me to write about irrelevant topics like celebrity butt injections, and specific products which I refused to do, as I felt that if the company was sued for libel and slander for either a positive or negative review of someone's product, they would use my name. That same day, I went to the owner and advised that I wouldn't be able to meet a 12 article quota writing such nonsense and that was not the reason I was hired for. The owner agreed and told me that they just needed help with the medical articles and that I would be returned to legal writing in a few days.

That was the only true statement made to me by this company, as I was returned to legal articles on Friday, [day 29], 2010. That day I wrote 12 articles, thought everything was back on track, and even went home and wrote five articles to prepare for Monday, [day 32], 2010.

When I got to work Monday morning, I met with the office manager who was already at her desk, I said good morning, and was met with no response. I figured that the negative attitude came from my refusal to sign a sheet the company had put out Friday where they requested that every employee punch in and out for lunch and bathroom breaks, which I know that the bathroom break part is completely illegal. The office manager also could have been pissed that I asked for a copy of my contract in addition to a pay stub which I also know is my right to receive. I filled out a time sheet, punched in and went to my desk. The computer I sat at (there are no assigned desks) was downloading some spyware and I wanted to ask the office manager if I should just let those run or close them out, but she was gone. When I went back to the desk and prepared to work, I saw an email from the office manager advising me that the company had decided to part ways with me because my writing was not up to the company’s standards and the company was not satisfied with my writing. (Despite having never told me what to write or how to write, but only telling me to make sure to use the keywords they provide you).
_____

What is the modern etiquette about firing someone by email?

I have also gotten a copy of a Phone to Phone Inc. employment agreement. Some terms that caught my eye:

* $15/hr
* vacation of 1 week per year, starting after 6 months [which, based on the emails I'm getting, sounds like an anniversary rarely reached by most hires]
* termination at will with zero notice by the company
* An employee is required to give 14 days notice of termination or "the employee will not be compensated for time worked prior to departure." [Is that legal?]
* "If employee leaves less than one week after initial start date compensation will not be given for time worked." [is that legal?]
* "The first 3 days of employment are on a trial basis, if terminated with in those 3 days, employee will not be compensated." [is that legal?]
* The employment agreement contains a non-compete/non-solicit clause: "For a period of five (5) years after the end of employment, the Employee shall not control, consult to or be employed by any business similar to that conducted by the company, either by soliciting any of its accounts or by operating within Employer's general trading area." [I'm not an expert in NJ non-compete law, but that seems like a very aggressive clause for a hourly wage-earner. As a practical matter, I can't believe a court would enforce a 5 year non-compete for a writer who worked there only a few weeks or months]
* Separately, the company asks employees to sign a standalone "Employee Non-Compete Agreement." This says the employee "agrees not to directly or indirectly compete with the business of the Company...for a period of five (5) years following termination of employment and notwithstanding the cause or reason of termination." This agreement defines "not compete" as "not own, manage, operate, consult or be employed in a business substantially similar to, or competitive with, the present business of the Company or such other business activity in which the Company may substantially engage during the term of employment." [It's odd to have two different non-compete provisions with different wording. Unlike the Employment Agreement provision, the standalone agreement does not have any restriction on geography, however amorphous that is in the Internet context.]

I can't imagine Person to Person Inc. would actually sue to enforce the non-compete provisions against its writers. I certainly would not want to be the lawyer bringing such a dicey case.

My previous coverage of Phone to Phone Inc. and related entities:

* A Report About a "Sketchy" Interview With Phone to Phone Inc. (May 19, 2010)
* Public Librarian Complains About Phone to Phone Inc. (Jan. 17, 2010)
* Phone to Phone Inc. is Spamming Again--This Time for Lawschool.org (Jan. 14, 2010)
* Another Phone to Phone Inc. Employee Speaks Out (Dec. 15, 2009)
* Questionable Employment and SEO Practices at Phone to Phone Inc.? (Dec. 10, 2009)
* Attorney.org is Latest Phone to Phone Inc. Website to Spam Me (Oct. 28, 2009)
* More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com (Oct. 23, 2009)
* Newlawyer.com Spams Me Again (Twice in One Day!) (Oct. 19, 2009)
* Newlawyer.com: Persistent Telemarketer, and Now a Spammer (Oct. 2, 2009)

I also wrote a review of Newlawyer.com at SiteJabber.

QVC, Inc. v. Your Vitamins, Inc., 2010 WL 2985801 (D. Del. July 27, 2010)

This case involves two competitive products. Lessman, the principal behind one of the products, posted 4 blog posts deconstructing his competitor's products. The competitor sued Lessman and others for false advertising and related claims. The court discusses introducing comments to the 4 blog posts as evidence:
_____

To the extent plaintiffs address implied falsity, they offer responsive posts to Lessman's blogs as evidence of actual confusion.FN14 (D.I. 34 at 5 (“no one has written to express relief that any cancer risk is abated by the small quantities of unabsorbabilityl”)) There are sixty-seven (67) comments to the 99% additives article FN15 and fifty (50) comments to the Revesterol article.FN16 Though many of these are negative to QVC (as compared to simply supportive of Lessman), only a few correlate a decision not to buy Nature's Code Hair with Lessman's particular statements as discussed above.

FN14. The parties have each submitted statements regarding the traffic on Lessman's blog. At oral argument, defendants confirmed that there is no way to determine the number of lawyer or staff visits to Lessman's site as compared to consumer visits. (D.I. 41 at 2) Notwithstanding, the number of “hits” on a given page are not indicative of actual confusion imparted by the substance of Lessman's messages. Insofar as the court does not reach the issue of harms to the respective parties, the court need not evaluate the evidence further. Plaintiffs' motion to strike defendants' submissions regarding website traffic is, therefore, denied as moot.

FN15. As of July 20, 2010. The 99% additives article was posted by Lessman in January 2010. All but two comments were posted in January 2010. One substantive comment (negative to Lessman) was posted in April 2010.

FN16. Certain individuals engaged in online conversations via the blogs and posted several comments; therefore, there were less than 67 and 50 total responders to each article, respectively.

Only three posts to the 99% article appear to address HA and/or cancer. One asks Lessman whether HA poses a risk in creams or lotions.FN17 Another generally reflects that QVC is “criminal” for posing risks to “people's health.” One reader stated that “I did read that HA was linked in some cases [to] cancers,” but stated that the “primary reason” for discontinuing the use of Nature's Code Hair was how it made her feel (edgy and anxious). Similarly, four reiterate the 99% number or the high percentage of additives contained in Nature's Code Hair. Only one appears to address silica, and it came in the context of a question to Lessman regarding the silica in Healthy Hair. None of the comments to the Resveratrol article relate a decision not to purchase Resveratrex® with the source of resveratrol or sugar content. FN18 The court finds that plaintiffs have not demonstrated a “likelihood of success” with respect to implied falsity on this limited record and, therefore, need not evaluate the remaining preliminary injunction factors. FN19

FN17. Lessman responded to this post that he can see no risk by HA in topical products. A later blogger thanked Lessman for this additional HA information.

FN18. Plaintiffs stated at oral argument that the blogs and videos at issue are linked-to on other media, such as Facebook®. It is unclear on this record the extent of such dissemination, and the court does not have before it any consumer comments from other websites.

FN19. The court need not definitively determine, therefore, whether blog posts should be deemed relevant and credible evidence (generally and, in this context, as evidence of consumer confusion)-an issue of first impression for this court. Blog posts such as those in this case may be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) at issue, although concerns regarding such posts' authenticity are not ill-founded. Courts have reached differing conclusions on the issue. Compare Blue Bell Creameries, LP. v. Denali Co., LLC, Civ. No. 99-594, 2008 WL 2965655 at *5 & n.4 (S.D.Tex. July 31, 2008) (declining to admit blog entries as evidence of actual consumer confusion in a trademark infringement case stating that they “lack[ed] sufficient indicia of reliability” and “[n]othing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions”); with Volkswagen AG v. Verdier Microbus and Camper, Inc., Civ. No. 09-231, 2009 WL 928130 at *4 (N.D.Cal. Apr. 3, 2009) (allowing internet postings and blogs “suggest[ing] that consumers believe the Verdier vehicle is a [Volkswagen] product” as evidence weighing in favor of actual consumer confusion). See also, gen., Victaulic Co. v. Tieman, 499 F.3d 227, 236 (3d Cir.2007) (web pages must be authenticated before they can be admitted pursuant to Federal Rule of Evidence 902).

Just to reiterate the language in FN 19, the court says "Blog posts such as those in this case may be more reliable than broad-based surveys, insofar as they represent direct feedback from consumers specifically interested in the product(s) at issue, although concerns regarding such posts' authenticity are not ill-founded." This does present a new source of evidence for litigants compared to the information available pre-Internet, when it was hard to find consumers publishing their thoughts about various brands.

More on this topic:

* Online Word of Mouth and its Implications for Trademark Law
* Blog Posts Not Reliable Evidence of Consumer Confusion--Blue Bell v. Denali

It has been a while since I've blogged about Phone to Phone Inc., the company that earned my enmity (and piqued my curiosity) after an annoying telemarketing assault last year. Initially, I was curious about their shady marketing practices, but I'm now more interested in their employment practices. With graduation season upon us, a new crop of eager and anxious graduating seniors are entering the job market--apparently the prime target of Phone to Phone Inc.'s Craigslist-heavy recruiting practices. I'm hearing from a number of these folks as they are doing their homework. The following email (republished with permission) is typical of the feedback I'm getting:
__________

[begin third party email]

I wanted to thank you so much for your blogs on Phone to Phone. Being a recent college graduate with a degree in literature and writing, I was excited to receive an e-mail from Phone to Phone (actually, they were posing to be from laws.com) asking me to come in for an interview. I obliged but I felt everything was sketchy to begin with.

First of all, the e-mail I received from their Human Resources department gave no indication of what company she was working for (it wasn’t until I actually got the cooperate building for my interview that I saw it was Phone to Phone not laws.com). Also in the e-mail she only gave me her first name which I thought was a bit odd because all other e-mails I received from other potential employers included the full name of the recruiter.

Looking past all of this, I proceeded to the interview and was shocked when I walked into the suite and was wandering around and no one even said anything to me or asked to help. Also, I noticed that all of the employees were young (college or recently out of college). Even the Human Resource woman could not have been that much older than me, and I am only 22. I also realized that everyone, once again the HR girl included, was in casual attire. I made sure my attire was presentable, however they were all wearing jeans, tank tops, and flip flops. It was all very odd to me.

The interview wasn’t really an interview at all—rather, HR told me briefly about what the company does (writes brief articles for different websites about law and medicine using key words), talked about the work shift, and how I would receive benefits after 3 months of employment. Our whole talk lasted maybe five minutes before she handed me a paper and sat me down at a computer and had me write two writing samples—one medical related and one law related. I was there for about one and a half hours working on my two articles. She told me that they really only used online sources and when I was writing my own samples to not worry about citations. Again, I thought that was weird because that’s the number one rule you are taught as a student—always cite where you got your information from. Anyway, I told HR that I e-mailed her my work, she made sure she got it, and dismissed me saying that she would contact me in a couple of days. She didn’t even get up and shake my hand.

Overall, I thought everything was a bit sketchy. While it seems like a great opportunity, I don’t think that employment here, if offered to me, would benefit me in any way or better my writing (which is what I’m looking for). When I got home and saw your blog I was glad I wasn’t alone in feeling that the situation was a bit off. I think that the company does a good job at remaining a mystery and makes it sound ideal for recent college graduates that are trying to find a job. I think everyone should be wary when attempting to get a job with this company.

[end third party email]
__________

This report identifies a few oddities. First, it's odd that the interviewee wasn't clear on the employer's identity until interview-time. Second, I've heard from others as well that the office environment is strangely quiet because everyone can overhear each other's conversations and because the content production requirements don't leave much room for chit-chat time. If so, that seems incongruous with the kind of office environment/culture I would expect recent college grads to want or enjoy. Third, it makes sense to request writing samples, but I wonder what Phone to Phone does with those writing samples. Do they publish them? If so, do they compensate the interviewee for them? Finally, the "no citation" policy is interesting. I have previously suspected that Phone to Phone is generating lots of low-cost but low-quality search engine bait, and this email is consistent with that.

My previous coverage of Phone to Phone Inc. and related entities:

* Public Librarian Complains About Phone to Phone Inc. (Jan. 17, 2010)
* Phone to Phone Inc. is Spamming Again--This Time for Lawschool.org (Jan. 14, 2010)
* Another Phone to Phone Inc. Employee Speaks Out (Dec. 15, 2009)
* Questionable Employment and SEO Practices at Phone to Phone Inc.? (Dec. 10, 2009)
* Attorney.org is Latest Phone to Phone Inc. Website to Spam Me (Oct. 28, 2009)
* More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com (Oct. 23, 2009)
* Newlawyer.com Spams Me Again (Twice in One Day!) (Oct. 19, 2009)
* Newlawyer.com: Persistent Telemarketer, and Now a Spammer (Oct. 2, 2009)

I also wrote a review of Newlawyer.com at SiteJabber.

Carrie Griffin Basas, 'V' is for Vegetarian: FDA-Mandated Vegetarian Food Labeling

I became a vegetarian over a quarter-century ago, when the vegetarian market was small/fringe-y. Back then, it was hard to get a supply of high-quality and trustworthy vegetarian food, either in the grocery stores or when I traveled.

Things have changed so much for the better in the intervening years. The vegetarian market has grown a lot, which has spurred competition and innovation, with the result being that vegetarians are now blessed with a panoply of high-quality vegetarian offerings. Despite this, I remain baffled that the market has not successfully self-organized a vegetarian certification. The vegetarian market is large enough to drive significant business from a successful certification, and there are so many products with obscure or hidden ingredients that vegetarians would like to know about.

Carrie Griffin Basas, a self-described "herbivore" and VAP at UNC, argues that this market failure should be cured by an FDA certification process. Normally, involving the FDA automatically goes into the bottom 10% of my desired outcomes (I don't know what options are in the top 90%, but I know FDA involvement never is). However, given the long-standing failure of the market to produce a reliable vegetarian certification, perhaps government involvement is necessary. She concludes:

Currently, vegetarians do not have the full information about ingredients that they need to make informed dietary choices. A federally mandated system of vegetarian food labeling hinges on having a consistent definition of “vegetarian” and addressing concerns about crosscontact that might arise in the manufacturing process. Consumers need to be involved in generating a compelling petition for these changes at the FDA. Unsuspectingly, vegetarians may be consuming food that contains animal ingredients because the current regulatory scheme falls short of full disclosure of ingredient sources. Manufacturers can play pivotal roles in ensuring that the FDA takes a consumer-driven petition seriously. Short of a successful petition, consumers should form coalitions with manufacturers to strengthen existing, voluntary certification systems. A cohesive, functioning model of labeling and certification can spur progress at the federal level, as well as in the food industry.

I have reached out to Prof. Basas about pursuing an FDA petition. If you would be interested in the effort, please let me know.

The abstract:

More than eight million adults in the United States are vegetarians and around forty percent of all people in the United States seek vegetarian food options while dining. Vegetarianism comes in a multitude of flavors, but a “pure vegetarian” or a vegan does not consume any products that come from animals, including milk, eggs, and gelatin. People practicing a vegetarian lifestyle may have turned to these dietary restrictions for ethical, religious, environmental, health, or other reasons. Currently, the FDA does not require the labeling of vegetarian foods as such. Because of the FDA’s permissive attitude toward food labeling generalities, such as “natural” or “artificial” flavoring and colorings, many vegetarians find it difficult to identify if their foods are indeed compatible with their lifestyles and ethical choices. Without this information, people interested in making food choices that respect the lives of animals may unintentionally cause harm to the creatures that they seek to protect. While voluntary, community-driven labeling programs exist, they reach only a small fraction of food products.

This article will explore the case for a standardized vegetarian packaged food labeling and certification system designed and implemented by the FDA. Part I presents the current problems with the FDA’s laissez faire approach to vegetarian food certification. Part II of the article addresses the law giving the FDA the authority and duty to ensure that vegetarian consumers are fully informed of food ingredients. Part III then presents three case studies - kosher certification, bioengineered foods, and food allergens - that could assist the FDA in designing a consumer-friendly, animal-conscious approach to vegetarian packaged foods. In Part IV, I outline a proposal to assist the FDA in addressing this critical monitoring and labeling issue.

Another reason to read the article: the footnotes provide a useful citation collection of academic research on vegetarianism.

Sedie v. U.S., 2010 WL 1644252 (N.D. Cal. April 21, 2010)

I've previously blogged about online postings exposing litigant duplicity, i.e., arguing one thing in court but saying something contrary online. (1, 2) This case is typical of the trend I'm seeing. The plaintiff was on the losing side of a 2006 bicycle-meets-postal truck collision. Seeking recompense in court, the judge found the plaintiff was not entirely credible due to juxtapositions like this (citations omitted):

"Plaintiff testified that he spends much of his time lying down, and there are times that he does not leave his room because he is depressed about his overall situation. However, the Court finds this testimony is only partially accurate, and is exaggerated given the other evidence of his actual activities and his pattern of exaggeration. For example, Plaintiff's online writings show that his life was not constantly “hell on earth” as he claimed. Plaintiff maintained his pages on MySpace and Facebook since the accident , and as of January 12, 2010, his MySpace page listed various activities and hobbies, and friends of Plaintiff. Plaintiff wrote entries on his MySpace page, including one on June 3, 2007, in which he described painting as a frustrating activity when his arm hairs would get caught in paint. Yet painting was on the list of activities that Plaintiff claims were adversely affected by the accident. Plaintiff also testified that he had not done any painting since the accident, but the MySpace entry was written in the present tense at a time just prior to his microdiscectomy. Plaintiff testified that the MySpace entry was a joke, but the Court did not find the testimony credible."

Funny joke. Why does it always seem to be MySpace in these duplicity cases...?

Embry v. State, 2010 WL 768755 (Ind. App. Ct. March 8, 2010)

I've blogged before about the use of postings to MySpace or other social networking sites as a new source of impeaching evidence. In this case, an ex-husband was accused of beating his ex-wife. He unsuccessfully argued self-defense. The court quotes the following testimony about the wife's attitudes towards her husband:
____

"On cross-examination, the defense questioned her about a number of derogatory statements she had posted about Embry on her MySpace blog prior to the incident in question:

BY [DEFENSE]: ... Prior to Au-April 22nd, 2008 had you ever expressed or communicated in any way that you wanted your ex to die a slow painful death?

A I believe you're referring to my “My Space” ...

Q I'm not-I-no, I'm not referring to anything. I'm just asking you a simple question: if you'd ever expressed or communicated in any way that you wanted your ex-husband, Mr. Embry, to die a slow painful death?

A I see it right there on your desk.

Q Okay.

A It's my “My Space” blog.

Q Okay, did you say it?

A I typed it.

Q Okay. But the answer is, did you say it? I mean is that your communication.

A I typed it.

Q Okay. And did you ever express um, or communicate in any way that you wanted to be present and dance the cha-cha around his slow painful death?

A It's all there in the blog.

Q Okay. The answer's a simple yes or no. You said it; you've communicated it some way, did you?

A If you want to put that blog there, I ...

Q I'm just asking you a simple question.

BY COURT: Ma‘am, will ya just answer the question yes or no?

A Yes, I did.

Q Did you ever refer to Mr. Embry or communicate in any way that he was a worthless bag of monkey shit?

A Yes.

Q Did you ever refer to him as dog piss?

A Yes.

Q Did you ever refer to him as a worm puke stale crusty moldy inhuman horrible human oxygen sucking moron?

A Yes.

Q Did you ever communicate the desire, that because he's older and more stupid than you, he will die way before you do?

A I believe I said please assure me that it was possible that he would pass before me."
___

The state's attorney redirects with this understated summary:

"BY [STATE]: Ms. Embry, is it fair-fair to say that you're not very fond of your former husband?

A No, I am not fond of him at all."

HAG LLC v. B&I Enterprises, 9:10-cv-80127-KAM (S.D. Fla. complaint filed Jan. 26, 2010)

Over the past 5 years, I have repeatedly blogged about over-the-top commercial burger offerings, including:

* Zeus Burger, a 12.5 pound burger
* Beer Barrel Belly Buster, a 15 pound burger
* Beer Barrel Main Event Charity Burger, a 123 pound burger
* Whale burgers
* Poodle burgers

(I've also blogged on other unusual meats, such as squirrel and horse).

The latest burger wars are similarly over-the-top gastronomically, but they are especially noteworthy because they have also spilled into a courtroom. Heart Attack Grill, an Arizona restaurant, has sued Heart Stoppers Sports Grill, a Florida restaurant, for allegedly ripping off its trade dress and concept. Both restaurants have a number of similar/identical product attributes that self-mock their unhealthy menus. Ha ha.

From a legal standpoint, the plaintiff's position is legally aggressive but not clearly wrong given the amorphous nature of trademark and trade dress law. The good news (to me) is that the law might be ambiguous enough to lock both litigants into a death struggle that knocks both of them out of the marketplace. That would be appropriate karma. Unfortunately, my guess is that the average American consumer will be delighted to learn of the latest disgustingly unhealthy burger options, so both restaurants will experience a spike in traffic due to the added publicity from the lawsuit. Perhaps this gives new meaning to the phrase "eat your heart out."

I continue to get emailed complaints about Phone to Phone Inc. A recent email (as usual, posted with permission):
_________

[begin third party email]

Many thanks for your exposure of Phone2Phone. I manage a public library website and we have gotten emails and phone calls from various websites which have the mailing address 1 International Blvd, Mahwah, New Jersey, including Chessboss.com, Science.org, and Hospital.com. Under 'about us', Hospital.com mentions 4 affiliate sites: Physician.com, Pathology.org, Medicalschool.org and Disease.com. None of these medical sites lists any writers' names or credentials, legitimate organizational affiliations, or authoritative advisory board (or advisory board of any kind). They just claim that they have a 'top-notch writing staff'. (All the articles I saw were written by 'admin'.)

The email from Hospital.com also claims they are in compliance with MedlinePlus/National Library of Medicine Quality Guidelines, though a quick check of the MedlinePlus guidelines refutes this claim. The guidelines state, for example: ".. The source of the content is established, respected and dependable. The organization publishes a list of advisory board members or consultants on the site."

Since they are putting out scientific, legal, and medical information without proper credentials, I wouldn't have put their links on our website in any case - but I fear they may fool others who are more credulous. Just look at how many doctors they've got signed up on Newdoctor.com! Scary.

[end third party email]
_________

My previous coverage of Phone to Phone Inc. and related entities:

* Phone to Phone Inc. is Spamming Again--This Time for Lawschool.org (Jan. 14, 2010)
* Another Phone to Phone Inc. Employee Speaks Out (Dec. 15, 2009)
* Questionable Employment and SEO Practices at Phone to Phone Inc.? (Dec. 10, 2009)
* Attorney.org is Latest Phone to Phone Inc. Website to Spam Me (Oct. 28, 2009)
* More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com (Oct. 23, 2009)
* Newlawyer.com Spams Me Again (Twice in One Day!) (Oct. 19, 2009)
* Newlawyer.com: Persistent Telemarketer, and Now a Spammer (Oct. 2, 2009)

I also wrote a review of Newlawyer.com at SiteJabber.

I have received numerous promises from Phone to Phone Inc. that they will stop spamming me, but either they have ignored those promises or they have an incredibly weak internal data tracking system. My latest spammed email from Phone to Phone Inc. (which, characteristically, I received twice, nine minutes apart):
____

from Michael Geller
to egoldman@gmail.com
date Thu, Jan 14, 2010 at 11:18 AM
subject Regarding a Partnership Opportunity

To whom it may concern,

My name is Mike Geller and I am an assistant editor with LawSchool.org. I came across your website and noticed that you have law school related resources on your page, so I wanted to reach out to you to discuss the potential of having LawSchool.org added.

LawSchool.org offers a number of features like a legal career center, up to date law school information and news, profiles of law schools around the country, and information regarding admission standards and financial aid. Several universities and colleges around the country like Syracuse Law School, University of Colorado, and NYU utilize LawSchool.org as a resource for their students. If you have any questions feel free to contact me and please let me know if you are able to make this addition. Thank you very much.

Mike
_____

Obviously Mike didn't actually look at my website (at least, not very closely). If he had, it would have been impossible to miss my repeated blog criticisms of his employer.

I have formulated a new hypothesis that Phone to Phone Inc. is a domainer, i.e., they have a sizable portfolio of domain names, which they are trying to build content for using cheap student labor. Let me offer some support for this theory.

First, they have a portfolio of generic domain names. I don't know how many, in part because the ones I've checked are registered via domain proxies to mask Phone to Phone Inc. as the owner. I believe all of the following domain names are associated with Phone to Phone Inc.:

Attorney.org
Chessboss.com (check out the associated Twitter account--wow!)
Disease.com
Docket.com
Hospital.com
Laws.com
LawSchool.org
Medicalschool.org
Newdoctor.com
NewLawyer.com
Pathology.org
Physician.com
Science.org

I'm pretty sure this list is incomplete. If you know of other domain names in their portfolio, please let me know.

Second, many of their sites are built on the same basic design template. Take a look at a few of the sites and you'll see what I mean.

Third, they use Craigslist aggressively to recruit new employees. See the Craigslist listings for Mahwah, New Jersey and notice how often Phone to Phone Inc. shows up:

* Jan 14 - Looking for Skilled Writers - (Mahwah, NJ) << writing/editing
* Jan 14 - Looking For Marketers - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - MARKETING POSITIONS AVAILABLE - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Writing Positions Available - (Mahwah, NJ) << writing/editing
* Jan 14 - Great Postions for Recent College Grads - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Marketing Positions Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Marketing JOb Opportunities - (Mahwah, NJ) << marketing/advertising/PR
* Jan 14 - Looking For Writers - (Mahwah, NJ) << writing/editing
* Jan 14 - Limited Number of Marketing Opportunities Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - MARKETING POSITIONS AVAILABLE - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - Limited Number of Marketing Opportunities Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - Marketing Joba Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 13 - Limited Number of Marketing Opportunities Available - ((Mahwah, NJ) ) << marketing/advertising/PR
* Jan 11 - Limited Number of Marketing Opportunities Available - (Mahwah, NJ) << marketing/advertising/PR
* Jan 5 - Entry Level Marketing - (Mahwah NJ) << marketing/advertising/PR
* Jan 5 - Writers Needed - (Mahwah NJ) << writing/editing
* Dec 28 - Entry Level Marketing - (Mahwah NJ) << admin/office

I count no less than 9 postings on January 14, 2010 alone! [Update: I count another 7 postings on Jan. 15]. Most of the postings are blind, but they seem to follow some common formats that give me reason to believe that all of these listings are related.

Why does the company need to run so many ads? Are people not responding to the ads? (An unlikely prospect given this down market). Does the company have a large or rapidly growing workforce? Does it have unusually high turnover?

You will notice that the listings clearly target student workers, mentioning that they are hiring graduating college seniors/recent graduates and promising volleyball courts and free Red Bull. I wonder if college students, desperate for a job in a down market, are particularly vulnerable to some of the tactics alleged by a previous tipster?

I am curious about their cost model of developing content. A previous tipster indicated that employees are expected to write about one 500 word article every 30 minutes. At a salary of $12/hr, fully loaded to approx. $15/hr including benefits, this would work out to about $7.50 per 500 word article. (I'm discounting the allegations that they don't pay some folks at all for the work they do, which if true would result in extremely cheap content). I'm pretty sure $7.50 for 500 words is relatively cheap for content acquisition, but you get what you pay for. My personal assessment of the content I've seen is that it's crap--it's low-quality search engine bait that indexes well but is useless to humans who actually read it. Google needs to do a better job coping with these attacks on the integrity of their algorithms. I suspect, in the end, Google will have to make manual downgrades of crummy sites that they discover are engaged in pumping out lots of low content quality. In any case, it appears that Phone to Phone Inc. is aggregating cheap but junky content that will not improve readers' impressions of their brand. No surprises there.

My previous coverage of Phone to Phone Inc. and related entities:

* Another Phone to Phone Inc. Employee Speaks Out (Dec. 15, 2009)
* Questionable Employment and SEO Practices at Phone to Phone Inc.? (Dec. 10, 2009)
* Attorney.org is Latest Phone to Phone Inc. Website to Spam Me (Oct. 28, 2009)
* More Spam from Phone to Phone Inc.--This Time on Behalf of Laws.com (Oct. 23, 2009)
* Newlawyer.com Spams Me Again (Twice in One Day!) (Oct. 19, 2009)
* Newlawyer.com: Persistent Telemarketer, and Now a Spammer (Oct. 2, 2009)

I also wrote a review of Newlawyer.com at SiteJabber.

By Eric Goldman

In November 2009, I spoke at an interesting and unusual event sponsored by the Ninth Circuit Public Information and Community Outreach Committee, a group I'd never heard of before. The group regularly sponsors a conference called the "Northern California Federal Courts Media Conference," which brings together journalists, judges and court administrators to talk about media coverage of the federal courts. This year's event was entitled "New Media in the Courtroom: How Blogs, Twitter and Social Media Are Changing Legal Reporting." You can watch some of the conference proceedings here.

Broadcasting Courtroom Proceedings

The OJ Simpson trial in the early 1990s reshaped media coverage in the courtroom. The trial was documented exhaustively by the cameras and left many with the perception that the judge and attorneys mugged for the in-courtroom cameras (although Kelli Sager's position is that the mugging did not decrease when the cameras were off). Shortly after the OJ trial, the federal courts (and many state courts) adopted ruled prohibiting recording and broadcasting of events within the courtroom. The federal rules even take the discretion out of district court judges' hands to waive the rule if they choose.

As an example of the anti-broadcasting rules, Federal Rules of Criminal Procedure 53 says:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

This rule is fairly easily applied to Big Media representatives who show up with bulky TV or still cameras and are repeat players known to court administrators. But what does it mean to "broadcast" courtroom proceedings in an era where cheap and ubiquitous technological devices have turned every courtroom audience member into a potential broadcaster? In some courtrooms, judges are excluding cellphones and potentially even laptops (Judge Illston says she allows computers unless the typing noise is too distracting). Even more extreme, in November, a district court judge barred a journalist from live-Twittering the proceedings via his Blackberry because the judge took the position (wrongly, IMO) that Twittering is a prohibited "broadcasting" of the event. See US v. Shelnutt, 2009 WL 3681827 (M.D .Ga. Nov. 2, 2009). The judge said:

the contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of "broadcasting" as used in Rule 53. Therefore, this type of broadcasting is prohibited under Rule 53.

The illogic of this rule is overwhelming. Is one Twitter post enough? Does it matter if the poster has no followers? What if the posts are impressions and not factual descriptions? More importantly, does it change the analysis if the reporter writes his posts contemporaneously and then uploads them at the breaks or the end of the day? It seems like it would in the Shelnutt case, but this is silly--it's the exact same content, just posted on a delay.

I don't want to speak for others, but my impression is that none of the conference attendees supported the current categorical ban against courtroom broadcasting. Obviously the journalists and First Amendment types don't like it; but neither did the judges, who would rather have discretion over administrating their courtrooms. Further, a comprehensive recording of trial proceedings could help appellate review as well as future researchers trying to understand a case's context.

There was some hope expressed at the conference that the no-broadcasting rule would be relaxed in the next year or two. In my opinion, the rule has long outlived any usefulness it had. However, Judge Illston sounded a cautionary note when she said that the court reporter lobby is "a force to be reckoned with." Perhaps economic protectionism will make the deregulation process harder than it should be.

We discussed the allocation of scarce resources among potential media sources, such as courtroom seats when audience demand exceeds room capacity. Where encountering scarcities, judges inevitably draw lines between "credible" journalists and other media representatives, even though they don't want to make those distinctions--and no one else wants them to make those distinctions either. For now, my impression is that judges treat Big Media better than bloggers when doling out scarce resources, although as Big Media fades away and citizen journalists continue to prove their credibility and become repeat players, I could see this changing. Obviously the better solution is to eliminate scarcity when possible so every media representative can get equal treatment. Live broadcasting of courtroom proceedings would be a huge step forward in alleviating any seat scarcity issues.

Juror Exposure to Case Information

We also discussed juror exposure to case information. The rule is simple--jurors are supposed to consider only evidence presented in court. In practice, this rule is out-of-sync with modern information flows and people's temptation to self-educate by doing their own research. Certainly that's how I usually proceed when I'm trying to learn something new. I do Google searches and often look through multiple search results, and when I can't do that, I feel bereft. So walling off judicial proceedings both from modern life and people's normal learning processes is fundamentally anachronistic. Evan Brown has more to say on this topic (and supports the anachronism).

Nevertheless, judges are trying to restrict the infoglut by giving jurors increasingly long lists of things they cannot do while in a trial. Not only does this include restrictions on seeking out case information, but it also includes enjoying technological devices that may passively expose the juror to case information. Taken to an extreme, this could include reading one's email, because someone might inadvertently email case information to the juror. As Judge Illston described it, the restriction lists are like trying to sequester jurors without sequestering them--in other words, cut off their information flows without physically restraining them, Jennifer Granick suggested that judges may need to designate more alternate jurors so that the inevitable juror slip-ups don't require a complete process restart.

The de facto info-sequestration raises some interesting questions about whether depriving jurors of their normal tools actually degrades jurors' decision-making. It reminds me a little of the mental confusion that can occur when law professors force law students to take law school exams using hand-written bluebooks when all of the students spent the entire semester learning the material and expressing themselves via computer. Carol Williams from the LA Times also pointed out that info-sequestration poses problems for potential jurors who need to use the Internet for professional and personal reasons. Ultimately, these folks may be removed from the jury pool, directly or because they try to wiggle out of the obligation, and either way this change in the jury pool could have other unwanted consequences.

This discussion suggested a sure-to-work way to get kicked off a jury or avoid being empaneled in the first place--simply search for case information using your mobile device while you're waiting, and off you go. Of course, if they judge instructs you not to do that, it would be inappropriate and potentially punishable to disregard the judge's instructions.

A related issue: In many cases, testifying witnesses are not supposed to monitor trial proceedings. However, with the advent of real-time reporting on cases, it's possible to do so remotely--and frequently judges do not have a chance to admonish witnesses until they appear in the courtroom, which might be too late. Judges can tell lawyers to instruct their witnesses not to monitor the trial proceedings, but lawyers might drop the ball or witnesses might not heed the warning (especially if the witness is adverse or would give more credit to a warning directly from the judge). Lawyers cross-examining a witness might increasingly ask the witness what research he/she has done to learn more about the trial proceedings.

Conclusion

The interplay between court administration and media/blogger coverage is an interesting, rich and multi-faceted topic. The conference covered a lot of ground but left many questions open. For more reading about the conference, see Joyce Cutler's BNA recap and John Steele's live-blogging of the first session.

Some recent topically related articles include Rachel Lee, "Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era" and the recently issued and very useful CMLP Guilde to Live-Blogging and Tweeting from Court.

Media Alerts Initiative

In a separate but related announcement, Judge McKeown previewed the new Media Alerts on Federal Courts of Appeals, where academics will select and summarize key federal appellate court rulings. The site describes its mission as:

This website is designed to provide reporters, lawyers, educators, and the public with prompt, accurate, unbiased information about newsworthy and legally significant cases pending in and decided by the Federal Courts of Appeals. Our goal is to assist the media’s efforts to provide timely and extensive reporting about federal court decisions.

I think this is a great objective, although I wonder how useful media folks will find the website, especially given that it is effectively competing with existing blog coverage. I also wonder how invested the academics and their students will be in this endeavor. For example, just looking at the Ninth Circuit roster, the featured "upcoming cases" have an argument date of Dec. 14. Hmm....

In response to my prior post of a Phone to Phone Inc. employee's email, I got the following email (reposted with permission):
_____________

[begin third party email]

Good evening Mr. Goldman,

I am a former "employee" of Phone To Phone Inc. I looked them up on Google and found your article on New Lawyer as it was one of the top links to pop up. Phone To Phone Inc itself as a company is a scam. They tell you you're on a training period of three (3) days, during which time you will be payed $12.00 per hour, and IF YOU PASS THE TRAINING, you will become a full time employee. However, during those three days, they had me making 150-200 phone calls, 100 E-mails, with expectations of getting a minimum of 3 "links" per day, without ANY actual training!

I didn't even know what a link was, but they felt confident enough to throw me on the phones and put the company name in the dumpster with my lack of knowledge, which I surely did, proudly.

On my second day of "training", another employee I became relativity close with told me the President of the company Borris, along with one of the managers Domenik, brought him in the back room and told him he wasn't working out, and they'd like him to quit. With no second thoughts, he told them he quit. Well, because he "quit", they claimed that there was a company policy (which was NOT made available to sign when given three vague papers to read on the first day of training) that claims if the trainee quits during the first TWO WEEKS of working at Phone To Phone, then the company DOES NOT have to pay the trainee/employee.

On my third day, I get called into the back office. I get asked to quit, because it wasn't working out. Fortunately, I was made aware of their scam by my friend the day before, so I declined to quit. I sat in the office arguing with Domenik for nearly an HOUR before he finally got the idea that I was not budging. I asked him for the papers stating the "not getting paid if quit within 2 weeks", which is when he came back and offered to pay me for one of the 3 days I worked. When I told him paying me for one of the three days I worked was NOT a favor, that I still wanted the papers, he said they'll write me a check without taking out any taxes, despite the fact they didn't even have me fill out any tax forms. (Supposedly, all that legitimate stuff comes after the training period.) At that point, I realized what a scam it was, until they gave me the HAND WRITTEN check of $96.00, that's when I realized it was a JOKE.

Phone To Phone is NOTHING more then a scam, and the sites they represent are far from adequate. You have my permission to use this E-mail on your website or any other resource you so choose, I just ask that you please change my name and do not publicize my E-mail address.

I hope this has given you a better insight as to what Phone To Phone is all about.

[end third party email]
_____________

I then got a follow-up email from the same person addressing my confusion about the myriad of folks who all listed the same job title in their spams:
_____________

[begin third party email]

[a quote of mine from a prior blog post] "Interestingly, Dominic's email indicated that he was the director of marketing. So either they have multiple directors of marketing, or Dominic got the sack (wishful thinking) or everyone who uses their template falsely claims to be the director of marketing."

You are very correct. On my first day of training, I ask Dominic what the name of my position was, and he told I am "free to choose" between Senior Marketing Executive, or Director of Marketing. When I asked him how it's possible I can be holding a "senior" or "director" word in my position name on my FIRST DAY OF TRAINING, he said to me "It just makes the person you're talking to feel like they're talking to someone high up in the ranks." But in reality Eric, other then Dominic and a few others, every other "director of marketing" or "senior marketing exec" are in fact not directors and seniors, but merely college students on a three day "volunteer" training period.

[end third party email]
_____________

All of this helps explain why we as bloggers kept getting hammered in a short period of time by repeated telemarketing and spam despite our opt-out requests. These emails also reinforce that we should be asking some very tough questions about the legitimacy of Phone to Phone Inc.'s practices.

In response to my blogging about Phone to Phone Inc. (1, 2, 3, 4), which operates newlawyer.com, laws.com, attorney.org, science.org and other websites, I recently received the following self-explanatory email from a Phone to Phone Inc. employee raising some issues about Phone to Phone Inc.'s employment and SEO practices. For obvious reasons, I've redacted information that would be likely to identify the author. I have not been able to verify the accuracy of this email, but it is consistent with a telephone conversation I had with someone else who was recruited for a Phone to Phone Inc. position.
__________

[begin third party email]

"They hired me as an article writer for their "websites". Which if you haven't seen... compare the following two of their big ones

www.attorney.org
www.science.org

And click a few links. They had me write 15 500 word articles based on keywords. I spent the day writing 500 word articles with the keyword [redacted]. Where there must be 30 total instances of the keywords in each article and they do zero fact checking.

In order to hopefully gain full employment I would have to show up at their office each day, write 15 of these a day. On the third day, they could let me go, and keep all 45 of the articles I wrote. They bring in about 20 new people a day, having them do something similar. Though most people are hired to make calls, and they have them make at least 150 calls each day for three days before informing them if they've been accepted for employment.

They bring in about 20 "prospectives" a day, and hire very very few. This gets them a lot of "free" work.

You will notice that the articles on their websites are not, in fact, articles based on the content, but based on keywords. Try a few of the links and you'll notice on science.org in one 500 word article the word science appears approx 25 times.

All attempts to get their site to be the number one hit on key terms without having any actual content to speak of."

[end third party email]
__________

This email prompted me to poke around both science.org and attorney.org. I was completely unimpressed by the quality of content I saw. I thought this junk article (I nofollowed the link--no link juice from me!) on "Patent Laws for Inventors" was a fine exemplar of the (low) article quality on science.org. Check it out and evaluate it for yourself. I don't mean to be snarky, but I would expect most seventh graders to do a better writing job than the writing in this article. A few representative quotes:

* "Inventors may come up with ideas that are in regard to machines or processes."
* Referring to design patents, "A design is the face of the product or the company and should be protected. Designs distinguish and separate one company from the next and it is because of this that this type of patent is required for businesses and manufacturers alike." [this was not about trade dress or trademarks; it was about design patents]
* "A patent should not be confuse [sic] with a copyright. A copyright will provide inventors with the rights to prevent any other inventors from producing material in the same way or with the same expression."
* "Keep in mind that not everything can be patented and some things are already, so make sure you have a solid and original idea before you even apply for one."
* "It should be also noted that the process may be lengthy and is not conducted over night."

A sterling contribution to the literature. Anyone who knows IP law can immediately spot ambiguities or outright flaws in the above quotes. Frankly, if it weren't so spammy (out of 516 words, I count 18 references to "patent" and 15 to "inventor"), I'd actually wonder if this was intended to be a spoof or satire about how seriously people take patents. Even if that wasn't the intent, the article has far more value as a satire than it does as an educative piece.

I apologize for the flurry of blog posts on the spam I'm receiving from Phone to Phone Inc. websites, but I've found that lots of folks are experiencing the same problem. I've already criticized Phone to Phone Inc. for their spam promotion of Newlawyer.com (including my SiteJabber post on Newlawyer.com) and Laws.com, but their relentless spamming continues. I remain very impressed that they have so many different marketing executives at Phone to Phone Inc. (unless, of course, they are lying about the sender's identity, which I know they wouldn't do...would they?). Yet, for all of that in-house marketing expertise, apparently none of these executives have successfully convinced Phone to Phone Inc. that their spamming campaign is counterproductive to their long term objectives. Given that, I don't expect my shaming blog post will convince them either, but a lawsuit, Google de-indexing or a properly organized Googlebomb might be a different story. And I think the company might reconsider the quality of guidance it's getting from its marketing executives.

Here's the text of the spam promoting Attorney.org. Uh, no thanks.
_______

from Michael Foti
to egoldman@gmail.com
date Mon, Oct 26, 2009 at 7:31 AM
subject About Your Blog

Dear Eric,

My name is Michael Foti and I am the Executive Director of Marketing for Attorney.org. I am writing you this email to better inform you about our website and in hopes of reaching a mutually beneficial strategic partnership. Attorney.org is one of the top sources of free legal information on the Internet. We provide articles of general and specific information to our visitors regarding common legal issues as well as breaking legal news. In addition to providing information, Attorney.org will be profiling noteworthy attorneys from around the country, attorney generals, district attorneys, and high-ranking local, state, and federal government officials. It is not only a great networking tool for attorneys, but it is also an efficient way to reach out to prospective clients. I believe that your blog can benefit greatly from a new audience of 10,000 unique visitors a month.

We want to list your blog as a source of information on our resources page, and potentially highlight you as a top blog on the Internet in an article on Attorney.org. Our website currently ranks in the top 50 for the anchors "attorney" and "attorneys", and will only continue to move up. I am hoping that in return, you will be able to include a link to Attorney.org somewhere on your blog (preferably as an addition to your blog roll). This would increase the free flow of information and provide an additional source of information for the readers of both our websites.

There is no doubt in my mind that your blog will be a valuable resource to our Attorney.org users. I believe that we can both benefit from this prospective strategic partnership as the increased traffic will drive new users to both our websites. Should you have any questions at all, please do not hesitate to contact me. I have included the link information as well as my contact information below.

Title: Attorney, Attorneys (Attorney.org)
Description: Attorney.org

Michael Foti
Executive Director of Marketing, Legal Network
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:551-795-2806

I've been kvetching about the heavy barrage of spam and telemarketing from Newlawyer.com. I haven't previously mentioned that they are an operation of Phone to Phone Inc., which apparently has branched out into spamming for other sites it operates. This week a number of folks complained about being spammed with an email congratulating them as a top 100 law blog. See, e.g., Bob Ambrogi's post. I never received the top 100 honor spam but I was privileged enough to get a different spam from Laws.com:
___

from Partick Coleman
to egoldman@gmail.com
date Wed, Oct 21, 2009 at 12:47 PM
subject Love this site -http://www.ericgoldman.org

Dear Webmaster,

Our website Laws.com is considered one of the largest legal informational database in the world, containing crucial information on jurisdictions and breaking legal news. We have offered this site to the public to increase the FREE flow of information. There is little to be said for the many judicial systems around the country and we strive to offer the information much of the public seeks. The only way to increase the information we offer is to seek out some of the top informational resources online. Your blog seems to be an excellent informational resource and would bring a great resource to our viewing public. We would be pleased to offer your inclusion in Laws.com as a featured blogger, as well as giving you the Laws.com Featured Blogger Badge. This is a prestigious award given to some of the brightest bloggers around the country to recognize their dedication and hard work. You will see the code for the featured blogger badge within this email, please get back to us with your blogs banner so we may make your blog available to our public ASAP. Thanks!, keep up the great work.

[code omitted to ensure that they get no link love here]

Nick Fox
Senior Marketing Executive
Phone to Phone Inc.
1 International Blvd. Suite 203
Mahwah, New Jersey
+1(551) 655 6828
Laws.com
_________

If this is the first time I had heard from this outfit, I simply would have marked it as spam as another link request and then moved on. But because of the Phone to Phone Inc. connection, this just becomes more evidence of Phone to Phone Inc.'s shadiness. Another piece of evidence of their shadiness: the email purported to be from "Partick Coleman" but the sig block says "Nick Fox." Spamming lawyers and bloggers is bad enough, but sloppy spam is inexcusable!

I am now skeptical of all Phone to Phone Inc. operated websites, which (according to Bob) include Laws.com, NewLawyer.com, Attorney.org, LawSchool.org and Docket.com. Great way to build your brand, guys.

Newlawyer.com continues to earn my antipathy. You may recall that a few weeks ago, I got spammed by Dominic Sebahia on behalf of Newlawyer.com. At that time, I sent my blog post to Dominic and got the following reply:

"Sorry about it, Sir. But, there was no harm intention to hurt you. I am promising you that no one from our firm will be contacting you in future. Our emails are not spam. We just need co-operation from people like you. We are here to help people. Anyways sir, I am sorry again." (emphasis added)

A broken promise! This morning I got a virtually identical spam from Steven Kim under the subject line "We love your blog" (aww, how sweet, but I'm beginning to wish they loved me a little less):
_________

from Steven Kim
to egoldman@gmail.com
date Mon, Oct 19, 2009 at 9:18 AM
subject We love your blog

Hi,

My name is Steven and I am the Director of Marketing for NewLawyer.com.I found your blog/website interesting. Our blogs are posted in most of the websites. I want to feature you onto our website and that for absolutely free. Our website is the first telelegal portal that connects attorneys to those in need of legal advice through phone to phone consultations via the technology on our website. I would love to feature your blog on NewLawyer as I believe that many of our Lawyers would enjoy your blog. I was hoping to have NewLawyer added to your blog roll if that would be at all possible. I've included some additional information below and if you have any questions feel free to find my contact info below and call me. I look forward to hearing from you.

We would like to list your blog on our site as an additional resource to our users. We believe that your blog would be a great addition. The blog's website would be linked to our page so that our users would be able to click the link and utilize your website and find more information. We believe in the free flow of information and want to provide the best resources for our users. The following information is to reciprocate the link on your own website:

Title: Lawyer, Attorney , Legal Advice , New Lawyer (NewLawyer dot com)

Description: Personal Injury Lawyer, Accident Lawyer, Divorce Lawyer, Attorneys, Legal Information

The following are points of information listed on our website:

* Listings of licensed legal professionals
* Blogging information
* Legal news around the country
* Additional resources for the users to take advantage of.
_________

Interestingly, Dominic's email indicated that he was the director of marketing. So either they have multiple directors of marketing, or Dominic got the sack (wishful thinking) or everyone who uses their template falsely claims to be the director of marketing.

I am beginning to get emails from other folks who are ticked at Newlawyer.com. For example, I recently got the following email:

"I just wanted to write and thank you, post reading your article on NewLawyer.com. They approached me this evening with the standardised letter and I found the whole affair a little dubious. Google flagged up your article and it confirmed my sentiments. As there is nowhere on your site to comment, I am e mailing just to say your post is appreciated."

It just seems inevitable that if Newlawyer.com keeps annoying lawyers, eventually one will turn litigious. You've been warned.

UPDATE: I got a second identical email from Steven Kim about 3 hours later. What will it take to stop their emails?

UPDATE 2: Ryan Gile of Las Vegas Trademark Attorney blog also got nailed with the following message:

Dear Mr. Gile,

My name is Michael Foti and I am the Director of Marketing for a network of legal websites that includes Laws.com, NewLawyer.com, Attorney.org, LawSchool.org, and Docket.com. Here at NewLawyer.com, we are running a campaign to highlight some of the top blawgs on the internet. After reviewing your blog, we'd like to include you, and your blawg, in that feature. Below, I've included the code for you to copy and paste into your source to display your NewLawyer.com Top Legal Resource award button. An extraordinary amount of time and effort goes into making a feature like this possible, so all we ask in return is that you display your award banner prominently for all your readers to see. Please email me once you post it so I can check it out. Thank you and congratulations on being one of the top legal resources on the internet!

[snip]

Michael Foti
Director of Marketing, PhoneToPhone Inc.
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:551-795-2806

UPDATE 3: I posted a critique of Newlawyer.com on SiteJabber.

I have Westlaw alerts set up to notify me when court opinions discuss the major social networking sites. As a result, I am now seeing a steady stream of cases where Facebook or MySpace postings are being used to contradict a litigant's or witness' testimony in a court case. I think the following excerpt from People v. Franco, 2009 WL 3165840 (Cal. App. Ct. Oct. 5, 2009), where a jury convicted the defendant Franco of vehicular manslaughter with gross negligence, exemplifies what I'm seeing:

At about 10:30 a.m. on June 6, 2006, Franco and Henry Chavez were seen racing each other in their Mustang vehicles on the Ventura Freeway, each reaching speeds of approximately 100 miles per hour. Franco applied her brakes while Chavez was directly behind her, causing him to lose control of his vehicle. The vehicle travelled to the other side of the freeway, flipped, and landed in a strawberry field. Chavez was killed. Franco did not stop.

Franco testified that she was driving approximately 75 miles an hour on the freeway when Chavez began tailgating her. When she changed lanes, he followed her. Noticing that her speed had increased, she tapped on her brakes to slow down. Chavez veered to avoid hitting her, then lost control of his vehicle. She saw a plume of dust but kept driving as her boyfriend advised when she called him on her cell phone. The day before the accident, however, Franco had written on her MySpace page, “If you find me on the freeway and you can keep up I have a really bad habit of racing random people.”

I know most of us already know this lesson, but this case reminds us that our statements on social networking sites can and will be used against us. It also reminds us how hard it's becoming to maintain multiple persona--in this case, the in-court persona of being a safe and courteous driver while simultaneously maintaining an alternative persona as a "secret" street racer.

If I may, let me propose three rules for avoiding unnecessary trouble:

1) Never tick off a lawyer. They tend to be, you know, litigious by nature.
2) Never tick off a blogger. They tend to be very noisy about their gripes.
3) Never, ever tick off lawyers who also blog. A toxic combination.

Newlawyer.com has pulled off an impressive hat trick of rule violations. I'm not exactly sure I fully understand Newlawyer.com's business, but my superficial review of the site suggests it is some sort of lead generation engine for lawyers.

For some reason, Newlawyer.com has been one of the most aggressive and persistent solicitors of a link exchange I've encountered. Despite the relatively small footprint of my blogs, I get plenty of requests from folks for link exchanges, all of which I categorically turn down. Usually I hit the "report spam" button on Gmail and occasionally I'll write a "no thanks" reply, and either way that ends that. In contrast, I've had more difficulty evading Newlawyer.com because they have telemarketed me at least 6 times, including three phone calls in a 36 hour span earlier this week. I don't understand what kind of boiler room operation they are running, but I can't imagine how calling me 6 times can be cost-justified even if I did agree to the link exchange (which I won't, and you'll notice they aren't getting any link love in this post either). Just how much is a link from my blog worth to them???

I've tried to politely but firmly tell them to buzz off each of the six times they have called me, and each time I get a mea culpa and a broken promise not to keep calling. But I guess in a technical way they have finally honored their promises because today I got a spam from them (see, no phone call!) once again soliciting a link exchange. The email text:
_______

from dominic sebahia
to egoldman@gmail.com
date Fri, Oct 2, 2009 at 7:46 AM
subject i like your blog

Hi,
My name is Dominic and I am the Director of Marketing for NewLawyer.com.I found your blog/website interesting. Our blogs are posted in most of the websites. I want to feature you onto our website and that for absolutely free. Our website is the first telelegal portal that connects attorneys to those in need of legal advice through phone to phone consultations via the technology on our website. I would love to feature your blog on NewLawyer as I believe that many of our Lawyers would enjoy your blog. I was hoping to have NewLawyer added to your blog roll if that would be at all possible. I've included some additional information below and if you have any questions feel free to find my contact info below and call me. I look forward to hearing from you.

We would like to list your blog on our site as an additional resource to our users. We believe that your blog would be a great addition. The blog's website would be linked to our page so that our users would be able to click the link and utilize your website and find more information. We believe in the free flow of information and want to provide the best resources for our users. The following information is to reciprocate the link on your own website:

Title: Lawyer, Attorney , Legal Advice , New Lawyer (NewLawyer.com)

Description: Personal Injury Lawyer, Accident Lawyer, Divorce Lawyer, Attorneys, Legal Information

URL: http://www.newlawyer.com

The following are points of information listed on our website:

* Listings of licensed legal professionals
* Blogging information
* Legal news around the country
* Additional resources for the users to take advantage of.

Dominic
Director of Marketing, PhoneToPhone Inc.
1 International Blvd. Suite 211 Mahwah, NJ 07495
Office: 201-252-8255
Cell:201-663-2565
_______

The silly thing is that if they really believe that linking to my blogs is valuable to their audience, they don't need my permission, and they know it (if for no other reason than I've told them so in a couple of our phone chats). But clearly the flattery and the request to link to me is just a ruse to get me to consider the reciprocal link exchange. Also telling is the reference to my non-existent blogroll (something I've also mentioned to them on the phone).

Now, I'm not a litigious person, so I'm not personally interested in investigating my legal rights against Newlawyer.com for their repeated disregard of my requests. However, in response to my anti-Newlawyer.com Twitter posts, I saw that several other lawyers have been getting bombarded by Newlawyer.com solicitations. It's possible they are not as reticent as I am.

Irrespective of their ultimate legal disposition, it seems like Newlawyer.com is doing a fantastic job of alienating one of its core audiences (lawyers) and building a reputation (but not a good one). Further, should Google get wise to Newlawyer.com's aggressive efforts to generate link exchanges, Newlawyer.com's strategy could very well backfire in a big way.

David Lat, the famous and talented blogger from Above the Law, gave a lunchtime talk today at Santa Clara Law entitled "The End of the World as You Know It: Reflections on the Future of the Legal World." (The talk title was almost as long as the talk). I'm a regular reader of Above the Law, so many of his remarks didn't break much ground compared to the themes already fully vetted in gory detail on the blog. Nevertheless, David always gives an entertaining talk filled with pearls of wisdom, so I never pass up a chance to hear him. A recap of his remarks:

David first described three structural changes affecting the legal industry.

1) erosion (not the death) of the billable hour. Clients want good value, and they want predictability over their expenses. Both factors are driving clients and firms to alternative billing arrangements, such as fixed fee projects and all-you-cat-eat retainers.

A comment on this: when I was in-house, I was a fan of fixed-fee arrangements for their budgetability/predictability. As manager of the company's legal expenses, I needed to keep my expenses within my quarterly budget, so fixed-fee deals were very beneficial to their predictability. One thing I absolutely HATED was when I would get hourly time billed months or even years after the actual work was done--and therefore after the quarter when the money was allocated, meaning the charge would hit a subsequent quarter's budget. I won't name names, but one firm sent me a bill for time TWO YEARS after the work was done. I didn't pay it.

For what it's worth, when I do my side gigs, I also prefer to do fixed-fee projects or monthly retainers. I often end up earning a little less than I might if I billed hourly, but (1) I always feel like I get a fair deal, especially when both the client and I take some risk on the outcome, and (2) I like that clients don't calculate the marginal cost of contacting me (i.e., I don't want to talk with my lawyer because it's going to cost $50 for a brief phone call, and I don't know if that call is worth $50), which means they contact me earlier in their processes when my advice is actually more useful.

2) erosion of locksteps, which is moving towards an increase in meritocracy. The challenge with this movement is setting an appropriate valuation on merit. People aren't entirely clear how to assess quality.

3) erosion of stable employment relationships. The days are gone when lawyers would view the decision to join a firm as a two-way lifetime commitment. Now, attorneys (including partners) are moving between firms regularly, practice groups and offices are spinning off, partners are being de-equitized, and of course, the ubiquitous and dreaded layoffs. There is also an increased customization and flexibility of associate positions. As David said, we might see a "gazillion different titles" for attorneys working for a firm--a trend towards "title proliferation."

David then moved to address what these changes mean.

On the downside, there has been a decline of trust in the industry. For example, a fixed-fee arrangement can be driven, in part, by clients distrusting their attorneys' efforts to keep costs down. But there is also a lot of intra-firm distrust.

On the upside, there has been increased independence in the industry, although this may require attorneys to become more entrepreneurial.

David concluded with two pieces of advice:

1) Stay informed about firms and the industry (an admittedly self-serving piece of advice)

2) Network! In times of crisis, relationships are key. He recommended that students get business cards and hand them out freely. He also recommended that students get to know their classmates and professors as part of network-building.

In the Q&A, a student asked him what changes law schools should make. David rattled off a bunch of ideas in quick succession, including:
* make law school two years (a move I wouldn't necessarily oppose but it is inconsistent with current accreditation norms for the foreseeable future)
* make law school cheaper
* fewer law schools
* more training in the field (like articling)

I asked him about the consequences of a movement from focusing on top-of-market compensation for attorneys, which ATL did obsessively in 2007-08, to multiple compensation models. David expressed concern that customized/individualized compensation would give law firms the ability to reduce their overall associate compensation because there is less transparency. At the same time, both he and I wondered if this reduced transparency might have a salutary benefit of defusing the excessive focus on compensation benchmarking, which might allow attorneys to reset their compensation expectations to how much they need to live a comfortable and satisfied life.

I got an email from a student posing this question to me: what criteria should a technology start-up consider when hiring its first in-house general counsel? I can definitely speak from first-hand experience! Here's my response, but I would also welcome your comments and thoughts. Because blog comments are still off, please email them to me and let me know if I can post them publicly.

[Note: I'm assuming a start-up has already correctly decided that it needs to hire a GC. That consideration could be the subject of another whole post.]
___

In addition to the standard criteria used to evaluate lawyers, like legal acumen and professionalism, I suggest the following criteria:

* past in-house experience. There is a learning curve to being in-house, and someone who has done it before will be initially better equipped to handle the speed of a start-up than someone who is trying to learn how to be an in-house counsel on the fly.

* past experience working in a start-up. Start-ups pose unusual demands on lawyers, and some lawyers can't easily adjust. Therefore, someone who has lived through a start-up environment before will be better prepared for the unique challenges. For more on this, see my recap of my first three months at Epinions.

* willingness to be a line contributor. A start-up has a lot of routine commodity legal work. It also needs to build a lot of unsexy internal processes and needs someone to pay attention to little details--simple things like filing contracts or domain name renewals. So a start-up needs a lawyer who isn't afraid to roll up his/her sleeves and do some mundane legal work his/herself as opposed to delegating the work to others or outsourcing the work to outside counsel.

* not an empire-builder. In the same vein, some lawyers want to build up a resource-intensive legal department, and this is the last thing a start-up needs.

* excellent business judgment. Ideally, a GC at a start-up can contribute to the overall management of the company. This requires a person who can balance legal concerns with other business perspectives. At minimum, a start-up GC needs to be able to triage and decide which of the many legal problems on his/her desk need immediate attention, can wait, or can be ignored entirely.

* someone who can grow with the company. Some companies may have idiosyncratic perennial issues where some background expertise will help, but a GC should be able to grow with the company to handle the full range of legal issues the company is likely to encounter over its lifecycle. It could be a mistake to hire a GC with specific technical expertise only in one area that is a hot button for the company today. Once that issue dies down, the company may be stuck with a GC who isn't adaptable to the many other issues that will arise.

* the ability to say--and sell--"no." Start-up companies--even the best-meaning ones--tend to be willing to push legal limits. However, most in-house counsel are socialized to avoid saying "no" if at all possible. A start-up company needs a GC who can say no when it needs to be said. Further, because people don't like to hear "no," a GC needs to be able to get others to listen when he/she says no. This means wielding the N-word wisely but also having the credibility/salesmanship to make "no" stick when it's wielded.

* interest in the company's products. A start-up job is usually fairly demanding, so it really helps if someone is actually interested (or, better yet, passionate) about the company's products and services. That way, they will be more excited to undertake the sometimes-heroic efforts required to help the company succeed.

UPDATE: I got the following from Josh King at Avvo: "I would add two related points: 1) Your new GC must be flexible enough to not only deal with mundane legal work, but also to do all manner of other work that assistants, secretaries or people in other groups did previously for them. I regularly go on beer runs for the office, deliver mail and shop for office supplies, and supporting the office as a regular member of the team is critical to success in startup culture. 2) In addition to having excellent business judgment and the ability to grow with the business - I've never had an in-house role that didn't morph in wildly unpredictable ways within the first 6 months - your GC must be able to match the company's level of risk aversion. It's a lot easier to sell "no" when you're not wringing your hands over every little potential legal risk the company might face."

As I told Josh in a reply email, WRT #1, I used to restock the snacks in the kitchen and sort the mail.

UPDATE 2: I got the additional comment, which I fully agree with:

"The one consideration that's missing from your list -- the most important one, in my view -- is someone with the trust and confidence of the principal business person, usually the CEO. It does not have to exist prior to hiring -- an investor can and often does install someone of their own choosing. But if the GC and the CEO don't have personal trust and confidence -- both ways -- the GC hire will never contribute at the highest level. Trust and confidence -- all the rest can be learned."

Last week, I went to a lunchtime student-oriented talk by Gordon Davidson, chair of Silicon Valley firm Fenwick & West, on the topic of "The Art of Being a Business Lawyer and the Changing Business of Law." Gordy laid out 10 tips for being an effective counselor (most of this post is my impression of his talk in my words, not verbatim statements by him):

1) "If "This answer must be wrong," reexamine your assumptions." The goal should be solving client problems, not necessarily answering the questions a client asks.

2) "Do the numbers; the answers might just appear." Lawyers are afraid of numbers, but sometimes crunching the numbers can reveal an easy solution. For example, if you calculate that a particular provision isn't worth very much financially, it should be easy to compromise.

3) "Recognize revenue (and expense) when you see it." Many law students don't know that received cash, recognizable revenue and invoiced amounts are all very different things.

4) "Look for real options; they have real value you can calculate."

5) "Learn the art of negotiation."

6) "Keep your eye on the business reality." Clients can be enamored with their ideas; sometimes a lawyer has to be the voice of reason to point out when they are being unrealistic.

7) "Business sense is as important as legal skill." Clients pay for a lawyer's judgment, not just the lawyer's knowledge of legal rules.

8) "Look for solutions, not just risk."

9) "Save "no" for when you really mean it."

10) "Think about the business consequences of your legal advice and how you communicate it." If your advice requires your client to do things you think the client isn't likely to do, you need to find another solution.

None of these points should be unfamiliar to experienced business lawyers, but Gordy did a great job of providing students with a pragmatic view of life as a business lawyer.

Gordy then turned to a discussion about the changing business of law. He discussed that clients won't pay for training new lawyers. In engagement letters, clients are restricting the firm's use of first and second year associates. Some clients are refusing to pay for any lawyer research, expecting that either lawyers know the answer off the top of their head or will do the necessary research to get up to speed on his/her own dime.

Gordy talked about the firm's fixed-fee arrangement with Cisco to handle all of Cisco's M&A work for a single periodic fee--an arrangement that is working well because Cisco's needs are mostly predictable. Indeed, Gordy said that he would like to do more arrangements like this but clients are reluctant to do so.

The fixed fee arrangement is part of a broader trend away from the billable hour. The alternative fee arrangements can have the benefit of encouraging the lawyer to assess the value of incremental tasks using the same approach the client would, i.e., is the extra effort a good allocation of scarce resources? However, some people think that eliminating the billable hour will reduce lawyer stress, but Gordy doesn't agree. From his perspective, the stress comes from a lawyer's desire to deliver good service to the client, and this desire is the same whether or not the billing arrangement is hourly or on a fixed fee basis.

He discussed the efforts of lawyers to work smarter and avoid duplicative tasks within a firm. He said Fenwick is building out internal wikis to capture the firm's knowledge in a more organized fashion. For example, some underemployed associates are being asked to build out the firm's wiki on cleantech. He also thinks that technology will, over time, reduce a firm's partner-to-associate ratio/leverage.

Finally, he mentioned Legal OnRamp as a marketing tool. It sounds like the firm's experience hasn't been that encouraging. He said the firm had posted about a dozen items to Legal OnRamp but these had not translated into prospective client inquiries.

I got an email from a graduating student telling me that his law firm had asked incoming associates to volunteer to defer their start dates for a year. This is an unfortunate situation, and naturally it produces significant stress and anxiety. I thought it would be worth publicly sharing my response to the student:
___

I'm sorry to hear of what surely must seem like bad news. However, if you can afford it, your choice is an easy one: take the year off and enjoy life. As a working attorney, you will get very few opportunities to have a big block of discretionary time like this ever again. Here, you are being encouraged to legitimately enjoy a big block of time. For most of us, who never felt free to take a year off in our overprogrammed lives, this would be a blessing in disguise.

Plus, it is no fun working at a firm when there is too little work to go around. The lack of work creates bad dynamics, like work hoarding by more senior associates and even partners, and the pressure to find work can chew up your life. You will feel like you need to wait by the phone/email from dawn to dusk just in case any scrappy work is available to pick up, so you will work harder but with less tangible rewards in a situation like that. Also, some associates are tempted to overbill/pad their hours when they don't have enough work to legitimately meet their hourly requirements, and this isn't a healthy situation.

If you cannot afford to take the year off, then you have fewer good options:

1) You can go to the firm and hope they will take you and that the environment isn't terrible.
2) You can try to find a different one-year gig. Given how many attorneys are going to be in 1 year deferral situations, this market will be intensely competitive for any good paying work.
3) You can try to negotiate a buyout from the firm, i.e., get some cash to tide you over, but obviously less than the typical starting salary. If they haven't already offered cash, I suspect this money won't be easy to get.

A couple of weeks ago, the High Tech Law Institute hosted the fourth gathering of Bay Area legal bloggers. About 20 bloggers and friends gathered on campus for a very spirited discussion. Attendees included Harry Boadwee, Cathy Gellis, Eric Goldman, Joy Haas, Kirk Hanson, Eric Hartnett, Greg Haverkamp, Gordon Johnson, Kimberly Kralowec, Mike Masnick, Cathy Moran, Amy Morganstern, Joe Mullin, Simon Offord, Chris Peeples, Colin Samuels, Michael Sardina, Mister Thorne, Kevin Underhill and Julia Wei.

We talked about blogger burnout. While updating the census of local blawgers, I noted that many bloggers who started in 2005 and 2006 have either stopped or substantially curtailed their blogging. We came up with a number of possible explanations for this phenomenon:

* one blogger said he had run out of things to say. I think this may be more common than people realize.
* a few bloggers discussed the rise of competing publishing platforms, such as Facebook and Twitter. As one blogger described it, the increased number of communication channels has dissipated efforts across all channels. This is definitely different from our first Blawger gathering 2 years ago, when Facebook and Twitter were far less popular than today. In my case, Twitter (which I automatically link to my Facebook status report) has unquestionably usurped some of the posts I used to make at this blog.
* a few bloggers discussed the lack of time to blog. This is an age-old issue. One blogger described how she goes through cycles of blogging depending on her schedule. Unfortunately, bloggers can have difficulties maintaining audience if they go silent for an extended period of time, so blogging in cycles isn't the easiest thing to do. (It can help to have reliable co-bloggers who can smooth out the publication cycle).
* one blogger described how she is burned out on reading blogs. I've definitely been there! In my case, switching from Bloglines to Google Reader has helped reinvigorate my reading excitement by expediting my ability to manage my data inflow. It's also allowed me to expand the blogs I'm reading, especially those that are episodic.

We then moved into a discussion about managing comments to blog posts. I don't have much to contribute to that discussion because my blogs don't have open comments, the legacy of a pernicious comment spam attack that caused my blog host to shut me down for a morning. Bloggers have very disparate attitudes towards comments to their blog posts. One blogger mentioned how she didn't really like comments because of the risk of commenters disclosing personal details (which can be a real problem for prospective clients). A different blogger preferred comments over email because of the public response; several bloggers discussed how it can be embarrassing and self-perpetuating for a blog to allow comments but never get any. As one blogger said, people don't want to feel like they are talking to themselves. Several bloggers also noted that lawyer-readers can be especially reluctant to comment to blog posts because they don't want the accountability. When I did allow comments, I definitely had that perception.

We also discussed Twitter. For a while, I was confused about Twitter's value proposition because, like blogging in its early days, the early adopters of Twitter used it to chronicle their personal life. Much like this early usage defined bloggers as self-absorbed and exhibitionist, I initially had the same impression of Twitter. However, once I figured out that Twitter was just another content publication platform, I found it could extend my reach. As a result, many of my tweets simply promote my blog posts, but I do make other types of tweets, including short entries that would have previously made it onto this blog and various personal observations that would never have warranted a blog post at all. One blogger commented that this mixing of personal and professional can help humanize a person.

What has amazed me about Twitter is that I've aggregated a bunch of lawyer-readers who would never have found or subscribed to my blog. This baffles me because Twitter is IMO a terrible reading interface. I find Google Reader a much more intuitive way to subscribe to and manage incoming content. As a result, I subscribe to very few people on Twitter because I'd rather read them in my RSS reader if I can. However, having identified a way to aggregate new readers shows me that people consume content using a variety of different interfaces. If people find Twitter a good substitute for an RSS reader (even if I don't), then it's in my self-interest to publish my content in the places people are reading.

There can be too much of a good thing, and we did discuss that some people are too noisy/frequent with their tweets, which can actually drive away readers/subscribers. We discussed at the meeting (and I've since heard elsewhere) that people are putting themselves on a Twitter "diet," i.e., a maximum number of tweets per day.

I'm not sure what the future holds for the Bay Area Blawgers group. Attendance has dropped significantly from the first gathering. Further, blogging is changing rapidly between the influx of "corporate" bloggers (i.e., law firms that are setting up blogs principally for SEO juice) and the splintering of publication options. It's not clear to me if there remains a blogging community sufficient to support a standalone event about blogging. Nevertheless, maybe we'll try to gather the group again in late 2009/early 2010, perhaps in San Francisco, and see who shows.

Prior resources related to the Bay Area Blawgers:

* Announcements of Bay Area Blawgers 1.0, 2.0, 3.0 and 4.0.
* Recaps of the first and third gatherings. Beth Grimm has written an interesting meta-recap.
* Photos from the second and third gatherings.
* List of possible issues for a blawgers' discussion.
* Census of Bay Area Blawgers.

Bloggers have a new insurance option. The CMLP writeup. This is a huge step in the right direction, and kudos to all involved for spearheading the effort. Even so, I'm hoping that some marketplace competition will help drive down the cost such that it becomes a no-brainer decision for every active blogger.

In particular, I still think the major blog service providers like Six Apart or Blogger should obtain a group insurance plan for all of their customers. From my outsider's perspective, it seems like these companies could put together a ready-made market for a forward-thinking insurance company.

Two farms are next to each other. The brussels sprouts farm uses pesticides; the herb farm is seeking organic certification. When the pesticide is deployed, the wind or fog may blow pesticide onto the herb farm, destroying its organic status. What result?

According to this article, $1M in damages to the organic farm. At the same time, there is apparently a California code that says a pesticide user's responsibility ends as soon as the chemicals are deployed, and a county investigation exonerated the brussels sprouts farm of wrongdoing.

So what gives? This seems like a classic application of the Coase Theorem, which says it shouldn't matter if the brussels sprouts farm has the entitlement to deploy pesticide or the herb farm has the entitlement to run an organic farm without worrying about pesticide drift because the parties will bargain with each other to achieve an efficient outcome. However, it's interesting to see that California law expressly gives the entitlement to brussels sprouts farm, privileging chemical use over organic farming. Sounds like maybe a little rent-seeking took place.

Personally, it seems much more logical to me to set the defaults the other way and make the pesticide users figure out how to avoid drift. After all, if the pesticide is drifting onto other crops, where else is it drifting?

Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)

In a trademark infringement lawsuit over whether "Mooo Tracks" ice cream infringes "Moose Track" ice cream, the plaintiff tried to introduce some blog posts as evidence of consumer confusion. The court says no for fear that they are shill postings:

In this case, Denali offered Internet blog entries as evidence of actual confusion. The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4 Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

I am participating in the Fourth Annual Conglomerate Junior Scholars Workshop as a commenter on Ethan Leib's paper, Friends as Fiduciaries. The group discussion. My comments. The intro from my comments:

There can be a fine line between genius and insanity, and for some readers, Ethan Leib’s paper Friends as Fiduciaries may be right at that border. The paper argues that friends are being recognized as fiduciaries under existing law, an insightful observation that deserves the careful treatment it gets in the paper. The paper goes on to argue that the law should affirmatively designate some types of friends as fiduciaries because this will improve friendships—a provocative normative conclusion that, I think, some readers will reject no matter how persuasively it’s supported. In this respect, the paper reminded me a little of my conversations with my mom after she reads my papers that try to defend the indefensible (like spam and adware). She says in an affectionate but motherly way that the paper was nicely written but also has to be wrong. I can see some readers reaching the same conclusion here.

I've previously noted that contract drafting attorneys aren't done when their contracts are signed because post-signing activities can dictate whether a well-drafted contract works as intended. Specifically, important dates related to the contract need to be calendared in a reliable calendaring system because failure to adhere to those dates can foil the prettiest drafting.

A good example of this is FaceTime Communications, Inc. v. Reuters Ltd., 2008 WL 2853389 (S.D.N.Y. July 22, 2008). The Justia page. Reuters licensed FaceTime's software for 2 years at $1.3M and invested substantially in customizing the software for its needs. To protect those additional investments, Reuters retained an option at the end of the 2 years to pay $150k for a perpetual license. For reasons that aren't entirely explained, Reuters didn't exercise the option before the exercise deadline, but instead tried to exercise the option after the window closed (and tried to do a little backdating at that). Not surprisingly, the court is completely unsympathetic to Reuters' arguments to try to avoid the obvious consequences of blowing this option exercise (it calls it an "open-and-shut case"). Judgment for FaceTime. Now that the court has spoken, I'm sure Reuters will get to keep using the software if it really wants to, but I suspect the price tag will go up (i.e., to basically the full hold-up value that FaceTime can extract).

It's not clear what went wrong at Reuters, but this loss should have been avoidable with a proper calendaring system that alerted its in-house lawyers to begin the option evaluation process well in advance of the option window deadline. (This principle holds the same for contract auto-renews, which I routinely see mismanaged--I usually don't put auto-renews in my contracts because I'm confident that the deadlines won't be managed properly). Stated differently, Reuters' contract drafters did exactly what they needed to do when drafting the contract, but mistracking the contract's option undid their nice drafting and cost Reuters a lot of money.

UPDATE: FaceTime's CEO blogged his thoughts. The WSJ Blog's comments.

UPDATE 2: In reference to the AP story: Isn't it odd that on July 1, Reuters made a filing with the court saying that it would take several months to develop an alternative, but now it is saying that it will transition to an alternative with no problems by Friday?

The legal education industry is facing a potentially significant expansion of supply. As Leigh Jones at the NLJ reports, up to 10 different universities are investigating adding new law schools. Some of the potential new entrants include:

* Wilkes University, Wilkes-Barre, PA
* SUNY Stony Brook
* SUNY Binghamton
* St. John Fisher University, Rochester, NY
* University of New Haven, CT
* Husson College, Bangor, ME
* Louisiana College, Pineville, LA
* Lincoln Memorial University, Knoxville, TN
* Concordia University, Boise, ID
* University of Idaho, Boise, ID

In addition, the UC Irvine law school is coming online in 2009.

On a current base of less than 200 ABA-accredited law schools, this would represent a 5% growth in the number of suppliers. In terms of actual supply (new seats for law students), the growth will depend on both the number of new seats created by the new schools as well as any changes in the number of seats at existing schools.

At the same time, it's projected that law school applications will crest in the next few years and then start falling--basically, right around the time that these new schools come online. With the expansion in supply and reduction in demand, the most likely scenario is that some schools will reach deeper into the applicant pool to admit folks who are currently being turned away. However, I also think some (many?) schools--to preserve their US News GPA/LSAT credentials--will reduce their admitted class sizes to avoid dipping deeper into the applicant pool, but it's also possible that more schools will be stuck with involuntarily unfilled seats. (In theory, price competition may also increase, although to date we haven't seen much of this). Either way, reduced class sizes means less revenue, potentially making these law schools less profitable ventures or even necessitating cost-cutting efforts to preserve profitability.

So what's driving the increase in supply? I view this as a classic supply-side dilemma. Universities get marginal private benefit by adding new schools. Law schools increase the overall prestige of the institution and typically add net profits to the institution. Also, local communities like law schools because they are significant economic enterprises and can help supply the local economy with new legal expertise (both from the law school itself as well as from law school graduates who want to stay in the local area). So while each individual decision to add a law school may make sense to the decision-maker on a microeconomic basis, the macroeconomic result can be a prisoner's dilemma/market oversupply.

Note that the increase in law schools doesn't mean that law school consumers will actually get new choices about their legal education. In terms of admission, in all likelihood each and every school will still focus on the top X% of the applicant pool bell curve--the X might grow due to increased supply, but the identity of sought-after candidates won't change so long as US News puts so much weight on matriculant GPA/LSAT. Meanwhile, in terms of pedagogy, consumers using the US News rankings as a principal evaluation tool do not actively demand heterogeneous marketplace offerings, and suppliers have no incentive to diversify their offerings both for fear of spooking consumers and the risk of screwing up the US News metrics and being punished in the rankings accordingly. So in all likelihood, the new law schools will look like the existing law schools, which doesn't create real marketplace diversity.

(I know that UC Irvine's law school has been emphasizing a more public interest focus as a differentiator. Let's check back in 10 years to see how much that rhetoric remains. My guess is that the US News homogenizers will have muted the differences substantially).

As the NLJ article points out, another potential downside of legal education market expansion is that the legal industry may not be creating new jobs as rapidly, resulting in more law school graduates competing for an inadequate pool of law jobs. This could lead to salary deflationary pressure for the "average" law student (the top end for the top students will stay at an eye-popping rate, but only a small percentage of law students get those jobs)--which will be all the more painful as the cost of legal education continues to increase at a rate faster than inflation. So long as the top end of entering attorney salaries remains a huge number, many students will be psychologically biased into thinking they can win that lottery and therefore won't be dissuaded by the averages. The likely result: lots of law school graduates with huge debts and limited means to meet them, along with the psychological trauma of not winning the lottery and needing to take a suboptimal job to generate immediate cash flow.

UPDATE: The AP explores this topic more.

Last week, we had the third gathering of Bay Area Blawgers at UC Berkeley Law School. Over 2 dozen bloggers and friends convened to discuss topics of interest to legal bloggers [see list of attendees below]. Some photos from the event. This event was co-hosted by the Berkeley Center for Law & Technology, and a special thanks to them for their help (especially given that the event was scheduled at a very busy time for them).

This time, we started out with a short presentation by Mark Goldowitz on the application of California's anti-SLAPP law (California Code of Civil Procedure Sec. 425.16) to bloggers. The anti-SLAPP statute is a powerful defense tool that can result in the plaintiff paying attorneys fees. It also has certain procedural benefits for defendants, such as an automatic right of appeal for an unsuccessful anti-SLAPP motion. The statute is interesting to blawgers because it should apply to common activities by legal bloggers, such as blogging about lawsuits. Anti-SLAPP protection has been rarely applied to bloggers (we couldn't think of any cases around the table, but I had forgotten that the GTX v. Left case involved a blogger), but it looks like a powerful and important tool that bloggers--especially those actually facing a lawsuit--should keep in mind.

We talked about a variety of other issues, including how to respond to grousy/threatening emails from lawyers whose cases we're blogging about, bloggers posting C&D letters, rich content tools available for bloggers (including Redlasso and iMeem), and how courts are conceptualizing bloggers as journalists for various defenses to IP claims (such as how the blogger in the BidZirk case defeated a TM claim because of his role in producing news commentary). Next time, we'll try to talk about blawgers going on vacation or hiatus--a question on several attendees' minds as they have stopped blogging deliberately or implicitly. I'm also interested in how and why some bloggers (like me) write through multiple blogs. Good stuff for the next gathering, which I'm thinking will be early next year in the South Bay. If you aren't on the mail list and would like to be, let me know.

[Attendees at this event included: Tsan Abrahamson, Jerry Bame, Hudson Bair, Robert Barr, Bob Eisenbach, Cathy Gellis, Mark Goldowitz, Eric Goldman, Joe Gratz, Beth Grimm, Greg Haverkamp, Matt Holohan, Ethan Leib, Joe Mullin, Deborah Neville, Chris Peeples, Mark Perlman, Colin Samuels, Daniel Schulman, Jason Schultz, Tim Stanley, Colette Vogele, and Fred von Lohmann]

More resources related to the Bay Area Blawgers:

* Announcements of Bay Area Blawgers 1.0, 2.0 and 3.0.
* Recap of the first gathering. Beth Grimm has written an interesting meta-recap.
* Photos from the second gathering at Fenwick & West's San Francisco office. More photos.
* List of possible issues for a blawgers' discussion.
* Census of Bay Area Blawgers.

Brandt Goldstein, Lost in translation? Some brief notes on writing about law for the layperson. 52 N.Y.L. Sch. L. Rev. 373-385 (2007-08). This article provides an overview of the issues that arising when writing about legal topics for a non-legal audience--which, of course, is what many bloggers do. This article doesn't break a ton of new ground, but it provides an interesting contrast between the issues faced by mainstream journalists and legal bloggers.

Maybe I'm just in a cranky mood today, but two issues have been bothering me recently.

1) Every now and then, I hear a speaker make a major factual error. (For some reason, this seems to happen a lot with keyword advertising law talks.) The most recent example: a recent speaker on Internet keyword advertising said (1) Google indexes keyword metatags (WRONG), and (2) no Internet keyword defendant has ever won on the use in commerce issue (WRONG and WRONG!). I probed the speaker offline about the latter mistake and the speaker was working from slides prepared in mid-2006 that apparently had been poorly updated. Note to conference organizers: if you're going to have someone speak on keyword advertising issues, you might make sure they aren't using 2 year old material.

Don't get me wrong; mistakes can happen to anyone, and I'm sure I've made a few in my time, but I'm not sure what to do in these circumstances:

* Should I point out the error(s) to the speaker in the Q&A (assuming there is Q&A)? It's awkward to publicly put a speaker on the spot like that, and when it comes to factual errors, there is always the risk of the Q&A degenerating into a public he-said/she-said irresolute discussion.
* Should I point out the error(s) to the speaker privately after the event? This will at least correct the speaker's misperception, but the audience walks out of the event with misinformation.
* Should I just ignore it? After all, I've got plenty to do, and I can't fix every problem.

Let me know if you have a preferred solution to this problem.

2) With some frequency, a person forwards my email without my permission to third parties who were not the intended audience. This is especially pervasive at Santa Clara University, where there appear to be absolutely no norms against forwarding private emails to non-recipients because I see it numerous times a week. Of course, this forwarding can be problematic in at least two ways. First, the non-recipient may not like the email's content, especially if it is about them. Second, I try to be pretty careful with what I say in email, but this norm creates a Panopticon phenomenon of inhibiting my ability to speak the truth. So I'm toying with the following solutions:

* adding a legend to the front of my emails saying "DO NOT FORWARD THIS EMAIL FURTHER"
* stop sending email that discusses third parties at all

If you have any thoughts about this problem, I would welcome them as well. Send them by email... :-)

I'm backlogged as usual, but reading through the August 2007 issue of VegNews, I saw that Christine Garcia of the Animal Law Office was named one of the 25 most fascinating vegetarians by VegNews. I'm a little unclear on the state of her practice; her website says that she is not taking any new clients until mid-March 2007. Looks like her website could use some updating. But the vignette about her practice was nevertheless inspiring, especially this part:

"I offer a vegan discount to clients. Anyone who seeks my services is entitled to a sliding discount depending on how many days a week they pledge to adopt a vegan lifestyle....I implemented this because I hated representing people's animals, then going out to lunch with them and seeing them eat more animals."

This is the first time I've heard of a lawyer offering a vegan discount, but I respect someone who puts dollars behind her beliefs.

Today I received the following correspondence:
__

March 4, 2008

Via Regular and Certified Mail

Eric Goldman
Ericgoldman.org
Santa Clara University School of Law
500 El Camino Real
Santa Clara, CA 95053

Via E-Mail

Eric Goldman
Ericgoldman.org
egoldman@gmail.com

Re: WBG Builders

Dear Sir or Madam:

This office represents WBG Builders. Attached please find a print-out from Ericgoldman.org which references WBG Builders. We ask that you kindly remove your reference to WBG Builders in your posting. Please note that the article to which you link no longer exists and/or does not mention WBG Builders.

Very truly yours,
Nash Law Firm LLC

Alan A. Reuter, Esquire

Enc.
___

See the original post in question about WBG Builders (with link fixed). Notice that this letter was sent on official law firm stationery by regular mail, certified mail and email--same content, received 3 times (all in the span of about 1 hour, as it turns out). I imagine many recipients would find repeated delivery of a letter like this intimidating and would happily comply to avoid further interactions with a lawyer.

Also interesting is that the letter requests that I fix a dead link by removing references to WBG Builders. Huh? Even if the link is dead, there's no need to change the text. And as it turns out, it was easy enough to fix the link.

Instead, this approach suggests to me that perhaps WBG Builders is trying to do some reputation management and may not want consumers to know that it might sue them for saying things it doesn't like. But absolutely consumers should know this in forming their opinions about WBG Builders, and any effort to scrub the Net of undesirable WBG Builder references is both distressing and doomed to fail.

Represented by Morrison & Foerster, Toshiba won a commercial dispute with New England Technology. Per the contract, the judge awarded attorneys' fees to Toshiba. As usual, the court gave a 10 day period for Toshiba to file a motion detailing its exact fees. The fees were about $1M. The day the motion was due, a courier left Morrison & Foerster's Orange County office with the motion at 3:30 but hit some unexpectedly ugly OC traffic, causing the courier to arrive at 4:01--1 minute after the office closed. It turns out to be a very costly minute (even vastly exceeding the inflated per-hour fees charged by the big firms). The judge declared the motion too late and, as a result, has refused to award any attorneys' fees. Toshiba is SOL.

For an amusingly different view on late filings, see this classic memo.

On my exams, I tell students that I do not accept late finals--there is no grace period, not even one minute, in which case a late paper results in an F for the course. (I also tell them "NO EXCUSES" so that they don't waste their creativity trying to come up with a brilliant excuse I simply can't refuse). I don't normally like taking such a hard line, but situations like Toshiba's comfort me that there can be draconian consequences for lawyers who are late, and my rules are fair training for that. If you think getting an F in a course is bad, imagine how bummed MoFo feels about being out $1M (which, undoubtedly, they will bear instead of Toshiba).

UPDATE: Howard Bashman weighs in on the matter.

UPDATE 2: WSJ Law Blog has the order.

Back in April 2006, a first-rate group of law professor bloggers (and a few other bloggers) gathered for the Bloggership conference to discuss how blogs affected legal scholarship and our lives as law professors. My recap from the event. I thought the experience of meeting other bloggers face-to-face to discuss blog-related issues was so terrific that it inspired me to initiate a local variation, the Bay Area Blawger gatherings.

At the event, a number of the speakers discussed the disintermediation of law reviews by new electronic publishing tools such as SSRN, as well as the difficulty of dead trees publications to compete with the blogosphere's speed at disseminating commentary and digesting events. As if to reinforce the points, the Washington University Law Review has now published the collection of papers from the Bloggership conference, about a year-and-a-half after the event was held and the early drafts of the papers were published via SSRN. Paul Caron has helpfully posted a comprehensive index to the papers as published in the Washington University Law Review as well as links to a variety of other goodies related to the event. My paper on Co-Blogging, in its final published form, is here.

Last month I blogged about the AALS/National Law Journal event we hosted at SCU entitled "Blogging, Scholarship and the Bench and Bar." The National Law Journal published the transcript from the event (National Law Journal, Oct. 8, 2007 at 22). Law.com has the electronic copy if you are a registered user. Jessie Seyfer of the Recorder also published a brief recap.

UPDATE: You are now able to freely read excerpts from the event here.

This lengthy profile of Jim Karger, a former Texas lawyer, is a textbook example of Patrick Schiltz's predictions. A law graduate realizes on day 1 of his first legal job that he had "made a serious vocational error," but sticks with the profession for 25 years, progressively suffering all of the ills associated with a legal practice: divorce, stress, physical maladies, materialism/golden handcuffs and alcohol use as medication. So he decided to chuck it all. He quit his job, sold his material possessions and moved to a sleepy town in Mexico. Now, he does a little consulting and runs a service to place stray dogs and cats from his village. There are a variety of cautionary lessons woven through this story if you listen carefully.

By Eric Goldman

The WSJ recently published a recap of some troubling trends in the legal/law school industries. Among its points:

* the legal industry is experiencing a growth slowdown, and many categories of lawyers are experiencing deflation in their inflation-adjusted wages
* law schools are proliferating, and the number of law school graduates is growing
* perhaps exacerbated by law school marketing efforts and skewed data collection/reporting, students may not be doing a good job fully contemplating how relatively few non-top tier graduates are getting the jobs paying the biggest bucks
* the cost of a legal education is going up, and students are graduating with bigger loans

These points are all well-known phenomena in the industry, but seeing them in a single article reinforces the significant and disturbing problems we face in legal academia. At best, there are plenty of warning signs that there is currently a supply/demand imbalance that could lead to a major market correction in the legal education industry. On the other hand, so long as students believe that law school is a lottery for a high paying job, students may be willing to continue entering the lottery even if the chance of winning is low.

On Monday, we held a panel discussion on campus entitled "Blogging, Scholarship and the Bench and Bar." Panelists included Paul Butler, Cindy Cohn, Judge Michael Hawkins, Larry Solum and myself, and the conversation was led by Nancy Rogers and Leigh Jones (a reporter at the National Law Journal). Larry Solum's brief recap. The conversation covered a number of topics, but the main threads were (1) how can blogs help lawyers and judges do their work?, and (2) how does blogging fit into the activities of law professors? We have posted the video online; see here (this video should be accessible for 30 days).

Before the event, I was given a few questions that I might be asked. The notes I prepared in anticipation of the panel:
_______

"How much time should a professor spend on blogging? When is it too much?"

• Assuming that a professor chooses to blog…
• Minimum amount of time: enough to ensure that the posts enhance the professor’s reputation.
- This means extra time to clean up first draft writing and, more importantly, doing verification/fact investigation to ensure accuracy
- For example, I don’t blog on a case/statute unless I’ve read the original source material. No way that I would rely on news reports or other bloggers’ characterizations
- Very uncool for bloggers to spread misinformation
- I also do a precedent check to ensure my comments are adding new incremental material rather than rehashing.
- So I rarely post in less than 1 hour; I have spent 10+ hours on some posts
• Maximum amount of time: such that blogging doesn’t interfere with professor’s other duties
- From my perspective, blogging doesn’t displace obligation to produce legal scholarship
- So if blogging is preventing me from contributing to scholarly discourse through more traditional format, then I’m spending too much time on it.
_______

"How can someone tell the difference between a good blog and a bad blog? How can the reader know if what's on a blog is accurate and truthful?"

• I try to avoid snap judgments about blogs I’m encountering for the first time
- I look at topical focus, length of time blogging, how regularly the blog is updated and if the posts look like they are adding new incremental material to the discussion.
- I also check external measures of popularity, like Technorati’s link count or Google PageRank
- When I find a topically relevant blog that looks like it has credibility and is being regularly maintained, I often add the blog to my RSS subscription list and “watch it” to see if I get new incremental and useful material from it. This also means that I regularly drop blogs from my RSS list.
• At the moment, I do not subscribe to any pseudonymous blogs.
- This is a matter of personal taste.
- For me, knowing the author’s identity is crucial to assessing the author’s credibility. I’ve also found that pseudonymous blogs tend to flame out quicker
- In many ways, my blog subscription list mirrors my social network—I tend to read blogs of people I’ve met offline and have developed trust in their expertise
_______

"What suggestions do you have regarding the format of law review articles that are drawn from your blogging experience?"

• Blogs offer quick publication, the ability to easily review cited sources, and often the ability of readers to interact with the author and other readers.
- Law reviews are already experimenting with similar offerings through online complements.
- However, law reviews are still trying to manage the community aspect. I’ve seen many journals with no comments; and others overrun by comment spammers and trolls—neither of which reflect well on the journal or make authors very happy
• The blogosphere’s quick publication cycles mean that new cases and statutes are digested very quickly.
- As a result, I think law reviews should categorically get out of the business of publishing case notes or recent updates unless they operate at blog speed.
- Otherwise, a law review has almost no chance of making any useful substantive contribution to the dialogue 12-18 months after a new case/statute when the blogs have already vetted the issue 12-18 hours after it occurred
• Law reviews also need to learn that publishing articles without additional marketing isn’t that useful for the journals or the authors.
- Therefore, each publication should be an event that sparks dialogue, which may require journals to more actively market new releases.
- Some journals have made limited progress on this front, but law reviews have a lot to learn from blogs about how to engage in bona fide conversations.
_______

"Law school gossip -- who has an offer from what law school, for example -- travels quickly on blogs. Has this been a positive or negative development on balance?"

• Blogs help form new communities that couldn’t exist in physical space
- For someone who doesn’t have physical access to information about law schools or law firms, blogs provide much needed access to very useful information
• However, “gossip blogs” can lead to unfortunate socialization
- Obsessing about every detail can lead to lots of efforts to improve relative positioning and make people feel like someone is always getting a better deal
- This can lead people to feel like they should be worrying about these details even if they otherwise wouldn’t care
- This is unfortunate, but it’s also the inevitable consequence of information democratization
• Blogs have also captured gossip that normally was ephemeral, but now this gossip is preserved forever and published to the world. Unfortunately, some of this gossip has had a greater detrimental effect than its off-line equivalent.
- Some of this gossip isn’t good, but it is inevitable, and I hope (over time) people will learn to better wield the power of publication
_______

I was also on deck to discuss gender disparities among bloggers--a topic I'm happy to defer to others. Cf. Dahlia Lithwick, who wrote that on the subject of the dearth of women opinion writers, men “are terrified to opine on the debate because the inquiry is so fraught with the possibility of career-terminating levels of politically correct blowback—à la Larry Summers—that they deem it better to hold their tongues and wait for the storm to pass.” In that vein, fortunately for me, this topic didn't arise in the panel discussion.

[This is part of my serialized materials from my talk on Ethical Issues in Contract Drafting and Negotiation]

We focus so much on deal substance and style that we often lose sight of the problems that can arise at the most critical time of all—when pen is hitting paper. If a lawyer mishandles contract execution, it can lead to a malpractice claim, professional discipline and a very angry client (or, more likely, former client). Therefore, this document proposes a step-by-step protocol to make sure that the contract signing stage is handled correctly.

Step 1: MAKE SURE YOU GET THE RIGHT VERSION OF THE CONTRACT. This can be particularly challenging when a number of drafts were swapped at the 11th hour; it may not be entirely clear which draft everyone is officially blessing.

Step 2: If you haven’t had drafting control over the last version, read the version to make sure it reflects all changes accurately. If you are the lawyer presenting the contract to the client for signature, everyone expects to ensure that the client is signing the right version with all negotiated changes. Stated differently, I don’t think a lawyer can credibly blame the other side if the signed draft has errors, even if those errors didn’t show up on the redlines. As a result, when I was in-house counsel, I typically read the agreement from top-to-bottom to make sure that the draft didn’t have any unexpected changes that didn’t show up on the redline. This was time-consuming and usually a little painful, but I did occasionally mistakes in the supposedly execution-ready draft.

Step 3: Make sure all internal signoffs have been procured and ensure availability of person with signing authority. This is especially critical when the parties are rushing to get the deal completed by a fast-approaching deadline. It can be embarrassing at best, and deal-killing at worst, to find that the proper signatory or internal gatekeeper cannot be found by the stated deadline.

Step 4: Prepare a clean version.

Step 5: Decide which side is going to sign first. Of course, this is unnecessary if the agreement is being executed in counterparts.

Step 6: One approach: send 2 copies of the final version to the other side
• include a cover letter with instructions
• include visual cues (such as flags) indicating where they need to sign
• include return envelope if you want an original back

Originating the signature copy has the advantage of ensuring that the right version is prepared for signature. Otherwise, you may need to reread the half-executed agreement you get from the other side before blessing for signature.

Step 7: When returned, get your client to sign and return one copy to the other side.

A DEAL ISN’T “DONE” UNTIL YOU SEE A FULLY SIGNED AGREEMENT
(or, better yet, cash in the bank)

As a great example of this, see International Telemeter v. Teleprompter, 592 F.2d 49 (2d Cir. 1979). Kirsch’s client told Kirsch that it had signed a settlement agreement, but Kirsch didn’t get the signed copy into his possession. Kirsch then relayed the alleged good news to the other side. However, Kirsch’s client had a management change before delivering the signed copy, and the new management balked at the settlement. This left Kirsch in the middle—he had told the other side that the agreement was done (and had authority to do so), but his client had reversed course and was saying the deal was never signed. Not only did Kirsch’s eagerness cost Kirsch a client (he resigned), but he has very few defenses if his former client sues him for malpractice based on being committed to a deal they didn’t want.

This issue also comes up with press releases—no public announcements of a completed deal until you see the fully signed contract.

Step 8: Make sure the signed version gets filed properly. A signed contract that can’t be found when needed isn’t very useful. I can’t tell you how many times I looked in the files for a signed contract and instead found a mess—signature pages with no contract attached; a contract with only one signature; or contract drafts without any signature at all. I’ve even had a couple of situations where both sides could not find a signed contract—posing a fascinating ontological problem as well as some intensely practical ones. As outside counsel, you may not always see the final signed contract (though I would usually ask for one, if for no other reason than to confirm that no further work was required on my part), but if you do, it should stored for easy retrieval. As inside counsel, it’s essential to maintain comprehensive files of all binding contracts.

Step 9: Do a post-mortem with your client to see what you learned from the deal. If you and your client are likely to do future similar deals, it may be worth investing some time after the first transaction to recap any lessons learned.

Step 10: Send a congratulatory note to other side/attorneys. Often, in the course of working on a deal, a lawyer develops a rapport with opposing counsel. The lawyer can reinforce the good feelings and extend his/her network by celebrating a successful closure to the deal. Good professional relationships can also help if and when the parties renegotiate the deal post-signing.

Step 11: Get the client to calendar significant dates and develop implementation plan. Often there are post-signing obligations to the contract, and the lawyer may need to help the client understand and implement those obligations to avoid breaching the contract.

Step 12: If deal has subsequent conditional dates, make sure those conditional activities get documented when they occur. For example, in web development and hosting agreements, usually some contract obligations are triggered upon “launch” of the website, such as hosting might run 12 months from the website launch. Unless the parties document the launch date, in the future it will be difficult to determine when the contract expires. Therefore, when reaching a milestone contemplated by the contract, the lawyer should (if involved at that point) record the event in the files (and, as applicable, the contract tracking software) to make sure the contract can be interpreted properly in the future.

[Note: this is a serialized component from my materials on Ethical Issues in Contract Drafting and Negotiation]

In a transactional practice, procedural choices can substantively affect the ultimate deal. In particular, a poor procedural choice can lead to the loss of future procedural privileges in ways that disadvantage the client; and in extreme cases, a lawyer’s poor procedural choice can tank the deal altogether.

Despite this, many lawyers transgress basic norms when generating and delivering feedback on a transaction. Most such transgressions are unintentional, so to help cure that information gap, this document mechanically details the steps that a lawyer should follow when receiving a document from the other side.

Step 1: Make sure you have the right documents that were meant for your review. I can’t count the number of times I’ve received the wrong draft of a document, such as a draft that hasn’t actually changed from a previous iteration or that was used for internal comments (so, for example, it contains comments between the other side and his/her lawyer). Few things are more irritating than to spend significant time reviewing the wrong document, especially when the transaction is on a fast track.

Step 2: Make sure that the other side did the redlining accurately. This should be self-explanatory, but far too often, the redlining is botched (usually unintentionally), and that can lead to a big waste of time—or worse, missed changes.

Step 3: Read the document from top to bottom. Unless time is critical, I usually read the document in its entirety and not just the redlines, because it’s easy to forget how the redlined changes might affect other aspects of the contract that aren’t changed.

Step 4: Mark all of your desired changes and comments. I know it’s a little silly, but I have developed a color-coding system for making notes—blue pen reflects my internal notes, red pen reflects any changes agreed upon with the other side. This color-coding speeds up my subsequent review of the document circulated by the other side or my editing when I’m making the changes (I just look for my red notes). Further, because I use these colors consistently, I can revisit transactions from months or years ago and still sort through my notes.

Step 5: Cross-check old notes/documents to make sure all prior feedback was addressed.

Step 6: THINK ABOUT WHAT IS MISSING. If I have time, I usually set the document aside for a little while to get some space, then I come back to it with a clear head to see what should have been in the document but isn’t. Identifying missing provisions is one of our toughest jobs as lawyers (there is plenty of psychological literature explaining why), but we must look beyond the other side’s text.

Step 7: Talk with your client about issues before speaking with other side. Ultimately, lawyer and client should speak with a single voice, and this requires you to coordinate your feedback with your client’s feedback.

Step 8: Where appropriate, schedule a conversation with the other side.
• At the beginning of the conversation, clarify who will prepare the next draft
- Usually, the person who received the prior draft will prepare the next draft
• Then, before getting into substance, ask the other side if anything has changed on their end. Not infrequently, things have changed since they sent the draft to you, and it’s best to hear about these changes before you start delivering your comments.
• If you are preparing the next draft
- When circulating the draft, include a cover sheet explaining any deviations from the discussions and outlining all open issues. Not only does this provide a helpful instruction manual for the other side, but it makes it easier for you to pick up the transaction when it comes back (especially if the deal goes on hold for a while)
- Prepare a clean redline. Always accept all redlined changes before editing it. Never edit a document that already has redlining in it.
- Watch out for metadata
• Never forget that you are both a representative of your client and an agent of your client. Your actions and words can affect your client’s reputation and economic prospects. If your client wants you to pound the table and act intransigently, then go ahead (so long as it otherwise comports with the Rules of Professional Conduct). But if not, your behavior may harm the client both in this deal and for subsequent deals. Further, in many cases, your words can legally bind your client, so make sure your client can stand behind everything you say.

New York Lawyer has a good article on the different ways that law firms handle the transparency of the amount paid to partners. At most firms, partners can learn what their peer partners earn (although, in some cases, this information isn't easy to get); at other firms, compensation information is not shared publicly. According to the article, partners at the opaque firms are often strong advocates of their model, which may not be surprising given that in most of the business world, compensation is not publicly disclosed. Compensation may be one of those topics where people *think* they want to know more about what their peers make but additional disclosures often lead to more misery than joy. See, e.g., Katherine Strandburg, Privacy, Rationality, and Temptation: A Theory of Willpower Norms, 57 RUTGERS LAW REVIEW 1237 (2005) (discussing situations where people should resist being exposed to information they will later regret); Patrick Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession (discussing how lawyers use money to keep score in a game that ultimately makes them unhappy).

I gave an updated presentation on Ethical Issues in Contract Drafting and Negotiation. I got some pushback from the audience on the "Negotiations--Telling the Truth" and backdating slides; and the anti-contact rule slides produced a near-meltdown! The latter is hardly surprising as those rules are so inconsistent with day-to-day transactional lawyering.

Also, I've posted some written materials from the talk. Later this week, I will serialize a couple of parts for your convenience.

As part of our orientation, the school arranged a lunch for incoming 1st years and judges/lawyers/professors. The agenda was to discuss professionalism with the incoming students, and we were prompted with a cheat sheet of questions. One question asked us to think of a time when we saw professional/unprofessional behavior by another lawyer and how we responded.

Of course, I had plenty of source material to draw from, but it reminded me of an incident that I don't recall having shared publicly. In the late 1990s, I was on a telephone call to negotiate on behalf of my client with another lawyer from a well-known Silicon Valley firm. As usual, both of us as lawyers were operating on incomplete information, but the parties were determined to get a deal announced quickly. Opposing counsel suggested that we help the parties by jointly agreeing to some deal points between the two of us. I told opposing counsel that I couldn't do this as neither of us were in a position to agree to new business points. After some back and forth on this, opposing counsel then said:

"Oh Eric, stop being such a potted plant."

Now, it's clear that we as lawyers can't exceed our authority as agents for our principals, so there's really not much to discuss. It's also fairly clear that name-calling is generally out-of-bounds among lawyers, but this is a rather bizarre name to be called.

I asked the incoming 1Ls how they would respond in this situation. Curious what I did? Read on...

I gave opposing counsel the equivalent of a time-out. I didn't say a word for 1 minute. (At the law firm, our phones had timers on them so we'd know how long to bill the client). I just held the phone silently and watched the clock tick 60 seconds. I can assure you this felt like a very loooonnng time. At the end of the time-out, I reiterated that I could not do what opposing counsel was asking and suggested that we'd best be served by suspending this discussion and reconvening when we had more input from our clients.

Then, later that day, I sent opposing counsel an email saying "I realize that we haven't met in person, so I thought it might be helpful to see what I look like" and included some URLs like this and this.

Powerful GQ article on military lawyers defending detainees at Guantánamo Bay. An excerpt:

Which is why the commissions were designed to appear to be fair. The rules required each defendant to be provided a JAG officer who would be bound by personal and professional honor to present as robust a defense as possible. It would all look very proper, but the outcome would be preordained, the defendant utterly doomed, because of all the other rules....

“Only the government benefits if we do a bang-up job,” Fleener says. “The administration believes the commission process will ultimately justify the detentions. They know they can’t just hold people; they don’t want to take the political heat. So they rigged the rule of law. And because it’s rigged, the only thing that’s in play is the appearance.” And the detainees know it, which is why they don’t want to go along with a charade. “At the end of the day,” he says, “that’s how these guys look at it: ‘If I’m going to get a life sentence—or a death sentence—I’d rather get one in this weird, disgusting system that everyone knows is a weird, disgusting system than have some military lawyer up there dancing and juicing it up and making it look like it’s not rigged.’”

Many American lawyers are unhappy with their jobs--so much so that we sometimes think we have a monopoly on unhappy lawyers. But it turns out British lawyers are unhappy too, according to this Times of London article. The article lays out the main seeds of discontent (as recapped by the WSJ Law Blog):

* Dehumanizing hours
* The gap between lawyers’ intelligence and the mind-numbing nature of their work
* The gap between the ideals of those entering the profession and the reality
* The cumulatively lowering nature of the work
* The vortex of hatred that envelops them
* The self-inflicted nature of their suffering

It would be an amusing and entertaining read if it didn't hit so close to home! HT WSJ Law Blog.

IP litigation--especially patent litigation--is hot, but I've been trying to figure out what's causing the growth and whether it's persistent. Jessie Seyfer at the Recorder provides one explanation for the discontinuous bump-up in patent litigation: private equity funds, tired of poor returns elsewhere, are channeling their investment dollars into a new asset class of patent portfolios and buying into patent lawsuits, thus providing a vast pool of new money flowing into plaintiff-side patent work that will generate lots of legal fees for both sides. Accordingly, it seems to me that patent litigation will stay hot for quite some time as the legal industry resets to a new and higher equilibrium of patent lawsuits.

The National Law Journal runs a glowing article on how law students have gotten jobs/offers from blogging. This is great to hear, and done properly a blog can turn a law student into a superstar while still in school. But as the article only hints at, blogs also have the potential to produce the directly opposite effect, as evidenced most recently by the AutoAdmit fiasco. I caution law students to consider both the upsides and downsides of blogging before entering the blogosphere.

What would you rather do--check with a lawyer, or hit yourself with a hammer? Funny.

New York Observer: "My Very Special Summer." All the dirt on life as a summer associate in NYC. HT: WSJ Law Blog.

Mike Dillon, GC at Sun Microsystems, has a terrific post explaining a GC's view of the litigation process. He offers 4 lessons:

* Litigate only "when you have an important interest to protect"
* Non-judicial resolutions are better than having a third party decide your fate
* Litigate only when you think you will win.
* Litigate to win.

Check out more details and his case study.

I've previously blogged on the intersection between Generation Y/the Millennials and law firms. The latest article on the topic (free reg. req'd), with some great tidbits such as:

* the woman lawyer who asked "Do I really have to wear a bra to work every day?”
* "Recruiters tell Crane that parents are accompanying their law-student kids to interviews; some are calling the firm to complain if their children don’t get hired or receive a less-than-stellar evaluation." Wow! My Jewish mom has occasionally threatened to go after some colleague/supervisor who she felt slighted her son, but she never actually went through with it!

National Law Journal (free reg. req'd): "The selection of a practice area may have a greater impact on an associate's life than any other factor, even the selection of a law firm." As I've indicated before, I'm always amazed that some law students completely overlook practice area considerations when evaluating career options.

This breathless Law.com article discusses how lawyers with MySpace pages are being deluged with new clients. I particularly liked this quote:

Mark Meisinger, a 28-year-old criminal defense lawyer in Dallas, says his prospective clients are on MySpace. Meisinger says he defends people from charges involving drugs, driving while intoxicated and probation violations, as well as from traffic tickets. He also does juvenile law.

"This is my perfect age group. The people I'm going after [as clients] are on MySpace," says Meisinger, who graduated from Creighton University School of Law in Omaha, Neb., in 2004, and office shares at Gioffreddi & Associates in Dallas. "A whole bunch of people who party, who drink, whatever, those are the people on there who want to be my [MySpace] friend."

Here's a man who knows his target audience!

HT: Legal Ethics Forum

AP story on the rising number of law school applicants with deep scientific backgrounds. From my own personal observation this year being loosely involved with SCU's admissions process, I'm blown away by the technical backgrounds and expertise of our applicants. There are a lot of strong scientists who've decided to pursue law instead. As the article quotes Prof. Polk Wagner, "It almost scares me...Who's left in the lab?"

The California Assembly has passed AB102, the Name Equality Act of 2007. The latest text of the law. The Mercury News article. This law, sponsored by the ACLU and others, is designed to statutorily overturn the discriminatory imbalance between men and women changing their name upon marriage. Let's hope this law gets enacted!

Students commonly assume that small firm lawyers work less hard than big firm lawyers. For example, when I ask students what they want to do after graduation, not atypically they will say "I want to work in a small firm." Apparently to these students, it doesn't matter to them what practice area or geography, just so long as the firm is small. It's as if all of the downsides of big firms melt away when you remove some lawyers.

But the reality may be different. This article from NY Lawyer (free reg req'd) offers some explanations for why small firm lawyers may work harder than big firm lawyers to yield the same number of billable hours (basically, the article assumes that at big firms, you can overstate your time more easily--ethics of overbilling aside).

This article reinforces why it's important to transcend the stereotypes about who works harder. Size of firm might have a rough correlation with the amount of hours worked by its attorneys, but the correlation is only rough, and every firm has its own unique corporate culture on this question. It could be a significant mistake to use firm size as a reliable proxy.

From the AP: Wisconsin is poised to remove the handcuffs on free beer samples, allowing grocers and liquor stores to hand out free 6 oz samples of their own. I really think this quote from a Wisconsin legislator says it all: "It's a good bill. It's a Wisconsin bill. It's a beer bill."

This article describes what new Bay Area associates are doing with their $160,000 starting salary. Apparently, between taxes, student loans, rent and saving for a new house, these new associates aren't living large.

IMHO, last night's gathering of Bay Area Blawgers was a smashing success!

The Crowd

We had over 45 people show up at the event, exceeding our seating capacity! Typically, a fair number of lawyers who RSVP to an event don't show because of last-minute crises, etc. (This is especially true when there's no registration fee). Remarkably, all but a tiny handful of RSVPs actually showed up. I think this reflects bloggers' strong interest in meetups like this--we had attendees who fought a lot of traffic to make it from distant points, including SF, Marin and the Central Valley.

I was also struck by the bloggers' diversity. Just about every segment of the legal industry was represented: big firm lawyers, small firm lawyers, solo practitioners, in-house lawyers, government lawyers, non-profit lawyers, academics, law students, librarians/knowledge managers and legal reporters. Bloggers also covered a diverse range of topics/practice areas: we had a strong group of IP/tech bloggers, but we also had bloggers covering real estate law, immigration law, corporate law, unfair competition law, government law, professional responsibility, politics, legal humor and much more. Finally, we had all of the generations represented; we had lawyers with decades of experience and law students just starting their career.

Thus, this event cut across a lot of the normal divisions within the legal community, yet everyone had something to contribute, and people mingled freely. I can think of few other contexts where such a diverse group of lawyers (and legal-types) eagerly and easily interact with each other. Blogging truly does bring people together--in this case, people from many different backgrounds and walks of life. The main commonalities were (1) we went to law school, and (2) we blog. Apparently, that's enough commonality to form a solid community despite the many other differences.

One other point about the crowd. There's been a lot written about the dearth of women bloggers, a topic that regularly sparks blogwars. See, e.g., here, here (noting that 25% of law prof bloggers are women) and here/here (observing the phenomenon in political blogs). But last night, we had a terrific turnout of top-notch women bloggers. At least in the Bay Area, there's no obvious gender disparity.

The Discussion

In my introduction, I observed that blogging allows us to make virtual friends across the globe, so it’s a little ironic to meet physically, which by necessity limits attendance to people locally. This brings to mind the environmentalists’ 1970s mantra: “Think Globally, Act Locally.” Perhaps in the digital age, we might update that motto to: “Blog Globally, Meet Locally.”

During the discussion, we talked about why people blogged, the challenges that bloggers face, how bloggers develop their voice and strike a balance between personal and professional topics, how bloggers manage reader comments, some risk management issues (like liability for infringing comments), and how blogs may be affecting the development of the law. Although we had a formal discussion for almost 90 minutes, I felt like we barely scratched the surface of these topics, and there were many, many times I would have loved to ask follow-up questions and really explored someone's remark.

We ended up spending a surprising amount of time discussing blogs as an extension of a lawyer's identity and the obligations/challenges of owning one's words. We want freedom to express ourselves, but we also face a lot of constraints due to the possible implications of our words on our reputation or on third parties (such as our clients). Kim Kralowec was a perfect example, as she started out by blogging pseudonymously for a year before taking the cloak off. Then, she was reluctant to blog on defense-favorable cases given her plaintiff-side practice, but ultimately her firm's managing partner encouraged her to blog all sides.

As this indicates, many lawyers fear blogging because of possible future estoppel--i.e., lawyer takes position A on the blog, and then wants to argue contrary position B in the future for a client. On this point, Jason Schultz asked if anyone in the room had their blog cited against them by an adversary. His working theory is that adversaries may raise a lawyer's public statements against them, but that such citations rarely have any adverse consequence.

I had a personal experience with this. When I was being deposed as an expert witness, the opposing lawyer asked me about a post I had made to an email list. (The printout was actually garbled, but that's a different point). But, consistent with Jason's theory, this citation was inconsequential to my testimony or my credibility. In response to Jason's inquiry, John Steele also noted that he knew of 2 different law firms who had their client newsletters cited against them, but again it's not clear that those citations had any effect. So while blogging still has a theoretical risk of further adverse citation, we’re still looking for actual evidence of such adversity in practice.

However, I couldn't resist pointing out how I had been listed on a Rule 26 supplemental disclosure in the Bar/Bri litigation as a witness with potentially discoverable evidence because I had written a few general blog posts on the case.

Kurt Opsahl conducted 2 interesting surveys. First, he asked how many bloggers had filed a 512 OSP registration with the copyright office. No hands, although Mike Masnick from Techdirt said he was in the process of doing so. This result is consistent with my research on the OSP registration database last summer (see here), where I identified only about a dozen blogs that had filed registrations.

Second, Kurt asked how many bloggers had received a cease-and-desist letter. About 10 bloggers raised their hands. I raised my hand even though I don't think I've ever received a "true" cease-and-desist. I have gotten some nasty emails from litigants (typically plaintiffs) unhappy with my blogging on their case, but those rarely contain anything close to an implied legal threat.

However, I did have one situation that's close enough. In that case, a "reporter" (which I put in quotes for reasons that will be obvious in a moment) was surprised by my strong words in a post where I dissected an ill-conceived lawsuit. The reporter emailed me to ask if I thought my remarks were defamatory, and of course I replied that I thought not. This enterprising "reporter" then wrote a story about how bloggers can be irresponsible with their word choices, citing how a law professor (me) had written a blog post that could be defamatory. As part of this reporter's research, he called up the litigants in the deconstructed case and asked them "Hey, do you think Goldman defamed ya? And do you plan to do anything about that?" I think it's fair to insert a "hint hint" after those questions, and I'll let you form your own opinions about whether such questions are consistent with standard journalistic ethics. Then, to complete the campaign, the reporter submitted this story to Slashdot. Fortunately, when other bloggers with actual legal training weighed in, they all were as dismissive of the defamation characterization as I was. But it's never fun having people running around asking other people if they are planning to sue me!

One last point from the discussion: Cathy Gellis said that she went to law school in part to have a say in important matters. But then she realized that to have a say, she needed to speak up--which she now does via her blog. To me, this was one of the best justifications for blogging that I've heard.

Next Steps

At the event's end, I asked if there was sufficient interest in reconvening another gathering of Bay Area Blawgers, but I think the answer was already fairly obvious. It was absolutely terrific to meet people face-to-face, and we clearly have more things we could learn from each other. Therefore, the High Tech Law Institute plans to sponsor a second gathering of Bay Area Blawgers in Fall sometime. More details to come. If you didn't RSVP yes to the initial event, or if you're not on the list of Bay Area Blawgers, then I don't have you on the email list--please contact me and I'll add you.

Other Recaps

Blawg Review
Matt Cutts
Cathy Gellis
Matt Holohan
Kim Kralowec
Mary Minow
Kristie Prinz
John Steele
Supra

Other Blog-Related Resources

List of Bay Area Blawgers
Blawger Discussion Issues
My collection of blog law and blogging related materials

One underwriter (rightly or wrongly) says that lawyer blogging would void its malpractice insurance coverage. I suspect this is one of those early overreactions to theoretical risks by an insurance carrier, and the insurance industry will wise up after a number of years of better understanding the (low) malpractice risk profile of blogging.

More by Kevin at LexBlog.

UPDATE: Kevin had a good exchange with Chubb, posted here. They've partially backtracked to say that they may not insure "advisory" blogs where law firms "offer advice," but informational blogs are OK. This makes sense, a little, in that lawyers would be ill-advised to render legal advice via a public blog, but I can't imagine many (any?) lawyers are doing that.

According to this article in the San Jose Business Journal, lawyers' average hourly billing rates have grown faster than the rate of inflation for the past several years. This should hardly be surprising given the growth in lawyer compensation over the past few years (especially the breathtaking profits-per-partner this year), because there are only 3 inputs to law firm revenues that bill by the hourly rate: # of hours worked x hourly rate x realization rate. Most firms do a good job on realization, so there's only 2 levers to increase the top line: work harder or charge more. It appears that many lawyers are doing both.

Patent litigators are HOT! (free registration required)

Mavericks is down, but surf's up for Silicon Valley attorneys! According to the SJ Mercury News, the boom times are back for local lawyers.

A New Mexico legislator is proposing a resolution that when "Pluto passes overhead through New Mexico's excellent night skies, it be declared a planet." Amazingly, Wired quotes various people praising the resolution rather than scratching their head at legislative priorities.

UPDATE: I guess NM legislators really DON'T have anything else better to do. They also just enacted a law declaring the bolo tie the state's official tie. Great job, guys!

In re Reynoso, No. 04-17190 (9th Cir. Feb. 27, 2007)

This case holds that an online bankruptcy expert system constitutes the unauthorized practice of law. As usual in these types of cases, every little fact matters. According to the court,

Frankfort sold access to websites where customers could access browser-based software for preparing bankruptcy petitions and schedules, as well as informational guides promising advice on various aspects of relevant bankruptcy law.

The site's marketing included the following statement:

Ziinet is an expert system and knows the law. Unlike most bankruptcy programs which are little more than customized word processors the Ziinet engine is an expert system. It knows bankruptcy laws right down to those applicable to the state in which you live. Now you no longer need to spend weeks studying bankruptcy laws.

The court continues in describing the site:

It explained that its program would select bankruptcy exemptions for the debtor and would eliminate the debtor’s “need to choose which schedule to use for each piece of information.” The site also offered customers access to the “Bankruptcy Vault”—a repository of information regarding “loopholes” and “stealth techniques.” For example, according to the site, the Vault would explain how to hide a bankruptcy from credit bureaus and how to retain various types of property."

Not surprisingly, the court concluded that this expert system constitutes the unauthorized practice of law:

Several features of Frankfort’s business, taken together, lead us to conclude that it engaged in the unauthorized practice of law. To begin, Frankfort held itself out as offering legal expertise. Its websites offered customers extensive advice on how to take advantage of so-called loopholes in the bankruptcy code,8 promised services comparable to those of a “top-notch bankruptcy lawyer,” and described its software as “an expert system” that would do more than function as a “customized word processor[ ].”

As usual, the words used in marketing these electronic tools are critical to the ultimate determination on UPL. Some of the word choices here were unfortunate--they were designed to entice users to use the system by promising more personalized solutions. There's a very fine line between legitimate technological tools that are user-controlled and software that crosses over to UPL by personalizing the results too much. Personally, I'm not sure where that line is, but it seemed pretty obvious to me that this software implementation crossed it. Plus, having an injured party (the bankruptcy debtor, whose case was hurt by errors in the system) didn't help.

HT: Poulsen at Wired.

From the Law Blog: More silliness about the artifical lines between "commercial speech" (whatever that means) and editorial content. The NYT recaps law firms' reactions to the new New York ethics rules requiring firms to label their websites as "attorney advertising" if their "primary purpose [is] the retention of the lawyer and the law firm." So, does this cover the standard law firm website or not? Who knows. And what value does anyone derive from making that disclosure? I would venture to say, absolutely none. For a more rigorous rant on this point, see my short comment here.

The AP updates the status of laws banning Internet hunting, a topic I blogged about extensively in 2005 and even wrote an editorial about. Encouraged by the Humane Society (on a roll with their regressive perspectives about Internet law), 25 states have now passed anti-Internet hunting laws. A proposed law is pending before the Connecticut legislature, but this law looks especially silly now that the only website ever to offer Internet hunting stopped doing so some time ago. So what, exactly, are Connecticut legislators regulating--the hypothetical prospect that a new player will decide to create this "industry" despite 25 other state laws to the contrary? Glad to see that there are not more pressing problems in Connecticut than to regulate non-existent websites!!!

Copyright ownership of attorney work product is an under-discussed issues among attorneys. It raises a variety of complex issues, including who owns the copyright in the documents we prepare as attorneys and when do we infringe by recycling our work or "borrowing" from others. I think this is such an interesting issue that I tested my copyright students on it in 2002. See the exam and my sample answer. Ken Adams has also blogged on the topic (here and here, or the combined article here), and the topic routinely sparks flamewars on CNI-Copyright.

In the recent issue of Business Law News (the periodical for members of the Business Law Section of the CA State Bar), Greg Victoroff published Copyrights in Attorney Work Product: Panacea or Pandora's Box?, an admirable and thorough discussion of the topic. Although I haven't found a web-accessible version, it's worth tracking down if you're interested in the topic. I don't agree with his basic agenda (of promoting copyright interests in attorneys-qua-authors--for example, I think it's silly to put a CR notice on court submissions), but he'd get an A for issue-spotting on my exam!

Douglas Litowitz is issuing a second edition of the book The Destruction of Young Lawyers. I haven't read the book, but this interview with him lays out his basic thesis. He argues that 5 key attributes of the legal profession are contributing to widespread unhappiness among practicing lawyers:

* law school (among other critiques, "It is outrageously expensive, boring, and doesn’t teach concrete lawyering skills")
* the bar exam, "a totally pointless ritual of subjugation"
* "the big-firming of the profession," where (among other things) "equity partners are like a master-class while the young associates are like wage workers hired out by the partners"
* the billable hour method of charging
* new communication "technology which has transformed the practice of law into a 24-hour quickie-mart"

I'm not sure any of these critiques are new or even especially enlightening. However, who can resist such colorful rhetoric?

I'm helping to organize a roundtable discussion for blawgers (scheduled for March 28, 6-8pm at SCU--please email me if you're interested in coming). This got me thinking about topics I'd like to explore with other blawgers. My list:

General

* why do you blog?
* who is your intended audience?
* what is your favorite/most memorable blogging experience?
* how did you get into blogging?
* who are your favorite bloggers?
* what would do with your blog if you had more time?
* how would you characterize your blog voice/style?

Blogging Mechanics

* how are you dealing with comment/referral spam?
* what do you do to promote your blog?
* what are you using as a stats package?
* any luck with tools like Feedburner or a service that converts blog posts into an email alert?
* what's your philosophy for building/managing your blogroll?
* are there better ways to generate revenue than Google AdSense? Are you concerned about generating revenues from the blog?
* what are your experiences with podcasting and video?
* do you have any special tricks to sourcing content for your blog?

Risk Management

* are you getting any good business/referrals from the blog? How do you respond to requests for legal input from blog readers?
* how are you dealing with emails from litigants in the cases you blog about? (many of these emails want to relitigate the case via the blog)
* what are you doing to manage legal risk for comments, guest bloggers, joint bloggers? (recognizing that 47 USC 230 and other legal doctrines may limit liability here)
* what is your policy about taking down user comments? Accepting trackbacks?
* are you registering your copyrights? Should you? Have you registered as an OSP under 17 USC 512? Should you?
* how much research do you do before blogging on a topic? How much should you do?
* do you have insurance that covers your blogging? Does your malpractice insurance carrier care if you're blogging?

Professional Responsibilities

* what are law firm policies about attorney blogging? How do clients feel about blogging? Has a blog post been cited against you?
* what are the rules for company employees blogging, and are the rules different for in-house counsel (and should they be?)?
* are you concerned that blawging will be regulated as legal marketing?
* what disclosures do you make about your allegiances? What disclosures should be made?

If you have any other thoughts of topics you'd like to discuss, please email me.

There are brewing concerns about the intrusiveness of the proposals floating around in the California legislature, sparked most visibly by the proposal to ban parental spanking of children. Some critics are calling some of these proposals "Nanny Bills" because they reflect a legislative paternalism; like citizens need a legislative nanny looking over their shoulders. (Nanny-ism was also referenced in this NYT article about requiring walkers to remove their iPod earbuds before crossing the street.)

Not having walked in their shoes, I must confess that I just don't understand what goes through the mind of legislators. However, as an academic and affected citizen, I remain a little frustrated that legislators don't seem to appreciate their role as experimenters where each passed law becomes a social experiment--but unfortunately usually the experiment is conducted trial-by-error. (Cf. Brandeis' defense of federalism because states can act as laboratories of experimentation). As a "scientific" experimentation process, our current legislative system has at least 3 intrinsic but fatal problems:

1) There is often little or no scientific basis underlying the initiatives. Instead, the rhetoric usually relies on anecdotes, intuition and ulterior agendas. But on many questions that legislatures seek to address, there is a rich scientific literature on the question that legislators should consult before making proposals. For example, academics have studied the pros and cons of spanking children. What do they say?

2) There is usually no explicit mechanism to measure the effectiveness of the experiment. Occasionally, laws are passed that delegate efficacy oversight to an administrative agency (for example, Congress asked the FTC for a report on the efficacy of CAN-SPAM), but this is the exception rather than the rule, and we have little evidence that legislatures heed the feedback they get from their "scientific" monitoring mechanisms (as opposed to other mechanisms, like popularity with constituencies or lobbying mechanisms).

3) There are very weak mechanisms to end failed experiments. Legislatures do occasionally repeal laws and more frequently tinker with the laws, but a lot of laws get passed and then left alone forever.

I can offer one possible solution to correct the experimentation process used by legislators: we could require legislators to follow a more rigorous scientific method--form hypotheses, do the research, and then conduct tests to measure the efficacy of various solutions. Unfortunately, this isn't realistic. Legislators aren't trained scientists, and legislatures are lousy venues to debate scientific merits. Yet, knowing that legislators are experimenting without following accepted scientific methods, we should hold them more accountable when they ignore the available literature in preference for their own intuition.

It's relatively rare to get public access to a major law firm's partnership agreement. Courtesy of a plaintiff, here is a copy of the 1994 Sullivan & Cromwell partnership agreement (starting on page 27) [warning: 3MB file]. I didn't see anything really earth-shattering (especially because the most interesting decision-making is delegated to a partnership committee), but the payments on termination/retirement are interesting/complex, as are the restrictions on a departing partner's practice (see paragraph 5.6).

Franklin v. Chavis, Opinion No. 26251 (SC Sup. Ct. Jan. 22, 2007)

An insurance agent helped a 91 year old woman prepare a will using Quicken lawyer. Some relatives who got less than they thought they deserved challenged the will, arguing that the insurance agent engaged in the unauthorized practice of law. The court's response:

The novel question here is whether respondent’s actions in filling in the blanks in a computer-generated generic will constitute the practice of law. Respondent selected the will form, filled in the information given by Ms. Weiss, and arranged the execution of the will at the hospital. Although these facts are not in themselves conclusive, the omission of facts indicating Ms. Weiss’s involvement is significant. There is no evidence Ms. Weiss reviewed the will once it was typed. The will was not typed in her presence and although respondent relates the details of what Ms. Weiss told him to do, there is no indication he contemporaneously recorded her instructions and then simply transferred the information to the form.

We construe the role of “scrivener” in this context to mean someone who does nothing more than record verbatim what the decedent says. We conclude respondent’s actions in drafting Ms. Weiss’s will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law.

However, the news isn't all good for the plaintiffs--the court didn't invalidate the will. But the news isn't good for the defense, either. UPL typically is a criminal violation, so it has to be a little disconcerting for the defendant to have a South Carolina Supreme Court opinion saying he engaged in UPL.

Either way, this is another reminder that the "mere scrivener" defense is typically a feeble one.

HT: Declan at News.com

You may recall that I previously blogged on the story of the 14 year old boy who, with malice, meowed repeatedly (at least twice) at an elderly neighbor, which led to a criminal prosecution for harassment. At that time, I said "meowing during chance encounters between neighbors, even if the meow is communicated with maximum snarkiness, is not a crime." Not surprisingly, the judge agreed, dismissing the case (which never should have been brought) but also admonishing the boy for immature behavior. If I were the judge, I'd have issued a couple of other admonishments: one for the neighbor (get a thicker skin) and definitely one for the prosecutors (focus on real crimes).

Some observant Jews are suing Vienna Beef Hot Dog for extensively marketing that they are 100% beef (and, thus, acceptable for some Jews to eat, even if the hot dogs aren't otherwise strictly kosher), even though allegedly the wholesale ingredients list discloses that the ingredients include pork casing. As a vegetarian, I HATE undisclosed ingredients! My recommendation: next time, skip the meaty hot dogs altogether and go for the tofu dogs.

A Wisconsin lawyer is defending a client from charges of "sexual gratification with an animal." But in this case, the deer was dead at the relevant time, so the principal defense is that a dead deer isn't an "animal" as contemplated by the statute (i.e., the law doesn't outlaw sex with a carcass). In support of this argument, the lawyer invokes a reputable secondary authority, the movie Princess Bride, citing the line uttered by Miracle Max (played by Billy Crystal) that "there's a big difference between mostly dead and all dead."

This got me thinking about the number of times that lines from the Princess Bride movie have been cited in judicial opinions. After all, that movie is filled with quotable lines, and my law school roommate and I wasted many, many hours watching the movie and quoting the lines to each other. So, I did a search in Westlaw for the term "Princess Bride" and came up with 2 relevant hits:

1) Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216 (Ohio Nov. 5, 2003). In a dissent, Jduge Pfeifer wrote:

{¶ 100} The three sitting justices who are in the majority have all been applauded as practitioners of judicial restraint. As to that restraint, I am reminded of the words of the character Inigo Montoya from the movie "The Princess Bride":

{¶ 101} "You keep using that word. I do not think it means what you think it means."

Ouch!

2) Adkins v. E.I. Du Pont De Nemours & Co., Inc., 1995 WL 704779 (D. Del. Nov. 21, 1995):

FN5. Despite this representation, plaintiffs close their argument against defendants' Rule (9(b) motion with a plea that, should the court find for defendants, plaintiffs be granted leave to amend. The court is hard pressed to see just how plaintiffs could amend, given their position that the provision of a more specific pleading is "inconceivable." The court assumes that in their word choice plaintiffs have succumbed to cinematic hyperbole. See, The Princess Bride (Twentieth Century Fox, 1987).

UPDATE: In the Wisconsin case, the appeal to Princess Bride failed.

From NY Lawyer: Seth Zimmerman was an FTC lawyer and an active eBayer. He actively sold Washington Redskins tickets via eBay--a total of 1,100 sales over the course of 3 years, grossing nearly $100,000 in revenues. After he fell behind in ticket deliveries, he caught up by sending 159 FedEx packages of tickets using the office FedEx number, costing the federal government almost $2,000 (FedEx also claimed that the hefty federal government discount meant it had almost $4,000 of foregone revenue). For this, he pled guilty to criminal theft and got a 1 year suspended prison sentence; and the attorney disciplinary board has recommended disbarment. There is a fine line between theft and the tolerated personal use of some office services/supplies. Using office resources to run an eBay business appears to cross that line.

From AP: In the category of bad interactions between older women and 14 year old boys who are neighbors, a 40 year old woman tired of hearing her 14 year old neighbor play basketball. So, to discourage him, she stripped within sight of his basketball venue, and threatened to strip again every time he played basketball. The boy told his parents, who called the cops, who cited her for indecent exposure. The court dismissed the citation because the relevant statute applies to someone who "exposes his person," which the judge said covers only men, not women.

Oddity #1: How does a judge read "person" to mean "male genitalia"? That might be a more defensible interpretation if the statute restricted exposure of "manhood" or something unambiguously male. (The reference to "his" should be irrelevant given a separate statutory provision that says masculine gendered words should be read as gender neutral).

Oddity #2: Why did the woman think that disrobing would discourage the boy from playing basketball?

Oddity #3: Why did the teenager complain about his neighbor's nudity? Don't get me wrong, underage teenage boys need to be protected from sexual predation and other risks. But realistically, most teenage boys would consider this situation a windfall, even if the nudity was committed with the most malicious intent.

I previously blogged on the battle over Goldmansex.com. Goldman Sachs successfully won a UDRP to reclaim this name, although I think I had better standing to object than they did. The registrant of Goldmansex.com, feeling a little screwed by the process, has decided to tangle with the tiger again, registering Goldmensex.com (notice the "e" instead of an "a") and trying to argue that this presents a different case. Probability of a successful defense? Zero.

No question that the Wright brothers deserve credit as innovators. But what about their patent lawyer, Harry Toulmin, who wrote the patents that survived a brutal patent battle? The greater Dayton community has recognized his heroic efforts as well, erecting an 8 foot bronze statue of him in Springfield, OH. (The AP story).

As in-house counsel, I would routinely encounter "problems" that, if construed with the most negative inferences and splashed on the New York Times, would be embarrassing to the company (and me) at best and life-threatening to the company (and possibly personally career-limiting) at worst. This was not a rare and occasional moment, nor were they accompanied by blazing neon warning signs. Instead, I encountered them almost every day, and they were interspersed among a long list of mundane to-do items.

In-house counsel typically deal with this constant inflow of problems in one of two ways. One approach is to respond to every problem as if our actions will be evaluated on the front page of the NYT. In-house counsel who adopt this approach tend not to be very successful in their jobs; the burnout factor is high, and they don't win a ton of friends within the company.

Instead, most in-house counsel triage issues—they calculate the probability and quantum of risk and invest time and resources accordingly. This is a logical response because the chance that any particular problem will explode is mathematically low, so it typically does not make sense to provide industrial-grade solutions for every problem. Plus, there are simply too many problems to treat each one as mission-critical.

With this perspective, let’s take a look at how Kevin Hunsaker dealt with the legal evaluation of pretexting. Once he had identified that pretexting was being used, he did an hour of online research. He also asked for—and got—strong assurances from the investigations vendor. This response is entirely consistent with a triage. He needed to figure out how big a problem pretexting was. Based on the two independent sources (his research and the vendor’s assurances), he concluded that pretexting was an acceptable risk.

We could second-guess this decision. The vendor’s assurances were worthless because of the vendor’s self-interest/conflict. As for his self-research, it’s hard to get a good broad overview of an issue in 60 minutes of online searching. Further, I have to imagine that even cursory research revealed that pretexting was controversial and potentially legally impermissible. If he was looking for the truth, then I would think his cursory research more than enough yellow/red flags. If he was looking to validate a pre-formed hypothesis (or to avoid rocking the boat), he might have found enough material in his research that pretexting wasn’t clearly illegal to support the hypothesis.

However, I think it’s unfair to second-guess his research approach. He did exactly what most in-house counsel would have done in this situation—he discounted the long odds that this issue would be front page news, and he did just enough research to determine that there was some support for concluding that pretexting was legal (the vendor’s representations, plus the mixed data from his own research). Excluding in-house counsel who have pre-existing knowledge about pretexting, I bet 90%+ of in-house counsel dealing with this issue would make about the same research choices as he did.

When Baskins (and others) pressed Hunsaker on his legal conclusions, Hunsaker double-checked his work by (1) speaking with a lawyer that has represented his investigations vendor, and (2) arranging for a conversation between that lawyer and Hunsaker’s business client (Gertilucci). This second round of research is more susceptible to second-guessing. Why isn’t Hunsaker turning to in-house HP privacy experts (of which there are several)? Why isn’t Hunsaker turning to HP’s normal outside counsel? Why isn’t Hunsaker doing more of his own research?

Instead, he turns to a lawyer who, though knowledgeable about pretexting law, is not a neutral source. This situation is filled with conflicts—if the investigations vendor paid the legal fees for this call, then Rule 1.8(f) applies. But more importantly, can the lawyer really tell client A that pretexting is legal while telling new client B (and customer of client A) that pretexting isn’t legal? This seems to be a conflict under Rule 1.7 and sets up a “fouling your nest” situation. As a result, this lawyer wasn’t a credible source, and Hunsaker’s apparent failure to recognize that seems like a significant error. In addition, I would hope that many lawyers would be reluctant to render advice to a client’s customer in an analogous case; it’s just too risky and conflicts-filled.

While I think Hunsaker didn’t do enough follow-up research, I also think Baskins (as Hunsaker’s boss) didn’t adequately supervise him. She asked Hunsaker at least twice if the investigation methods were legal. However, it’s not enough for her merely to ask her lieutenant if everything is OK. She needed to probe a little deeper, ask what Hunsaker did, and evaluate its credibility.

Through the right questions, she easily should have been able to determine that Hunsaker had reservations about pretexting, and that he had satisfied his concerns by (1) doing 1 hour of online research, (2) asking the vendor for assurances, and (3) talking to the vendor’s lawyer. I think many supervising lawyers would have discounted the credibility of all three sources; a natural response would have been to ask for a second opinion from an in-house expert or more neutral lawyer. It isn’t always easy as a supervisor to express doubts about a subordinate’s work, but here there should have been enough yellow flags for her to request a more thorough answer—especially if she now wants to finger-point at Hunsaker.

While it appears that neither Hunsaker or Baskins exercised the kind of care we might expect, at the same time, I’m a little sympathetic to their plight. As an in-house counsel, having our judgments questioned on the front page of the NYT is our ultimate nightmare. I'm comfortable with most of the choices I made as in-house counsel, but I'm also glad that none of them have been dissected by the press.

UPDATE: Rob Hyndman weighs in: "I doubt that Baskins’ mistake was counselling an investigation that she knew to be improper; I suspect it was over reliance on a subordinate when her own instincts were telling her subordinate might well be wrong."

UPDATE 2: The WSJ Law Blog notes an article in Financial Times which says "Corporate lawyers live in a perpetual grey area...There are large gaps between what is required or forbidden by law and what may be done ‘legally’, and corporate lawyers are asked to bridge that divide every day."

Congratulations to Finnegan Henderson for ranking second in American Lawyer's midlevel associate satisfaction survey. In discussing Finnegan Henderson's success, the article talks a little about the relevant satisfaction of IP associates compared with other associates:

Throughout our survey, IP midlevels reported slightly higher satisfaction levels than their non-IP counterparts. Of the 6,568 associates who participated in our survey, roughly 8.3 percent said they are primarily IP lawyers, and, as a group, they gave their firms higher scores than the non-IP associates on all 12 of the questions that we use to determine a firm's composite score. The five areas where the gaps between IP respondents and non-IP respondents were greatest are likelihood of being at the firm in two years (3.96 for IP respondents; 3.65 for non-IP respondents), interest level of work (4.24; 4.02), satisfaction level of work (4.07; 3.85), management openness about finances (3.59; 3.39) and how clearly the firm communicates about partnership chances (3.14; 2.97). IP respondents also had an edge over non-IP respondents in training and guidance (3.73; 3.6) and overall satisfaction with their firm (4.21; 4.05).

These scores may have something to do with the field itself and the midlevels it attracts. IP associates tend to be older and have significant work experience or training outside the law, often in science or technology. In addition, IP is intellectually abstract -- a still-developing body of law that increasingly commands the attention of big business and the public.

No industrywide studies have been done on the composition of the IP bar, but our survey results and interviews with practitioners suggest that IP associates are more likely to have taken time off between college and law school. While 57 percent of non-IP associates in our survey took a break between the two, 65 percent of IP associates did. In most cases, IP associates spent that interim period either getting an advanced degree in science, technology or engineering, or working in one or all of those fields.

"Very often [IP associates] are second-career attorneys," says Anna Tsirulik, a managing director with the recruiting firm Major, Lindsey & Africa. "Either they are young guns with a computer science degree who worked as a software engineer for two years or, very often, people who had a true career practicing as a mechanical engineer for 10 years. With that seniority come wonderful traits like maturity and judgment."

...

IP associates with a background in academic science or technology relish the opportunity to pursue that intellectual passion in a different venue. Most didn't leave the lab bench for the legal bar because they were tired of studying science; rather, they were tired of doing research. Finnegan associate Nicole Valtz says that as a researcher, "only 5 percent of what you do works." But as an IP lawyer paid to learn about cutting-edge science and technology, "we only see that 5 percent."

Another email exchange has emerged in the HP pretexting investigation, this time between HP's "Chief Ethics Officer" (CEthO) and a line manager from January 30:

CEthO: "How does [the PI] get cell and home phone records? Is it all above board?"

Line manager: the PIs "call operators under some ruse...I think it is on the edge, but above board. We use pretext interviews on a number of investigations to extract information and/or make covert purchases of stolen property, in a sense, all undercover operations."

CEthO (entire response): "I shouldn’t have asked...."

Offhand, I can't think of a single situation where "I shouldn't have asked" is an appropriate response from a CEthO. In any situations where a client's response makes the CEthO uncomfortable, the right response is "I'm glad I asked" because the CEthO can then proactively implement remedial steps to ensure conformance with good ethical practices (regardless of minimum legal standards).

Stated differently: inevitably, in-house counsel will look under a rock and find some worms. Sometimes, the only logical course of action is to put the rock back down and try to ignore the worms. However, I don't see "returning the rock" as a viable option for a CEthO--I think the entire organization depends on a CEthO to attack the tough topics that everyone else would prefer to avoid.

This exchange also illustrates how bad corporate practices can continue for years, even if they are not legal or ethical. As you can see, the line manager's response was basically--we lie all the time. This systemic lying becomes self-reinforcing. Each new person who confronts the practice must wrestle with the weight of precedence, conclude that everyone who previously evaluated the practice was wrong, and have the courage of convictions to stand up and say that they reject the status quo. Few people have enough self-confidence to believe that their analysis is more accurate than others and the courage to act on it. Instead, people often back away, rubber-stamping bad practices by inertia.

I have not yet figured out how to overcome this tendency. At minimum, I think we need better payoffs for those with the courage to reject industry-standard bad practices, and worse payoffs for those who defensively rely on the cover of industry standards to perpetuate bad practices.

UPDATE: The White Collar Crime Profs Blog and David McGowan at Legal Ethics Foruim some similarly dim views of this email exchange.

UPDATE 2: This appears to have been a career-limiting response by the CEtho.

As academics, it's not often that we get our hands on a real email exchange between attorney and client that we can use for pedagogical purposes. Fortunately, the WSJ has republished the email exchange between Larry Sonsini and Tom Perkins regarding the HP board's supervision of its own directors and others. As the comments indicate, this email thread is a great issue-spotter. In the future, I may very well use this email as a test question. Among the issues it raises: client identity, competence/diligence, confidentiality and the attorney-client privilege, and false statements by a lawyer. Good stuff.

UPDATE: Larry Sonsini was the subject of the lead front page article in the Mercury News today.

UPDATE 2: Yet more questions raised about Sonsini's choices--in this case, the decision to chair the emergency board meeting (from which Dunn recused herself because of conflicts) even though there is potential adversity all around.

Forget stock option backdating; the real emerging scandal is big law firm billing practices. In the past month, we've had public scrutiny of the billing practices at old-line white-shoe NY firm Wilkie Farr, DC/Boston powerhouse WilmerHale and now the latest--1200 attorney national firm Holland & Knight. What big brand is headed for the fall next?

The Holland & Knight story is terrifying for every big firm client. Stated baldly, allegedly a partner at the firm treated invoices as works of fiction, manufacturing new hours/entries to increase the bill. Allegedly, this added up to at least $100,000 of overbilling, but this could be massively understated. Allegedly, the partner-in-question justified the billing by saying that he himself had done work that wasn't billed to the client, so the partner grossed up other people's time to adjust the bill to the actual accrued amount. This is not only unpersuasive, it may still be actionable--I tested on this exact practice last Spring (see exam and sample answer).

All of this alleged misconduct was identified by a junior partner on the firm, who escalated the matter internally until he reached a brick wall. He then ratted out the firm to the disciplinary authorities under MRPC 8.3, with a predictable adverse consequence to himself. He is now gone from the firm, working at a lower-paying and less prestigious firm, and trying to defend his reputation. Meanwhile, it's unclear if the disciplinary authorities are going to do anything about it. The firm settled with the insurance company that paid the bills; I have to assume that some money was rebated.

Let's be clear why the overbilling problem is so insidious:

* overbilling could be rampant among all lawyers. There are plenty of incentives to cheat (for associates, billable targets; for partners, compensation based on books of business)--recall the scandal when Clifford Chance associates hinted that they were pressured to overbill? As Patrick Schiltz argued so persuasively in 1998, the entire overbilling process becomes part of an attorney's socialization to the industry. However, I disagree with those who think this is a big firm problem--in my class we cover some situations (In re Lawrence; In re Glasbrenner) where small firm lawyers have gotten their hand caught in the cookie jar too.
* Overbilling is the "perfect crime" (as quoted in the WSJ) because it's hard to detect. Having said that, we shouldn't ignore the client's responsibility to police firms more carefully.
* There is no incentive for anyone at the law firm to whistleblow against the firm--it will come at significant personal cost, and meanwhile everyone benefits from riding the gravy train so long as they keep quiet. So it becomes a culture of silence, and the putative enforcement mechanism (self-policing) simply isn't adequate to overcome this. Kudos to Matthew Farmer for his act of courage despite the adverse consequences.

The solution to overbilling is simple to state but hard to effectuate--get rid of hourly billing. FWIW, when I was GC at Epinions, I typically sought fixed-fee billing arrangements with my outside counsel. Some were receptive; others were not. When I do my side gigs now, I almost always do fixed-fee billing. Fixed-fee billing creates other problems, but it should eliminate many of these egregious overbilling situations.

The AP ran a crazy, crazy story of prosecutorial discretion gone amok. Neighbor 1's cat uses neighbor 2's garden as a littlerbox. Neighbor 2 complains to police. Neighbor 1 gets rid of the cat, which upsets the 14 year old son. Son then meows at neighbor 2 every time he sees her (he says he only meowed twice). Son is then criminally prosecuted for misdemeanor harassment....

....for meowing.

Now, admittedly, there could be some meows that cross the line. Meowing at the top of one's lungs 24/7 might very well be criminal (see this analogous example). A meow directed to cause some other harm (like meowing in a way that causes a dog to charge neighbor 2) might be criminal. But meowing during chance encounters between neighbors, even if the meow is communicated with maximum snarkiness, is not a crime. And even if somehow it is, I would think the prosecutors would be way too busy with real crimes to notice.

Assuming that meowing could be a crime in this circumstance, I can't help but wonder: with its lyrics, could singing "Old McDonald" become a felony?

To this, all I can say is: WOOF! (Oops, please don't arrest me!)

In the Matter of William P. DiSalvatore, 2006 NY Slip Op 06210 (NY App Div Aug. 10, 2006). The NY Lawyer story.

William P. DiSalvatore was a partner at WilmerHale, a major national firm. He was also a rising star as a patent litigator--the National Law Journal had picked hm as one of the top IP litigators under 40. Despite this bright promise, he's no longer an attorney. Instead, he resigned from the bar (and his firm) for a variety of serious misconduct, including:

* taking on friends and family as putative pro bono clients to get them free legal work
* falsely billing time to other pro bono clients
* submitting $109,000 of expense reports for non-reimbursable personal expenses
* forging client signatures on conflict waivers
* telling a client that a brief was still in draft form when it had already been filed

DiSalvatore's story follows the recent story of Patrick Carmody, another NY lawyer busted for deception (in that case, running up 6 figures of "free" personal telephone calls misallocated to clients). I just don't understand these situations--what causes very successful and well-compensated professionals to make such poor choices?

In re Matter of Carmody, 2006 NY Slip Op 06058 (NY App Div July 27, 2006). The NY Lawyer writeup.

Patrick Carmody was a former partner at NY's Willkie Farr, where he made about $1,000,000/year. During 2001 and 2002, he made a total of 129 hours of personal International telephone calls costing a total of about $30,000. Instead of paying for these calls himself, he charged the calls to various clients by accessing their billing codes before making the calls or by listing the billing code on timesheets. His defenses were that he he was experiencing a lot of personal stress and he was trying to hide the amount of time he was spending on personal matters from his partners. Despite these (weak) defenses, a disciplinary board called his actions "simple thievery," and he received a one year suspension of his license.

UPDATE: My Shingle blogs on the topic. Check out the comments.

[July 2009 Update: In response to the Seventh Circuit opinion, I've blogged more about the diploma privilege and Wiesmueller v. Kosobucki]

Wisconsin is the only state that still allows graduates of in-state law schools to become lawyers without taking a bar exam (called the diploma privilege). This creates some interesting dynamics--UW and Marquette graduates have some extra incentives to stay in WI because it means they can avoid a bar exam, and out-of-state graduates/lawyers have to jump through some extra hoops just to get to the same place as in-state graduates.

This dichotomy creates controversy constantly, but it may boll over as the new state bar president has targeted the diploma privilege as part of his agenda. You can see a video on this issue here, focusing on the sad story of Arnie Moncada (name corrected per comment below), who went to Thomas Cooley Law School in Michigan, failed the Wisconsin bar 4 times, and now can't be a lawyer in WI forever...while if he had just graduated from Marquette or UW, he'd be a lawyer now.

Personally, I always thought the diploma privilege did Marquette graduates a disservice--it encouraged students to focus on Wisconsin job opportunities in preference of other great options elsewhere. On the other hand, the diploma privilege helps UW and Marquette in the US News rankings every year (it's hard to beat 100% "passage").

(Thanks to Garet Galster for sending this link).

An article in the Yale Law & Policy Review, Saving Toby: Extortion, Blackmail, and the Right to Destroy, discusses SaveToby.com, a perennial topic on this blog. The author argues that the law doesn't adequately inhibit threats on a bunny's life. In response, the author proposes a new crime of "extortionate destruction." Would I be a criminal if I threatened to start eating burgers and bratwursts unless I get $50,000 by the end of the year? Meanwhile, I continue to reiterate my call to Toby's owners to eat the damn rabbit already--before more trees get killed!

If you want to read more, the author posts a third party critique of the article and further defenses of it. In that post, the author lets us in on the fact that the article was written "with tongue at least partly in cheek." That was news to me! Given that the article was a critique of a gag website, I would think the author would know firsthand the difficulty of communicating humor (or, even harder, partial humor) in written form.

The abstract:

On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website's readers sent $50,000 to save his life.

Though Toby's owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one's own property. The law thus provides insufficient protection to a variety of resources on which others place value, including historic buildings, treasured paintings, and adorable bunny rabbits.

This Comment proposes that legislatures protect Toby under a new criminal offense of extortionate destruction. It presents the moral case for the offense by analogy to blackmail. Although destruction of property, like telling others' secrets, is normally lawful, both can be rendered wrongful by the unjustified use of a coercive threat. Such a threat specifically aims at causing unpleasantness to the offeree; the owner commits to killing Toby only because he hopes someone else will pay him not to. Such threats cannot be defended by the economic or expressive values inherent in the traditional right to destroy, and shed light on the ongoing debate over the nature and wrongness of blackmail. The Comment concludes by suggesting model statutory language designed to safeguard property owners' legitimate interests, while appropriately protecting future artworks, antiquities, and bunny rabbits from Toby's sad fate.

Apparently, judicial ethics in NY do not prevent a judge from carrying concealed weapons while on the bench. Let's just hope the judge gets the right implement when reaching for the gavel, or else the judge may dispense some unexpectedly rough justice. And the equipment under a judge's robes keeps getting more and more interesting.

(Opinion No. 06-51, New York Advisory Committee on Judicial Ethics).

Last month, I gave a presentation entitled Ethical Issues in Contract Drafting to a group of lawyers. My slides.

An interesting anecdote about this presentation--I had a former Vice President of the United States in my audience. At this point in my career, I've given a lot of presentations in front of a lot of important people, so I don't normally get "star struck" any more. However, I must confess it was rather unsettling to have a VPOTUS listening intently to my talk. I was too nervous to approach him after the talk. What would you say to someone who was one heartbeat away from having his finger on The Button?

Steven H. Levy, a lawyer in Torrington, CT, received a public reprimand under Rule 4.4 (using "means that have no substantial purpose other than to embarrass, delay, or burden a third person") for improper humming (registration required).

In a contentious divorce case, the spouses (and their lawyers), a family services worker and a guardian ad litem gathered to discuss the case. At some point, there was a discussion about the need for psychological testing. The wife asked why such a test would be needed, and allegedly Levy looked directly at her, said someone in the room had psychological problems, and then started humming the Twilight Zone theme.

Standing alone, this seems like a pretty trivial act to warrant State Bar discipline. However, the article also gives other examples that suggest Levy has a knack for getting himself into trouble. Nevertheless, lawyers may be well-advised to watch their humming (and probably their whistling as well)--no Twilight Zone theme, no theme from Jaws, no ominous music from Psycho. And definitely no barking like a pit bull!

The New York Lawyer (reg. required) has a story recounting various mishaps and war stories involving embarrassing experiences of attorneys. Some of my favorite war stories are from my summer associate experience:

3) While driving to lunch, a summer associate asked the partner how much his car cost
2) The summer associate (same one) asked a female senior associate when she was going to get pregnant
1) The firm held a progressive dinner where appetizers, dinner and dessert were at 3 different partners' houses. Alcohol flowed freely at these events, which makes for a bad combination because the diners drove from house to house. One summer associate had imbibed too much. He had parked his car in the last partner's driveway. Upon departure, he put his car in forward rather than reverse and drove his car through the partner's garage door.

(If you're keeping score, summer associate #2/3 didn't get an offer, but summer associate #1 did.)

A pro se debtor files a motion to "discharge response to plaintiff's response to defendant's response opposing objection to discharge." The court dismisses the motion for "being incomprehensible" and quotes some lines from Adam Sandler's movie "Billy Madison" to punctuate the dismissal. Law students, the threat of having a judge quote an Adam Sandler movie against you should give you extra incentive to maximize your experience in your legal writing courses.

My next big paper is titled "A Coasean Analysis of Marketing." An earlier draft was titled "A Coasian Analysis of Marketing," but then I got nervous that Coasian was not correct. So I asked my buddy Scott, who teaches Law & Economics, about the correct spelling. He didn't know off the top of his head, but he did a few searches and concluded that it was mostly a draw, with a slight preference for Coasean. With that, I switched.

Now, Todd Zywicki at the Volokh Conspiracy provides a much more definitive analysis on this topic. Based on his literature searches, he concludes that Coasean is preferred slightly (60% to 40%). Read the comments--they are hilarious. Interestingly, some of the pro-Coasean camp appear to have strongly held views about the correctness of their position, so I'm glad I switched.

Carol M. Langford, Depression, Substance Abuse, and Intellectual Property Lawyers, 53 U. Kan. L. Rev. 875 (2005)

This article contains the results of an attitudinal survey of IP lawyers. Like any survey, this survey is only as good as its methodology, and I'm not 100% confident that the methodology produced industrial-strength results. Further, the IP community is fairly heterogeneous--it includes litigators, prosecutors and transactional attorneys, many with a technical background but others without. Smushing all of these different subcommunities into a single IP community may mask some important differences.

With those caveats in mind, a few selected conclusions:

* "Eighty-five to ninety percent responded that they were either dissatisfied ("3") or very dissatisfied ("4") with their work hours, relationships with co-workers, schedule, compensation, personal fulfillment, job security, balance with personal life, intellectual challenge and sense of control over their lives. This seems to suggest that a majority of the attorneys in the field are not getting what they bargained for, or not living the type of life they thought they would be living once they started working in the field."

[Eric's comment: this statistic, if true, is fairly disconcerting, but it's hardly surprising and certainly consistent with other studies. The questions I have are (1) are these statistics any worse than other practice areas (my guess is no), and (2) how can law student expectations be better set to avoid disappointed expectations? I wrestle with the latter question constantly]

* "We then asked the respondents to tell us how satisfied they felt with their personal and familial relationships. Nineteen percent ranked their satisfaction a "3" on a scale of one to five, with "5" indicating very satisfied. Thirty-eight percent ranked it as a "4" and 41 percent ranked it a "5." This is the best indicator of the overall low incidence of depression and substance abuse problems within the field."

[Eric's comment: I'm not sure about the co-variables here. Is there a correlation or causation between personal/family satisfaction and substance abuse? This statistic is also both facially and implicitly in tension with the previous finding I critiqued; 85%+ of the respondents were dissatisfied with personal fulfillment and balance with personal life.]

* "What we learned from the survey responses seems to suggest that the intellectual property community is not afflicted with pervasive and rampant substance abuse issues."

[Eric's comment: this is good news if true, but I'm still troubled by the survey's evidence suggesting a high rate of professional dissatisfaction among IP attorneys. Even if that dissatisfaction doesn't translate into substance abuse issues, it lays the preconditions for other adverse outcomes.]

I love the idea of Wikis--there's something appealling subversive yet democratic about them. However, I am skeptical of the long-term viability of open-access Wikis because I believe they are inevitably overtaken by the spammers (among other defects).

I got a quasi-spam promoting Wiki-Law, which says its "goal is to build the largest open-content legal resource in the world." This struck me as an exceptionally bad idea. Wikipedia content is generally untrustworthy--a fact that Wikipedia's founder Jimbo Wales generally admits--but untrustworthy/not credible information about legal topics has zero upside and tons of downside. There may be some situations, like legal information, where no information is far better than wrong information.

The DC Circuit has ruled that the FTC overstepped its authority by trying to include attorneys within the scope of the Graham-Leach-Bliley Act. This isn't huge news in the sense that the DC Circuit affirmed the lower court's ruling. On the other hand, this case is extremely important because, if attorneys were covered by the GLBA, it would have a significant effect on the industry.

In re Petition for Disciplinary Action against Kristine Katherine Trudeau, 2005 WL 3007005 (Minn. Nov. 7, 2005).

In matters not involving client representations, Trudeau "pled guilty to gross misdemeanor interference with a 911 call and misdemeanor unauthorized computer access by installing and using an email spyware program. Respondent also violated a harassment restraining order and orders for protection, made false statements to police officers while intoxicated, and filed frivolous litigation against one of the persons she harassed."

As punishment for these misdeeds, Trudeau's law license was indefinitely suspended (but for a minimum of 30 months) plus other assorted sanctions such as getting substance abuse counseling. The law license suspension is in addition to any punishment she received under the criminal law system (and there could be civil liability as well). I couldn't easily find any more information about the underlying spyware conviction--if you have any information on that, I'd be grateful.

The Coase Theorem applied to strip clubs: if moralists really object to a strip club but legal tools aren't available to shut it down, they can just buy the club and then shut it down.

(I've previously blogged on trademark law as a tool to shut down one strip club).

[I post this reluctantly because I'm fretful that I will get AdSense ads keyed to "strip club"--apologies in advance]

On almost every flight, I'm reminded of how airlines do not try to avoid unnecessary consumption of passengers' attention. Some of this is the fault of the FAA, which requires various announcements and disclosures. Other consumptions presumably are attributable to "failure to warn" tort doctrines. Yet other announcements are purely discretionary. Whatever the reason, in aggregate, I'm constantly frustrated with how often I am interrupted/disturbed by the flight attendants and pilots.

Consider, for example, the announcements at the beginning and end of a flight where the captain informs the flight attendants to prepare for takeoff and landing. If the communication is between the pilot and the flight attendants only, why is the announcement made to the entire airplane? If the airlines tried to conserve their passenger's attention, they would find a way to allow the pilots to communicate just with the flight attendants and leave the passengers out of it.

Otherwise, many of the announcements are untargeted. A welcome to frequent flyers (don't care). An invitation to join the frequent flyer program (already a member). The announcement about the movie starting/stopping (sometimes I care, other times I don't). And, of course, the safety demonstrations that most of us simply ignore. There's no way for me, as a passenger, to customize the information to my interests. All announcements are one-size-fits-all, and that means many of them are not relevant to me.

As a consequence, I find it very hard to nap on the plane. Now that I'm a parent, I do sometimes collapse out of exhaustion. Even when I do, though, the periodic stream of announcements keep any nap pretty short. But even when I try to work, especially on the computer, I find the announcements disruptive and unwanted.

I mention all of this because, on my last flight from San Jose to Chicago, I saw at least a half-dozen passengers using noise-canceling headphones. I tend to be a late adopter of technology (i.e., I still don't own a cellphone), but I've already queued this up on my wish list. With these headphones, I wouldn't care how many announcements the airline made; I could just tune them out and blissfully sleep/work away. I'm waiting for the price to come down, but I will definitely be getting a set.

Of course, the promulgation of noise-canceling headphones poses a problem for the airlines and the FAA. How will the necessary information be disseminated if everyone has checked out, technologically speaking? Will the airlines/FAA ban the use of noise-canceling headphones during some announcement phase? Will some form of "assumption of risk" develop? (i.e., if you miss the necessary disclosures because you're using noise-canceling headphones, tough bunnies for you). Will the airlines use more invasive forms of disclosure and consent like the current charade of "I need to hear your verbal assent" for passengers in the exit rows?

To date, the FAA and airlines have felt no incentive to consider the attention consumption costs of their announcements and disclosures. They have had no real incentive to manage the consumption of passenger attention, so they have gotten gluttonous. Now, technology is striking back. Will a technological arms race between the FAA/airlines and passengers ensue?

UPDATE: Vic at the Conglomerate discusses his experiences with noise-canceling headphones.

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 3: The show died in the marketplace after only 2 episodes. More on its miserable ratings.

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.

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.

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.

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.

(I've posted some of my bizarre stories as in-house counsel here and as an outside counsel here (see particularly Sec. 6)).

This story made me laugh out loud. A Kentucky radio station WLTO-102.5 FM announces a contest where the prize is "100 grand" to the 10th caller. A woman, Norreasha Gill, listens to the show, is the 10th caller and is overjoyed at the prospect of adding $100,000 to her bank account. At bedtime, she promises her three kids that they will have "a minivan, a shopping spree, a savings account and a home with a back yard." ($100,000 appears to go a lot further in Kentucky than most other places in the country. Plus, in my house, we just read books before bedtime).

She tries to collect her prize. Her dreams are dashed when the radio station tells her that she has won a 100 Grand candy bar. She is outraged. As she says, "Nobody would watch and listen for two hours for a candy bar."

(OF course this is not literally true. Some people listen to the radio without any prospect of getting any confectionary treats at all).

Moved by her story and the misunderstanding, the radio station offers her $5,000. She says thanks, that and $95,000 more will make her happy. Apparently the radio station was unwilling to cough up the cash, and off to court we go.

It appears, on the surface, that we have a classic language ambiguity problem. The phrase "100 grand" means two wildy different things: a lifetime of fulfilled dreams in Kentucky, or a couple minutes of chocolate gorging. Did the radio station deliberately mislead people into thinking that it was talking about the former, not the latter? Would reasonable listeners believe that the radio station was referring to the former? If the answer is yes to either of the 2 questions, this lawsuit may not be as frivolous as it seems.

This case reminds me of the now-classic Leonard v. Pepsico case, which is now taught in law schools throughout the country. In that case, Pepsi ran some commercials touting a "points" program and showing the cool gear that customers could get. Some versions of the commercials show that with a sufficient number of points, customers could procure a Harrier jet. Ordinarily it would be too hard to get enough points to get the Harrier, but Pepsi also allowed customers to buy points--and the cash-to-points conversion rate meant that one could buy points to buy a Harrier jet for a very small fraction of its retail price. (Ignoring other problems, like the fact that it would be illegal to buy or sell the Harrier jet because of its military applications).

When Pepsi declined an enterprising customer's efforts to get the Harrier, the customer sued for breach of contract (much like the 100 grand lawsuit). Pepsi's response: c'mon, we all know this is a joke. The district court's opinion has a fascinating discussion of the legal boundaries of humor, and concludes that the ad was just funny enough to allow Pepsi to escape legal liability.

What's interesting is that my students aren't so easily convinced that Pepsi was making a joke. Given the hyperbolic marketing environment of the dot com boom, and the resulting desperate efforts to get attention using increasingly expensive promises (remember Pepsi's sweepstakes to potentially give away one billion dollars?), my students today a little jaded about what marketers are willing to do.

So, is it outlandish that a radio station might give $100,000 to a listener? Or, was it funny enough to say that the 10th caller would win a 100 grand [candy bar]? In either case, maybe, maybe not. But I'm having a pretty good laugh either way!

UPDATE: The Smoking Gun has the complaint. Gill v. Cumulus Media, Inc. (Ky. Cir. Ct. filed June 22, 2005). The blog post is a little troubling for the defendants--notice where the DJ writes "be caller 10 @ 280-1025 and you'll be 100 GRAND RICHER!!!" and then immediately follows that with "No joke" (although I don't understand the rest of that paragraph).

UPDATE 2: This case also brings to mind the case where Hooter's waitresses were told that they would be entered in a drawing for a "Toyota" for selling lots of beer. Then, the winning waitress, Jodee Berry, was presented with a toy Yoda (get the word pun?--yuck yuck yuck). You have to check out this photo (and story)--the combination of the box and her face tells the whole story. As the photo amply demonstrates, she was not amused. The case settled, and Jodee got a new Toyota car--but it's not clear if she got the car because Hooters was feeling some legal heat or because Hooters realized that they had screwed up employee morale and a car was a cheap way to buy back some employee goodwill. Also note that in Berry's case, there were facts that managers had referred to a Toyota car, so the specificity was a little higher than with the radio announcement.

Richard Phillips, a London lawyer at Baker & McKenzie, shakes down his secretary Jenny Amner (who is grieving because she just lost her mother) for an $8 dry cleaning bill because she accidentally spilled ketchup on his pants. Her response? She forwards his demand email to a few others in the office, and eventually it gets out and becomes a media sensation.

I'm not sure how many rules that Phillips broke. Four that come to mind:

1) Never write an email you don't want displayed on the front page of the most widely-read newspaper
2) Forgive people for accidents
3) Be sensitive to people experiencing grief
4) Perhaps most obviously: be nice to your secretary! (I cannot, under any circumstance, imagine asking my secretary for $8, regardless of fault).

I haven't found the actual text of the email exchange back, but the link above gives a pretty good blow-by-blow. A nice snapshot of typical office banter (some things are universal).

This web page allows you to calculate your schedule based on your law firm’s billable hour targets. However, the script is inherently defective because it only computes hours for Monday-Friday! Um, designer, what about the weekend??? Make sure you don’t underestimate the non-billable time, and note the “plug” variable is the number of hours working at home.

(Thanks to Jewishbuddha.org for the pointer)

At Legal Ethics Forum, Prof. James Fischer of Southwestern speculates why students don’t respect their Legal Ethics course. He rejects the traditional rationales such as “(1) students lack real world experience; (2) the course is just a bunch of rules that lack a unifying theme; (3) course is warmed over moral pabulum.” Instead, he believes that it’s because the course, unlike others in law school, requires students to engage in personal introspection.

When I was in law school, Professional Responsibility was the only mandatory course we had to take after first year, so we didn’t like being forced to take the course. (Now, the ABA mandates so many more courses post-first year, so the Professional Responsibility course no longer stands alone). Further, my particular section had a fairly high irrelevancy factor—I intended to be a Silicon Valley transactions lawyer, but my professor (former California Supreme Court Justice Cruz Reynoso) taught the course from the perspective of what a personal injury litigator in Imperial Valley (a very rural and poor community) would need to know.

At Marquette, I too have found that many students resist personal introspection, despite my exhortations that personal introspection is critical to understanding the course. However, I’ve been pleasantly surprised that students take the course seriously, sometimes get downright enthusiastic about the course material, and usually have one or more "a-ha" moments during the semester. I know better than to think that the course is a student favorite, but now I have much more hope that students will ultimately see the merits of the course than when I first started teaching it.

Last month’s American Lawyer magazine ran an interesting in-depth article on partner mobility and retention. It discusses the difficulties some firms retaining lateral partners, including Schnader Harrison Segal & Lewis, which turned over an incredible 68% of the partners it recruited between 1999-2003. There are several dynamics going on here: poor diligence on the part of the recruiting firm, initial desire to build out a practice where the desire changes or never matures, a failure to properly integrate new hires, and partner wanderlust (serial moves due to restlessness, pursuit of bigger bucks, or repeated poor choices). Partner recruiting is very expensive, both in terms of out-of-pocket costs (including recruiting fees) and opportunity cost (the diligence and marriage phase is time-consuming), so this article should serve as a warning that law firms on the prowl need a plan for recruiting smartly and retaining expensive acquisitions.

Article on different law firm compensation schemes and their consequences on firm culture (registration required).

Lawyer gets 14 year prison sentence for stealing $2M from clients, including low-income tenants suing a landlord over substandard living conditions and disabled infants whose parents filed medical malpractice suits.

New York Law Journal (registration required) reports on in-house lawyers sitting in cubicles rather than offices, reporting on a survey finding that “7 percent of law departments use cubicles exclusively, another 16 percent have a mix of cubicles and offices and 18 percent don't have cubicles but may add them in a year.” For my experience with in-house seating arrangements (including an unfortunate encounter with a buzzsaw), see my write-up of my first three months at Epinions. You might also consider my notes about how to get employees to adhere to legal standards.

Relatively rare event: law professor wants to return to practice after 15 years of full-time teaching. Some career advice for him/her (registration required).

Taco Bell employee double-swipes the credit cards of irritating customers. It is a poorly-kept and dirty secret that some lawyers engage in “punitive billing,” where a lawyer grosses up his or her hours to penalize annoying/disrespectful clients. The Taco Bell employee is going to jail for double-swiping; punitive lawyers usually just get larger year-end bonuses.

Sheppard, Mullin, Richter and Hampton bills the city of South Gate $1M+ for criminal defense of a city official, and the firm helps procure a defense verdict. Then, the judge says the bill should have been $150,000, calling the firm’s bill “excessive and unreasonable … transcending beyond the stratosphere into deep outer space.” Sheppard Mullin settles the fee dispute with the city for $2M.

Real estate closing costs are a tangled mess, so I’m generally happy to see some consumer protection litigation over them. One case involved a $60 “fax fee” charged by title companies. The lawyers try to form a class action against the title companies for charging these fees. Only problem? One of the plaintiff’s lawyers also owns a title company that’s named as a defendant. While that seems to violate a number of ethics rules, incredibly the judge doesn’t disqualify him from the lawsuit. Irrespective of the litigation conflicts, I wonder if the lawyer got appropriate waivers for doing business with his client (representing home buyer as attorney when home buyer chose the title company owned by the attorney).

A major accident occurs. People are injured. How does the government respond? Police squads arrive. Paramedics arrive. The State Bar arrives to discourage lawyers from chasing the ambulances. (Thanks to the Legal Ethics blog for the tip).

Law.com article on Generation Y attorneys. It remains to be seen how strongly Gen Y attorneys affect large law firms. Based on my interactions with my Gen Y students, I do sense a small revolt against certain norms associated with BigLaw today—but it remains to be seen if enough Gen Y attorneys will take action to effectuate real change.

UPDATE: Are associates today "slackers"? Midlevel associates make their case why they are not. Says one: "Stick it."

John Dzienkowski has an interesting post about the former Silicon Valley law firm Venture Law Group. John ponders if the demise of VLG as a standalone firm has any lessons about the viability of its unique business model. I competed with VLG in their halcyon days and then was a VLG client when I was GC at Epinions, so I have some pretty strong opinions about this question. Rather than saying something I might later regret, let me only make 2 observations.
1) John puts a partially-flattering but perhaps unsupportable gloss on the VLG model. VLG was a law firm first and foremost, and their principal value to clients derived from providing legal services. They marketed themselves as being different from other Silicon Valley law firms by claiming to be both legal and business advisors (i.e., investment banker/strategic advisor/lawyer), but in reality their services were very comparable to what most other lawyers in the Silicon Valley did for their clients (i.e., many lawyers had VC contacts and tried to help promising new start-ups find money). The principal difference is that VLG charged more than the competition—they charged hourly rates at/above the market rates, plus took an equity kicker on top of that. (Only suckers took equity in lieu of fees). Other firms took equity kickers too, but VLG was more systematic and unrestrained in their practices. Nevertheless, many entrepreneurs were willing to pay VLG's premium rates because VLG did a very good marketing job.
2) Epinions switched law firms six months after I became GC.

Stephanie Francis Ward wrote a provocative/disturbing article in the Feb. 2005 ABA Journal entitled “2,000+ Club Stays Open 24/7.” (Unfortunately, I couldn’t find a web version, though you can get it on Westlaw at 91-FEB ABAJ 32).

The recommendations are truly chilling. The article starts off:

“WANT TO BILL MORE THAN 2,000 hours a year? It's not as hard as it seems--just be at your desk by 7 a.m., don't take a lunch and limit personal Internet usage to no more than 15 minutes a day. And if someone stops by to chat about a nonwork-related matter, tell the person that you're headed to a meeting, even if you're not.”

Sounds like a friendly environment. Another way to boost hours is to look for opportunities to churn a file:

“Nosing around for work also helps, says a New York City corporate associate who generally bills 2,400 hours a year. He frequently calls partners in a variety of different locations to check in and inquire how certain transactions are going. Often, that results in the partner assigning him work.”

The article continues by noting how his schedule also contributed to his divorce.

The article concludes with a quote from an attorney extolling the billable hour-potential of 405 gridlock and a cellphone:

“"You can do billable hours from the San Diego Freeway," he says. "It's a way to be productive in an otherwise unproductive time."”

Note: it is a productive use of time to drive safely...

The California State Bar recently issued an advisory ethics opinion that a lawyer may not post a message in a chat room for victims/families of a recent mass disaster where the lawyer announces herself as a lawyer and offers to answer questions. On the one hand, it’s hard to argue with this. Grieving victims and families need some space to work through their grief. On the other hand, a lawyer merely offering to answer questions in an Internet context, without more, seems fairly innocuous—and, indeed, may aid the grieving process by answering questions the participants may have. The opinion turns on the “intrusiveness” of the interaction, which is specific to California (the model rules refer to “coercion, duress or harassment”). Personally, this opinion strikes me as bumping up against First Amendment boundaries; perhaps it goes over the line.

This item is a little indelicate but it’s so bizarre that I feel compelled to pass it along.

UPDATE: AP reports on a prosecution for indecent exposure.

UPDATE 2: The judge was convicted of four counts of indecent exposure.

Judge orders entire 80-attorney law firm to take a refresher course in ethics.

Prime example of lawyer fraud through overbilling. I really don’t understand this—did he really think he would not be caught for billing 94 hours in a 24 hour day?