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