Ernie The Attorney

Inside the Supreme Court - A Great Book

I just finished Jeffrey Toobin's book about the Supreme Court, called The Nine. Wow! What an unexpected treat. If you're a lawyer you have to read this book, and if you're not a lawyer but just interested in government then you should read the book too. But, for now let me speak to the lawyers in the audience.

The book follows the shift of the court from the Reagan era forward, showing how it is now on the verge of completing a shift to ultra-conservatism. But the presentation is made interesting by its discussion of key cases that were decided in the past decade—e.g Bush v. Gore and other important constitutional cases. Toobin weaves in, at appropriate points, detailed profiles of each of the Justices. And his examination of the Justices is very personal and touching, or at least for most part. He explains how Sandra Day O'Connor became more centrist than conservative, and how Anthony Kennedy developed an interest in international law (and how that influenced his judicial outlook). David Souter is a quiet man who eschews all use of technology (doesn't use computers or TVs, and doesn't have a cellphone) and yet he was the author of the Grokster opinion on file-sharing.

Reading this book is like taking a CLE course in Constitutional Law, except that it's presented in a highly engaging way. Toobin went to Harvard Law School, so it's no surprise that he's adept at explaining the nuances of the law. If you want to see an interview he did recently at Google check this out.

A mobile lawyer is a paperless lawyer

Whenever I talk to lawyers about switching to a digital workflow system I always get the same question: what's the best way to switch? The answer: all at once. Next question. What's the second best way?

Ah, excellent question. And the answer is: just work on becoming a mobile lawyer. The more mobile you are the less dependent on paper you'll become (after all you aren't going to be very mobile if you have to drag tons of paper around with you). I was pretty mobile before Katrina pushed me into that extreme form of mobility known as nomadism. But Katrina was good because it forced me to think more deeply about how to diminish my reliance on paper, and anything else that would keep me tethered to a specific location.

One thing that is hard to escape from is your physical mailing address. You pretty much have to have one, and that means your mail will go to that location. And then you have to figure out how to retrieve it from a distant place. Wouldn't it be nice if you could have your mail sent to a place that scanned it and sent it to you by email? Well, turns out there is such a place. It's called Earth Class Mail.

You have to choose to have mail delivered to one of 18 regional P.O. centers. For about $10 per month they'll scan up to 35 envelopes and email you the image. You then decide if you want them to shred the envelope and its contents, or open it and scan the paper. You get up to 50 pages scanned for the $10 monthly fee and then pay .25 per page after that. There is a corporate package, and soon they will be adding the ability to electronically cash checks.

Obviously, this is not worthwhile for the average person. But if you are on a long trip, or if you don't plan to spend time in any one place for very long this is the way to get your paper mail.

Gimme that Old Time Religion, procedurally speaking

As you know, I favor looking for new ways to do things in the legal profession. I don't like boilerplate language in pleadings because, first of all, no one reads it. One place where you see a lot of crusty legal prose is in the concluding section of pleadings. Many people refer to this area as the 'prayer for relief' section. That is no longer an accurate description of the section; a prayer is something solemn, or at least it's supposed to be.

Why, then, don't lawyers make the prayer section more solemn, more devotional?

I don't know. Maybe it has to do with that pesky fear of merging religion with government. Whatever. So, in keeping with my celebration of those who think outside the narrow legal box, I commend the plaintiff in this case (PDF FILE) for pushing the juridical envelope. Now we have a clear example of what a prayer for relief should look like.

Adjust your boilerplate accordingly.

Rethinking business cards

Andrew Flusche asks for help with designing his business cards, which is interesting because I just redid my business cards yesterday. I decided to make them different than typical business cards. Here's why.

A few years ago, when I was still working for the large law firm, I jokingly had some 'Ernie the Attorney' cards made. Well, actually I made them myself while playing around with Photoshop Elements and then took the file to FedEx/Kinkos and had 500 made. Whenever I ran into people who knew me from this blog I gave them this card on the left (click on it to enlarge it). The black & white photo is what used to appear on the banner of this weblog, so it was sort of a 'branding' thing.

People loved the card, and always made a big deal about it. They wanted to know where the picture was taken (the Metro in Paris) and if I had taken it (yes). It seemed like the card had 'special powers' because it always created a small buzz. Soon I started giving these cards to everyone, even folks who didn't know I had a blog. Same result.

That's when I began to sense that traditional business cards are kind of lame.

When I started my solo practice, I still felt obliged to have traditional business cards. I couldn't say why exactly. I thought maybe for when I needed to give contact information to, say, a court reporter. This card here (pictured left) is the result: it had my phone number, email address, physical address, fax number and so forth. And I think we can agree that it's pretty dull.

I found that if I gave my 'Ernie the Attorney' card to one person in a group and my business card to another person, the later would feel cheated and ask me if they could have one of the 'special cards.' That's when I finally accepted the truth: no one really cares about ordinary business cards.

So the other day I updated my blog design with a cool new photo of the skyline of New Orleans. I decided to use the same photo for my firm website, and that led me to consider updating my business cards. I needed to update the cards anyway, since I had recently moved to a new address.

I decided to re-examine the whole business card concept. What exactly do I want my business card to do? First, I want it to be cool enough that people still find it interesting when I give it to them. That's the most important thing. And it would be best if I present the same 'brand image' as my websites. But a business card should let people know how they can contact you. How do people do that these days? They call or they use the internet. So my new card gives two ways to contact me—a phone number and a web address.

Frankly, if people want to find me all they have to do is google 'ernie attorney' or 'ernest svenson' and they'll find all the information they need. My physical address and so forth is up on the web, where it can be updated if it changes. My email address is on each of my weblogs. Even if I didn't have a business card, it would be easy for people to contact me if they wanted to. My business card should encourage them to contact me, and I've learned that traditional business cards don't do much in the way of 'encouraging.'

I think how we market ourselves deserves to be re-examined. Marketing is about getting noticed, in a good way. Traditional marketing is no longer effective; people rely on it only because it's familiar. Seth Godin has helped me to understand this principle, and I highly his recent books and his blog, especially the recent post entitled: Why bother having a resume?

Incidentally, if you want to order business cards I recommend a company called Printing for Less. They were recommended to me by a top notch legal marketing consultant named Ross Fishman. They are truly amazing, and very reasonably priced. Definitely better than FedEx/Kinkos.

Wild FBI sting operation

This report is frightening, but not surprising I suppose.

Federal District Court docket info for free?

Thanks to my friend Al Robert for pointing this out. Justia has a free online database of all federal docket information from Jan 1, 2004 to the present. The information is sparse, but at least you can see all of the recent cases filed related to a certain party. Nice.

Saving the planet one scooter ride at a time

Law Technology News just published an article that I wrote called Green Law: Scootering to Revelation. It's about how I became an 'accidental environmentalist' in my quest to use technology efficiently. Well, that and my quest to buy a scooter for no really good reason other than it seemed really cool.

Fired for blogging - what's the legal angle?

There's been much discussion for the past few years about the dangers of blogging, especially the dangers of getting fired for blogging. As more lawyers became familiar with blogging, we've started to see discussions—and lately even some lengthy seminars—about the legal issues related to blogging by employees. Corporations have been advised by these lawyers, many of whom are not bloggers, to create a manual that specifies what is expected and prohibited with respect to blogging.

CNN apparently had an employee manual that may have addressed blogging, although a producer who was recently fired suggests that the manual was not so clear. And he was apparently not given a copy of the manual. But, admittedly, that's his view. We don't know what CNN's position is.

And that brings me to my point.

CNN is in the business of reporting news, which is to say: distributing information. They fired someone who is highly adept at writing and reporting. This former employee has learned how to distribute information on the Internet. And the story that he's now most interested writing about is his own dismissal. I don't know if his account is accurate, but I know this. It's very well-written and seems entirely plausible. He writes about his shortcomings and his rebellious tendencies, which makes his version seem even more plausible.

CNN, of course, is hamstrung. It can write nothing, and is no doubt being advised not to by its lawyers. If it does manage to write its version of events that story will lack any human resonance. It will be nothing more than a press release. Do you see the irony yet?

Even assuming that CNN's employee policy specifically applies to blogging (and therefore provides legal justification for firing the blogger/producer), it still has to deal with the negative fallout from someone who has inside knowledge of how it operates. Rarely do we get to see the inner-workings of a news show. What news company is going to point the cameras at itself?

But now CNN's actions have resulted in precisely that. Except that they have no control over the story. And they have little meaningful control over the response to the story. I think this may be a case of applying the law to exacerbate a problem, rather than to control (which is often impossible) or diminish the problem. I guess what I'm saying is that maybe the legal angle to this story is a big part of CNN's problem.

And perhaps CNN will find that having an employee handbook (which may have been tweaked after consultation with high-priced lawyers) isn't turning out to be the great weapon that they had hoped it would be. But, just as news companies rarely point the camera at themselves, lawyers rarely advise clients to consider the negative fallout from using the law to solve a big problem. Lawyers, like journalists, have self-interests that sometimes override their supposed allegiance to the people they serve.

Shocking, isn't it?

Cooperation in an adversarial system?

One problem with lawyers is their reluctance to try novel approaches—like, for example, trying to cooperate with an adversary to solve a problem. Tom Goldstein is a veteran Supreme Court litigator, and in a recent post he offers this great practice pointer. Of course, many attorneys will reject his tip. They'll argue it's applicable only to Supreme Court cases that involve the Solicitor General's office. It's obviously not something that you're going to do a lot, but I'm always alert to the possibility of cooperating with my adversaries. When it works it saves time and money, and produces a better result. Oh, and judges seem to appreciate it too.

Judicial decisions influenced by campaign contributions?

A local law professor has completed a study (soon to be published in the Tulane Law Review) that suggests a connection between judicial decisions and campaign contributions.  The finding is based on the use of statistics, which no doubt some folks will say are misleading.  But, statistics aside, no one should be happy about judges taking campaign contributions from lawyers who appear before them.  Least of all judges.

Geeks On Call can help erase incriminating files too

So let's say you're the head of the Office of Special Counsel, a government agency charged with protecting whistleblowers (i.e. people who offer information of government wrongdoing).  And let's say you are being investigated yourself for "improperly retaliating against employees and dismissing whistleblower cases without adequate examination."  The investigators ask to examine your computer hard drive.  But they find it has been wiped clean. What's your story?

Scott Bloch's story is that some of his files were deleted by the tech from Geeks On Call who came to help him get rid of some pesky viruses.  Okay, I'll admit it's suspect. Still it's possible that the Geek accidentally erased a few files in the process of sanitizing his computer.  But, according to the Wall St. Journal, Bloch "had his computer's hard disk completely cleansed using a "seven-level" wipe: a thorough scrubbing that conforms to Defense Department data-security standards."

How much does Geeks On Call charge for a seven-level wipe?  In Bloch's case it was $1,149, but you can probably get it done for less if you don't have a rush request.  So next time you have a question about corporate or governmental document retention policies be sure to call the helpful folks at Geeks On Call.

Christmas gifts for lawyers

Check out these cool coffee mugs with funny law captions done by cartoonist Charles Fincher. I want one of these for Christmas!

E-Discovery meets politics

The Washington Post asks " Why is it taking White House officials so long to restore millions of deleted e-mails from the backup tapes they claim to have?" The answer is that E-Discovery is daunting, and fraught with peril.  That's on a good day, in a case with minimal political ramifications.

Ask Morgan Stanley about the insidious perils of producing emails from backup tapes. E-Discovery is not for the faint of heart.

The international law of golf cart rental

San Pedro is a small town on the island of Ambergris Caye, which is located off the coast of Belize.  It's a beautiful place to vacation: great fishing and great scuba diving.  There aren't many roads in San Pedro, and the few roads that exist are filled with sand.  Most people walk around.  If you want to traverse large distances then having a golf cart makes sense.  But, if you rent a golf cart, be sure to pay for the insurance rider if they offer it. Otherwise, you'll wind up in a complex international legal dispute like the couple from Phoenix.

Save money on your next cruise

Article 2753 is an obscure provision of Louisiana Civil Code that doesn't get cited much.  But next time you book that Carnival Cruise vacation, check this provision if your wife is pregnant.  It could save you some money.

The importance of symbols & rules.

What is man's greatest asset?  Is it the opposable thumb?  Or is it the ability to form abstractions and to imagine things?  Clearly, our minds are a wonderful tool.  But how well do we use this tool?

Our minds seem to like symbols a lot.  Religious, social, and governmental groups all have important symbols and credos.  We recite oaths, salute flags and talk solemnly about honor and duty and pride. 

If a tree falls in a forest and no one is there to hear it the earth will still have a huge dent in it where the tree fell. But if the human race disappears tomorrow then what will happen if a flag catches fire?  Will that diminish the universe in some way?  I guess what I'm asking is: aren't symbols only helpful if they elevate our thinking in some way?  Is it possible that symbols actually diminish our thinking at times?  Is it possible that they diminish our thinking more than we realize?

We like rules too.  Rules are like symbols in that we rarely question their purpose.  Rules were created to guide behavior, but often they wind up becoming barriers to action.  People who have to apply rules like them because they eliminate the need to exercise judgment.  If one has to make a judgment then they also have to be prepared to defend that judgment. And, often people who are adversely affected by the judgment will be upset.  As with symbols, I have to wonder if rules don't often diminish our ability to think critically.

A client of mine hired a contractor to do work on his home and gave him a $20,000 deposit.  The contractor did no work and kept the deposit.  The contractor was a scoundrel and had done the same thing to many other people.  I wasn't surprised when he didn't challenge the lawsuit I filed against him.  Since he didn't file a formal response to the lawsuit I asked for a "default judgment."  Actually, I sought the default judgment against his company since that is who my client signed the contract with.

I went to court with my client to present the necessary testimony so that I could get the default judgment.  Before I presented my case I checked in with the docket clerk.  He looked at my paperwork and suggested that I needed an "Affidavit of Non-Military Service."  The reason for this piece of paper is that if you plan to default a person the court needs to know if that person is a member of the military.  If so, then the court would need to determine if they were called away to serve their country. We don't want people to be defaulted because they weren't able to answer a lawsuit because they were serving their country.

However, I was not defaulting a "person."  I was defaulting a corporation.  Corporations don't serve in the military.  Corporations have perpetual existence. And corporations have agents for service of process. This corporation had an attorney as its agent for service and he had received the complaint and done nothing about it.  So, that's why I didn't think an Affidavit of Non-Military service was necessary.  The clerk, however, believed that the affidavit was a sacrosanct requirement.  To avoid a disagreement I went back to the form desk, grabbed an Affidavit and had my client fill it out.  Then I notarized it.

When the judge called our case my client explained what happened.  He had hired the contractor after Katrina to do work on his home and his business.  The judge asked him questions that insinuated that he had been foolish to hire such a contractor.  Why was that relevant?  It wasn't. But it made the judge feel like he wasn't simply rubber-stamping the default judgment request.  He didn't want to seem like someone who simply did things in an unquestioning manner.  So the judge asked tough questions, even though the questions were irrelevant and belittled my client.  The judge seemed to be suggesting that my client didn't deserve a judgment against a company that had essentially stolen his money.

After the testimony, I offered the contract and the cancelled check as exhibits and moved for a default.  The judge asked if I had prepared an Affidavit of Non-Military status.  I said that the default was against a corporation, which I believed didn't require such an affidavit.  The judge then grew visibly impatient, and asked again if I had prepared the affidavit or not.  I said that I had, and offered it up.

He snatched the affidavit and examined it, and then nodded approvingly.  With a hint of reluctance, he granted my request for a default judgment.  Behind him was a large crest with the symbol for the State of Louisiana and a United States flag.  On the bench next to him were the scales of justice.

Ah, symbols.  What would we do without our rules and our symbols? 

Still, it's nice to know that if you're fighting in a foreign land, defending your country's symbols and its system of justice, you have at least one thing going for you: you will not be defaulted if someone brings a lawsuit against you.  Unless, of course, that person is willing to fill out a form affidavit claiming that you are actually not a member of the military. 

But, realistically, what are the odds of that happening?

Law Firm Jazzercize Music

They say it's not supposed to be a 'Theme Song."  Maybe the Nixon Peabody firm meant it to be more like Jazzercize music than a theme song, but in any event now it's a full-blown brouhaha.  So put on your gym shoes and shorts and check it out. 

"Everybody's a winner at Nixon Peabody."  I'm telling you: I just can't stop singing it.

Providing legal advice information in a humorous way

Now that someone has unlocked the iPhone there are questions about the legality of doing this.  Engadget's legal expert answers those questions, humorously.  Who knew that was even an option?

Franchise lawyer in New Orleans, Louisiana

For some reason, I've had a lot of people ask me recently "what kind of law do you specialize in?"  The answer is Franchise law.  That's my specialty, and has been for the past 10 or 12 years. I've had the good fortune to work with franchisors like Popeyes, Ruth's Chris, SpeeDee Oil Change, Cucos, and most recently, The Italian Pie.  For more information about my law practice, check my online profile or my law firm website. 

Remembering Judge Adrian Duplantier

The Judge I worked for after law school just passed away.  Six weeks ago we had a reunion of clerks and he looked pretty good, vibrant and upbeat as always.  But, yesterday, the pancreatic cancer he'd been battling for over a year finally took his life.

The two years I clerked for Judge Duplantier completely shaped me as a lawyer, and radically changed me in other ways as well.  So many of the things he said twenty years ago still reverberate in my brain.  Some of his lessons were hard for me to absorb.  One thing I picked up quickly was not to waste anything: not time, not words, nor food.  Section H was devoid of anything that wasn't absolutely necessary to the efficient delivery of justice, except for a wilting plant that clung to life despite continual neglect by a succession of clerks.

The courtroom was also spare of clutter.  One of the few items on the desk where the clerks sat was a small placard that had the words to be used to open court.  "Oyez, Oyez, Oyez" were the first words on the placard, except the last 'oyez' was stricken through.  I noticed this one day and asked the senior co-clerk why the third 'oyez' was stricken.  He looked at me with a stern face to let me know that what he was about to impart was of utmost importance: "we only say the 'oyez' twice because it saves time."

Judge Duplantier's brisk manner, and gruff voice, unsettled many attorneys.  Amazingly, though, some attorneys were breezily presumptuous, which proved not to be the optimal manner to have before the Judge.  If I said I didn't enjoy watching those attorneys come into chambers for conferences I'd be lying.   Even a routine scheduling conference acquired some spice when a pompous attorney (usually from a big firm) loftily pronounced his schedule too full to try a case anytime in the next 12 months.  The Judge would calmly pencil in a trial date that suited the others and then tell the lawyer to get one of his colleagues to try the case if he was too busy.  He didn't do that just to make a point.  Judge Duplantier believed that everyone in the legal system had an obligation to move cases as quickly as possible, especially the lawyers.  Cases moved quickly in Section H, and the pace wasn't going to slow down without a good reason.

That said, Judge Duplantier believed family always came before work.  I remember one scheduling conference with a lot of lawyers, which naturally made it hard to pick a trial date.  We finally got to a point where a date looked good for everyone.  Suddenly one guy start rustling his papers.  Everyone turned to the middle aged lawyer who nervously informed the Judge the date was a problem for him.  The judge asked him what the problem was, and I cringed in anticipation of a stern directive.  The attorney said he had a two week vacation planned with his family and started to explain how long they'd been planning it, but the judge cut him off in mid-explanation. "I understand," he replied.  "Family vacations are very important, so let's look for another date."  Everyone was momentarily stunned, but then they quickly cooperated and picked another date.

Working for the Judge made me think deeply about every decision I made.  I never handed him a bench memo (or anything else that I'd written) unless I had carefully considered every word in the document, and knew exactly why I was using it.  If there was a typo, he'd find it.  If there was awkward phrasing or an unnecessary word, he'd strike through it. If I cited a case for a proposition that didn't make sense, he'd have me pull it and stand next to him as he scanned it to figure out why it didn't apply.   I thought I was a pretty good writer in law school, and I was confident in my ability to figure out what the law was if I needed to.  Within a few days of working in federal court I began to seriously doubt those skills.  Working with the Judge made you question everything you did.  Nothing was taken for granted.

After a few months I thought I was getting used to the intense scrutiny, but he could tell that I was really just getting tired of it.  He didn't waste time setting up a lecture.  One day he handed me a document that was riddled with corrections and when I grabbed it with a hint of dejection he paused for about two beats and then said, "I'm going to tell you what my uncle, Charlie Rivet, told me when I was a young lawyer: 'if something is worth doing then it's worth doing well.'  Understand?"

"Yes sir," I replied sheepishly.

Some attorneys didn't like him.  He could sense it, but it didn't faze him in the slightest.  It was one of those 'two ships in the night' things.  They didn't understand him, and he didn't understand them. There wasn't much that he didn't understand, but the notion of doing things in a half-hearted way truly baffled him.  If he did something, he did it exceptionally. He expected the same from those who worked with him, as well as those who appeared in his court.

Yes, he was impatient.  And, yes, he was supremely confident.  The Times Picayune once published an article that identified three political leaders in New Orleans with the biggest egos. The article listed Moon Landrieu, Dutch Morial, and Adrian Duplantier.  When the Judge saw the list he immediately rang the Editor and informed him of his great displeasure "You don't think you should be on the list?" asked the editor. "No that's not it," the judge replied. "I think my name should be listed first."

No doubt about it: Judge Duplantier could command attention, and he liked attention.  But, he used the attention he got to do some amazing things.  Judge Duplantier helped start a home for boys that gave dozens of local kids from broken homes a successful start in life.  But, after founding Boys' Hope, he didn't just attend formal functions.  He spent most of his time collecting unused clothes and leftover food to bring to the boys at the home.  Sometimes he'd invite me to come along.  I was struck by how devoid of any authoritarian air he was when he visited the boys.

By the end of my clerkship I started to feel slightly more relaxed.  I began to wonder how I'd remember my clerkship, especially many years later after I'd gotten comfortable practicing law.  And so here I am now, many years later, trying to remember any one of the Titanic courtroom moments that took place while I worked for the Judge.   It's funny, but all of those monumental dramas seem hazy and unimportant.  The only memory that jumps out is a fairly mundane one, something that was part of a very predictable daily routine.

It's 6:45 in the morning and he and I are the only ones in chambers.  Everything is completely silent until I sense him padding quickly down the hallway, preceded by a booming voice: "Hey Swenson, I was doing some 'shower thinking' this morning and..., say, that plant over there looks like it could use a little water, don't ya think?"

That's how I'll always remember the Judge.

Take my advice, please.

Today I had the opportunity to offer advice to two people.  One person called and asked for my advice, and the other person didn't ask for my advice (but, in the grand tradition of being human, I offered it anyway).  The person who asked for the advice needed merely to be told that I didn't have any special knowledge, which was a welcome message.  The person that didn't ask for my advice didn't seem to receive it well.

I try to refrain from offering advice because people rarely appreciate it, and it seems to be a waste of time.  Which raises an important question: why agree to speak at Continuing Legal Education (CLE) seminars? 

Well, first, the people attending CLEs are there because they have to get a certain number of hourly credits, and so if they have to get advice from someone there's no great harm in being the one who offers it up. They get official credit for ignoring my advice, which is productive for them.  And, for every hour of CLE advice doled out I get three hours of CLE credit, which is really productive for me. 

So, I guess if you're forced to deal with advice, then it's definitely better to give than to receive.  That's all I'm saying. 

How to beat a traffic ticket

This post by Laura Orr pretty much sums it up.

Easy online listening. Maybe too easy.

Simplify Media purports to make your iTunes library available to you (or any of your 'friends') online.  And it works with both Macs and PCs. 

How well does it work?  Not sure because I haven't tried it, but if it works too well it might face a legal challenge.  And if the online music service suffers death-by-litigation then perhaps someone say (paraphrasing Othello) that Simplify Media connected people with music --"not wisely, but too well."

Explaining the law in simple terms

I love this post by patent attorney Erik Heels.  He uses a drawing he made for his daughter to explain why law school doesn't help lawyers solve practical problems.  Moreover, his explanation of the legal system is simple, concise and yet (in my view) completely accurate.  The money quote: "one of the good things about spending time with children is that it forces you to explain things in simple terms."

Indeed.  More lawyers should work with young children to develop their communication skills.

Keeping up with legislation, cyberstyle

WashingtonWatch is a site that summarizes legislation pending before Congress, and allows user comments on each piece of legislation.  The site is nice and clean, and the explanations proposed laws are clear and understandable.

The home page lists all the legislation currently pending, but grouped by tabs for categories such as: Most Popular, Newest, Greatest Cost, and Greatest Savings.  If you click on a proposed law it will take you to a page where you can leave a comment about the legislation.  Also, users can edit the section that describes why the legislation should or shouldn't be passed.  Sort of like Wikidpedia, except probably with more controversy as the site becomes more popular.

Indigestion & Legislation

Remember when you mom told you that you had to eat everything on your plate?  You quickly learned not to put more food on your plate than you could eat, didn't you?  Perhaps we should have a similar rule for our sausage making representatives in Congress.  A proposal like this one, for example.

Posting a copyright notice is a copyright violation?

The NFL has taken the position that uploading a clip of its copyright notice to YouTube is itself a copyright violation.  I have three observations: (1) This offends common sense; (2) If the law holds that posting a copyright notice is a copyright violation then the law is, to quote Dickens, an ass.  (But the law is not an ass, and neither is Wendy Seltzer, who uploaded the notice.  She is a lawyer well versed in copyright law);  and (3) The NFL legal department is oblivious to the idea of negative PR.

Obviously, powerful copyright holders like the NFL or Viacom no longer care much about the finer points of law or public relations. They're like werewolves driven by a feral compulsion to hunt out prey whenever the moon becomes full. When will the townsfolk take up weapons in opposition?  I don't know, but the werewolves are sending out takedown notices in bulk now. 

And those are a lot easier to create than silver bullets.

Digital Workflow for Attorneys CLE

This Friday I'll be giving a CLE presentation called "Digital Workflow for Attorneys."  Here is the gist of my presentation:

Mail and other paper-based information are being quickly supplanted by digital media such as email and electronic documents, but many lawyers have not changed their office procedures to take full advantage of the digital revolution.

I guess this is a hot topic because it appears that the program, which will be held at Ralph's on the Park, is completely sold out.  If you are one of the 50 or so who registered then I'll see you there.

Hourly billing rates across the U.S.

Here's a survey article that reports on the high-end billing rates for lawyers across the country.  The survey used billing rates in bankruptcy cases, since bankruptcy courts often require attorneys to report their fees in publicly available documents. 

Many people have argued, quite sensibly, that hourly billing is chiefly responsible for the dysfunction of our civil (as opposed to criminal) legal system.  Clearly, it tends to diminish efficiency in the dispute resolution process; that's a virtually self-evident economic fact.  The only counter-weight to the inefficiency of hourly billing would be the personal ethics of individual lawyers, which as we know is variable.   And certainly not reported in any publicly available documents.

Getting out of your Verizon contract without penalty

With the iPhone's appearance only months away, people who don't have Cingular service are wondering how they'll get out of their current non-Cingular service contracts without paying the hefty cancellation fee. In the case of Verizon, the fee is $175.  If you are a Verizon customer and are interested in canceling your service, check this out.  It won't work for everyone, and you'll have to spend some time on the phone with service representatives explaining basic contract law.  But if you are insistent you'll probably get to cancel without penalty (assuming you don't have a text messaging plan).

What if legislatures used wikis?

It seems like a far-fetched idea.  And yet it actually happened in Utah, and led to the passage of a law on school vouchers.

Jurors have questions sometimes

The Wall St. Journal blog has a short post about the small, but growing, practice of some courts who allow jurors to ask questions during the trial.  The post is attracting some good commentary, so head on over and drop your 2 cents into the comment bucket.

Halt! Don't fill out that form

The New York Times Police Blotter: "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." Because, that would be illegal.

Don't 'deep link' in Texas

This is a really disturbing court decision, one that suggests the judge has a flawed understanding of the fundamental nature of the Internet.  It's better than Senator Ted Steven's understanding, but still deeply flawed nevertheless.

Legal quotes

I was not a big fan of Frank Zappa, although I certainly recognize his great talent and huge impact in the realm of music.  I did, however, enjoy this quote of his:

"The United States is a nation of laws: badly written and randomly enforced."

Of course, the truth is we have many good laws, a fair percentage of them decently written.  The biggest problem is that we have too damn many of them.  And most of them are analyzed only by people with narrow special interests (read: "vested monetary interests").

Looking for freelance legal researchers

From time to time I get calls or emails from lawyers who ask if I know anyone who does freelance legal research.  I've made some recommendations, but the other day I was thinking there might be some lawyers out there who I don't know about who want to do this kind of work.  Lately, I find myself needing someone like this too.  So if there are any legal eagles out there who are willing and able to do legal research on a per-project basis then (as Ross Perot used to say) I'm all ears.  Send me your contact information, resume and a writing sample to: esvenson {at symbol] gmail.com. 

Judge we'll need a delay because the Saints are in the playoffs

My friend Ray Ward has a post about some local lawyers who asked for a continuance of their jury trial because of the Saints game (which is being played in Chicago).  Maybe I'm missing something, but that doesn't seem like a motion that should have been filed.  Supposedly, it was granted.

Update: the Wall St. Journal Law Blog has a post about this.  I think it's great that people  (lawyers are people too) are excited about the Saints.  I'm really excited, but I try to keep my professional obligations prioritized above my fan-mania.  We all admire professional athletes who are disciplined and dedicated to winning, and 'giving it their all.' (Remember when Brett Favre played on Monday Night right after his father died?).  Not everyone is as driven as Brett Farve, and apparently that's true of the lawyers who asked for a continuance because of the Saints playoff game.

Duke lacrosse case update

The 60 Minutes story on the Duke Lacrosse case last night was very disturbing.  Brian Meehan, the man hired by the prosecutor to do forensic work, said he found DNA on the rape kit and the accuser's underwear that belonged to at least four unidentified men, none from any of the lacrosse players. But when Meehan issued a report of his findings, he left out that exculpatory information about the other men. 

Now he's having to explain his 'mistake.'  But one gets the sense that he was doing what he thought Prosecutor Mike Nifong wanted him to do. The North Carolina State Bar has filed a complaint alleging ethics violations by prosecutor Nifong, but not because of the failure to reveal the exculpatory evidence (the complaint is about his improper publicity-seeking remarks).  Perhaps the North Carolina Bar should amend their complaint to include these more serious violations.

Many people will wonder if Nifong shouldn't also be subject to a civil suit by the lacrosse players.  He is probably immune from suit, but that doesn't mean (if the ethics charges are true) that he should be immune.  Nifong has wreaked incalculable damage upon the accused lacrosse players, and it's hard to see why he shouldn't be held fully accountable.

2007 Louisiana Super Lawyers

The "2007 Louisiana Super Lawyers" list is out, and apparently the selection process is rigorous. Super Lawyers "identifies the top 5 percent of attorneys in each state, as chosen by their peers and through the independent research of Law & Politics."  The award must be prestigious because I've noticed that several local law firm websites tout that a certain number of their lawyers were selected.

I guess I'll update my firm website to mention that I was selected too, and even profiled in the 2007 Super Lawyer magazine.  I think they profiled me because of my weblog.  The author of my profile was eager to highlight my sense of humor, but I think she unintentionally mischaracterized my attitude towards the practice of law.  I regard the practice of law as something to be taken very seriously, even though I believe that many lawyers often have an overly somber view of themselves and their profession.

The profile is not online, and although I have a copy of the article scanned to PDF, I'm not going to post it because that would probably not sit well with the Super Lawyers folks.  Some of their revenue comes from the lawyers who are selected ordering extra copies of the magazine or other memorabilia, and I certainly wouldn't want to  circumvent their business model. That would not be very funny.

Meanwhile, I'm thinking of posting the following proclamation on my firm website:

The Svenson Law Firm is pleased to announce that every single one of its attorneys was named a 2007 "Louisiana Super Lawyer." 

Assuming that statement complies with the proposed new rules regulating lawyer advertising in Louisiana, that is.

(p.s. to overly somber lawyers: that's a joke).

Innovative Law Firms

Interesting ABA Law Practice Management article by Merrilyn Astin Tarlton entitled Law Firm Mavericks Go For Broke: Traditional Thinkers Need Not Apply.  Here's the premise:

"The practice of law is actually some mystical combination of art and business. And there are a small number of wildly creative lawyers and law firms smartly demonstrating their impatience with the usual method of gradually improving things."

What's the likelihood that the practice of law will radically change in the near future?  Not much, but there is a growing crop of lawyers who want to innovate.  And, not surprisingly, they're finding clients receptive to their novel approach.

Proposed new lawyer advertising rules for Louisiana

Louisiana is joining the ranks of states seeking to impose new rules on lawyer advertising.  The Louisiana Bar Association website has information, including transcripts of meetings where people offered comments.  Morris Bart's comments at the meeting held last November in New Orleans were interesting, and though I don't advertise (or intend to), I agree with his observations. 

The proposed rules are well-intentioned, but misguided because: (1) the 'problem of lawyer advertising' is overblown, and certainly not as serious as other problems that are in need of greater attention, and (2) the rules require too much interpretation, which frustrates lawyers who want to comply, and also creates an additional regulatory burden for the already overworked and underpaid bar association staff.

What lawyers appreciate...

We enjoy representing clients who have genuine problems, clients who value thoughtful advice, and who understand the risks of going to court and are willing to compromise when that makes sense  ---but who are willing to prepare fully for going to court, if necessary. 

Lawyers appreciate judges who have keen instincts and are able to find the equitable center of gravity in a case quickly.  We appreciate judges who are impatient but polite, who know the legal principles and apply them in most cases ---but who are willing to do justice, without guidance from precedent, if that's what makes the most sense.

Lawyers appreciate other lawyers who fight hard, but are fair and straightforward.  Lawyers appreciate colleagues who can see when common ground is possible and practical, and when it is not.  Lawyers live in a world of conflict, and the best ones know how to minimize conflict, not just how to augment it.

Lawyers appreciate a legal system that allows differences to be resolved efficiently and sensibly.  They appreciate this even when they wind up losing a case.  The best lawyers appreciate that which helps the system as a whole, and they put the system's interests ahead of their own personal and parochial interests.  Of course, they do this only when it is consistent with their obligation to zealously represent their client. 

What I strive to appreciate is how difficult it is for clients, lawyers, and judges to balance their own views against the views of a larger group. I hope that somehow we find a way to do this better than we are now, although we do it much better here in this country than in most other nations.  And that's what I appreciate most of all.

The foregoing is my response to Monica.  I hereby call on Evan Schaeffer, Marty Schwimmer and Tony Collelulori to offer their thoughts as to 'what lawyers appreciate.'

Provocative blog posts - sometimes they offend.

My friend Brian Privor apparently caught some flak for his post on the state of our local criminal justice system.  He also received a lot of praise for his passionate account; but some people thought he was too provocative.  I had linked to the post, but I took the link down because I got a call from someone who said that some people might view it as 'unprofessional' (because of the use of a metaphor).

Brian and I talked about the situation yesterday, and I told him that this kind of situation is not uncommon.  There are lots of things that I would love to blog about, or things that I would love to write about in a certain way, but I don't.  Why? Because I've become aware that, on the Internet, you have to imagine your audience as being the entire world (because it is).  The judge I used to clerk for was a skilled politician, and when I was clerking for him he offered this advice: "never say anything that you wouldn't want to see on the front page of the Times Picayune."

With a blog you are speaking to a potentially much larger audience than the Times Picayune, and also you have to remember that your post will not disappear after one day (unless you delete it, and even then it's not necessarily going to vanish from the web).  Many people would take my judge's sage advice and conclude that you should avoid all possibility of controversy. Just stick to the safe areas, and dont' say anything that's too provocative.  That's what many people would do.

Of course, that's kind of antithetical to the foundations of this country, since if our early leaders had shied away from giving offense we'd possibly not be an independent nation.  And we'd possibly not have created a document that gives people the right to free speech.  We all like to celebrate democracy and free speech, but we seldom like to acknowledge how messy and complicated democracy is.  Transparency is also hard to manage.  But, in my view it's worth it. 

I liked Brian's original post, and I liked his recent apology/explanation too.  I don't think his original post was unprofessional, but it was critical.  Was it overly critical?  Apparently some reasonable people might disagree.  I can appreciate that, and so can Brian.  Unreasonable people, however, would not just disagree, but would also try to find a way to silence what they regard as offensive commentary.   But, enough about our society's insidious struggle to endure the kind of free speech that our Constitution has enabled; what about the point of Brian's original post? What about the state of the criminal justice system in New Orleans right now?

In the post-Katrina world there are a lot of things that need to be fixed, and it's easy to feel overwhelmed and thereby become numb.  I feel like I've been numb to the problem that Brian describes.  I linked to Brian's post because it stirred me from my torpor, and made me feel like it was something that needed more attention.

I took the link down because I want to try to respect the feelings of those who were offended, even if I disagree that Brian's post was too strong.  Brian has explained it was never his intent to offend anyone.  It's clear --to me at least-- that Brian is passionate about making this city better and that was the dominant motive for his post.

Hey, we all get passionate.  If you were initially offended by Brian's post perhaps it's time to look past the provocative metaphor and consider the significant personal sacrifices he made to come to this city to help us rebuild a critical resource.   Granted, many of us here in New Orleans are making sacrifices.  So let's not get bogged down in criticizing people who are acting with good intentions.  If some of us are impatient it's because we want things to get better faster.

Impatience and brashness are sometimes a good qualities.  A lot of people thought our founding fathers were impatient and brash.  Not so much anymore, though.

Common sense, the law, and the levee failures

My friend Harold Bosworth is a highly skilled engineer, and he thinks very logically.  He believes the law should make sense, which is reasonable.  He's recently written an article about our Katrina-related levee failure entitled The U.S. Army Corps should not be exempt from responsibility.  I agree with him: too bad that's not the law.

Planning a Christmas office party?

Don't forget the chips and salsa.  Oh, and read this advice from some employment lawyers, which is so sensible and cautionary that it's bound to make your next office Christmas party one that everyone will remember.  Literally.

Reggie Bush - YouTube video tribute

Down here in New Orleans we LOVE Reggie Bush.  He hasn't produced big stats yet, and he's had a few unfortunate fumbles.  But he plays with a lot of heart, and --just as importantly-- he's been a big supporter of local community.  For example, he donated $86,000 for new astroturf in the main stadium where high school football games are played. He's made other contributions and pledges as well, and it all started when he was first drafted.  I don't know why Houston thought he'd be a difficult person to sign or have problems, but it's obvious that he is compassionate and generous.  In post-Katrina New Orleans, we cherish people like Reggie Bush.

So, whenever Reggie gets the ball a lot of people in New Orleans sit up on the edge of their seats.  Pretty much like the people in this interesting video that has surfaced on YouTube recently.  I recognize that there are copyright implications in using footage from the movie Animal House Revenge of the Nerds, but I think any judge in New Orleans would be inclined to find this is a fair use.  It's certainly a really clever use.
 

The lawyerly tendency to overbill

The Wall St. Journal Law Blog reports on Amtrak's woes in overpaying law firms millions of dollars between 2002 and 2005.  Apparently, Amtrak didn't work hard enough in examining its attorneys' bills.  My simple question is: why should clients even have to scrutinize their law firm bills?  The answer is they do because many law firms, particularly large firms, have an inclination to 'round up' in billing (to meet minimum billable-hour requirements).   And they also have a strange inability to find efficient solutions to legal problems, especially when they bill by the hour. Large law firms have a lot of overhead to carry, which is the biggest reason for these undesirable tendencies.

But many clients are getting wise and hiring good lawyers who strive for efficiency.  One way to assess how much a lawyer values efficiency is to examine how much overhead he or she carries.  If you hire a good lawyer who believes in efficiency then you won't have to spend so much time auditing their bills.  In fact, you might not have to spend any time at all.

Day in the life of a small claims jurist

I was sitting in First Parish Court the other day waiting for my turn in a routine default judgment matter.  The room was a modern space, brightly lit and filled with rows of benches where people charged with various traffic violations or seeking to settle small civil disputes were restlessly gathered.  On the right hand side of the room there was a long bench where the few lawyers were seated.

All of the court personnel were stern-faced and when the judge quickly entered the room they became even more serious.  The judge looked like a middle linebacker.  He had a buzzcut and his black robe sported a number of patriotic pins.  As he settled into his chair (next to a large American flag) a cellphone went off in the audience, causing his somber expression to become a full-fledged scowl.  The baliff immediately approached the offender and bellowed "TURN OFF ALL CELLPHONES NOW!"  The audience, which was a motley group of poorly dressed people who seemed to thrive off of ignoring authority, was largely unfazed. The young tatooed man slowly took out his phone and turned it off.

I felt surrounded by people who'd spent their early years in detention hall.  Most of them were now traffic violators who had come to court to advance what they thought would be compelling excuses for their misdeeds.  And then, of course, there were the lawyers.

The minute clerk called the first case and two lawyers approached the bench and began arguing their case.  The judge had ruled adversely in an eviction case and so the losing lawyer filed a motion for a new trial.  If you weren't a lawyer you might not grasp that the argument to the judge, essentially, was "you are so inept you applied the wrong law, but if I just let you know about your grevious mistake then you'll rule in my favor."  If you just focused solely on how confident the lawyer sounded you might think that there was actually a chance that he could win.  Most lawyers can appear totally confident, even when they know have no shot.  I kept waiting for the fireworks, but the judge didn't move.

He listened patiently for a few minutes, until the attorney said: "and we've cited a case directly on point from the Louisiana Supreme Court..."  At that point, the judge boomed in a voice laced with sarcasm and derision:  "You're talking about that case that was decided in the year 1878?"

Not surprisingly the judge then denied the motion.  The lawyer, however, acted as if the judge had just overruled Roe v. Wade. 

I couldn't help smiling. First, watching the lawyer pretend to believe the judge was going to change his mind was funny.  But, even more humorous was the notion that a case decided over a 100 years ago would compel the judge to admit he was wrong.  It reminded me of an episode of the Rockford Files where Jim's attorney Beth Davenport was trying to convince the judge to let him off the hook for something stupid he'd done.  With an air monunumental seriousness she informs the judge that the Ramshackle case is 'right on point' and that compels him to let Rockford off the hook.

"Is this the case from 1871, counselor"? the judge asks.

"Yes it is."

"The case where the stagecoach was surrounded by attacking indians, Ms Davenport?"

"Yes, your honor."

"Counselor, give me a break."

I was pondering how that losing lawyer might learn something by watching the Rockford files when another cellphone went off.  The judge jumped up and quickly scanned the audience as a elderly spanish woman fumbled with her phone, which was playing a bouncy little tune that lasted for about 5 seconds, but seemed like a lot longer.  "TAKE THAT PHONE FROM HER BALIFF!!!" the judge commanded.

The woman was confused because she didn't speak English, and probably didn't hear very well, and seemed to have no idea of what was going on.  She did, however, understand that the Baliff's outstretched hand was there to receive her phone, so she hesitantly placed it there as the judge ranted about the inherent evils of cellphones.  "You can pick it up tomorrow," the judge then told her.  One of the people sitting behind her translated.  The judge overheard the translation and seized upon one key word.

"Yes, mañana," he said.  It seemed as though he was saying it more to himself, which would explain why his tone seemed to carry more than just a hint of painful resignation.

Why new drug ads tout side effects

I noticed the other day, while watching a TV advertisement, that drug companies are getting more comfortable talking about the side effects of the drugs they are promoting.  At first blush it seems counter-productive.  But, if you consider the inevitable litigation that will ensue, it's actually a very smart move. As we all know by now, people don't pay attention to warnings, so why not feature them prominently in TV ads?   

Here's why this is a good idea. If the drug sounds enticing the potential consumer will focus only on the benefits, and downplay the side-effects. Some people will experience side-effects and sue the drug company.  But when that happens the drug manufacturers can point to the TV ads and say 'geez, what else do you want us to do to inform you about side-effects?'  A powerful argument, to be sure.  Indeed, this new advertising strategy is so clever that even manufacturers of older drugs are using it.  For example, note how an advertisement for this social anxiety drug briefly touts some benefits, but then gives a laborious list of side-effects. 

Hey, I'm ready to try it myself.

Modern day estate planning

Let's say you are a lawyer who is helping a client with estate planning.  You'll prepare a draft will and you'll tell your client to consider the usual things, like specifying who they want to be the executor of their estate. 

And, of course, you'll discuss what bequests will be made and to whom. After all, your client can't take stuff into the afterlife, so they have to think about who they want to bequeth their cherished items to.  You should also talk to your client important things that, heretofore, would not have been considered 'usual.'  Oh, and don't forget to consider discussing the need for a living will.

Tough Deposition Questions -- Preparing your client for them

I know this sounds strange, but one of the things I like about litigation is that you never know for sure what's going to happen. Most of what happens the world of law is boringly predictable.  Depositions are usually pretty droll boring affairs.  But in a sea of boredom there are always a few lightning storms. The lightning storms in a deposition are most likely to occur when the deponent is being grilled with tough questions.  Preparing your client to face tough questions is tricky, as this short video clip demonstrates.  Of course, for lawyers who practice criminal law, there's always the problem of the client who incriminates himself before you're even consulted.  Hey, no one said it would be easy, right?

Using MySpace to market your law practice

Anicia Ogonosky and I have at least one thing in common: we both graduated from Loyola Law School here in New Orleans.  I didn't know this until I found out (by reading Kevin O'Keefe's post) that she has started a MySpace site called LegallyBlondePA.  She has gotten some bankruptcy work from her site, and has a nice radio interview posted there.  The site and the radio interview reveal that she's just a regular person, and not some unapproachable stuffy lawyer. 

Who knew that you could market to potential clients by revealing your human side?  I thought you had to buy ad time on daytime TV and blare your message like a carnival barker.  After blogging for over 4 years I'm starting to get the sense that people want to see more of the human side of lawyers.  But not everyone likes this notion, which is why the NY Bar is trying to clamping down on this dangerous trend.  I love it when professional organizations try to restrict new, and supposedly harmful, activity before getting a sense of how the public feels about this new thing, or without doing empirical studies to see if there really is a potential harm. 

Is that what people mean when they say professional organizations have a 'Guild mentality?"

Dissatisfaction with lawyers - Why?

A common refrain at bar association gatherings of lawyers is how people don't understand lawyers and that's why we have a bad image.  What image?  Oh, you know, we aren't sensitive to client needs or we are more focused on being combative than actually helping the client solve their problem economically.  That's what the 'outsiders' think.

What about our image inside the profession?  Well, if you attend most lawyer gatherings you often hear that we're doing just great.  But recently I came across an ABA story about a survey which shows that 70 percent of corporate in-house counsel are dissatisfied with their outside lawyers.  What are they unhappy about?  Here are three key problems: (1) failing to keep up with clients’ changing needs; (2) failing to articulate the value they deliver; and (3) not communicating well with clients.

Gee, that sounds a lot like what regular people complain about too.  Maybe our poor image problem is one of those 'fault lies not with the stars' kind of things.  I know some lawyers who will pick at this post and point out flaws in my reasoning, but I'm okay with that.  I'm more interested in what clients and potential clients think, and it's clear that a lot of them believe that many lawyers don't try to understand their client's real needs.

Fraudulent lawyer billing - the perfect crime?

This brief blurb about fraudulent billing at the Wall St. Journal Law Blog has generated a lot of commentary.  As well it should.

Legal YouTube Videos

A Florida divorce attorney has a YouTube ad that's provocative.  And here is was an ad (removed for reasons I won't get into) for a company that advocates the use of weblogs as a legal marketing tool.  I'm not hoping that this will happen, but I think it's just a matter of time before a state bar association takes offense.  There's a natural tension between lawyer advertising (e.g. highly regulated) and YouTube (e.g. antithesis of regulation), and that kind of tension often leads to legal conflict.

Blawg Review #72

Welcome to the seventy-second edition of the Blawg Review.  Apropos of the Katrina anniversary this week's Blawg Review is brought to you from New Orleans, a city that care will rebuild. If you aren't familiar with what Blawg Review is click here.  Now, as Jackie Gleason used to say, 'and away we go...'

Fundamentals: Writing, Learning & Teaching Law

• Legal writing has a reputation for being dense and hard to understand.  A well-deserved reputation, to be sure, but one that many lawyers are trying to shed.  The blog Writing, Clear and Simple recently offered some thoughtful observations on how to improve legal writing.

• New law students are the most vulnerable to the tendency to adopt 'legalese' because they are exposed to it in toxic doses as they read old cases filled with stuffy jargon.  My advice to law students?  Don't succumb.  And speaking of giving advice to new law students, Paul Caron has a cornucopia of links that 1Ls will find helpful.  Peter Lattman, who writes the Wall St. Journal's Law Blog has a short list of helpful links too.  Divine Angst has a good blurb on back to law school stuff.  And, of course, Jeremy Blachman, of Anonymous Lawyer fame, just graduated from Harvard and has great empathy for the plight of law students.  Last piece of advice from me on how to read the cases in your textbooks. Read the dissenting opinion first (if there is one), and then read the majority opinion.  Trust me: it's a more efficient way of working through the case and law professors love the dissenting opinions (there's a reason why the textbook editors included them).

• The demographics of new law students is something that the professors always find interesting, and Paul Caron has a roundup of the entering law school class of 2009 at Cincinnati.  Obviously this is a small sample, not a macro view.  Frankly, I'm more interested in the use of eInstruction handhelds that he briefly mentions.  Why not explore new ways of getting students to participate in class and to discuss the material? 

• The Socratic method is great if it's done well, but it's not a tool that works well in every situation and, of course, not every professor  is adept at using the Socratic method.  I remember one time in a Constitutional law class the professor wanted the class to identify a key point of discussion in an important case.  Finally, out of frustration she called on someone she knew was very bright (but who, unbeknownst to her, was also very stoned).  The professor assumed an air of complete confidence as she addressed the foggy mind in the back row: "three little words, Mr. xxxxxx.  The Supreme Court's opinion offered three words that were very important.  What were they?"  Mr. xxxxx roused slowly from his stupor and, realizing that he had been called on, replied "I love you?"

Practice, Practice, Practice

• In the beginning there was 'the agreement,' that pact by which two people decided to formalize a future relationship.  Today we lawyers call these 'contracts' and we think of the fictional Professor Kingsfield when we do.  If you want to know how to draft better contracts then click on over to AdamsDrafting and read the post Issues in Drafting Commercial Agreements—The “Box”.

• Robert Ambrogi reports on the Electronic Frontier Foundation's lawsuit against the company that administers the copyrights of Barney the Dinosaur.  Some Dino-aficionados may recall that Barney once (unsuccessfully) sued the San Diego Chicken.  In another Copyright vs. First Amendment case Ron Coleman comments on Jewish comedian Jackie Mason's lawsuit against Jews for Jesus, based on their misappropriation of his likeness in some of their advertising materials. 

• Recording Industry vs. The People has a post with a state-by-state directory of attorneys defending against RIAA lawsuits.

• Steve Minor has a seven part post on Net Neutrality: Part1, Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, and a Conclusion.  I'd like to think that maybe Ted Stevens might read it but I'm not that optimistic.

• Thanks to Overlawyered for letting us know about the "strict new guidelines intended to protect soldiers who play the Scottish bagpipes from suffering hearing loss. ..the guidelines insist that pipers should only play for a maximum of 24 minutes a day outside, and only 15 in practice rooms."  No word on if the pipers are also refrained from playing heavy metal music.

• We the People informs us that IBM, Microsoft, and Hewlett-Packard are collaborating in program that seeks to use a wiki-like tool in the patent approval process. The idea apparently came from New York Law School professor Beth Noveck's blog.  Another feather in the cap of the Blawgosphere.

• Denise Howell of Bag & Baggage fame is now writing a regular column for ZDnet called Lawgarithms, and she has a good post on trademark lawyer Marty Schwimmer's advice for companies that provide RSS feeds.  Over at her regular blog Denise reports that the 7th Circuit Court of Appeals) is podcasting its oral arguments.  BTW, the the ABA Section of Litigation now has a podcast of Tips & Tactics for the Practicing Lawyer.

• Ray Ward has word that the Louisiana Supreme Court has upheld the constitutionality of legislative extensions on the limitations period for filing claims based on damage caused by Hurricane Katrina.

• Evan Schaeffer notes that some states are adopting the new federal rules on e-discovery, which will become effective in December of this year (and also offers advice on avoiding e-discovery problems).  Rob Robinson also writes about states' adoption of e-discovery rules.

Theory & Miscellaneous ephemera

• The big news this week in the Cosmos was the summary demotion of the Pluto from full planetary status.  Mark Graber seizes upon this development to compare the developments related to Pluto  with  Constitutional theory.  Speaking of Constitutional theory, Peter Lattman wonders if Pluto might be able to mount a legal challenge arguing that it was deprived of plenary planetary status unlawfully (and if it does --and plans to hire an expert witness-- then it should consult this post by Daubert on the Web).  There have been some rumblings (not yet emerging as blog posts) that Pluto will adopt the Lieberman strategy and run as an independent.

• Wall St. Journal Blog brings word that the Patent & Trademark Office has instructed its examiners not to rely on Wikipedia in assessing the validity of patents.

• Cyberguru and esteemed law professor Larry Lessig asked readers of his blog to help him figure out how to remove duplicate entries in his address book (he uses a Mac computer), and his readers responded with some useful tips (many of which would apply to Windows computers too).

• Jim Calloway has a good tip on creating a digital reading file for articles that you come across and want to read later (because who has time now?)

• Kevin Heller tells us about a federal judge who excoriated the F.B.I. for not using Google as an investigative tool.

• Tom Collins has a blurb about what technology law firms are planning on implementing in the next year.  High on the list: disaster recovery tools.  Not on the list: wireless technology (why? because it is pervasive if you aren't using it then you have a lot in common with planet Pluto}.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Here are the next 4 episodes of Blawg Review for those of you who want to keep your calendar updated:

Sep 4 Workplace Prof Blog
Sep 11  Global Security Law
Sep 18 Concurring Opinions
Sep 25  David Maister's Blog

New Managing Partners - Read this book

Interesting book by law firm management consultant Patrick McKenna: First 100 Days: Transitioning a New Managing Partner.  In addition to some of his own useful observations about law firm management, McKenna also offers real-world commentary of leaders from firms like Baker & McKenzie, Morgan Lewis, Pillsbury Winthrop, Ropes & Gray and Sonnenschein.

The format of the e-book is interesting too, but I'd rather not have to navigate a 'clever interface' to gather information about McKenna's book. How about a simple website? Or a blog?  Mr. McKenna's book has great information and I'd like to get at it more easily.  Why not do something like what Daniel Gilbert did to promote his book, Stumbling on Happiness?

On Language, Pop Culture and Making Sausages

When I was younger I'd read William Safire's On Language column in the Sunday New York Times to pick up new words, but now I have the internet.  Which is how I learned what 'YFS' stands for.  While we're discussing obscure pop-culture references, who knew that Jeff Skilling had a connection to Wayne's World? 

And, last, for legal brief writers out there, did you know that soon lawyers will be free to cite unpublished opinions?  Ninth Circuit judge (and former