Quote of the Day - The artist doesn't have time to listen to the critics. The ones who want to be writers read the reviews, the ones who want to write don't have the time to read reviews.
Blawg Review #28
Trial By Fire
Here's May It Please The Court's Blawg Review #28. Since this post is written by a defense trial lawyer, this Blawg Review takes the form of a trial, from just before opening statement through appeal and a possible settlement. If you've watched Perry Mason or any number of other lawyer shows, then you know most of what your about to read; if you're a lawyer, you've seen this sequence before. Rest assured, though, no one's actually on trial here. The idea behind the theme was to lend a familiar structure, and see what round pegs could be pounded into square holes, since the blawgosphere doesn't follow the same convention.
At most, the lawyers who write these blawgs are on trial, to be judged by you, gentle reader. In MIPTC's opinion, it will be the first time a trial results in all winners and no losers.
Before we get started, there are a few Motions in Limine that the MIPTC Old English Judge (drawn by the author of Conservative Crust and modeled after Justice Bullingham on Rumpole of the Bailey) has ordered be observed, which will give you a bit more information about this site if you're willing to play along. Think about whether you want to follow the Judge’s orders. After all, do you really want to pick a fight with the judge? MITPC recently underwent a design change, and it added a few new features, including some that involve flash animation and sound, with kudos to the design team featured at the very bottom of this blawg page. If you're a first-time visitor and had your speakers turned up, you may have seen and heard the quill in the masthead scratch out "May It Please The Court," the name of this blawg. If you didn't, then hover your cursor over the inkwell until it turns into a hand, and with your speakers on, then click the inkwell once.
For comparison's sake, if you want to see MIPTC's old design before this new look, then visit the Way Back Machine. Thanks to Leonard Rivkin, Esq., MITPC now holds the .com address that he used. That's why his photo and book, May It Please The Court, are over there on the left navigation bar. MIPTC also offers translations of its pages, and it's ADA-compliant, offering you the option of a full-text page.
You may likewise notice (if you're paying close attention) the masthead's wax seal sparkle. It occasionally happens, but there's nothing that triggers it. There are a couple of other gems, one of which we will introduce now to get your attention. Actually, you want to get the Old English Judge's attention, so run your cursor up to the Old English Judge in the masthead (I'm assuming here your speakers are still on), and click just once. Be patient, more will come later. Yes, the "ahem" is mine. The permalink to this post is the folded-over piece of paper icon to the right of the printer icon, both located immediately below this post. The printer icon will give you a clean copy of this post, sans ads. As with every trial, the Judge warns everyone to watch the ethical issues. Ben Cowgill highlights an upcoming October 19 ABA Connection teleconference that he's hosting on the ethics of law firm marketing.
In order to conduct the trial, we've got to pick a jury, so we'll have to voir dire the jury to see if we can empanel a jury of your peers. Looks like we've got one member already - you, gentle reader, so please have a seat in Juror Chair number one, and we'll start the questioning of the other juror candidates. First, we have Blawg Review Contributing Editors - four of them - to welcome. There's Kevin Heller, Michael Cernovich, Evan Schaeffer, and one anonymous juror, the Editor 'n' Chef (no, I don't think that last link is "Ed." - as sometimes signed - it's just an interesting blog that has the same moniker). Although MIPTC discovered the Editor's name in the juror questionnaire, due to privacy reasons, I have to demur from revealing it. That gives us five, and we're going to sit a six-pack jury here since we're in federal court, so we need one more juror. Since I'm writing this Blawg Review #28, I guess that means me, Craig Williams, will have to sit as juror number six. Another generally unknown MIPTC feature can be seen with a click of your mouse on my photo in the left navigation bar.
OK, we're got our jury selected, so we can call the docket. Here's another MIPTC Motion in Limine. Please once again run your cursor up to the Old English Judge and click just once (again, speakers on, please). Great! The bailiff has called the docket of Blawg Review #28, and we're ready for the trial to start. Remember, no tampering with the jury now that we’ve got it seated. Editor Sean Sirrine at Objective Justice thinks that you should be upset when you read the links in his post.
This trial starts off with news of an accident that will likely spawn numerous personal injury trials, and some sought by a blogger. Enrico Shaefer at Traverse Legal takes a look at the Ethan Allen ferry disaster, and writes a post arguing that it’s no freak accident. Attorney Shaefer posts a question about his unusual usage of blogs and invites your comment: “Is this ambulance chasing with blogs or a valuable public service? You decide.”
The comment box is open. Not only does MIPTC give you the opportunity to submit written comments, but you can leave either an audio comment by calling 206-338-3088, or you can submit a video comment by attaching your video clip to an email and sending it to the address at the end of this post. We post all three types of comments. Side note here: because of comment spam, you can't submit written comments with a URL, but if you'll send me an email, I'll post it for you.
If you don't like boat accidents, here's another plaintiff's case for you: the second major Vioxx trial, now pending in New Jersey. It was featured on last week's internet radio program on the Legal Talk Network, Coast to Coast, hosted by in part by Bob Ambrogi. You can either play (link starts audio) the thirty-minute show or download it (link starts download after free registration). The previous week's show on diversity among bloggers featured, among others, Lisa Stone and Monica Bay. Tune in for next week's show (available late Tuesday) on the new bankruptcy code.
With at least two cases to put in front of the jury, the trial gets underway, and on to other blawgosphere topics.
As we recover from Hurricane Katrina, we've all seen the damage to the Superdome in
Thankfully, Matt Homann never does, however. Over at the [non]billable hour, Matt and Dennis Kennedy are planning and plotting for BlawgThink, a unique seminar you might want to attend if you’re looking for some stimulation. Speaking of conferences, if you missed the one on Knowledge Management in Chicago, then Joy London's got such a wonderful roundup that you won't want to miss a thing.
Law Technology News Editor Monica Bay, who doubles as a New York Yankees cheerleader and the writer of the graphically-enhanced and her always spot-on blawg, The Common Scold, makes a motion to nominate several previous blawg reviews as "beyond kewl" (to steal a phrase from elsewhere in her post). Equally important is Mon's welcome of the Blawg Review to the stable of Law.com bloggers, of which MIPTC is one, too (just for the sake of full disclosure). You know, that big, honkin' ad up there? Sympathies have been extended by Mike Fox for the Yankees' loss now that the Angels have dispatched the boys of summer back to their dugout.
Monica will get no argument from this juror. The posts she highlights deserve a look from you, gentle reader. Now, assuming our trial included a class certification issue, we’d want to know what Kimberly Kralowec over at the UCL Practitioner says. In her well-crafted summary of a recent California law on the subject,
Mergers are here to stay, proclaims Bruce MacEwen, the leading voice on law firm economics. If you have any question about how law firms should be run, Adam Smith, Esq. is required daily reading. My CFO reads it every day, and frequently informs me how the law firm should really be run. WLF’s success is in part due to Bruce’s guidance. Thanks, with a hat tip and deep bow to Bruce, even though I'm not sure he approves of merchandising. Don’t miss Rees Morrison, either. His blog, Law Department Management, is a must-read, too. And one more, Prism Legal, if you need some consulting advice.
While you’re out there running a law firm, the Greatest American Lawyer, superhero “changing the way law is practiced” advises against using your own name in the title of your firm, especially given lawyer’s egos. Be careful, though, before you go out on a limb. Read the comments to that post first. Hmmm. Maybe I should rethink “WLF | The Williams Law Firm, PC.” All three types of comments here at MIPTC are open, too.
You can take some solace, though. As Justice William W. Bedsworth points out in A Criminal Waste Of Space (hosted by MIPTC), no matter how bad you think it gets in your practice, you never had to represent Mr. Favel as a defendant.
Blawgmother and appellate lawyer extraordinaire Denise Howell groks the conflict between the Grokster decision and the DCMA safe-harbor provisions. She claims it’s a bit dense and esoteric, but she skillfully explains a conflict that needs resolution. So, if you’re a defendant or would-be defendant in a suit that asserts copyright infringement under third-party liability theories or just otherwise interested in infringement, mosey your mouse over to Bag and Baggage for the full details.
Well, maybe quits, if you’re a Big Law Associate. If you’re tired of trials, big law or just looking for an alternative, including going solo, give a look not only at the first link in the beginning of the sentence, but also the comments. There are some worthwhile nuggets buried there. Otherwise you could follow Stan’s life as a new associate over at the Legal Underground. Both could seek some guidance from the blackprof.com, who asks why are lawyers so unhappy? They’ve got a whole book to answer the question, not just a post. The Wired GC thinks it may be enough just to unplug for a bit.
Evan Brown’s Internet Cases gives us the Judge’s jury instructions from
Now you've heard the whole trial, and it's time to sit down with your fellow jurors and evaluate the testimony that was offered, in all its glory. In that last link, the Unreasonable Man, a 2L at the University of Minnesota Law School, complains about the Dark Side of Law School as evidenced in telephone conversation on a cell phone that he overheard. As deliberations continue, do you drive down the road stringing together search queries to enter into the dialog box of your favorite search engine? Over at Corante’s Between Lawyers, Denise wonders. Well, wonder no longer if you’re looking for a podcast search engine, according to Bob Ambrogi, who writes Legal Sites, and points to Yahoo!’s new podcast search engine.
What goes on behind the scenes at trials? Here’s an inside look at the Scrushy trial from Houston’s Clear Thinkers, a great blog worth a close look. You can also listen to Evan’s perspective on “The Insider.”
The folks over at Law Business Insider point to a recent $521 million verdict in favor of a company known as Eolas. Steve Murphy, who writes Lawyers and Business Executives in the News, highlights the USPTO victory of Attorney Martin Lueck at RKMC. Here’s what Mr. Lueck had to say. There are all kinds of patents out there, says Bill Heinze at I/P Updates.
Well, it may not be a verdict, but Beau at Got Shells? thinks Sharepoint software has it in the bag over many other software programs that allow clients to access your firm’s website. Frankly, WLF uses Worldox Web for its clients' access to files, but I know several others that agree with Got Shells?, who's obviously a Microsoft devotee.
Thankfully, God doesn’t sit on this jury, so the decision is not up to her. It’s up to you, gentle reader, and some 100 Senators. Legal Blog Watch doyenne and Pulitzer Prize-eligible journalist Lisa Stone asks the inevitable question on Miers’ nomination: Thumbs up or thumbs down?
Ron Coleman at Likelihood of Confusion reports about the Delaware Supreme Court's reversal of a trial court decision that ordered an ISP to give up an anonymous blogger’s identify to a defamation plaintiff who sued that anonymous blogger. The standards are pretty tough.
Asking the question whether it’s better for your client to stay in jail, the ambivalent imbroglio raises another tough issue. Maybe better than in the morgue, according to Insurance Scrawl. Certainly this guy, who floated ashore in his own matching luggage, raises some questions of his own. Several of them are posed by Joe McFaul who writes Sharks In The Water, one of MIPTC's companion blawgs.
Before we take this trial up on appeal, Jeremy Blachman wants to send Supreme Court nominee Harriet Miers some Con-law study guides. His blog, Jeremy’s Weblog, regularly posts funny tidbits like this one, each with its own side-splitting humor. Well, at least a good belly laugh. Remember, though, if you make a decision on appeal, you might get scolded by SCOTUS, and maybe justice-in-waiting Miers once and if she gets there. Ex Post, a law student blawg, presents thoughtful posts on the subject worth a mouse click or two. Or three. Over at UCLA, Professor Bainbridge looks at the nomination from a purely scholarly perspective and determines that White House General Counsel Miers will end up looking a lot like Justice Lewis Powell. That’s the scholarly version. You’ll want to visit ProfessorBainbridge.com for the full perspective, including his blog of a conference call with the chair of the RNC.
It’s never too late to think about settlement, especially if you’re Mark Wahlstrom over at The Settlement Channel. This blog posts highlights a problem with settlements, though. What happens when one party claims the other breached the settlement agreement? The In House Blog points to fist fights as a possible settlement mechanism.
Well, that’s it for this trial. The Court is in recess, with another click of your mouse on the Old English Judge, he'll finish up with "Ahem, Ahem" because you're not quite finished yet, even though the time flies by, as noted by one of MIPTC's contributors (and my son), Michel Ayer. One more paragraph.
MIPTC wraps up Blawg Review #28 with a thanks to you, gentle reader, and all the blawggers who contributed posts for this review. If you don't use one of these news aggregators, you can listen to MIPTC’s post on your iPod courtesy of either iTunes or MIPTC’s Podcast RSS feed, or by clicking on the Podcast Icon below. You can also watch it on your video iPod by clicking on MIPTC’s Vidcast RSS feed or your everyday computer by clicking on the Vidcast icon below (18+ minute video, 234 megs). If you're looking for the Real Media version, click here. Next week will be Blawg Review #29, hosted by the Editor 'n' Chef at Blawg Review itself. Stay tuned. Same Bat-time, but a different Bat-channel than MIPTC. Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
Is the Forest Service Throwing A Temper Tantrum?
Businesses argue that the U.S. Forest Service is holding up certain hand-selected projects to force public outcry and a review of a July 2 ruling invalidating several Forest Service regulations. The Forest Service claims it can't approve projects such as cutting down the Capitol Christmas Tree or opening up various ski resorts around the country.
Even environmental groups involved with the lawsuit claim the Forest Service is playing political games with the Christmas tree and the upcoming ski season. "It's clear to me that the Bush administration is trying to manufacture a political crisis," said Sean Cosgrove, a forest policy specialist for the Sierra Club, according to this AP article on Lexis One.
Attempts to hold the Forest Service in contempt have failed.
Sarbanes-Oxley Does Not Authorize Private Claims For Alleged Excessive Exec Compensation
In the first-of-its-kind ruling, Sarbanes-Oxley was interpreted yesterday not to authorize suits for the return of what some perceive as excessive executive compensation. A court in Pennsylvania ruled that Ronald Jeffrey Neer could not sue Stonepath, Inc. to seek the return of an untold amount paid to the executives of the company.
It was a relatively easy ruling, according to the judge: "Because Congress explicitly created a private right of action in Section 306 and did not do so in Section 304, the natural inference is that Congress did not intend to create a private right of action in Section 304," Judge Dalzell wrote. Section 306, as enacted by Congress, allows investors to sue directors or executives if they buy or sell their company stock during a pension-fund blackout. Section 304, on the other hand, prevents excessive executive compensation, but apparently only the U.S. Attorney General has the right to make claims under that section.
Arbitrate, Mediate, Litigate, We All Fall Down
The rules on arbitration in agreements are getting tighter, as the franchisees of Mail Boxes, Etc. just found out. MBE's franchise agreements with various groups of franchisees had three types of alternative dispute resolution provisions in them: arbitration with the American Arbitration Association, arbitration with the Judicial Arbitration and Mediation Service and just plain, old everyday vanilla mediation. When MBE tried to change the format of its stores to The UPS Store, the franchisees objected and sued.
In response, MBE invoked the three types of ADR provisions and sought to respond to each store individually in arbitration/mediation, not litigation. The franchisees responded with a consolidation motion, which the trial court denied, but instead granted MBE's motion to compel arbitration under the three separate provisions. They appealed.
Now the appellate court has ordered the trial court to consolidate the arbitrations and resolve the differences between the AAA and JAMS arbitration provisions so they all can proceed together as one happy family. Alright, not so happy a family. But proceed to arbitration they will, not to litigation in court. There's another fix ordered, too.
The JAMS provision prohibits classwide arbitration. That issued turned out to be a simple one for the appellate court since the California Supreme Court recently ruled that such bans are unconscionable. The franchisees will all end up participating in one arbitration, but apparently the ones who agreed to mediation will be mediating.
What's the lesson here? If you're a franchisor, look at your agreements and make sure they comply with these rulings. If you're a franchisee or a potential franchisee, read the franchise agreement before you sign it and understand what you're getting into. You could end up somewhere other than where you want to be.
Now about shipping that package...
Can Government Workers Speak Out On Their Job?
You have First Amendment rights, and maybe from time to time you exercise them. Certainly MIPTC does, most every day. Do employees have First Amendment rights in the workplace? Generally (in other words, be careful because there are caveats), the answer is no. The question is not so clear, however, for public employees.
Think about it. Can the President say whatever he likes? What about Congress? How about the Supreme Court? Now hold on a minute here, don't go sideways on me - you might be thinking, "well, they seem to say whatever they want with or without regard to the First Amendment," but I'm talking about expressing their personal opinions about their job, in their respective roles - not as private citizens. In the context of these high-profile individuals, it's hard to imagine when we would let them be private citizens. Even so, there are other government employees who want to speak out that aren't at these levels.
Take, for example, the case that was heard today by the Supreme Court. It involved a Los Angeles prosecutor who alleges that he was demoted for recommending charges be dismissed against a defendant because a Sheriff lied in a search warrant. He claims he had a First Amendment right to make that statement, despite having been told by a supervisor that he was wrong, and was essentially overruled.
So far, Courts have been cautious in this area, limiting the First Amendment protection to speech on matters of "public concern," and generally only then in the government employees' role as a private citizen.
In this instance, then, does that mean that the prosecutor has the right to perform his job to the dissatisfaction of his superiors? Does the County of LA have the right to demote (or fire) the Deputy District Attorney for insubordination? Is the Deputy DA bound to follow his supervisor's instructions without regard to his own opinions?
There's no easy answer, and even the newest Chief Justice struggled with these concepts. In the oral arguments today, he asked the County's lawyer whether a professor at a public university could be fired based on a lecture's content. The lecture would certainly have taken place in the context of the professor's employment, Chief Justice Roberts continued, adding, ''That's what he's paid to do.'' Our newly-minted leader wondered aloud whether professor's speech was protected by the First Amendment.
When the County's lawyer waffled, Chief Justice Roberts said, ''I would have thought you might have argued that because the speech was paid for by the government, it was government speech and the First Amendment did not apply at all.'' The County's lawyer responded that the Deputy DA was challenging the decision of the supervisor, and his speech did not deserve protection.
As you can see, there are some pretty sticky issues. You can, however, exercise your First Amendment rights and put in your $0.02 worth in the comment box below. Does the Constitution protect government workers from retaliation for speaking out on the job or in the course of their routine duties?
Chief Justice Roberts' Supreme Court Takes Up Government Regulation of Wetlands
We're going to find out from the Supremes whether federal regulators can prosecute John Rapanos, a Michigan farmer/developer (depending on whether you're arguing for him or against him), for dumping sand on his property.
Well, it's not as easy as that, is it? If it were, the Supremes wouldn't be involved, and neither would the lawyers. Heck, it wouldn't even rise to the level of a blog post.
In fact, though, both the Supreme Court and a gaggle of lawyers are involved in a dispute over the government's regulation of Mr. Rapanos' isolated wetlands some twenty miles away from the nearest navigable waterway. What do navigable waterways have to do with it? The Clean Water Act allows the regulation of "waters of the U.S.," which is generally defined as navigable. And regulate they did. Mr. Rapanos filled in wetlands on three pieces of land he owned in three counties around Saginaw, Michigan. He got a prison sentence (but didn't go) and a $13M fine.
Recently, an appeals court ruled that the CWA grants the federal government this regulatory authority. That case now gives the Supremes an opportunity to rein in federal regulators who may have forgotten Court's ruling four years ago that Congress intended the CWA to extend only over wetlands adjacent to navigable waterways, and not to isolated wetlands that are otherwise subject to local control. Federal prosecutors have prosecuted Mr. Rapanos, arguing that clean sand was more dangerous to the wetlands than toxic wastes and chemicals.
Having heard Justice Roberts testify for three days about judicial restraint, any predictions on the outcome? MIPTC guesses that Roberts will rein in the regulators.
Coast To Coast Internet Radio Program Visits The Vioxx Trial
The new Coast to Coast show is up on the Legal Talk Network, with my co-host, Robert Ambrogi. We get first-hand accounts from inside the courtroom at the Vioxx trial underway in New Jersey. A 64-year old Vietnam war veteran claims Vioxx caused his heart attack. Our special guests include Attorney Sam Davis, from Davis, Saperstein & Solomon, PC, who has been attending the trial to gather information for his own (100) plaintiffs' cases against Merck Pharmaceuticals.
Sam recounts developments in the trial including some outbursts between Merck lead defense counsel and Judge Carol Higbee. Also joining us on the show is New Jersey Law Journal reporter Lisa Brennan who has also been attending the trial and watching it on Court TV, as well as well-known defense attorney Alen Klein from Duane Morris, LLP, who was MDL liaison counsel for a pharmaceutical manufacturer in the diet drug fen-phen litigation. We have three important perspectives you won't want to miss. Just click on the podcast icon below or download it from our podcast RSS feed.
Just Send Me An Email
"No, honey, it's spam email, it's not porn." The FTC is soon to put a stop to <I>that</I> excuse, if you've ever tried to use it. Enforcement of the Can-Spam Act is in full swing according to the Federal Trade Commission, even if your in-box tells you otherwise.
The government claims to have collected over $1,000,000 in one recent case where it sued seven alleged spammers (monies obtained so far from five companies, but the remaining two are denying the allegations) for sending pornographic email without identification of it as x-rated. I don't know about your in-box, but mine, even guarded by both hardware and software filters, it still creeps through.
A lot of it.
Want to help? According to the FTC, if you receive spam email, or email that you don't want and the email fails to contain both a postal address and a clear opportunity for consumers to opt out of receiving future e-mail, then don't just moan and groan about it, fill out this online complaint form. Otherwise, push for the reward system to go into place.
It may not be that easy. According to Spamhaus, "Anyone with any sense would of course realise that if CAN-Spam becomes law, opting out of spammers' lists will very likely become the main daytime activity for most US email users." Now, that's encouraging. How about some practical advice?
Try this: should you click on the "Remove me" link? Absolutely not, reports Spamhaus. And don't forget to tell your friends. By email.