Quote of the Day - Though familiarity may not breed contempt, it takes the edge off admiration.
Judge Throws Lightning Bolt At Reporter For Violating Trial Orders Issued To The Media
Lawyers and criminals (by the juxtaposition I don't mean to point out any possible similarities) are used to it - when you violate a court order, you will likely pay the price. Sometimes you're in contempt, other times you might just get sanctioned.
I've seen one judge order an attorney to get out her checkbook and write a $500 check to her favorite charity. Another judge hooked up a hot-headed attorney and sent him off to the tank to cool down. (That's lawyerese for handcuffing the attorney in a court holding cell.)
Judges don't take kindly to disrespect, and it's their power to order just about everything that keeps courtroom participants in line. Judges are usually loathe, however, to impose contempt charges against someone. Typically you'll see the judge issue one or two warnings and if ignored, then wham - the lightning bolts start to fly from the bench.
So when Salt Lake City KUTV reporter Katie Baker interviewed a potential juror prior to the trial of polygamous sect leader William Jeffs, Fifth District Judge James Shumate lowered the boom on Ms. Baker. She violated a court order issued to the media to stay away from the potential jurors, among other things. The Judge then ordered her as punishment for her violation to produce a pubic interest story or go to jail.
Now some blogs and newspapers have expressed shock at the judge's punishment for her violation of his initial stay-away order, but this humble attorney has regularly seen judges issue those type of media restrictions in high-profile media cases, so the order is not surprising at all. Frankly, any journalist worth her salt shouldn't be surprised either, and the really good ones would have first asked the court clerk for the judge's media orders and checked them before interviewing a potential juror.
You know, not tainting the jury pool, the independence of the judicial system, sequestered juries and all that. Reporters regularly write stories about these social policies and related means of protecting them, so lack of knowledge is highly skeptical.
Nonetheless, that excuse got Katie the option of writing and broadcasting a pubic interest story instead of not passing Go and heading directly to jail. Lucky stars, I guess. Moreover, the order doesn't violate her First Amendment rights because she's not being restricted on what she can write. The punishment isn't ex post facto, either, because the Stay-away was issued before the reporter violated it.
There is another maxim that applies here, however: ignorance of the law is no excuse.
Even so, the TV station's attorney said he was troubled by the Court's order and is evaluating Katie's next steps. While I'm not admitted in Utah, perhaps her best option would be to do the story. It's what she does for a living, and it's a lot less expensive than challenging her contempt order in court, which challenge she'd likely lose anyway.
Plus, it's a reasonable punishment, especially given the damage she could have done by causing a mistrial.
MIPTC's Occasional Restaurant Review: LA's Violet Restaurant
Right off The 10 freeway in Los Angeles at Centinela and Pico is a startling surprise: Violet restaurant. You might otherwise expect a fast-food chain in that location, but luckily, you'd be wrong. Instead, there's a wonderful neighborhood haven for foodies with a decor somewhere between post-modern and avant garde.
In fact, you might be lucky enough to be dining when the artist shows up and starts to add to his collection on the wall. He drops in when inspiration hits and paints. And you're just as likely to be greeted by one of LA's hottest chefs, Jared Simons, who opened Violet in 2004. It's a charming and intimate setting for about 60 guests, full of soft colors and a relaxing venue.
Inspiration is also a good word for the service and food. We dropped in late last night as most area restaurants were closing, but Violet was going strong, with a full crowd and bustling waiters. The food was quickly delivered to the table and was spectacular. The menu is varied and reasonably priced, especially when considering the outstanding quality of the food. MIPTC gives Violet a big thumbs up!
Plus, it's right off the freeway and easy to find.
Avon's Trademark Infringement Threats Constitute Case Or Controversy Ripe For Resolution
You've been sued seven times already before the Trademark Trial and Appeal Board of the US Patent and Trademark Office, and the attorney of the company suing you says they're going to sue you again for trademark infringement.
Do you have a reasonable belief the company will live up to its threat?
Likely so, and even more likely if the company is beauty giant Avon, and you're a comparatively small, start-up company. Even perhaps more so when your product is called "DermaNew" and Avon's product is called "Anew." Avon alleges the two names are too similar to one another and will likely cause the average consumer of beauty products to be confused between the two and therefore constitute trademark infringement.
MIPTC is luckily not such a consumer, and even if I was, I don't think I'd be confused between the two. But that wasn't the issue before this court.
Apparently Avon successfully convinced the trial court that there was no present "case or controversy" pending that needed adjudication. DermaNew thought Avon's threats were real and appealed the dismissal to the Ninth Circuit.
The result? Dismissal reversed. Apparently the higher court believed Avon's threats to be realistic and ready for resolution by the lower court. In other words, a "do over."
You never knew beauty could be so dangerous, did you?
The Future Is Now: The Science And Technology Of Today Will Change Our Lives Tomorrow
Speech To New York State Bar Association's Trusts & Estates Section
I'm giving a speech today on the subject of the headline, so I thought I'd post my outline here. It may be a little rough (it's an outline, not the actual text of the speech) but you can follow along.
With a hat tip to Charlie Robinson, Dakota tribal wisdom says that when you discover you are riding a dead horse, the best strategy is to dismount. In law firms we often try other strategies with dead horses, including the following:
Buying a stronger whip
Saying things like "This is the way we have always ridden this horse"
Appointing a committee to study the horse
Arranging to visit other firms to see how they ride dead horses
Increasing the standards to ride dead horses
Declare the horse is "better, faster, cheaper" dead
Harnessing several dead horses together for increased speed
State-of-the-art: Any computer you can't afford.
Obsolete: Any computer you own.
Microsecond: The time it takes for your state-of-the-art computer to become obsolete.
Syntax Error: Walking into a computer store and saying, "Hi, I want to buy a computer and money is no object."
Keyboard: The standard way to generate computer errors.
Mouse: An advanced input device to make computer errors easier to generate.
Portable Computer: A device invented to force lawyers to work at home, on vacation, and on business trips.
Disk Crash: A typical computer response to any critical deadline.
First, to understand where we are going, we must understand where we have been
We'll take a walk down memory lane (in a manner of speaking)
Next, we'll look around and see technology as it is now
Here's where we're going to look at legal technology that we use now - and we're going to take a remote look at my desktop computer in my office, which may be a bit beyond the technology in most offices.
Finally, A Brave New World where we look into the crystal ball of the future
Terminator version where machines take over the world
Disneyland version where all is bright, shiny and new
Microsoft version where systems crash
Star Trek version where we can go anywhere, do anything and save the universe
Perhaps it's a little bit of all four
Let me offer a primer on this talk today. The materials you have in your handouts are for your MCLE credits, and I'll cover them in my talk, but not in the detail on the handouts.
Let's start with where we have been
Hold up your iPhone
It cost $8 million and performed at blistering 80 MFLOP/s (floating point operations per second) and took up 70 square feet of space, about the footprint of a car. It was built in 1971.
For comparison, a Pentium Dual core can hit about 45 GFLOP/s or about 150 times faster and sits on your desk. It just came out, and the chips cost about $40.
The current supercomputer champ, BlueGene made by IBM, can handle 280 TFLOP/s or about 350,000 times faster, and takes up the size of a mid-sized house, at 2,500 square feet, now two years old, installed in 2005. Cost? A cool $100 million.
Your iPhone? 7.5 MFLOPS, about a tenth of the power of the first Cray Supercomputer, and way under that $8 million price tag, even counting inflation.
To put things in perspective, however, consider this: about 30,000 desktop computers - think of it - a small town, linked together by software, can match the power of today's supercomputer, and that software exists today.
In fact, there's a website that allows your computer to log on to Berkeley's Search for Extraterrestrial Beings and analyze radio-telescope waves - now 3 million users. SETI@home.
The computing power of the world's computers - nearly 100 million (a billion) is mind-boggling.
If you're trying to follow along on your handouts, we're generally talking about the two pages labeled Excuses for Staying in the Dark Ages and the page regarding cell phones.
Let's take a look back. (Computerhistory.org)
The first computer was created by Bill Hewlett and Dave Packard in 1939, and Disney ordered 8 of them to help make Fantasia.
The first computer "bug" was discovered in 1945. It was a moth that shorted out the relays.
1947, semiconductors were invented.
1960, first computer game invented, SpaceWar! On a $120,000 computer. For those of you old enough to remember, that was the same year AT&T unveiled the telephone modem in the big, rubber receptacles.
Pong was released in 1972.
1977 Tandy Radio Shack introduced the TRS-80, arguably the one of the first true PCs. $599 with the monitor. The Apple 1 came out a year earlier, sold for $666.66. Some will argue that the Simon, produced in 1949 was the first digital PC available to the mainstream public, invented by Edmund Berkeley, for about $300.00.
1980, IBM allowed employees Bill Gates and Paul Allen to keep the rights to DOS.
1982, Time Magazine name the computer "Man of the Year"
45 million PCs in use in the US in 1988.
1994 Hotwired.com runs the first banner ad on the Internet
Google was created in 1996.
iPod released in 2001. Microsoft waits until 2006 to release its competing Zune MP3 player.
Google buys YouTube for $1.65 billion in 2006, just in case you thought the site was for kids.
Let's look at where we are now
I would like to address three and a half main points in my second topic of where we are now: the Internet, Software programs, computer hardware and computer consultants for lawyers.
Let's talk about the Internet and how that has changed lawyering
Blogging (in the handout)
Your brochure on the Internet
We're wide open in the world of blogging (Bring up MIPTC). Explain blogging and marketing reach.
The Internet has been a great equalizer for law firms. Everyone can have a presence.
If you don't have a presence for your own law firm, you can get one free on Avvo - New York is covered, but not all states are presently.
Let's switch topics, and discuss software. Let me tell you what's on my computer desktop at work.
Log in to JCW's desktop via Tablet. Three monitors - we're looking at the middle one.
What I'm holding is a Tablet (in the handout)
Demonstrate One Note
Discuss software programs.
Worldox - document management
How many use Document management?
Web-based availability for clients
Internet Explorer - we use to research and use Lexis / Google toolbar (popup blocker, autofill, etc.)
Word Perfect - demonstrate Macros
Televantage (we do not use VOIP)
Word - metadata scrubbing (Payne Consulting)
Adobe - efiling almost a thing of the past
ActiveSync - emails and phone call notifications to cell phone
ProLaw for generating billing
Remote monitoring of computer access (Spector)
Software firewall - tracking Internet surfing and blocking sites
LoJack for laptops (also for cell phones, but a memory hog)
Scanner - everything incoming scanned - delivered by email to lawyers
Backup tape drive - considering off-site backup via VPN to my house
Cable T1 line - very fat pipe (blog is handled by off-site server)
Wireless. Security by password and unplugging
Connections for laptops in table - overhead projector and screen
Speakers in ceiling
Would add a flat-screen HD TV to allow smaller computer display
Outside consultants - everything done remotely
Overall coordinator (former lawyer)
Document management and billing
We handle break / fix
Let's Look To Where We Are Going
I'd like to cover two points in this last topic: future technology for lawyers and where science and technology are going to take us in the future.
We move at a snail's pace. There are still lawyers out there who use their secretaries to check email. Those of you willing to admit it, raise your hands. Still, things will improve, especially as the computer generation comes along.
Video conferencing with clients and video court appearance. Not just telephone appearances anymore.
Lexis and Westlaw will go out of business or at most become highly specialized. Google will replace them. No more need to pay for legal research; it will all be online.
Courtrooms will finally catch up. Cases will be litigated using technology, everything will be electronic.
The world will get smaller and we can expect more cross-state practice and more cross-international practice.
Multi-disciplinary practice. Clients will be demanding more and will know more before they come to you. How many of you research your illness before you see the doctor?
Consolidation of service providers - copying, typing, etc. Low-level functions will be handled in one place rather than each of us having our own. The virtual law office is here and will get smaller.
Message: change will occur at an unprecedented pace.
Flip it around from using technology to lawyering technology. In the same way that lawyers litigated and wrote contracts for everything in the Industrial Age, lawyers will still be needed to document and litigate everything in the Silicon Age. Let's call it E-law.
Think nanotechnology and the new biology, let alone all the ethical issues.
One thing's for sure: we will always need lawyers.
Science and Technology. This is the fun part, where we get to dream.
In the immediate future, much wider wireless Internet, much faster speeds. Much more expensive, too.
Hologram video games and television, and one day, Star Trek hologram rooms
Complete integration of the Internet, your office, your home, your car, your telephone, television, iPod, printers, and practically everything electronic, connected to one another, and you can talk to your computer, it understands you and intelligently talks back, and makes everything work.
Call it the E-net for Everything Net. Forget Web 2.0, when we get to E-net 1.0, we will have arrived.
Until that dreaded blue screen of death.
And if you want it as a joke screensaver, you can get it from Microsoft here.
Lawyer 2 Lawyer Internet Radio Celebrates Our Two-year Anniversary with Chancellor Drake and Dean Chemerinsky
It's official! This is the two-year Anniversary Show of Lawyer 2 Lawyer. The past two years have been action-packed, covering a wide range of topics from controversial Supreme Court rulings and the effects of global warming to the power of e-discovery and the popularity of international law.
To help celebrate this momentous occasion, please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we invite back a guest from our very first show, then Professor but now Dean Erwin Chemerinsky. We also welcome Chancellor Michael V. Drake, MD to talk about the new Donald Bren School of Law at the University of California, Irvine and a look ahead to what's in store for the new Dean and the new law school. You won't want to miss this show!
Boalt Hall May Have No Idea Who It Is, But The Up-and-coming Bren School Has No Doubt
That's right, the Boalt Hall School of Law in Bezerkley, Northern California, has hired an identity consultant to figure out who or what it is, and work out a recognizable brand for the school. Think about it. It's been called Boalt Hall since 1894, and it still can't figure out how to describe itself.
Then again, we're talking Bezerkly here, so it's certainly understandable to have an identity crisis now.
On the other hand, take the newly-formed, not-yet-even-open-for-business law school at the University of California, Irvine here in Orange County, well south of the Bezerkley border where Northern California has seceded from Southern California.
We've already got a name for our school: The Donald Bren School of Law, complete with a substantial founding donation, and more to surely follow. Heck, even the law professors back East know about the Bren School, and we only have two professors and a Dean so far, and not even one student.
Go figure. We're just a bunch of liberals down here.
One More Lawyer In Arizona
Regular readers will remember an occasional contributor to MIPTC some time ago: my oldest son, Michel Ayer. He started to post here as he entered law school at the University of Iowa nearly four years ago now, but as he became immersed in law and a companion Masters degree in Urban & Regional Planning, the posts dwindled down to virtually nothing. Rightfully so since he needed to concentrate on his studies, and as anyone in two graduate programs at once will likely tell you, "No kidding, Sherlock."
For awhile, we were one of the Internet's only father/son blogging teams as lawyer and law student <buttons popping>.
I was proud to attend Michel's graduation ceremony earllier this spring at Iowa, now his and my alma mater. Then over the Summer, I got to sit back and reminisce about Bar Review classes as Michel studied away in Arizona, his new home with his lovely wife Stacy. The Bar Exam came and went, and as with all of us lawyers who went through the same waiting period, self-doubt and confidence over the results waxed and waned almost as surely as the moon has phases, heightened especially by his new position as a first-year associate for Qualres & Brady in Phoenix this fall, sans the pending "Esq." after his name.
I received a brief email today to the effect that Michel got his bar results and passed, saying the Arizona Bar had accepted his application. As most lawyers will remember, it's a time when a mixture of pride, relief, joy and some trepidation at the road ahead swirl about.
But mostly joy and pride.
More so for Dad, I think. Congratulations to the newest (and only other) lawyer in this family.
Insurance Companies Claim No CyberCoverage
Read your insurance policy carefully - there are some out there who claim most insurance policies don't cover losses from cyber-attacks or other computer failures. But most policies MIPTC has seen include some type of computer failure coverage, perhaps not the best, but some.
The lesson, however, is to call your insurance agent and ask. Better yet, follow the advice given by most lawyers, abbreviated by three little letters: RTC (Read the contract) before you jump off the deep end thinking you're completely exposed to the wind. Get that policy out, dust it off and take a look at it.
Or just send it over to your friendly neighborhood lawyer tor a quick look-see. Your lawyer will likely find a few other things you might want to think about. Then, take that policy and put it in a fireproof safe.
Think of it as money in the bank, just waiting for someone to make a claim against it.