May It Please The Court
Quote of the Day - Tall, bald, and pouch-eyed, with a velvet voice, a droll wit and the face of a cunning bloodhound a performer who made audiences twitter and roar with subtle ease.
Can Someone Explain Twitter To Me?
I'm a card-carrying computer geek. I actually have a pocket protector and sometimes wear my floodwater pants too high with my white sox showing. Well, for those who know me, I'm kidding about that last sentence. I really am a computer geek, though. As proof, I submit Exhibit A - I am typing this post from a computer in my family room. Actually two computers: one I work on and a media center hooked to the plasma screen.
See? I told you I was a geek. Heck, I even understand HTML better than Spanish - and I live in Southern California where Spanish is almost our native language.
But I don't get Twitter.
It's not for a lack of trying. I made a point to stay on it for two weeks. I followed others and signed up for news blasts. It just tied up my telephone with what for me was largely useless information. I really don't care if my friend in New England missed his flight because of snow. That's part of living there. That's why I live in Southern California. I don't need to relive that experience. In fact, it's exactly why I left there, and why I will call my family in the dead of winter when it's warm out here.
On the other hand, I get Facebook. LinkedIn even makes sense. Plaxo is a bit of a different story - it's just plain boring. I even get semi-social networking sites like Avvo (probably because I'm on their advisory board - disclaimer there). I can see pictures, get updates, make more friends and scroll through the list of what they're doing.
And no, it's not just the pictures. In case you haven't notice, I'm really into words, so the concept of 160 characters isn't the problem for me. It's just that it doesn't provide me anything more than I can get elsewhere on the Internet - with more accouterments.
When you strip a service down to its most basic element and there's still nothing there, then it has no value. Sure, 15 million people are on Twitter at last count, but what's there that isn't elsewhere?
What is Twitter able to accomplish that can't be had elsewhere just as quickly and without the expense? And if there's no advertising on it, how does it pay for itself? Or am I just a twit for not getting it?
Lawyer2Lawyer Internet Radio Finds Online Interference in the Jury Box
Jurors Twittering details of a trial. Jurors Googling information about a case. And last month, a kudge declaring a mistrial in a big federal drug case in Florida when jurors conducted research online. On this edition of Lawyer2Lawyer, we're talking about the advances in technology, communication and information flow interfering with the justice system and the potential effect on ‘trial by jury.'
Please join me as I welcome jury behavior expert, Dr. Edward P. Schwartz, Attorney Peter Raben, defense attorney from Miami, Florida and Attorney Sean Ellsworth managing partner at Ellsworth Law Firm P.A, to discuss this hot legal topic. My fellow Law.com blogger and co-host Bob Ambrogi is off this week.
Green Your Career: Incisive Media To Host Networking Breakfast At Legal Tech WestThis erratic economy has been tough on everybody, but none more so than the members of our legal technology community who have lost their jobs. It's a difficult, scary, and challenging time for even the most self-confident professionals.
The Incisive Media folks (the ones who sponsor this blog in the Law.com network) want to help -- so we've decided to team up at LegalTech West Coast and offer a simple, heartfelt gesture: on Day 2 (Thursday June 25, 2009) we will host a very informal, free "Green Your Career" networking breakfast, from 8-9 a.m. at the Los Angeles Convention Center.
It will be co-hosted by Law Technology News and law.jobs, with the support of the LegalTech crew, and has a simple format: We're inviting jobseekers -- as well as vendors and law firm leaders (even if you do not currently have an available opening).
For the first half-hour, we plan to network together, and enjoy coffee, tea and danish - it's a chance to "work the room" and hone your skills. Then we'll gather at round tables, where at each table a leader of our community will talk about how he or she survived/thrived through a career transition. Among the scheduled speakers are:
• John Tredennick, who was a litigator partner at Holland & Hart when he spun off Catalyst Respository Systems.
• Tom Collins, former owner of Juris Inc., who survived cancer and now is a murder mystery novelist!
• Yours truly, who sold a small firm and joined Sedgwick, Detert, Moran & Arnold.• Mary Mack, renowned counsel at Fios Inc.
We'll have news of more speakers shortly.
The event is free and all attendees will be invited to stick around and visit our exhibit hall and the Day 2 Keynote Address (immediately following the breakfast) on us.
Jobseekers will be encouraged to post their resumes on lawjobs.com, and all firms/vendors who attend will get free access to lawjobs.com (for a limited period, of course).
Our concept is simple: let's provide an hour of inspiration, nurturing, contacts, and networking.
Please come, whether you need a job, or just want to offer encouragement. If you are coming to show support, please bring along a gift card (you can pick them up at most supermarkets or drug stores), so we can give a day brightener "party favor" to each jobseeker. If you can't attend and want to send a gift card, you can send them to Monica Bay, who's organizing this get-together c/o Law Technology News, 120 Broadway, 5th floor, NYC 10271.
Jobseekers can come for warmth, support and new contacts. Firms/vendors: if you do have a spot open, there likely won't be a better place to find great talent. Even if you don't fit into either category, you might tomorrow -- so bring lots of business cards.
As an added incentive for technology vendors: we will raffle off a wonderful lunch or dinner with Monica Bay (rumor has it that you can even use the word "solution" and she won't cringe). You you can tell Monica about your company's plans, products and services and get a great meal on LTN.
Visit www.legaltechshow for details, or e-mail LTN at firstname.lastname@example.org.
Sanctions For Not Settling? Not Any More
Settlement can occur in a case at any time - from the time before the complaint is filed, during a deposition, in the middle of trial, after the judgment, even after the appeal. Most typically, settlements occur during a formal process known as the Mandatory Settlement Conference. For many reasons, judges like it when cases settle..
When a case settles, there's no appeal and no jury. The judge doesn't have to spend time handling the trial, which leaves room for other cases that won't settle and moves the process along. One more case off the docket. Judges usually set MSCs before trial and after all the discovery in the case has been completed. That way, everybody's got all the facts developed and understands the pros and cons of each side.
The parties arrive at court for the MSC and a temporary judge (usually not the judge who will hear the case) listens to both sides and tries to bring the respective offers closer together. Sometimes, however, cases don't settle.
When they don't, that failure means exactly the opposite of the benefits I described above. More time on cases, more cases on the docket and more juries to listen to cases. And sometimes a cranky judge.
So cranky, in fact, that one judge sanctioned one of the parties in this case. The judge relied on a Rule of Court and several other rules as the authority to sanction the party that he believed did not participate in good faith.
The case here involved a dispute over an auto accident, with $15,000 in possible damages. The parties negotiated, but Mercury Insurance refused to offer more than $1,000 in settlement. Here's how the appellate court described the judge's reaction to the MSC: "the court was harshly critical of the conduct of Hernandez's representatives at the settlement conference itself and, in particular, the refusal to offer more money than the section 998 offer of $1,000 for each plaintiff: 'The point is that there was no negotiations. They just came in with the firm opinion we're paying a thousand dollars . . . . [A]t least some movement under the circumstances, and some discussion was in order. That is the reason why [sanctions are being imposed].'"
Then, the appellate court pointed out: "The [trial] court also characterized the lack of "communication back" to the court as "uncivil" and "impolite." So, the trial court held a hearing and afterward ordered Mercury Insurance to pay over $1,800 in sanctions.
The appellate court, however, wasn't buying the sanctions the trial court imposed and overruled the trial court's order. The appellate court said a court could impose monetary sanctions for failure to comply with " any rule of court relating to general civil cases..." absent showing of good cause. Previously,however, Rule 2.30 included language that made the "failure to participate in good faith in any conference" sanctionable conduct. Noting that particular language was removed in 2001, the appellate court said no go on the sanctions.
Whether the parties negotiated in good faith is a difficult call to make in any case, especially since you may believe you can win at trial.
That's a chance you have to weigh. At least you know that you can't get sanctioned.00000
April 15 Tea Party Tax Protest Under Full Swing
What Would The Founding Fathers Do?
Just in case you're wondering, May It Please The Court is a member of the Decline To State party, voting for the best candidate instead of the best party. It's nice to be able to choose that way, even if you can't vote in the primaries. If you've read the recently republished Oliver Wendell Holmes, Jr.'s The Path of the Law (with a Foreword by yours truly), then you know that the right to swing your arm ends where the other person's nose begins. That's vintage Holmes, and vintage America.
But it's not just this side of the pond that thinks that way. As Margaret Thatcher said, "The trouble with socialism is that pretty soon, you run out of other people's money." Back more than 200 years ago, the Brits tried to tax the daylights out of the colonists, who promptly rebelled by throwing tea into Boston Harbor. Read about it here, if you've forgotten your high school history lesson.
So is it time to organize another tea party-style protest? The members of the New American Tea Party seem to think so. They're not asking the question, "Where's my bailout?" They're asking the question, "Why take my money?" Actually, if you think about the size of the bailout, they're taking not only yours and my money, but my granchildren's money, too. It's going to take a long time to pay back - how much is it now? Have they invented a word for that much money.
With apologies to Senator Dirksen, "a trillon here and a trillion there and pretty soon you're talking about real money."
What's your recipe for a tea party?
What Witnesses See: Credible Or Inexperienced?
Melissa files an Zivko Edge 540 stunt plane, and she's 25 years old, having logged more than 1,500 hours in the air from when she started at 18 to when she got into a bit of trouble at 22. She got her new plane to her family at the Butler County airport in Pennsylvania, climbed into the cockpit and took off. Once in the air, she made a turn and then landed the plane.
Melissa is a stunt pilot, and a very good one at that. Aerial acrobatic maneuvers are prohibited below 1,500 feet for obvious reasons: they're somewhat dangerous and we don't like planes to fall out of the sky. The rationale is that a stunt pilot can probably recover from failed maneuver within that 1,500 safety window.
When Melissa took off, two others watched her in addition to her family. According to the Ninth Circuit's opinion, "Andrew Pierce, an aviation safety inspector for the Allegheny Flight Standards Office, and Christopher Hayden, the chief pilot for AirQuest Aviation, were at the Butler County Airport that day and witnessed Andrzejewski's flight. Neither Pierce nor Hayden had experience with Edge aircraft."
What they saw was a steep takeoff, followed by a wing wag and a steep incline landing. They turned her into the FAA, which without any hearing suspended her license. She appealed to an Administrative Law Judg, who saw the dispute this way: "I'm not saying that the [FAA's] witnesses didn't see what they say, but perhaps they misunderstood what they saw."
In other words, they might not have known what they were talking about. On the other hand, one of Melissa's witnesses saw it this way: "Her three expert witnesses testified that Andrzejewski's flight was within the normal operating procedures for the Edge aircraft, which procedures include steep takeoffs, high speeds, and clearing turns. Robert Holland, an aerobatic pilot and flight instructor, specifically noted that a witness unfamiliar with the Edge might think that Andrzejewski's flight was abnormal, while in fact, for an Edge, the flight was actually 'very normal.'"
Not surprisingly, the ALJ restored Melissa's license. Unhappy with that outcome, the FAA appealed to the National Transportation Safety Bureau and got her license revoked again. Melissa appealed, and somehow the case ended up out here in the Ninth Circuit.
The court first wrote this observation: " This is precisely what triers-of fact should do when confronted with expert witnesses whose testimony conflicts on such basic issues as whether the pilot operated the particular plane in an "aerobatic flight" or in a "careless or reckless" manner. After all, what may look like derring-do to a Sunday driver may be a routine cut to a NASCAR driver." For some unknown reason, the court took that language out of its opinion, but sent the matter back to the NTSB with instructions to defer to the ALJ's observations about the credibility of the witnesses.
Melissa still has a chance to climb back in the cockpit, but it appears that she's been grounded for more than three years. Although I'm not a pilot and I doubt any of the judges who heard this case on the Ninth Circuit are pilots either, at least they saw what's going on.
Hopefully, she'll get her wings back.
Lawyer 2 Lawyer Internet Radio Gets SaaS-y
If you've been hearing a lot about legal software as a service or SaaS lately, you'll want to listen to this Lawyer2Lawyer program. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we welcome Jack Newton, Co-founder and President of Clio, who holds an M.Sc. in Computer Science and Erik Mazzone, the Director of the Center for Practice Management for the North Carolina Bar Association to take an in-depth look at the advantages, disadvantages, risks and even ethical issues when it comes to legal SaaS.
Blawg Review #206: Tartan Week - All Things Scottish
Robert Burns, Scotland's favourite son, turned 250 this year, and as with all things Scottish, the celebration will last for 26 fortnights (you figure it out), so you might as well book your tickets now. On this side of the pond, we're having a few celebrations of our own.
This, stolen directly from Wikipedia (links not in original): "In Canada, the idea of a 'Scots Day', immediately renamed 'Tartan Day', to visibly promote recognition of Scottish heritage originated with the Federation of Scottish Clans in Nova Scotia in 1986. Petitioned by Jean Watson, President of Clan Lamont, first the legislature of Nova Scotia, in 1987, then consequently the legislatures of each of the other nine Canadian Provinces proclaimed April 6 as Tartan Day. Currently a private member's bill is moving through the Canadian Parliament for national recognition of the day in Canada as well as a bill to declare the Maple Leaf Tartan the official tartan of Canada. An annual 'Gathering of the Clans' will take place each April 6 on Parliament Hill in Ottawa at 12 noon with pipes, drums, and dancing hosted by the Sons of Scotland Pipe Band, Canada's oldest civilian pipe band. Don't think we've missed out South of the border, though."
By the way, that last link is one you should click on - you'll get to see your author in his official kilt, side-by-side with his lassie. Before we get on with this week's Blawg Review, you might want to look at this travelogue I wrote when I visited: the Edinburgh Edition, the Hero Edition, the Highlands Edition, the Scotch Whisky Edition, and the Inverness Editions: Part I, Part II, Part III and Part IV.
Inventors and Inventions
Scots are proud folks. We've invented just about every useful thing on the planet, or so my grandfather told me. Although he isn't credited with the invention of the steam locomotive, inventive Scotsman James Watt did develop the steam engine that made later developments possible. Modern-day successors to the pioneers who developed the steam trains would be wise to heed the advice offered by Train Law blogger Charlie Goetsch -- refusing to cooperate with OSHA investigations of allegations under the Federal Railroad Safety Act will result in adverse inferences being drawn and in the imposition of punitive damages.
More Things Scottish
And before we get started, you'll need your dose of Braveheart. Stop here and watch. Then as you read, just let this link play and listen to get into the mood. Or just rent the movie. You could always go to Renaissance Faire and really get into it. Then there's the military tattoo at Edinburgh Castle, or one of my favorites, Stirling Castle.
But if you're looking for pageantry, pomp and circumstance, nothing beats the Top Secret Drum Corps, from Switzerland. This show is simply one you have to watch - even if you're French. Doesn't everyone want to be a Scot?
And let's not forget Scotland Yard. Norm Pattis recounts an infamous English country house murder investigated by Scotland Yard which, even after a confession was obtained, still fascinates people nearly a century-and-a-half later. Can't wait for the new Sherlock Holmes movie. Yes, of course he's a Scot, too. Things have changed a bit since Sherlock solved crimes. Richard Bales notes that the Scottish Police have instructed their male officers not to use terms such as "love", "pet", and "dear" when dealing with the public.
Scots are know for their love of golf. David Dawsey describes a patent which covers a rather complex method for determining the proper length of a golf club. What accounts for the complexity? Possibly the fact that the inventor was a German rather than a Scot. Diane Marie Amann notes that Dr. Louise Richardson's appointment as head of the University of St. Andrews has caused a bit of discomfort -- she is an Irish-born woman who is also a Catholic and a naturalized U.S. citizen. As a woman, she's unable to receive the customary honorary membership at the legendary St. Andrews golf club and, perhaps most troubling to her new neighbors, she doesn't much care. I'd be remiss if I left out golf, and Robin Williams's (he's a cousin, too) foul-mouthed description of how the game got invented.
Talk, Talk, Talk, Just Like A Scot
And here's your preview of what's to come, from Mike Semple Piggot, author of Charon QC, who interviewed me about this week's post. Listen up here. Fellow Scotsman Charon QC covered the G20 (even though there's only 19 member countries) protests in London, surveying the people and issues involved from the turret of a Tiger Tank he purchased on eBay.
Now that you're sufficiently oriented, let's get on to the issue at hand: Blawg Review.
We start with that original Scot, Bruce McEwan and his Scottish alter ego, Adam Smith, Esq. A Scottish student's ramblings. If he were alive today, would Scotsman Adam Smith be able to explain the origins of the current world financial crisis? Nate Oman calls instead on Friedrich Hayek to illuminate risk-taking and its role in creating the instruments which have brought us to this point. Are the Scots frugal, as the stereotype would suggest? If so, they might appreciate Rick Georges' "Frugal Lawyer" post about reducing, reusing, and recycling old gadgets.
Next, there's Andre or Redbeard or Maz. Marketer to law firms and accounting firms. Web 2.0 Advocate. Social Media Traveler. Outdoorsman. Scottish Highland Heavy Games Athlete. Starbucks Junky. Cape Bretoner. Torontonian.
Scots apparently get divorced, too, if they don't kill each other first. You would be well advised to take a stop at the Wellmeadow Café and figure out the mace. A fuller dose of Scots law can be found here and here.
Scotland's history has often been a story of the little guys' struggle against the big guys. In the legal world, the small guys (solo and small firm practitioners) now have many tools at their disposal which levels the playing field with the big guys (BigLaw firms). Grant Griffiths explains something which many Blawg Reviewed bloggers have found -- that blogging can give solos a marketing advantage over firms which treat online sites as extensions of their traditional marketing collateral.
Irish or Scottish, I don't know, but Kevin O'Keefe goes a step further, suggesting that lawyers who properly leverage social media don't necessarily need a "traditional" web site. Mary Abraham considers whether social media-based (rather than real world-based) relationships can be "real": "What I've discovered is that my social media Third Place is increasingly important to me and the relationships I've formed online are just as "real" as some of the relationships I've formed the old-fashioned, face to face way." Sometimes, the virtual and real worlds can meet-up.
Then there are the get-togethers, just like a clan. Eric Goldman hosted his fourth meet-up of legal bloggers in the San Francisco Bay Area and posted a recap of the (sometimes challenging) topics discussed.
Like Scots who won't stop talking, several other bloggers discussed whether microblogged "tweets" of 140 characters or fewer can be copyrighted. Venkat Balasubramani was emphatic that an individual tweet could not be copyrighted, but suggested that a collection of tweets might be. Evan Brown discussed whether Twitter's terms of service disclaim the legal rights it needs to display its users' tweets, concluding that a number of defenses cover their situation. Jonathan Bailey posted what's probably the most complete analysis of the issues involved.
Finally, Some Foreigners?
Some bloggers just wish they were Scottish - or maybe they are (is a string cite Scottish, too?): the Downtown Lawyer, Adams Drafting, HealthBlawg, Jim Beck and Mark Hermann's Drug and Device Law, Max Kennerly's Litigation and Trial, Miranda rights at SCOTUSBlog, The Passover Story and the Parable of the Four Sons at My Shingle, Does Michelle Obama need a "core message"? at Legal Satyricon, A luminous wealth ponzi scheme in California reported at BizOp, The State as stick up artist at Public Defender, Cyber-bullying at Slaw, Orange alert for bloggers at Simple Justice, The unbearable lightness of lawyers: risk aversion at What about clients?, An ear in the ivy at Legal Juice , The death rattle of the big firm billable hour model? Cash on the barrelhead to high billing associates at the Legal Times, SoCal 2L raises the bar on public service, Leaving the evergreen forest at Software Licensing Blog, Robots inventions and patent rights at Patent Baristas, How to describe a catch-22 at Likelihood of Confusion, Interviews with ADR giants at the Mediation Channel, Making a decision? How is your adversary doing the same thing? Look into the crystal ball of meta-cognition at Brains on Purpose, Money has been called frozen desire and Peter Madoff's just melted at $10K/month at the WSJ Law Blog, the midwest hands gay men and women their right to marry while California continues to consider breaking up the gay marriage party at Concurring Opinions, Family Fairness and, Are you a social media chew toy? Check it out in All Media is Social Media at BlawgIT.
Two Final Thoughts
Lastly, remember where the desire for freedom was announced and why this blawg review was able to be written without censorship.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.