Recent Featured Articles from LexMonitor

Hot Dog Lawyers And The Courthouse Scam

Wed, 10 Mar 2010 04:36:35 GMT

Greenfield posted this morning about lawyers advertising their services on hot dog stands outside the courthouse. Reminded me of a few things that only I would consider blawgworthy, but then I make the decisions around this place, so here goes.

First, we used to have a Porfirio’s Tacos truck serving muy delicioso tacos, including my favorite, the al carbon. (My favorite might have been the al pastor, but they didn’t serve that.) They would pull up in a little truck and park halfway onto the sidewalk outside “the annex” – that is, what we used to call the criminal courthouse.

They disappeared many years ago, around the time the new building was constructed, and one of the less charitable rumors was that they didn’t voluntarily abandon us, but that new rules and stricter enforcement of the health and safety regulations prohibited their continued existence. I for one miss them. (The best places – as well as the worst – are dives, and you don’t get much dive-ier than selling tacos out of the back of a pickup/camper top.)

Second, we’ve never had a hot dog stand anywhere near our Travis County Courthouse, old or new, but I did have one of my best frankfurters of the last decade outside the federal prosecutor’s office. It’s an off topic memory, but my mind wanders when I start thinking about food.

Third, and somewhat back on topic, is Scott’s general point:

Of course, putting a sign up on the umbrella stand has its down side as well. It's as certain a way of letting the rest of your fellow lawyers know how desperate you are for business, and how low you'll go to get it. It's, well, embarrassing.

Do you really want to broadcast to the world that you're the sort of lawyer who does misdemeanors for $99? But for those who do, and are unashamed of doing anything and everything to make a quick buck, it's definitely a high exposure location.

And never mind the humiliation, do you even want clients that find their lawyers at a portable snack bar? If they don’t put much thought into whom they hire, instinct might tell you this ain’t gonna be a top notch client. And I’m not just talking about low fees. There are few things more annoying than working out some XYZ = dismissal deal, or prepping a suppression hearing for a client that will ultimately bond forfeit and disappear entirely because he can’t bother to wake up before noon.

This brings me to point number four: I fell for a courthouse scam myself the other day. Every once in a while, you can spot a guy searching for a lawyer in the hallways outside the courtrooms. These people should typically be avoided at all costs. They have shown up for the second or third time without a lawyer, and the judge has yelled at them and told them they must hire a lawyer ASAP. If you can’t see the warning signs, I’m not articulate enough to explain them to you.

So, I’m standing in line for the elevator, and a random guy comes up and asks me if I have a card. Great. I’m a captive audience, and I don’t feel like lying and saying “no,” so I say, “yes,” and fumble for one while hoping he’s not going to explain the intricacies of his fascinating hot check case to me. Maybe he will lose it before he calls my assistant to set up a free consultation.

And then as I hand it to him… he hands me his! “I’m a process server, I work for lawyers all the time, let me know when you need a subpoena served.” Not a bad scam. He’s taking my card; I can’t just say, “I already have one I use/trust”. Nope, I gotta take it. And it made it all the way back to my office where I wrote a note on it to remind me to write this post.

Legal Job Losses Drop Off Sharply

Wed, 10 Mar 2010 11:00:00 GMT

Further evidence that the legal profession is in a recovery economy arrives in a new report that layoffs at law firms are nearing zero.

As the national unemployment rate remained steady in February, the number of legal industry jobs lost dropped to one-tenth of what it had been in January, according to the U.S. Bureau of Labor Statistics' monthly jobs report.

The legal profession shed only 100 jobs in February — substantially fewer than the 1,100 jobs that it lost in January — according to the report, released Friday.

Those numbers represented the second significant monthly decline for the industry. The sector lost 2,100 jobs in December and 2,900 in November — a steep difference compared to the 5,800 lost in October. The industry has shed 37,100 positions over the past year, according to BLS statistics, which tally net job losses.

For further details, see Law360.

Young Lawyers: Getting Hours and Pleasing a Senior Lawyer Not Enough in the New Economy

Wed, 10 Mar 2010 14:40:21 GMT

Years ago when I was responsible for attorney development in my firm, I gave a business development presentation to a group of brand new partners at their orientation. As I surveyed the crowd, I realized that not one of the new partners had given any thought to business development. Not one had a prepared a business plan with written goals.

Instead, each of the new partners was only concerned with pleasing the senior partner who had lobbied to get them promoted. That strategy might have worked when the economy was so good that even the worst law firms were doing well. It certainly no longer works. If over the years those income partner did not develop clients of their own, they likely were let go. Even the partner with all the business who lobbied to get them promoted could no longer protect them.

I thought of the old school thinking as I was reading Seth Godin's book Linchpin: Are You Indispensable? on my Kindle . Early in the book Seth describes the old American Dream and the New American Dream. His list of each seems very close to the old dream for young lawyers and the new dream for young lawyers.

Here is my take on old and new dreams:

Old dream for young lawyers:

Get your hours
Do your assignments
Put in face time at the office
Keep the lawyer feeding you business happy
Suck it up

Lawyers in the old dream never needed to worry about client development. Instead they needed to worry about keeping the senior lawyer for whom they worked happy and hope he never got hit by a bus when he crossed the street. The old dream worked because work was plentiful, seniors lawyers did not want younger lawyers they developed to have clients on their own and leave the nest. Young lawyers were told: "You don't need to worry about client development. We have all the work for you that you will ever need."

New dream for young lawyers:

Develop a unique skill that will be needed for many years
Become a people person and build relationships
Get to know your clients' businesses and industries
Create remarkable articles, blog posts, podcasts and webinars your clients will value
Be generous with your non-billable time
Become involved in your community/bar
Stay in contact with people you know both in person and using social media

It takes way more than getting your hours, working hard and sucking it up to achieve what is needed in the new economy. What are you doing to create and accomplish your New American Dream?

When March Madness Visits the Workplace

Sun, 21 Feb 2010 18:17:11 GMT

In Shakespeare’s Julius Caesar, a soothsayer warned Caesar to “beware the ides of March,” which he didn’t, and we all know what happened. In modern times, while the ides of March hopefully won’t augur such tragedy, it does kick off two annual events that employers should cautiously beware: The NCAA basketball tournament a/k/a March Madness and St. Patrick’s Day.

The advertising leading up to these events leave no doubt that alcohol consumption often becomes a major component of the festivities. Indeed, the NCAA has been under pressure to bar alcohol advertisements during its widely televised national tournament. And we know that, for some people, beers and pubs tend to be associated with St. Patrick’s Day like turkey and stuffing on Thanksgiving. It should therefore come as no surprise to the modern employer that mid-March means many of their workforce will be imbibing more than usual.

Drug/Alcohol & Business Conduct Policies

In this regard, it is an appropriate time for employers to review their drug/alcohol and business conduct policies. Clearly, bringing or using alcoholic beverages on company property or using alcoholic beverages while engaged in company business, consuming alcohol in the workplace or reporting to work under the influence of alcohol is forbidden and/or deemed inappropriate conduct. Most employers expect their employees to accept certain responsibilities, adhere to acceptable business principles in matters of personal conduct, and exhibit a high degree of personal integrity. This would include the expectation that employees, in their business and personal life, refrain from behavior that might be harmful to the employee, his or her coworkers, and/or the company, or that might be viewed unfavorably by current or potential customers or the public at large. Many employers include policy language that whether the employee is on or off duty, his or her conduct reflects on the company and should therefore observe high standards of integrity at all times. Inherent in these policies is the expectation that employees exercise good judgment.

Impairment by drug or alcohol use can constitute an avoidable workplace hazard under the Occupational Safety & Health Act. Additional guidance is provided by OSHA and the Department of Labor’s Working Partners for an Alcohol-and-Drug-Free Workplace program. While employers are entitled to expect reliable attendance and productivity, when enforcing their drug/alcohol and business conduct policies they should give due consideration to laws such as the Americans With Disabilities Act (ADA), The Family and Medical Leave Act (FMLA), Health Insurance Portability and Accountability Act (HIPAA), and state drug and alcohol testing laws where applicable. When dealing with employee drug/alcohol testing in the private sector, there is neither a constitutional nor statutory prohibition against the activity. In fact, in certain circumstances, such as pre-employment testing and testing based on reasonable suspicion, drug/alcohol testing by private employers is both permissible and common. However, testing should be administered in a non-discriminatory manner and be consistent with any statutory protocol applicable to your state.

The NCAA Brackets

Betting on sports (e.g., the NCAA brackets) for money is illegal is most states except Nevada. See, e.g., New York Penal Law Art. 225 et seq., and New York General Obligations Law § 5-401 et seq. While the likelihood of criminal enforcement of a casual office betting pool is slim, it would nevertheless be wise to avoid promoting or encouraging such conduct. The company should have a no-gambling policy, but be careful to enforce it in a non-discriminatory and consistent fashion. For example, if the company disallows office betting pools, it should not distinguish whether the betting is on a sporting event or American Idol. While much has been written about drops in productivity because of employees following their March Madness brackets at work on the web, the adverse effects on employee morale and camaraderie should be considered before deciding to enforce an outright ban on brackets and following the games on the web.

Erin Go Bragh

If prepared properly, March Madness and St. Patrick’s Day should be a spirited time of year for all, without causing disruption on the job.

Length and Cost of a Lawsuit

Tue, 09 Mar 2010 14:38:29 GMT

My friend Gene Lee wrote a good post about how long discrimination lawsuits can take. He refers to statistics showing that from start to finish, the average lawsuit will take 22 months. That sounds about right for the San Antonio area, also. Here in South Texas, we can file the typical discrimination lawsuit in state or federal court. The length of litigation time is about the same for either venue.

As Gene explains, the discovery process will take months, sometimes years. In employment cases more than other cases, the relevant "evidence" is mostly in the hands of the employer. So, as one might expect, employers resist providing evidence whenever possible. "Discovery" is the process we use to obtain relevant evidence. Discovery includes written questions and requests for documents. It also includes depositions. Discovery is often the heart of the case for both sides in an employment suit.

Depositions are the biggest cost in any lawsuit. Gene Lee also put together a nice post about the costs of a lawsuit. As Gene explains, you do not have to depose every critical witness, but it sure helps to depose anyone and everyone.

And, of course, as Gene explains in both posts, after everything is done and you win, the employer side will almost always appeal in an employment case. Employers fare very well in appellate court. So, they have strong incentive to contest any jury wins. The appeal itself here in South Texas will require another 1-2 years to complete. If one must appeal to the Texas Supreme Court, that would take significantly longer. I recently saw an article about a party who actually sued the Texas Supreme Court because they had heard his appeal four years ago and still had not issued a ruling. Ouch!

More Lessons Learned from Politics: You Lose When You Criticize and Demean Your Potential Client's Lawyer

Tue, 09 Mar 2010 13:31:50 GMT

Many of you have friends working for companies that already have and lawyer You want to know how to get those potential clients to switch to your firm. Like many things, it is easier to tell you how NOT to do it than to tell you how to do it.

Once again you can learn how not to do it from politics Here is a case in point. How many of you think you will convince a client to hire you by mocking or putting down the law firm that is currently representing the client? I bet none of you think that would be a successful strategy. But, every single week political figures do just that. Here are two recent examples of what I consider to be very poor persuasion.

During the recent CPAC meeting in Washington, almost every speaker mocked President Obama, rather than just criticizing President Obama's policies. The New York Times reported CPAC Speakers Mock Obama’s Teleprompter.

Dick Armey said: "You're intellectually shallow. You're a romantic. You're self-indulgent. You have no ability," Armey said, calling Obama "the most incompetent president perhaps in our lifetime." While the far right might have cheered, most people in the United States who watched likely cringed. I believe most independent voters, especially those who voted for him believe President Obama is a smart guy and not the most incompetent president in our lifetime. Most people who watched or heard this personal attack on the news likely thought Dick Armey had acted like a jerk.

Just to show mocking goes both ways, Robert Gibbs somehow believed he could make points with independent voters by mocking Sarah Palin. Here is a video of his recent attempt. Listen as the reporters gasp at his lame attempt at humor.

Do you think his attempt at humor actually helped the President? I don't. If anything, it elevated Sarah Palin in the eyes of independent voters and made them think Robert Gibbs had acted like a jerk..

Experts claim "going negative" in elections works. But, I don't believe it works when the candidate going negative comes across in a way that the majority of people cringe while watching.

Going negative never works in law practice. I have been a partner in a large (600+) law firm. I have been a partner in a small firm and I have started my own firm. I have never tried to persuade clients to hire me by mocking or personally criticizing another lawyer. I have seen other lawyers try it and every time I witnessed it, the potential clients cringed while listening and never once hired the lawyer. I believe they thought the lawyer who had criticized and mocked their company's current lawyer had acted like a jerk.

In a future post I will share with you three ideas to get the opportunity to do work for your friend's company

Total Recall

Tue, 09 Mar 2010 10:00:31 GMT

by Randall Hull of The Br@nd Ranch®

AKA: "Oh What a feeling".

Unless you have been on a trek to one of the poles or living in a cabin deep in the woods somewhere, you have likely heard about the huge problem facing Toyota Motor Corporation and its U.S. organization Toyota Motor Sales USA Inc. Here's a quick recap just in case:

Toyota Motor Corporation began a recall in late 2009, which – as of March – totaled 8.5 million cars globally due to braking problems and accelerator pedal defects which were initially blamed on other things such as "floor mat entrapment". The initial recall included Toyota's Corolla, Matrix, Camry, Highlander SUV, RAV4, as well as Tundra and Sequoia trucks. After Toyota admitted the 2010 Prius had a design defect in its anti-lock brake system, it too joined the list, and the U.S government began investigating the automaker.

And then there's the Black Box. As in commercial airlines, automobiles have "black boxes" known as Event Data Recorders, or EDRs, which keep a data record of various things the automobile was doing a few seconds prior to and after a crash. The EDRs in Toyotas use a proprietary software which, according to an Associated Press investigation, until recently could be read by only one laptop in the U.S. In response to growing pressure Toyota has delivered three laptops to the National Highway Traffic Safety Administration with the software capable of reading their EDR data. The AP investigation also found that Toyota was not offering full disclosure about what their device did and did not record.

Discussing the legal implications and what was and was not disclosed is beyond the scope of this article and my expertise. I want to focus on how this could throttle the Toyota brand and how they can put the brakes on this situation before it spins out of control. After reading all the news releases and legal saber rattling, "Oh What a feeling" is taking on a whole new meaning for me.

Toyota has been producing vehicles since 1936, and up to now, safety and reliability has been the foundation of their brand. Yet, in the middle of all this Toyota officials admitted the company's rapid growth may have gotten in the way of maintaining the highest standards of quality control. Its the familiar company profits before customer safety scenario -- hardly confidence building.

Added to this poor communications mix, when Toyota should have reassured the world they had the recall situation in hand, they made a fundamental faux pas, overlooking the importance of not only what you say but also how you deliver the message. In January, a Toyota executive addressed television cameras wearing – gasp! – a surgical mask. Perhaps this is common in Japan during cold season, but the message was broadcast worldwide, where a cultural nuance such as this could easily be misconstrued. First, it projected a "we are in toxic triage" image, and secondly, CEO Akio Toyoda should have delivered the message – sans mask. The U.S. marketplace, particularly, does not take kindly to aloof leadership in a crisis, and quite simply, this was a crisis of confidence, where brands live or die.

This debacle holds so many lessons for brand managers and executives, alike. Primary amongst them what not to do when your product demonstrates a performance problem that puts your customers at risk. When building public trust in your product and your company, transparency followed by action is fundamental. The risk in failing to staunch eroding customer confidence is forever tarnishing your brand.

The Toyota recall, of course, is not the first time well known brands have faced a crisis.

In 1994, a professor at Lynchburg College reported a bug in the Intel Pentium floating point unit. He sent a memo to Intel reporting what became know as the Pentium FDIV bug. Intel, caught by surprise, had no crises strategy in place and chose to deny the problem. When public pressure became too great, Intel announced a recall and Andy Grove, Intel CEO at the time, offered one of the greatest mea culpas in corporate history. Although jokes prevailed for some time, the public forgave and moved on.

Johnson & Johnson had a huge headache in 1982 when cyanide-laced Tylenol in the Chicago area resulted in 7 fatalities. Johnson & Johnson took only 6 days to respond and recalled 30 million packages. At the time the incident was thought to be fatal to the company, but the public saw the action as a prime example of corporate responsibility. The final result was tamper-proof packaging on medications and Johnson & Johnson's brand intact.

Perrier recalled 160 million bottles of mineral water in 1990 when traces of benzene were discovered. Although the amounts were not considered enough to present a risk, Perrier acted to protect its reputation and was hailed as responsible public citizens.

Companies, who have dealt with critical challenges promptly and well, demonstrate how a brand can be guided through crises and emerge untarnished, if not stronger for it. A genuinely sincere apology timed appropriately will go far in winning back customer loyalty and restoring trust. Many companies have learned their customers listen most closely when they honestly admit failure.

Toyota is one of the world’s strongest brands according the Interbrand's rankings. CEO Akio Toyoda must utilize his best public communication skills and convince the public that he has taken control of this crisis. Then act swiftly and effectively. Should Toyota successfully address the many product issues, they will recover with nothing more than a bloody nose. But should they fail to resolve the problems fully, as recent reports indicate, the damage incurred may be fatal and the Toyota brand could be so severely tarnished, it will take years and millions of dollars to restore. "Oh what a feeling" that would be.

Newsroom Legal Fights Go On, Even in Bad Economy

Sat, 27 Feb 2010 20:48:43 GMT

The New York Times ran an interesting report on how the bad economy has impacted newspapers' decisions on whether to litigate public record and access issues. The bottom line, according to the Times -- while smaller, regional news organizations are scaling back their legal efforts, large national outlets "have been quietly ramping up."

The Times cited in particular Hearst and the Associated Press as two organizations that have been as aggressive as ever in pushing state and federal officials on public record and access issues. According to the story, both are dealing with tighter budgets by bringing more of their legal work in-house, rather than using outside counsel.

Eve Burton, vice president and general counsel at Hearst, told the Times that Hearst was at an all-time high in the number of access cases it was pursuing. Hearst's most high-profile fight is in Texas, where it has sued the governor's office for records relating to the 2004 execution of Cameron Todd Willingham, a man many death penalty opponents believe may have been innocent.

The A.P. and Bloomberg News have also been in high-profile legal fights with Treasury Department officials over Freedom of Information Act requests they have filed, the Times reported.

Unfortunately, the Times found, smaller news organizations are choosing to forgo possibly expensive legal fights because their budgets simply will not allow them.

This reluctance only highlights the importance of attorneys' fees provisions in public records statutes, as they are often the only way to truly hold government officials accountable when they improperly withhold public records.

Mad cow decision opponents take to Facebook

Sun, 07 Mar 2010 22:53:50 GMT

In just over a week, nearly 9000 people have joined a social networking group objecting to the Federal Government's decision to allow beef in Australia from countries affected by mad cow diseae.

The Facebook site, called Support Aussie Farmers - Say No To Imported Beef, says many consumers want imported beef clearly labelled in supermarkets. Founder of the page, Donna Morrison from Drysdale in Victoria, says Australian consumers have a right to know exactly what they're eating. "It just makes me so happy to find so many more people out there like myself that are passionate about this country, about its farmers and about our rights," she says. "The majority of people and myself would prefer to support Australian farmers and back Australian farmers and eat Australian beef.

"It's the best in the world."

Teaching Kids About Labor Strikes: An Update with "Animal Strike at the Zoo!"

dschwartz@pullcom.com (Daniel Schwartz) — Sun, 07 Mar 2010 03:10:09 GMT

How do you explain work issues for kids?

That was a question I posed two years ago in a post. I didn't really answer it other than to point to a children's book "Click Clack Moo, Cows That Type" as a way to have a discussion about labor issues with kids from 3-8 or so.

But there's only so many times you can read the same book to your kids (although, no doubt, kids can often request the same book nightly for seemingly forever).

In recent weeks, I've come across another book that I can recommend titled "Animal Strike at the Zoo". The premise? Well, as you might expect, the animals at the zoo are unhappy with their living condition (after all, the elephants are just paid peanuts) and decide to stop doing anything other than sleep. After awhile, the zookeeper improves some of their conditions but refuses to give the zebras the root beer floats they've been asking for.

Suddenly, a little girl Sue comes by the zoo (she's been waiting for her visit all year). Will the animals decide to give their strike a break? I won't ruin the ending, though I have heard rumors that the animals at the circus may be next.

I'm sure, as with "Click, Clack, Moo", some will try to turn it into a symbol of a great union vs. management struggle. (In fact, there are labor unions who recommend that book during the "holiday season" for their members.)

But for others looking just for a light-hearted tale with great pictures that introduces the concept of a "strike", this book will work. Trust me: The younger set will love this one. And you can use it to talk to your kids about strikes. A win-win.

More Godin on Trademark? The Sequel

Mon, 08 Mar 2010 06:32:12 GMT

Last week we explored how at least some of Seth Godin's trademark advice is a bit dated.

This week, let's take a close and careful look at his advice concerning trademark registration:

Some lawyers will get all excited and encourage (demand!) that you register your trademark. This involves paying a bunch of money, filing a bunch of forms and earning an ® after your name instead of the ™. While the ® does give you some benefits by the time you get to court, it doesn't actually increase the value of your trademark. And you can wait. So, when you come up with a great name, just ™ it.

Actually, I've never met lawyers who "demand" that their clients register their trademarks. Strongly recommend, yes, and for good reason, yes, but demand, no. That is not a lawyer's role. Even inexperienced trademark lawyers know to explain the costs, benefits, and associated risks of pursuing or foregoing federal registration. Unfortunately, Mr. Godin appears to misapprehend all three.

We already have discussed the many and substantial benefits afforded to those who federally register their trademarks. These go well beyond what you have, "by the time you get to court." Indeed, in some instances, having the ® will avoid the need to go to court altogether, since the registration is actual proof of the claimed right and may be enough to move a squatter off your mark without even resorting to formal legal action. Good luck with that, if all you have done is "just ™ it." Moreover, in other instances, having the ®, can be the difference between continuing to use or expand the use of your trademark and not, so this is certainly more than "some" minimal benefit.

As to the risks, those who don't appreciate the value of a federal registration or the importance of filing prompt registration applications likely aren't aware of or don't understand this significant risk:

Now, some realize the importance of the protection, but in an effort to save or defer cost, they have considered holding off on filing a federal trademark application -- to see how the product does -- before making a final decision on the filing. If you or someone you know falls into this category, while I sympathize with your and their efforts to manage a tight budget, understand another risk that goes a step further than the risks already covered in the above-linked Create Magazine article.

To do so, after you have conducted the appropriate due diligence to clear use of the new name and mark, ask yourself how long it will take to get your product with the new name and brand in the stream of commerce and in the marketplace. Without the important benefit of constructive use relating back to the filing date of the federal trademark application, it is important to realize that your investment in preparing for the product launch may be lost altogether if another person or company files an intent-to-use trademark application, for a confusingly similar mark, even one day before you get to market with your newly named product. If this happens you and they may very well "see how the product does" with another name.

Now, as to the issue of cost, given the substantial benefits conferred and the substantial risks avoided, when those are recognized and understood, the financial cost of a federal trademark application seems well worth the $275 governmental filing fee toward the creation of an intellectual property asset of national scope.

Last, as to Mr. Godin's assertion that federal registration "doesn't actually increase the value of your trademark," he is simply wrong, so there you go. It stands to reason that national rights are worth more than local rights. Ask any party to a franchise agreement or even their informed bankers who loan money based on them.

Without a federal registration, rights are limited in geographic scope to those areas of operation where the use has been substantial enough to generate common law trademark rights. With a federal registration the trademark owner is deemed to have used his or her mark in every sliver, corner, and county of the U.S., as of the filing date, even though the trademark may never blanket the country with their goods or services. So, one need only consider the world of franchise relationships and trademark licenses to appreciate the enormous power and value a federal trademark registration brings to the table and to the bank.

Some other time, I'll explain some of the reasons for using the ™ symbol, but suffice it to say for now, doing so confers no legal rights. So, "when you come up with a great name" and you want to use it and have the best chance of expanding that use over time, as your business continues to grow, don't "just ™ it", instead, seek federal registration at the earliest possible opportunity.

To Win the Hearts and Minds of Consumers, Lawyers Need to Sell, Not Sue

Fri, 05 Mar 2010 03:20:02 GMT

To date, lawyers haven't been able to effectively sell the public on the idea that document preparation services like Legal Zoom are a poor substitute for the services of a lawyer. So, being lawyers, they've done the next best thing to selling: suing. Last month, a Missouri law firm filed a class action lawsuit against LegalZoom on behalf of three LegalZoom customers, alleging that LegalZoom violate Missouri's unauthorized practice of law statute. Likewise, several months back, the North Carolina Bar challenged LegalZoom for unauthorized practice of law.

What's interesting about both actions is that neither cites specific incidents of harm to consumers, such as an individual winding up personally liable for business dealings because of an improperly formed corporation or LLC. Or a widowed spouse losing an inheritance to her deceased husband's ex, because LegalZoom botched the will. In fact, in Estate of George Mounts v. Barrett, a Missouri Court of Appeals case from 2000 on UPL (note - I found it on GoogleLegal, haven't shepardized it), a concurring judge expressed surprise at the relatively few complaints raised over unauthorized practice:

Even so, it appears to this writer there is an alarming increase in the unauthorized practice of law especially in the area of real estate law. Inexplicably, there does not appear to be a prevalence of complaints about this trend (if it is a trend)

So why the crackdown if apparently, there isn't any problem?

Of course, lack of complaints doesn't mean that LegalZoom is either appropriate or adequate for consumers. Lawyers like Texas Wills and Trusts lawyer Rania Combs and Start Up Lawyer Ryan Roberts explain, respectively, how LegalZoom's description of the law is either outdated or plain wrong, or how the documents that it generates are incomplete for the needs of most start ups. Yet, the harm that both Combs and Roberts describe is hypothetical, and for that reason, it's not as persuasive to consumers.

Moreover, lawyers make mistakes as well and not all of them carry malpractice insurance to cover the harm. Thus, telling consumers that LegalZoom documents are inadequate doesn't do much unless lawyers can demonstrate with statistical evidence that a greater percentage of LegalZoom documents as compared to lawyer-prepared documents are likely to be botched.

What's worst about UPL actions brought against companies like LegalZoom, is that in the rush to shut these companies down, those suing overlook a far more compelling and productive solution: cracking down on these companies' deceptive advertising practices. For example, the Ninety Five Years blog comments that LegalZoom claims that a lawyer would charge $780 for a copyright application - which is highly unlikely. Why not require LegalZoom to produce evidence of these legal fees before allowing it to state that a lawyer would charge as much? Legal Zoom also cites several talk show celebrities as endorsers of the LegalZoom products - are they paid for those endorsements? The site doesn't say.

Finally, there's another claim at the site that seventy percent of consumers who complete their own documents make mistakes. What's the support for those statistics? And when consumers make mistakes, are they the kinds of mistakes (e.g., spelling errors or filing at the wrong agency) that LegalZoom can cure? Or do the errors concern more substantive issues - inadvertently failing to list an LLC member - that even LegalZoom can't correct?

It seems unlikely that any of these suits will prevail on UPL grounds. As a general matter, most forms and kits do not fall within the category of the practice of law (courtesy of Google, this Missouri case has a pretty good round up), though offering personal advice on how to complete the forms could cross the line into UPL. Thus, suing isn't likely to shut down companies like LegalZoom and worse, send the message to consumers that lawyers are so fearful of competition from computerized form companies that they need to drive them out of business.

Rather than sue, lawyers need to sell the idea that document preparation services are a waste of money and don't always offer the benefits (e.g., cost or time savings) that they claim. Gregory Luce of the Practice Blawg is doing a bang-up job on that front with a detailed video showing exactly what happens when you sign up for Legal Zoom and how that experience compares, in cost and quality, to a sit down meeting with a lawyer (and perhaps, also, a virtual, unbundled legal service provider).

Ultimately, even if lawyers manage to shut down LegalZoom, there's no guarantee that clients will choose to retain a lawyer over a DIY alternative. Unless we lawyers can win over the hearts and minds of clients by showing that we can bring value to basic transactions without much added cost, then even if lawyers manage to win a UPL case, we still lose in the long run.

The Tort Reform Movement - Naked

Fri, 05 Mar 2010 10:35:26 GMT

I read Andrew Cohen's article in the Atlantic (Tort Reform is Anti-Democratic (And Ingeniously Marketed)) and thought I would summarize it for your convenience. Then I discovered that Philip Thomas had already done so, and quickly determined that he did a better job than I would have done.

Here is an excerpt of Philip's post on his blog, MS Litigation Review:

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:
The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.

Microsoft No Longer Seeking Removal of Cryptome or Leaked Compliance Handbook

blogs@foleyhoag.com (Foley Hoag) — Fri, 05 Mar 2010 15:45:00 GMT

Last week, lawyers from Microsoft issued a demand under the Digital Millennium Copyright Act (DMCA) seeking the removal of leaked copies of Microsoft's "Global Criminal Compliance Handbook" that pulled website Cryptome.org from the Internet, at least temporarily. The DMCA provides copyright owners with the ability to request that internet service providers remove infringing materials from websites. Microsoft's DMCA demand to Cryptome's service provider, Network Solutions, apparently resulted in removing Cryptome from the Web entirely, until Microsoft attorneys sent an email withdrawing the DMCA takedown demand.

Microsoft made this public statement:

Like all service providers, Microsoft must respond to lawful requests from law enforcement agencies to provide information related to criminal investigations. We take our responsibility to protect our customers privacy very seriously, so have specific guidelines that we use when responding to law enforcement requests. In this case, we did not ask that this site be taken down, only that Microsoft copyrighted content be removed. We are requesting to have the site restored and are no longer seeking the document’s removal.

Cryptome advertises itself as a site that "welcomes documents for publication that are prohibited by governments worldwide." The site also promises that "[d]ocuments are removed from this site only by order served directly by a US court having jurisdiction."

The Microsoft Compliance Handbook, dated March 2008, is a guide for law enforcement officers seeking to investigate users of Microsoft services such as Hotmail email, IM, Windows Live and other services. The Handbook outlines the data Microsoft keeps with respect to its users and provides law enforcement with instructions on what legal process is necessary for investigators to gain access to specific information. In the Handbook, Microsoft offers to provide the following information to investigators in response to a subpoena:

Basic subscriber information includ[ing] name, address, length of service (start date), screen names, other email accounts, IP address/IP logs/Usage logs, billing information, content (other than e-mail, such as in Windows Live Spaces and MSN Groups) and e-mail content more than 180 days old . . . .

This provision contrasts with Microsoft's limits on access to other user data, such as recent email, "e-mail address book, Messenger contact lists, . . . [and] internet usage logs." According to the Handbook, Microsoft will release this data in response to a search warrant or court order which, unlike a subpoena, must be approved by a judge after the government presents sufficient evidence.

Posts at Cryptome, as well as CNet, Tom's Hardware, The Register,describe the Handbook variously as a "spy guide" and "wiretap guide." Cooperation with government agencies has been a touchy subject for privacy advocates and service providers in the wake of alleged abuses by some that occurred after the 2001 terrorist attacks. However, the heart of the controversy generally has been the disclosure of customer information without any legal process or court involvement. In this case, Microsoft's Handbook merely identifies what data is available in response to formal legal process, such as subpoenas, warrants and court orders.

Arrested for DUI for 21st Time, Man Facing a Decade in Prison

Fri, 05 Mar 2010 15:16:19 GMT

An Ohio man was convicted of his twenty-first DUI recently, and with a dramatic statement a judge sentenced him to ten years in prison, representing the maximum term possible in the case. Forty-five-year old Kevin J. Ante did not comment as the Butler County judge handed him the sentence in Common Pleas Court. According to authorities, [...]

An Ohio man was convicted of his twenty-first DUI recently, and with a dramatic statement a judge sentenced him to ten years in prison, representing the maximum term possible in the case.

Forty-five-year old Kevin J. Ante did not comment as the Butler County judge handed him the sentence in Common Pleas Court. According to authorities, they initially knew of 17 of Ante’s DUI offenses. Recently, however, they uncovered four more DUI convictions on his extensive record.

Even Ante’s lawyer, David S. Washington Jr., was surprised at this development. Whatever the final count, Washington agreed, it was far too many DUI convictions.

Ante was only recently released from prison on the same charges of drunk driving. He served a four year sentence, and was picked up for his latest DUI only 90 days after his release.

According to police, Ante even attempted to evade arrest when he was stopped on December 3, 2009. He got about a quarter mile away before they were able to pull him over. Police quickly smelled alcohol and realized that Ante was confused or unresponsive, according to WKRC in Cincinnati, and he was arrested for DUI.

The judge in this latest case, Judge Michael Sage, said that he had never seen such a case in 20 years as a judge and 30 years as a lawyer. Judge Sage made reference to the 2005 DUI that landed Ante the four year sentence.

“You served every day of that,” Sage said as he made his ruling. “I struggle with cases like this,” he continued, “because, in my mind, alcoholism is a disease.” Sage noted, however, that Ante did not use his previous time in prison to address his problems with alcohol.

In making his decision to enforce the maximum sentence, Sage said that he was protecting the public. “You are a ticking time bomb waiting to kill somebody,” he told Ante.

Ante’s 21 drunk driving convictions stem all the way back to his first one in 1982.

How to Locate Parties' Social Media Connections

Thu, 04 Mar 2010 05:01:12 GMT

Social media sites can be valuable sources of information in Family Court cases. Frankly, it is simply amazing sometimes to see the types of information people publish about themselves and their actions on these sites. However, in today's web-laden society, it's hard to know where to start looking sometimes to find all of a party's networks.

Flowtown can prove useful in helping you identify this type of information. Here's how it works – simply submit an email address to Flowtown and it generates a report listing every social network it can find with a member using that email address. It works fast, and best of all, it's free! It can find accounts on Linkedin, Twitter, Facebook, MySpace, Flickr, Plaxo, Classmates, Amazon, YouTube, Pandora, StumbleUpon, and several others. You can try it out by clicking here.

Source: "How To Find The Opposing Party on Facebook" by Lee Rosen, published at his Divorce Discourse blog.

The BAM in Obama?

Thu, 04 Mar 2010 10:00:29 GMT

The Los Angeles Times reported last week on an interesting nugget – the Missile Defense Agency’s new logo sports a blue O, a red-and-white swooping swirl, and white outlining to set the image off from a blue background.

The logo looks like this:

Remind you of anything? Say, this:

The LA Times article remarks upon a “perceived similarity” between the two. However, I submit that what is more interesting than this “perceived similarity,” is what the blogosphere is discussing as the perceived message behind the MDA’s new logo. An official at the MDA, Richard Lehner, states that “[t]he symbolism of the design is that it shows missile defense as a global system to defend the US, our deployed forces and allies and friends, as depicted by the path of an interceptor missile and a flash (not a star) denoting a missile intercept.”

The Washington Post, on the other hand, asks “Is the Missile Defense Agency's logo Obama-meets-Islam?”, pointing out that “conservatives’ charges that a logo being used by the Pentagon’s Missile Defense Agency looks very much like a fusion of the Muslim crescent moon and star and the Obama campaign logo. Some folks even detected a similarity to the Iranian Space Agency logo.”

What I find most interesting is that, according to Mr. Lehner, the MDA began using the logo to its materials three years ago to save costs over using its previous logo. I couldn’t find any information on when the Obama logo debuted, but I’m wondering whether the blogosphere has considered the possibility that it is the Obama logo that is newer than the MDA logo.

What do you think?

Attack on Tort Reform as "Ingeniously Marketed" is on the Money

Thu, 04 Mar 2010 13:00:25 GMT

In an article for the Atlantic, legal analyst Andrew Cohen calls tort reform anti-democratic, but ingeniously marketed by corporate America:

Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.

Personal experience in talking with clients and prospective jurors in voir dire during trials makes me conclude that average citizens do not understand tort reform. Most people think that tort reform addresses frivolous lawsuits instead of lawsuits involving the worst possible conduct. People do not understand that:

It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.

Why do tort reform’s proponents push a solution that does not apply to the “problem” of frivolous lawsuits? Because frivolous lawsuits is not really the problem for corporate America. They can squash a frivolous lawsuit like a bug. What they can’t squash without damages caps is their liability exposure for terrible conduct such as covering up a product’s dangerous defect. And they know that the public wouldn’t go along with it if the public knew the truth.

The reason that people do not understand tort reform is because proponents of tort reform do not want them to. Tort reform proponents invariably talk about merit-less lawsuits when selling tort reform.

So they pull a bait and switch using a frivolous lawsuits straw man. They talk about despicable trial lawyers and frivolous lawsuits and push through damages caps that don’t even address their stated “problem.” It’s a ploy—but it’s a smart one to get what they want.

Is There A Duty To Have A Green Workplace?

Thu, 04 Mar 2010 19:11:11 GMT

With the global spotlight on reducing greenhouse gases and carbon footprints, including the Obama Administration’s unprecedented attention on encouraging environmental conservation and development of renewable energy sources, it’s clear that we’re in a “go green” era.

To cut to the question posed in this blogposts’s title, the answer is “no”. There is no legal duty, at present, for a private employer to “go green”. Perhaps at some point in the future, statutory authority such as the federal Occupational Safety & Health Act and state and local counterparts will include “green workplace standards”. For example, with respect to the investment in “green jobs” the Department of Labor and National Institute for Occupational Safety and Health are already focusing on ensuring that OSHA standards are appropriately designed and enforced to protect workers performing that type of work. At present, however, there are no mandates and instead only various governmental and non-governmental incentives for a workplace to go green.

The U.S. Environmental Protection Agency (EPA) and Pew Center on Global Climate Change estimate that commercial and industrial buildings account for nearly half of all energy consumption in the U.S., and are responsible for nearly half of U.S. greenhouse gas emissions. The Energy Star Program, administered by the EPA and U.S. Department of Energy, attempts to encourage energy efficiency in buildings to meet strict energy performance standards set by EPA and reduce greenhouse gas emissions. Federal buildings are eligible to receive a High Performance Building designation.

In addition, commercial real estate and private companies are leading the green charge through voluntary compliance with standards set by a private, nonprofit membership organization, the U.S. Green Building Council (USGBC). The USGBC’s LEED® (Leadership in Energy and Environmental Design) Green Building Rating System™ awards points for satisfying specified green building criteria. The six major environmental categories of review include:

· Sustainable Sites

· Water Efficiency

· Energy and Atmosphere

· Materials and Resources

· Indoor Environmental Quality and

· Innovation and Design

A building, or unit therein, can be certified as LEED Silver, Gold, or Platinum based on the total number of points earned within each LEED category. For example, our firm’s Miami and Los Angeles offices are in buildings with LEED Gold certification. It was reported two days ago that a high profile commercial property investment company will spend up to $10 million retrofitting its properties for environmental sustainability. LEED can be applied to all building types including new construction, individual unit commercial interiors, core & shell developments, existing buildings, homes, neighborhood developments, schools and retail facilities. In addition, LEED for Healthcare was released in early 2008.

In sum, the green movement has not yet resulted in mandated private employer obligations. Notwithstanding the lack of affirmative duty to do so, however, based on information provided by the USGBC and EPA there are many pragmatic benefits that employers should consider for greening their workplaces:

· Monetary and tax incentives

· Energy Efficiency: Using energy more efficiently may save operating costs on utility bills over the life of the building; reduce the cost per unit on manufactured goods and services; and enhance resale and lease value of real estate

· Environmental Efficiency: Reducing environmental impact may reduce waste materials and disposal costs, water usage, chemical use and disposal costs; encourage recycling and reuse of materials; develops local markets for locally produced materials, saving on transportation costs and develops economy-of-scale price reductions

· Human Efficiency: Improving indoor environment, producing healthier places to work leading to increases productivity; reduction in absenteeism; boosting morale and corporate loyalty (also through creation of corporate “green teams”), and reduction in employee turnover

· Green Buildings often receive high profile notoriety and increased public perception of goodwill toward employees and the community.

Losing Sucks

Wed, 03 Mar 2010 13:00:05 GMT

You heard me. Losing a trial sucks. On multiple levels. Sorry if you don't like my vocabulary.

Even worse, a win does not even out a loss. Tennis great Andre Agassi described it as well as anyone that I've heard even though he was talking about tennis and not trials:

Now that I've won a slam, I know something that very few people on earth are permitted to know. A win doesn't feel as good as a loss feels bad, and the good feeling doesn't last as long as the bad. Not even close.

Shortly after I started my first job as a lawyer I heard veteran trial lawyer Natie Caraway say basically the same thing. It took personal experience winning and losing trials to understand it.

For me a loss on appeal does not feel bad as a loss at a trial. And the loss of a bench trial does not feel as bad as the loss of a jury trial. The loss of a jury trial feels the worst because you hang it all on the line for twelve people who you don't know and you are shattered when you find out that you could not convince them. And if you believe in your clients case--and most lawyers do--you think that the jury got it wrong. That makes it worse.

I have no answer for the best way to deal with a loss. But I agree with Chicago lawyer John Tucker on this point:

Courtroom lawyers and people who play sports are engaged in an endeavor where there is a winner and loser of every contest, and no matter how good they are, sometimes they lose.In fact, in both endeavors it is often true that the better they are the harder their contests and the more often they will lose. You don't have to like it-in fact, you had better not-but you won't last long if you don't learn to get over it, or at least put it far enough behind you to go on to the next case.

Some lawyers lose a big trial and never recover. They are habitually afraid to re-enter the courtroom for fear of losing again. The best lawyers get over it and seek the adrenalin rush of going back in and putting it all on the line again.