Over at the North Carolina Law Blog, Jim Dedman, proprietor of Abnormal Use (and friend of this blog) writes about a perceived risk of writing a law blog: that your opponents may take the things you write and use them against you in court.

I agree with Jim entirely that there isn’t much reason to worry about that, not least because of the low odds that you will actually say something your opponent could really use against you in court.  I believe in what I do as a lawyer and so my thoughts expressed on this blog are usually consistent with the arguments I make in court.  I assume the same is true for Jim, even though he does exactly the opposite of what I do.  If you don’t believe strongly enough in the work you do as a lawyer, you should probably focus more on finding direction in your professional life or changing practice areas than on writing a blog.

But that’s not to say there aren’t some very real risks in setting up and writing a blog.
Continue Reading The Real Risks Of Writing A Legal Blog

[Update, February 3, 2012: The Komen Foundation reversed its decision. That’s of course the right decision; the question now is if they will publicly explain how they came to make such an obvious mistake, and why they dishonestly denied the influence of politics in making the decision.]

If by chance you read this blog but live under a rock, earlier this week the Susan G. Komen Breast Cancer Foundation, Inc., cut all grant funding for Planned Parenthood Federation of America, Inc. For some reason the Susan G. Komen Foundation claims the decision wasn’t political even though, of course, it was. This isn’t even an abortion issue, because Planned Parenthood spends the vast majority of its funds providing non-abortion services, like the 750,000 breast cancer screenings they provide every year, including at steeply discounted rates for lower income women.

It was politics, pure and simple, and the astonishing part is that the Susan G. Komen folks seemed totally unprepared for the backlash. Just search Twitter for what people are writing to @komenforthecure. The whole scene is reminiscent of the March of Dimes / KV Pharmaceuticals / Makena fiasco from March of 2011, in which another well-respected charitable organization lost its way, got involved with the wrong sort of people, and ended up making a wildly irresponsible choice diametrically opposed to the claimed mission of the organization.

It’s the second big debacle for Susan G. Komen Foundation in this young decade — in late 2010 and early 2011, the Foundation came under fire for its aggressive stance in protecting its trademarked phrase “race for the cure” (listed in the US Trademark database as “organizing and conducting foot races to raise money for breast cancer research and local community breast health awareness programs”) against small groups like, for example, “kites for a cure,” which flew kites to raise money to treat lung cancer. Komen hasn’t sued them, exactly, but it has filed oppositions with the U.S. Patent and Trademark office, which all the same compels the smaller organization to hire lawyers and deal with the issue. As Luke MacDowall wrote in an extensive law journal note on the trademark issues involved, “[t]his case presents the perfect example of a situation where one probably has a responsibility not to enforce one’s rights” because enforcement of Komen’s trademark does little to reduce confusion among the public while causing substantial damage to other organizations with worthy and compatible missions.

The Komen Foundation eventually backed down — as they should have in the first place given how, as best I can tell, they lost the only fight they ever continued to its conclusion, with the American Cancer Society prevailing on its use of “cars for a cure,” 2001 TTAB LEXIS 455 (Trademark Trial & App. Bd. June 13, 2001) — but the core problem remained.

Continue Reading Susan G. Komen, March of Dimes, and Corruption by Branding

Lawyers, particularly young lawyers, often pride themselves on being more clever than one another, and so particularly resent other lawyers who don’t seem to possess the same rapier wit and razor-sharp reasoning skills we claim for ourselves.

Every lawyer knows that dimwit who they can’t believe even passed the bar. The one with all those uninspiring and poorly-researched arguments in their briefs that never cite any relevant cases. The one who prefaces every argument to the court with “in layman’s terms,” as if the judge wasn’t also a lawyer.

The one who, despite being dumb as a stump, has a steady clip of good business.Continue Reading The Secret Behind The Dumb But Successful Lawyer

A couple days ago the New York Times inexplicably had a front-page story on an issue that is news to no one: law schools don’t teach much about the practical side of lawyering.

Yeah, no kidding.  All the usual folks have chimed in (see, e.g., Greenfield, Concurring Opinions, Above The Law, etc.; probably my favorite was Balkinzation tying it larger economic forces), with Elie Mystal having the most depressing take of all:

At the end of the day, this all comes down to the lack of responsibility and critical thinking on the part of individual prospective law students. Law students are not practically trained because they don’t go to law school to be practicing attorneys. They go to law school because they love to “argue,” or “defend rights,” or some nonsense that has little to do with day-to-day lawyering. When they do go, they think little of the long-term financial future they are mortgaging on a law degree.

I sighed just reading that, and had to refresh myself with my old post about The Glamour and Glory of Being A Lawyer.

Before I write another word about the realities of law school and lawyering, let me first discuss something near and dear to my heart: hating the work of Andy Warhol.  He’s “the greatest artist of the 20th century” according to the head of “First Open Sale” at Christie’s because his “art” accounts for one-sixth of all contemporary art sales:

Warhol is now the god of contemporary art. He is indeed, it is said, the “American Picasso” or, if you prefer, the art market’s one-man Dow Jones. In 2010 his work sold for a total of $313m and accounted for 17% of all contemporary auction sales. This was a 229% increase on the previous year—nothing bounced out of recession quite like a Warhol. But perhaps the most significant figure is the rise in his average auction prices between 1985 and the end of 2010: 3,400%. The contemporary-art market as a whole rose by about half that, the Dow by about a fifth. “Warhol is the backbone of any auction of post-war contemporary art,” says Christopher Gaillard, president of the art consultants Gurr Johns. “He is the great moneymaker.”

Profitable, but I can’t help thinking his “art” is pointless.  That linked article confirmed my biases by noting Warhol actually had to pay the princely sum of $50 to gallery owner Muriel Latow to figure out his own style of “art”:

In return for a $50 cheque, she told him “to think of the most common, everyday, instantly recognisable thing he could”. He thought of his doting mother, Julia Warhola. Warhol had been, according to the philosopher and critic Gary Indiana, her “tantrum-prone, acne-riddled, albino lion cub”, a difficult and sick child to whom she gave maximum attention. He was spoilt—the family’s “moody, tyrannical centre-piece” who “shaped weaknesses into weapons for rejecting anyone he didn’t like and avoiding anything he didn’t want to do”. Julia lived in the basement of the Manhattan town house he had bought with his money from his advertising commissions. She used to give him soup for lunch—Campbell’s soup.

Now that you know where the Campbell’s soup can came from, and how Warhol didn’t even dream up that, let me get to the point of mentioning him. I consider Warhol to have been a shameless pirate of other’s copyrighted works — photographers Charles Moore, Fred Ward, and Patricia Caulfield all filed lawsuits against him for using their carefully composed photographs in dashed-off monochromatic silk screens — but as far as I can tell not one court ever held him liable for copyright infringement, in part because he settled the cases before the question could be answered.

So, did Warhol’s work infringe upon those other artists work? Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)(“the sine qua non of copyright is originality”). Obviously the art world obviously disagrees with me about his originality, but would a judge or jury? Assuming the jury did find infringement in, say, his Green Car Crash (Green Burning Car I) — which was nothing but a couple overlaid copies, all drenched in the same ugly green, of photographer John Whitehead’s haunting image of a horrific crash following a police chase — then how much of its whopping $71 million auction price was due to Whitehead’s image and how much was due to Warhol’s attempt to “always leave them wanting less”? (Mission accomplished, Andy.)

I don’t know the answer. No lawyer “knows” the answer. Consider the amicus brief filed by the Andy Warhol Foundation in the lawsuit brought by photographer Patrick Cariou against Warhol-esque pastiche artist Richard Prince. This is complicated stuff. It requires technical mastery of the principles of copyright law and creative, careful advocacy applying that law to artistic contributions so subtle that folks like me refuse to admit they exist at all. There is no way law school will ever prepare anyone to advise an artist or a gallery or the owner of artwork on the line between originality and infringement. Lawyers have to develop that judgment over time. Law is a profession, not a technique.

So when I read David Segal open his article in the New York Times with an anecdote about a first-year lawyer not knowing how to file a certificate of merger, I roll my eyes. 
Continue Reading Andy Warhol And The Purpose Of Law School

The Philadelphia Bar Association’s annual Bench-Bar conference is always interesting and, true to legal conference form, usually held some distance away from the actual location they’re discussing, and so a bunch of Philadelphia lawyers and judges went to Atlantic City to discuss Philadelphia. For the long version, see the Philadelphia Bar Association’s collection of the speeches turned into podcasts. For the short version, see The Legal Intelligencer:

The biggest inequities in the Philadelphia court system are not caused by corrupt judges, but by a collision involving the lawyers’ monopoly in providing legal services, harsh economic realities facing young lawyers and litigants who can’t afford attorney fees, a panel at the Philadelphia Bar Association’s annual bench-bar conference said.

Philadelphia Common Pleas Court President Judge Pamela Pryor Dembe said that “in this do-it-yourself world, there are going to be more and more people pushing for ways to access justice without lawyers.”

The problem, of course, is money:

Course planners Superior Court Judge Anne E. Lazarus and Eric H. Weitz, a plaintiffs attorney with Messa & Associates, posed hypotheticals of how finite resources in the court system and the volume of court cases can collide and perhaps produce injustice.

Lazarus noted that in the court’s civil division, judges have to resolve 121 cases a day just to keep pace with the number of cases filed a year. “But we as a society are not willing to discontinue a program to house the homeless so we can hire 20 more judges in Philadelphia,” Lazarus said.

Weitz suggested that in custody matters that the more “resource-rich” parent wins, often by wearing down the other parent, and judges are reluctant to upset the apple cart by overturning already-existing custody arrangements.

There is nothing new about that. Google “access to justice” and limit to results in the past 24 hours and you’ll still get thousands of results. I did that and immediately saw an article from Minnesota Public Radio arguing that “Access to justice differs depending on one’s bank account.” There was also a press release from the White House trumpeting the U.S. Department of Justice Access to Justice Initiative, formed to deal with that exact issue.

The numbers are staggering. In the criminal arena, public defenders routinely have thousands of cases to defend. Know any plumbers that can fix two thousand toilets in a year? I don’t, and fixing a toilet is usually quicker than ensuring someone’s search and seizure rights are protected and that they’re zealously defended at a trial. In the civil arena, more than 50 million Americans qualify for federally funded legal assistance, but funding for direct legal service non-profits is so low that only a tiny fraction of those get any help at all.

The great irony is that, while we have a huge unmet demand for legal services, we also have a huge oversupply of lawyers, but there’s apparently no way to bridge the two. As Judge Dembe said at the conference, there are many young lawyers with an “enormous amount of debt attached to their ankles.” For many, it’s so much debt that they don’t think it’s worth it for them to try their hands at being low-cost, friendly neighborhood lawyers. They’re better off escaping the law entirely and begging their parents to help them pay the student loan bills while they look for greener pastures.

Even young lawyers who have the means and the motivation to build their own practices have problems building a book of business because they need experience to get experience and clients rarely know how to begin looking for lawyers, much less how to find inexpensive, qualified lawyers. The panelists made some negative remarks about ads on the side of a bus; in reality, even lawyers like me who went to law school in Philadelphia and have worked in the legal community here for years only really know a handful of lawyers in each of the various practice areas. I can count on my fingers the number of criminal defense lawyers who I would think to call if I was arrested — how would someone who has spent no time at all interacting with lawyers know who to call? Googling “best lawyer in Philadelphia” isn’t going to help.

Smart people have proposed clever solutions. Lawyers and law professors have rightly raised a variety of concerns about services like Avvo and the dreadfully-named Shpoonkle, but, as someone who has received flowers and chocolate from people for doing nothing more than giving them the name of a competent lawyer who charges a reasonable fee, I can attest that there is tremendous demand out there for a service that connects clients with minimal financial resources to cost-efficient lawyers.

Some people and companies, notably including legal form providers, have proposed “unbundling” legal services to allow non-lawyers with some legal training to provide a discrete set of services, like preparing certain pleadings or arguing routine motions. Lawyers have a lot of differing opinions on that. Unbundling creates various client-service and professional-responsibility dangers, but it would likely make legal assistance, if not quite representation, much more affordable in certain circumstances.

Others, most commonly non-practicing lawyers who don’t have to square expenses versus revenue at the end of the month, have devoted their time to moralizing we do about the importance of pro bono service. Sure, Clarence Darrow worked tirelessly for clients of all economic backgrounds, and wasn’t paid at all for a third or more of these cases, but that phase of his life didn’t start until after he had made plenty of money representing the most evil and hated companies of the era, the railroads. Even then, he was in the unique position of having so many paying clients that he could afford to pursue his passions. Moralizing to lawyers today looking for just enough business to make rent doesn’t do anyone any good.

I have my own clever ideas, like ditching 3L year of law school to leave recent law graduates in a better position to effectively represent clients with modest resources.Continue Reading The Politics Of Finding A Lawyer In Philadelphia

SCOTUSBlog, the premier media source — internet, newspaper, anywhere — for Supreme Court news, has just undergone a revision, including sponsorship by Bloomberg Law. Scott Greenfield, the premier source for complaints about legal blogging, thinks something was lost in translation:

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility. We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar. We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise. Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator. And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime. And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Bob Ambrogi is more sanguine:

I believe that Bloomberg’s sponsorship will prove to be a benefit to readers of SCOTUSblog. For several years now, this blog has moved closer and closer to becoming a serious — dare I say “mainstream” — news site, particularly since bringing aboard Lyle Denniston. Now it will be able to devote more staff and resources to that task, which can only make it all that much better.

And before anyone bemoans the blog for “selling out,” keep in mind that this new sponsor is, itself, a professional, global news organization, one that already has a strong legal news component. As a matter of fact, I would say that this sponsorship will be better for the blog’s readers than was the blog’s longtime affiliation with a major law firm, Akin Gump.

The rebirth of SCOTUSBlog as more a form of SOCUTSNews was unavoidable and has been a long time coming. You don’t get very far as a Supreme Court litigator by pointing out how unprincipled and political many of the Court’s decisions are. You also don’t become a major media source for commentary by pointing out that the court’s key opinions are loaded with rank hypocrisy — consider how often the five “Federalist” judges these days use ambiguous federal statutes to pave over state-created rights — or that their poorly-reasoned opinions often raise more questions than they answer.

Truth is, as a blog gets more popular, it tends to get more “mainstream” and less provocative. That’s not necessarily a bad thing; SCOTUSBlog was never particularly edgy, and there are plenty of people around more than happy to criticize our robed overlords. I couldn’t be happier that SCOTUSBlog has a bright and secure future as the primary source for plain-vanilla apolitical analysis of the Supreme Court; it’s the first place I go for information about the Court. No offense to the New York Times or NPR, but, when they report on the latest opinions, they simplify matters for their non-lawyer audiences, and they don’t helpfully link to the lower court opinions and the merits briefs.

The SCOTUSBlog revision puts into perspective some trends I’ve seen in the universe of practicing lawyer blogs. (Put aside the legal academic blogs and media ventures unaffiliated with firms; they have separate trends.) It seems the practicing lawyer blogs are separating into three general classes of blogs, which I’ll call the mainstream, the personalities, and the marketers.
Continue Reading The Three Types Of Practicing Lawyer Blogs

There’s been a lot of chatter on a couple law blogs about Rachel Rodgers, a 2009 law graduate with a knack for marketing herself. She’s licensed in New York and New Jersey but practices out of a home office in Arizona, where she’s not licensed; I’m not sure if it’s a “virtual law office,” because I don’t know what that marketing term really means, but I consider it to be one.

Let’s reflect for a moment on how novel that sort of law practice is. Not for Rachel in particular — she certainly didn’t invent telecommuting — but historically: until about the 1980s or so, it simply wasn’t feasible to practice law in a state on the other side of the country from where you live. These days, with e-filing and the ubiquity of email and electronic documents, running your law practice in a paperless manner like a “virtual law office” can often make it more efficient.

As Carolyn Elefant summarizes, Rodgers’ setup raises, but doesn’t necessarily decide, a few ethical issues. If, for example, Rodgers counsels Arizona clients, that’s a problem, because she’s not licensed there. If she represents or markets for New York or New Jersey clients, she has to be careful to follow their strict “bona fide office” and advertising rules. Like with the John Wait situation, another discussion over marketing for new lawyers, a number of law bloggers criticized Rodgers and her practice and its marketing; Elefant rounds them all up.

But let’s put that aside for the moment and jump over to medicine. Via Larry Ribstein (via Marginal Revolution), who wonders about the parallels to law, there’s the story of Jay Parkinson, MD, MPH:

Upon finishing my second residency at Hopkins in Baltimore in September of 2007, I moved back to Williamsburg to start a new kind of practice:

  1. Patients would visit my website
  2. See my Google calendar
  3. Choose a time and input their symptoms
  4. My iphone would alert me
  5. I would make a house call
  6. They’d pay me via paypal
  7. We’d follow up by email, IM, videochat, or in person

It was simple, elegant, and affordable for me to start. But most importantly, it just made sense given how we all communicate and do business today. …

Then, about six months later I got an official letter from the New York State Office of Professional Conduct. Obviously, that was unsettling. It essentially said that someone had made a complaint about my practice and my use of the internet. They wanted all of my records about the eight patients I prescribed narcotics for in my practice— I prescribed one time prescriptions for Tylenol #3 for eight patients treating their acute pain for various conditions.

Parkinson titles his post, “What happens to doctors who think outside the box?

So, what happened to Parkinson?
Continue Reading Disruptive Innovation In Medicine And Law