SBM Blog

Twitter Tips for Lawyers

Sometimes, do you type a sentence and then have to pause and think "I can't believe I just wrote that?"  See the headline above. On the other hand, according to Slaw, over 2000 lawyers have downloaded  Essential Do's and Dont's for Twitter users from the Canadian LAWPRO Magazine. They may know something you don't know.

Fukushima Legal Fallout

This Asian Lawyer story explains that while the legal aftermath of the meltdown of the Fukushima nuclear power plant in Japan is much different than it would have been in our legal system and culture, the wheels are starting to turn on legal action against the Tokyo Electric Power Company (TEPCO) for $72 billion in damages:

Most of those claims have been expected to be processed via a mediation scheme rather than litigation. The Japanese government has set up a fund to pay damages on the company's behalf, and contributed an initial $26 billion to it, with a further $11.7 billion payment approved in November and more capital injections to come. For its part, Tepco will make annual contributions to the fund along with Japan's other nuclear operators. The plan is to ensure that victims get a swift payout while keeping Tepco on life support and generating power for a country that had to ration electricity usage for six months after the disaster.

Brief Writing: Tips for Getting to Perfect

High-stakes writing under tight deadlines is a classic prescription for panic and mistakes. This piece in the Texas Lawyer, Embrace Editing Techniques to Improve Briefs, has nearly a dozen practical editing tips to help ensure that your brief doesn't contain errors and to sharpen your writing.  As for your legal reasoning, as always, you're on your own.

New York Ethics Opinion Allows Lawyers to Offer Groupon Deals

A lawyer "deal of the day" is okay in New York. It's an unsettled question most everywhere else, but an opinion (PDF) by the New York State Bar Association Committee on Professional Ethics says that money paid to Groupon or a similar website is not an improper referral fee as long as it's a reasonable payment for the type of advertising. Further,

A lawyer may properly market legal services on a 'deal of the day' or 'group coupon' website, provided that the advertisement is not false, deceptive or misleading, and that the advertisement clearly discloses that a lawyer-client relationship will not be created until after the lawyer has checked for conflicts and determined whether the lawyer is competent to perform a service appropriate to the client. If the offered service cannot be performed due to conflicts or competence reasons, the lawyer must give the coupon buyer a full refund. The website advertisement must comply with all of the rules governing attorney advertising, and if the advertisement is targeted, it must also comply with Rule 7.3 regarding solicitation.

How far we've come since Bates v. State Bar of Arizona, eh?

HT: ABA Journal

Six Month Jail Sentence For English Juror Who Did Online Research On Case

In a high profile case that went to England's high court, a university lecturer who did online research about a case on which she was sitting as a juror has been sentenced to six months in prison. Her research discovered that the defendant had a prior conviction, which included an allegation of rape, a fact that she shared with her fellow jurors. The Guardian report of the case includes excerpts from the tribunal's judgment that make clear that the other jurors were aware of the prohibition on online research and were disturbed about hearing what the online research had revealed.

State Employees, Smelling Like a Rose

A New Hampshire legislator has introduced legislation that would ban perfumed state employees:

HB 1445 - State employees who work with the public shall not wear fragrances or use scented products during regular business hours.

HT: Overlawyered

This is Not One of Mitt Romney's Homes

A member of the California Sikh community is suing Jay Leno on behalf of himself and Bol Punjabi All Regions Community Organization for libel for labeling a picture of this famous shrine in Amritsar, India as a Mitt Romney summer home.

HT: Res Ipsa Loquitur

Photo taken by Ian Sewell.

Justice John Paul Stevens' Favorite Chief Justice

From an interview in U.S. News & World Report, the answer is Chief Justice John Roberts:

He's a delightful person, a very intelligent person, and a very fair leader both in open court and in conferences among the justices.

What Would Thomas Jefferson Say About This?

The Wall Street Journal's Law Blog flags a story in the Memphis Commercial Appeal that the Tennessee Tea Party wants to amend state law on school curriculum and textbook selection so that “no portrayal of minority experience in the history which actually occurred shall obscure the experience or contributions of the Founding Fathers.”  In case you're not completely sure what that means, an attorney/spokesperson for the group says the goal is to address “an awful lot of made-up criticism about, for instance, the founders intruding on the Indians or having slaves or being hypocrites in one way or another.”

Illustration: Screenshot of a webpage from the Mount Vernon Ladies' Association of the Union.  Mount Vernon, President Washington's home, is owned and maintained in trust for the people of the United States by the Association of the Union, a private, non-profit organization (501c3) founded in 1853 by Ann Pamela Cunningham.

Welcome to the Stylish New Federal Rules of Evidence

The Restyled Federal Rules of Evidence, hyperlinked from rule to rule, is now online. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States explains that the restyling of the Evidence Rules was the fourth in a series of comprehensive style revisions to simplify, clarify, and make more uniform all of the federal rules of practice, procedure, and evidence.  Thanks, guys.

Garnishment and Tithing Don't Mix

In case you were wondering. In United States v. Thomas, an action brought by the government in the Eastern District of California seeking garnishment of wages to pay off a $1.86 million balance on a restitution order growing out of the defendant's criminal conviction for embezzlement of funds from her employer, the defendant sought to exclude 10% of her monthly pay from garnishment so she can use it to tithe to her church, the Church of Jesus Christ of Latter Day Saints. No dice, said the court:

[D]efendant has provided no legal authority or argument whatsoever supporting the proposition that the court's denial of a tithing exemption from garnishment would constitute a First Amendment violation. For this lack of legal support alone, defendant's request should be denied.

Additionally, defendant failed to provide factual support for the proposition that she would be prevented from attending her church or temple if she failed to pay her tithe.

Letter I Wish I'd Gotten When I Was A 1L

AboveTheLaw has this compassionate letter from the Dean of the University of Chicago Law School to the school's 1Ls on the occasion of their first law school grades:

Dear 1Ls:

Today will be the first time many of you have ever received a B or a C, because at some point after 3:30 you will receive the grades your professors gave your exams. The grades you receive are a reflection of what a professor thought of your exam and how much you were able to convey in one 3 hour or 8 hour period. Your grades are not a reflection of your worth as a lawyer, as a student, or anything else.

If you are thrilled with your grades, congratulations. Go home, pat yourself on the back, and remember that law school is like a pie eating contest. Only the prize for getting great grades is the same as the prize for getting lower grades: more pie. Take some time to whoop, call your non-Law School friends, and get back to work.

If you are disappointed with your grades, go home, take some time to be frustrated, and remember that law school is like a pie eating contest. Only the prize for getting lower grades is the same as the prize for great grades: more pie. Take some time to be disappointed, call your non-Law School friends, and get back to work.

Regardless of whether you are thrilled or disappointed, think very carefully before you tell your classmates your grades. I truly believe that no good comes of it, and strongly urge you to resist the temptation. As I mentioned at Friday’s Academic Counselor session, things people say about their grades aren’t necessarily true, so if a classmate has the bad judgment to talk about their grades, keep in mind that they may or may not be entirely truthful.

Keep in mind that one quarter of grades you’re not happy with is not the end of the world. As the Academic Counselors pointed out last Friday, the first quarter counts for 6 credits. 1L year is 40 credits. Graduating from the Law School requires 105 credits. Some of the people who graded on to Law Review this year did very poorly their first quarter of 1L year, and the grades combined are only worth as much as your crim, contracts, or property exams alone.

ABT's Elie Mystal suggests that the message makes sense for students at elite law schools, provided they are not gunning for a Supreme Court clerkship, but does not necessarily make sense for 1Ls at other law schools. I disagree. The message makes sense for everyone. Panic and gossip are not advisable in any context. As for telling students at elite law schools to chill about their grades, forget it. Obsessing about grades is how they got there.

Can Lawyers Go To Jail For Bad Legal Advice? Yes

Particularly, concludes Jack Fernandez, the author of "An Essay Concerning the Indictment of Lawyers for their Legal Advice," when the legal advice is not only specious but involves a strong element of self-dealing.  The essay analyzes several recent cases. Download it here.

HT: Legal Ethics Forum and White Collar Crime Prof Blog

Happy New Year! Michigan-Based Law Firms and China

Miller Canfield has a Shanghai office and a Chinese version of its website. Honigman has signed a business partnership with a Chinese firm. Warner Norcross and Dykema advertise their China practice, as does Kerr, Russell & Weber. SBM Blog welcomes information on other China practices in Michigan-based law firms.

Congratulations to MLW's 2012 Leaders in the Law

Michigan Lawyers Weekly has announced its 25 Leaders in the Law for 2012:

John W. Allen, Varnum LLP • Andrew R. Basile Jr., Young Basile Hanlon & MacFarlane PC • Mark J. Bernstein, The Sam Bernstein Law Firm • Thomas P. Branigan, Bowman and Brooke LLP • John V. Byl, Warner Norcross & Judd LLP • John G. Cameron Jr., Dickinson Wright PLLC • David E. Christensen, Michigan Auto Law • Jerry Dorsey IV, Wayne County Prosecutor’s Office • Darius W. Dynkowski, Ackerman, Ackerman & Dynkowski P.C. • Brian D. Einhorn, Collins, Einhorn, Farrell & Ulanoff, P.C. • Geoffrey N. Fieger, Fieger Law PC • Hon. Nanci J. Grant, Oakland County Circuit Court • Craig E. Hilborn, Hilborn & Hilborn, P.C. • Maurice G. Jenkins, Jackson Lewis LLP • Craig H. Lubben, Miller, Johnson, Snell & Cummiskey, P.L.C. • Barbara J. Morrison, Oakland County Prosecutor’s Office • Steven L. Oberholtzer, Brinks Hofer Gilson & Lione • Jesse M. Reiter, Reiter & Walsh, P.C. • Rebecca Simkins, Barris, Sott, Denn & Driker, P.L.L.C. • Phillip D. Torrence, Honigman Miller Schwartz and Cohn LLP • Jonathan Tukel, U.S. Attorney’s Office for the Eastern District of Michigan • Jerome R. Watson, Miller, Canfield, Paddock and Stone, P.L.C. • Anne Widlak, Nemeth Burwell, P.C. • Hon. Robert P. Young Jr., Michigan Supreme Court • Rodger D. Young, Young & Susser, P.C.

See The Michigan Lawyer for details.

Penn State's General Counsel To Step Down

From the Penn State press release:

When Cynthia Baldwin accepted the position of full-time vice president, general counsel and chief legal officer for Penn State in January 2010, it was with the understanding that she would serve in a transitional role to help establish and organize the office, manage Penn State's legal function and pave the way for a permanent general counsel to be hired following a national search. In the two years since Baldwin accepted that charge, she has worked to oversee what has become a very busy unit, with two attorneys, a paralegal and an administrative assistant at University Park, and two attorneys and a paralegal based at Penn State Hershey.

Baldwin served on the Pennsylvania Supreme Court from 2005 to 2008. A story in The Centre Daily Times reports “Penn State spokeswoman Annemarie Mountz said the timing of the transition is unrelated to the fallout from the Jerry Sandusky sex abuse scandal that is embroiling the university.”

Concurrent Jurisdiction Plans, Coming Soon to A Court Near You

In fact, they may already be there.  In 4.5 minutes, State Court Administrator Chad Schmucker explains what concurrent jurisdiction plans are, how they can help balance workload and improve public service, what their limitations are, and why not to fear them.

Double Jeopardy in England: RIP?

Changing a centuries-old rule intended as a restraint against tyrannical government is obviously a big deal and worth some attention. I confess that I entirely missed the fact that England amended its double jeopardy prohibition in 2005 to include some narrow exceptions. A catalyst for the change was a notorious killing of a black teenager, Stephen Lawrence, in 1993.  Five white men were tried and law was changed,  on the basis of new evidence, including forensic evidence, two men of the men acquitted of Lawrence's murder were retried.  On January 4, they were convicted. You can find a boatload of commentary on the case and the change in the double jeopardy law online.  Here's an excerpt from a brief and interesting post in The Justice Gap, by an English criminal defense lawyer and Queen's Counsel:acquitted for the murder. A subsequent public inquiry found that London's Metropolitan Police Force was "institutionally racist," and recommended an exception to the double jeopardy rule in narrow cases upon new and compelling evidence.  After the double jeopardy

In 1789 when the Founding Fathers were drafting the new Constitution of the United States the rule against double jeopardy was regarded as so fundamental a right that it was enshrined in the Fifth Amendment (‘nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb’). Blackstone was quoted with approval by the US Supreme Court in Green v. United States, 355 U.S. 184, 187 (1957) where the court explained that the underlying idea behind the principle was that it should act as a ‘guarantee that the State with all its resources and power shall not be allowed to make repeated attempts to convict an offender for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity’.

So even though the Stephen Lawrence case and the Macpherson report that followed were instrumental in raising the question of whether the law of double jeopardy should be changed it was no mere trifle when the last government decided to abolish this principle through the Criminal Justice Act 2003, sections 75 to 97.

Many people felt this was a very retrograde step. I have to admit I was one of them. It seemed to me that when there had been a rule in English Law such as autrefois acquit for hundreds of years that the starting point should be to ask why such a venerated rule should be jettisoned after all that time?

If I am being honest I have to accept that the reason my view about the propriety of the change in the law has subsequently altered has been more than a little affected by the fact that this change has allowed some of those who murdered Stephen Lawrence to be brought to justice and convicted of his appalling murder.

Pictures in Judicial Opinions -- No Copyright Problem?

There are serious reasons to wonder whether the use of photos and illustrations other than exhibits in judicial opinions is a good idea. But who would guess that judges using such enhancements would be nonchalant about copyright?  Seventh Circuit Court of Appeals Judge Richard Posner's use of a photo of Bob Marley without attribution last week in Grayson v. Schuler prompted the photographer, David Corio, to tell Reuters he thought "a judge of all people would be decent enough to ask permission before using an image."

In an interview with Reuters, Posner said he found the photo online, copied it, and then pasted it into the opinion. Asked if he thought there was a copyright problem, Posner "took a few minutes to think about it" before telling Reuters that he didn't think so.  (Read the Reuters story for his brief rationale.)

HT: Legal Blog Watch

"The testimony is real. The puppets are not."

 

A Cleveland television station's coverage of a county corruption trial through the use of puppets is creating a sensation. The trial judge has banned cameras, but the sensational, and sometimes hilarious, subject matter lends does seem to lend itself well to a theatrical presentation, so who can blame them? From the Cleveland Plain Dealer:

The conversations had the ring of a Hollywood movie about the mob: a plot to get big money, profanity laced banter, references to code names, talk of people who had the "juice" and the obligatory threats of retaliation.

But, in fact, they were real. The characters doing the scheming and dropping the f-bombs were Cuyahoga County public officials. The money in question: county tax dollars. And the people they wanted bad things to happen to were mid-level county workers.

Perhaps, in the face of the U.S. Supreme Court's intransigence about cameras in their own courtroom, the networks should try using puppets to re-create the upcoming argument before the Court on the constitutionality of the health care law.

"What Part of 'Lifetime Appointment' Don't You Get, Sir?"

 

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
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 Anytime you feel you need a need to lighten up about the U.S. Supreme Court, you only need to turn to this, Stephen Colbert's interview of retired Justice John Paul Stevens.

Report: Most Law Students Pretty Satisfied

The growing "don't go to law school" message in the popular press and law blogs meets some resistance in a new national survey finding that over 80% of law students view their law school experience favorably, and 80%  would do it again.  The Law School Survey of Student Engagement also delves into the classroom experience and participation in class and co-curricular activities, and provides data about the differences between full-time, part-time, and transfer students. 

Sussex County, Delaware: "Lord's Prayer is Not Christian"

A lawyer defending a challenge to the recitation of the Lord's Prayer to open county council meetings  argued in federal district court this week that the prayer is generic and, consistent with the the U.S. Supreme Court's view of the dictates of the Establishment Clause in Marsh v Chambers, does not proselytize or advance or disparage any particular religion. The federal district judge hearing the case asked, "Is there any dispute that today, only Christians say the Lord's Prayer?"  Sussex's counsel replied that Jesus "was not offering a Christian prayer in the Christian tradition because no Christian tradition existed," and that although the Lord's Prayer is commonly associated with Christianity, it came from Jesus who was a Jew.  The judge told the parties that he was afraid that the case was difficult because there is no reference in the prayer to Jesus or Allah. Stay tuned.

HT: Religion Clause

Golan v. Holder: Now You See/Hear/Read It, Now You Don't

Legal correctness aside, sometimes it's hard not to take a judicial opinion personally.  Case in point: Tuesday's U.S. Supreme Court decision, Golan v. Holder, which took a big swatch of beloved works of art previously free to all out of the public domain and put them back under copyright protection: some favorite Picasso, Prokofiev, Shostakovich, J.R.R. Tolkien, just for starters.

ScotusBlog's Lyle Denniston describes the breadth of the opinion in "The Public Domain Shrinks":

The Court’s main opinion conceded the economic change that the 1994 law brought about.  Using an example of a work that gained new copyright protection in the U.S., Prokofiev’s “Peter and the Wolf,” Justice Ginsburg said that, while that once could be performed free of charge, the 1994 law required that “the right to perform it must be obtained in the marketplace.”  But, the opinion went on, that is the same marketplace that exists for U.S. composers like Aaron Copeland and Leonard Bernstein that have enjoyed copyright protection, and yet American performers have not been economically incapable of regularly performing the Americans’ works.

We'd show you what you'll now be missing.  But we can't.

The Value of an LL.M

In a competitive marketplace and a world in which more education is almost always an advantage, the news that some legal recruiter are advising holders of an LL.M to leave that credential off their resumes when applying for some BigLaw jobs is making headlines. The skeptics say that the market is looking for experience, not advanced training.  Law schools with advanced degree programs are pushing back, saying that the advanced law degree provides a competitive advantage in many markets. And even the skeptics about the value of the masters in law degree make two exceptions -- an LL.M for foreign-trained lawyers, and a tax LL.M.