May 16, 2012
Redux: Depositions: Getting Documents with F.R.E. 612.
"Ms. Bloor, before coming in here today, what did you read or skim to get ready?" Often the best documents--and certainly often the most interesting ones--are documents that are not produced before or during a deposition, like handwritten records that even opposing counsel doesn't know about. F.R.E. 612 provides that if a witness uses a writing "to refresh memory", either while or before testifying, the adverse party is "entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness" on the document.
Even great lawyers overlook that F.R.E. 612 applies to depositions as well as to trials. Federal decisions have applied the rule to depositions taken based upon Fed.R.Civ.P. 30(c). So ask the deponent if he or she looked at documents before the deposition other than those being produced at or in advance of the deposition. If the answer is "yes", request that they be produced. You can have them produced during or after the deposition.
Must be a tawdry document she asked for. Can't wait to see it.
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May 15, 2012
Saving Face in China: The Book.
So what's face restoration, anyway? See Dan Harris's review at his China Law Blog of Saving Face in China, the book by Anne-Laure Monfret published about a year ago. Our Hoosier friend Harris opines:
Monfret concedes (and I tend to agree) that you are not going to torpedo a big business deal by, say, declining a second helping of chicken feet because most Chinese give westerners sufficient cultural wiggle room. That being said, your causing a loss of “face” can hurt you and your business venture.
Most English speakers have a general grasp of what it means to “lose face” and westerners certainly value their egos and reputations. But for the Chinese, Monfret emphasizes that causing someone to lose face is easier and more serious than most westerners realize. Perhaps most concerning is how difficult it is to restore face once the damage is done—if you want any shot at making amends, you had better use the right variant of the Chinese word for “sorry” and follow the other tips Monfret sets forth in her section on apologies.
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May 14, 2012
The Economist: Downing Street gets down--and down to work.
For The Economist's take on the shape of the United Kingdom and the governing Conservative Party's mid-term slump, see "The Cameron Government: Crisis? What Crisis?". Excerpt:
Two years ago this week David Cameron and Nick Clegg launched their coalition government in a sun-dappled Downing Street garden, at a joint press conference so filled with smiles, jokes and shared glances that it was compared to a gay wedding. On May 8th Britain’s Conservative prime minister and his Liberal Democrat deputy renewed their coalition vows in a tractor factory. There were few jokes. The work of government was “hard”, Mr Cameron told stony-faced workers.
Two-thirds of voters now disapprove of Mr Cameron’s performance and three-quarters disdain Mr Clegg’s. In local elections on May 3rd their parties lost hundreds of council seats, mostly to the opposition Labour Party: when Boris Johnson, the Tory mayor of London, bucked the trend and kept his job, that prompted gossip that he would be a better leader.
Britain’s economy has dipped back into recession. A judicial inquiry into the press has revealed a shamefully cosy relationship between Conservative leaders and newspapers owned by Rupert Murdoch. The government, and the prime minister in particular, are described as “out of touch” and told to “get a grip”—and that is just to quote Conservatives in Parliament.
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May 13, 2012
Mothers, My Mother--and Movements for Others.
All women become like their mothers. That is their tragedy. No man does. That's his. - Oscar Wilde, The Importance of Being Earnest, 1895.
Lindsey, England
My mother--to us, "Mom"--was and is that mom all the other kids in the neighborhoods we lived in wanted to be their mom.
Before that, way before, she and her ancestors were part of one of the most romantic stories ever told. I imagine first thousands, and then tens of thousands, and then even more, of people out of Suffolk via Ipswich to Groton and other towns and slowly and geometrically multiplying across America, to Massachusetts, Canada, and Three Oaks, Michigan.
But she never let on as we grew up that her family--and therefore mine--had been in America so long. We'd only heard about Hulls or Holles--German protestant minsters and farmer stock in the Palatine who come over on a ship from Rotterdam in the just-yesterday mid-1700s. I had to piece it together myself with some colonial organization records prepared in the late 1940s (at the request of a patron great aunt in Jacksonville, Florida who threw my parents' wedding in 1950) she had kept from everyone and finally gave me; it's actually typed before my birth and condensed to 6 pages. And a little help from Google on the part of Suffolk they came from via Ipswich.
Her family came from the still-tiny village of Lindsey, England, to Massachusetts in 1634. This is mainstream early Yank history. (I visit Lindsey, in Suffolk, in 2003. Her family's name is still on some of the stones in the churchyard, and in recent records of weddings still kept in the church.)
Exactly three centuries later, a photogenic only child is growing up in Chicago. It's the Depression. She starts working as a model when she is quite young. She's a bit quiet and sweet. And tall. Her own mother is strong, "well-raised", and with an Auntie Mame/stage mother quality she had until her death in 1970. In the late 1930s and 40s, the agencies love Mom's "all-American" girl next door face and smile. In photos, commercial or not, they jump off a page at you. Without makeup, she comes by a young yet "all grown-up" look at a very young age.
I am looking at one of them hung in my home right now.
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May 12, 2012
Heinrich Karl Bukowski: About Drinking.
If something bad happens you drink in an attempt to forget; if something good happens you drink in order to celebrate; and if nothing happens you drink to make something happen.
― Charles Bukowski, in Women, 1978
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May 11, 2012
China in Africa: Is China putting the hurt on Africa's free press?
Western media has long given Africa a consistently negative--if indeed often painfully accurate--portrayal as troubled, poor, corrupt and violent. Is China, now Africa's biggest trading partner, engaged in a new public relations crusade to counter that image? If so, is China's new campaign an even-handed one? See at Deborah Brautigam's China in Africa "Africa's Free Press Problem: Is China Causing It?"
From Henry Hall's China Africa News
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Père Lachaise: Pluperfect City of the Dead.
Laid out like a modern grid-form metropolis, Père Lachaise has the feel of a town--truly, a city of the dead--with tidy paved and cobbled "streets," complete with cast-iron signposts.
--Alistair Horne, in Seven Ages of Paris (Alfred A. Knopf 2002)
Père Lachaise Cemetery, 20th arrondissement.
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American White Collar Literacy: Is It Time Yet?
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May 10, 2012
What do GCs, CEOs and savvy clients want from a law firm?
1. Quarterbacks. Not mechanics and generic dweebs.
2. Value. Not reduced rates.
3. Verve. Not risk aversion.
4. Straight Talk. Not lawyer-accountant wank-speak.
5. Sane Writing. No typing with a lisp, either.
Lord Chief Justice John ("Pompous") Popham, 1603.
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May 09, 2012
Wild Men: Jonathan Swift.
Swift was a Titan in rebellion against Heaven.
-- John L. Stoddard, 1901
Anglo-Irish, Angry and Brave: See one of our past tributes to Dean Swift (1667–1745), a couple of days after St. Patrick's Day last year, in "Heroes and Leaders: Anyone out there with soul and sand?"
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Sensitive Litigation Moment: The Sleeper is Fed. R. Civ. P. 27.
Rule 27 of the U.S. Federal Rules of Civil Procedure is "Depositions to Perpetuate Testimony". Subdivision (a) covers "Before an Action Is Filed".
Rule 27(a)--and its many state counterparts--is not used that much. In non-federal cases, most states have some versions of Rule 27, with different case law on how you can take discovery before an action has been commenced. Valid reasons might be to preserve testimony which might "get away", e.g., a dying or homeless witness or a witness about to skip town. Or (less commonly) to do a limited pre-suit evaluation of the merits.
The state versions are worded very similarly to the federal rule; however, the case law on what you can actually do with the state counterparts of the rule vary widely from state to state. One common concern: that the rule will be used to harass and intimidate (read: "mess with people") rather than to perpetuate/preserve.
Courts--federal and state--don't see it that much. One very good North Carolina judge initially was concerned that an out-of-state lawyer (me) was introducing him for the first time to the state's Rule 27. So go easy, check the cases on it, and think it through. Local lawyers may not be much help; understandably, they often have rote, unthinking habits about their own procedural rules. We all do that--and we are missing a lot.
Final Note: For what it's worth, in federal courts--where 90% of our litigation for clients finds a home--I do not recall ever invoking Rule 27 "pre-suit".
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May 08, 2012
Does everyone in your shop think customers are the main event?
Rule Three: Make Sure Everyone in Your Shop Knows That The Client Is The Main Event. The truth is that they probably don't. That's your fault--not theirs. From our hopelessly in-your-face, annoying, repetitive and now world-famous 12 Rules.
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May 07, 2012
One possible business model: Choose your clients. Research them. Snipe.
Read at Simple Justice Scott Greenfield's masterfully-titled post "The Message of 500 Clients". And then read my comment:
Stick a fork in Hull McGuire PC. As Scott well knows, on clients, we snipe. We choose. We go after at most 2 new clients a year after we research them like you would research a stock. We consider it a success if we get one of them as a client in 18 months after the first face-to-face meeting. The rest is repeat biz. Rather be a street person than market or practice any other way. Just one possible way to look at volume in clients.
500-Clients Specimen.
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May 06, 2012
Love and hope and sex and dreams.
The winners? They refused to follow other people's bad scripts.
--KLK, All Over Manhattan Tonight
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The Horror: Devil Perfectionism.
Stressed GC: "The Dweebs. The Dweebs."
It's not school. It's no longer about you.
Rule 10: Be Accurate, Thorough and Timely--But Not Perfect. So practicing law is getting it right, saying it right and winning--all with a gun to your head. But being accurate, thorough and timely are qualities most of us had in the 6th grade, right? Back when everyone told us we were geniuses and destined for great things? Well, school's out--now it's about real rights, real duties, real money and personal freedom. That's a weight, and it should be. Get used to that.
Suddenly facts are everything--and the actual law less important than you ever imagined. In time you learn to research, think and put things together better and faster.
Posted by Holden Oliver (Kitzbühel Desk). Permalink | Comments (0)
May 05, 2012
West Africa: Liberia Soul-Searching.
In a multitude of ways, no African state is more closely tied to the U.S. than Liberia, the West Africa region colonized by freed American slaves beginning in the 1820s. See this gem in The Daily Beast we almost missed published April 28: "Liberia Rethinks Its Past in Wake of Charles Taylor War-Crimes Verdict". Excerpt:
Liberia’s fractured history was again in view last week when The Hague announced a guilty verdict in the trial of Charles Taylor, the warlord turned elected president. Taylor was convicted of aiding and abetting war crimes and crimes against humanity in neighboring Sierra Leone during that country’s brutal civil conflict. In Monrovia, the verdict was welcomed by some Liberians and condemned by others, particularly former child soldiers for whom Taylor is a father figure—a sign that the verdict marks only the beginning of soul-searching for the country.
For most of its history, Liberian society and political life were dominated by the Americo-Liberians, descendants of the freed slaves, who mimicked the lives and culture of their onetime owners in the U.S. Citizenship was denied to natives until 1946, when then-president William V.S. Tubman granted them the right to vote, and it wasn’t until the 1960s that tribesmen won legislative representation. For 102 years, Liberia was a one-party state, with the True Whig Party enjoying a monopoly.
Jane Hahn/NYT
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No Sleep till Brooklyn: Adam Yauch (1964-2012)
Real music for real kids in NYC. Non-wimpy with satiric flair. RIP, sir.
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May 04, 2012
Legal London in the Spring: Literary Labors--and Love.
Each Spring, we send you the complete text of a circa-1595 comedy by Shakespeare, Love's Labour's Lost. You can read it aloud--or, even better, act it out. First performed before Queen Elizabeth at her Court in 1597 (as "Loues Labors Loſt"), it was likely written for performance before culturally-literate law students [Editor's Note: Long ago, well-rounded professionals existed] and barristers-in-training--who would appreciate its sophistication and wit--at the Inns of Court in still over-percolating Legal London. And, most certainly, it was performed at Gray's Inn, where Elizabeth was the "patron". Interestingly, the play begins with a vow by several men to forswear pleasures of the flesh and the company of fast women during a three-year period of study and reflection. And to "train our intellects to vain delight". They fail happily.
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Feeding the Monster: "Do you really need a Memo on that?"
Can we stop feeding the Monster every time we get the chance? Some legal memos, cases summaries and strategy documents "you can bill for" do seem like winding up without ever really pitching. There are times you don't need to scorch the earth. To save time, money and relationships, just answer the question. Talk everyone out of the Full-Monty.
Do the research, take a stand and, if possible, write it all up in a very short file memo or--even better--in the document you are actually going to use: the pleading, the motion, the response, the letter, the instrument. Even if you don't end up using it, what the draft document "looks like" helps everyone make the next decision, and take the next step. You can still back up critical points with more small discrete memos, showing research and/or thought process.
Skip the 10-, 20- and 35-page memo. Try to make memos you do do be shorter, and reflect the group's cumulative thinking on that issue or project. And aside from necessary opinion letters, and really needed formal white papers, don't offer to write or write a cover-everyone's-ass and/or comprehensive "all-legal-theories-and-strategies" memorandum unless your in-house lawyer really wants it. And then try to talk her or him out of it.
The client's call, of course. But you can lead a little.
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May 03, 2012
Euripides: On Dog Fights.
Ten soldiers wisely led, will beat one hundred without a head.
--Euripides (480-406 BC)
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Sensitive Litigation Moment No. 216: Racehorse Haynes Edition.
Say you sue me because you say my dog bit you. Well now this is my defense:
My dog doesn't bite.
And second, in the alternative, my dog was tied up that night.
And third, I don't believe you really got bit.
And fourth, I don't have a dog.--Richard "Racehorse" Haynes, Houston, Texas (1927- ).
Trial Lawyer. Athlete. War Hero. Persuader. Actor. Planner. Tireless Worker. Lots of enemies, lots of friends. He's 85. Kinky Friedman called him “one of the most successful and most colorful silver-tongued devils to grace Texas since God made trial lawyers.” He's still at it. Still fighting.
The Racehorse: “I would have won them all if my clients hadn’t kept reloading their gun and firing.”
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May 02, 2012
In The Economist: Seriously, two (2) managers in each position makes a lot of sense.
You need one firm leader. But customers and clients need two folks on each project, no matter how small. Two people need to be available for both questions and a reserve of fresh ideas. But just two. Two project managers, and perhaps one with a "veto power". See The Economist: "In one's company, two's a crowd". And see our post "The Wonderful Twos".
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Sensitive Litigation Moment No. 119: Two Ways of the Trial Notebook for Business Trials.
(Miramax Films)
There's no Boilerplate in Baseball.
--Often incorrectly attributed to Tom Hanks; rather, it's a quip of Haywood Wise.
For business trials, see for starters the outlines for Trial Notebooks, either One or Two, at Evan Schaeffer's Illinois Trial Practice. We like the latter, but you should mix and match--and use your great unused brain. Both sides of it. And be advised:
1. Each client, each problem to solve, each transaction, and each trial is unique, and Different From The Other.
2. If you have Quality Work to do, and will be doing it for Quality Clients, you're not in a "forms" profession.
3. Do away with knee-jerk lawyer "form-think", too. It's bad for clients. Not to mention uninspired, un-American (and un-English)--and boring.
4. Forms and form-think generally do not save money. They generally do cause problems.
Posted by Holden Oliver (Kitzbühel Desk). Permalink | Comments (0)
May 01, 2012
May Day.
O, look! the sun begins to rise, the heavens are in a glow;
He shines upon a hundred fields, and all of them I know.
And there I move no longer now, and there his light may shine–
Wild flowers in the valley for other hands than mine.--from The May Queen, Alfred Tennyson, 1842
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April 30, 2012
Pantheon: Parker Posey. "You don't need the money with a face like that."
From The House of Yes: "Were you poor? Did you eat chicken pot pie?"
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If You Seek Longtime Customers, Working = Marketing.
Small, powerful ads. See our Rule Six: When You Work, You Are Marketing. Every moment your law firm "works for a client"--it sends the client something, it talks with the client, it does virtually anything for or about that client that the client knows about or should know about--the firm transmits barrages of small but powerful ads. The client notices then and there.
Posted by Holden Oliver (Kitzbühel Desk). Permalink | Comments (0)
Is much of the digital technology we buy simply not ready for market?
In the beginning, Thought Itself suffered. The Tools became the Main Event. And then The Tools worked inconsistently. Ever feel like you are (1) paying for and relying on digital infrastructure and products, AND (2) simultaneously serving the vendors you pay, and doubling, as New Tech Lab Rats? When my parents first bought a TV over 60 years ago, I'm sure it did not take seconds some days and 15 to 25 minutes on others to access the airwaves and turn the bloody thing on to watch Meet The Press or Pinky Lee. Products and services should not be rolled out until they work 99.9% of the time. Have we created a demand for things that do not really "work"?
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H.G. Wells & Devo: Are We Not Men?
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April 29, 2012
Statesboro, Bulloch County, Georgia.
Mother died and left me reckless,
Daddy died and left me wild.
No, I'm not good lookin',
I'm some sweet woman's angel child.--William Samuel McTier (1898–1959)
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Liberia: Reaction to Charles Taylor's conviction at The Hague is mixed.
The Charles Taylor verdict is the "first of its kind" against a world leader at The Hague. See this NPR report. Lead-in to the interview:
In an historic judgment, the UN-backed court at The Hague found Liberia's former president, Charles Taylor, guilty of war crimes. He was convicted of abetting murder, rape, and the forced enlistment of child soldiers during Sierra Leone's civil war.
Taylor had been on trial at The Hague for almost five years. He was accused of backing rebels in neighboring Sierra Leone during that country's civil war by selling them weapons in exchange for diamonds.
It was a dramatic trial. There was graphic testimony about gruesome atrocities, mass rapes, amputations, cannibalism and information about the tens of thousands of people killed during the decade-long war.
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Taylor in court 3 days ago.
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April 28, 2012
"Jiro Dreams of Sushi": A Must-See Documentary for Millennials.
A movie about quality, standards, work--and genuine class.
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April 27, 2012
Mannish boys grow up to be Senators.
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April 26, 2012
Politico: Sen. Rob Portman as Mitt Romney's Number Two.
Southern Ohio's Taft Country has a long tradition of smart, hard-working, solid, uber-credentialed and refreshingly un-flashy Republicans who run for office, get elected and stay awhile on the national stage. Cincinnati's Rob Portman is in that mold. He would help Mitt Romney govern. If you vote GOP in November, Portman is, hands down, the most talented number two you could hope for. See in yesterday's Politico "Rob Portman: Vice President Vanilla?".
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April 24, 2012
The New Manufacturing: Surprise. It's Digital.
See by our Brit Watchers at The Economist "The Third Industrial Revolution", part of a special report on the ripple effects of new technologies. It begins:
The first industrial revolution began in Britain in the late 18th century, with the mechanisation of the textile industry. Tasks previously done laboriously by hand in hundreds of weavers’ cottages were brought together in a single cotton mill, and the factory was born. The second industrial revolution came in the early 20th century, when Henry Ford mastered the moving assembly line and ushered in the age of mass production. The first two industrial revolutions made people richer and more urban. Now a third revolution is under way. Manufacturing is going digital.
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April 23, 2012
Blawg Review #318: Fully-Engaged, Participatory, Risk-Taking, Pro-Immersion, Get-Off-Your-Knees, Change-the-World Will Shakespeare-Hunter Thompson Edition.
HORATIO
O day and night, but this is wondrous strange!
HAMLET
And therefore as a stranger give it welcome.
There are more things in heaven and earth, Horatio,
Than are dreamt of in your philosophy.
Hamlet, Act 1. Scene V.
William Shakespeare (1564-1616)
"Maybe there is no Heaven."
Generation of Swine: Tales of Shame & Degradation in the '80's.
Hunter Stockton Thompson (1937-2005)
And Heaven on Earth? That's up to us, right?
Welcome to Blawg Review No. 318, which follows Texas trial lawyer Mark Bennett's inspiring No. 317 at the well-regarded Defending People. My name is Dan Hull. I practice law to (1) make money, (2) ensure that every day will be different than the one before, (3) use everything I have practicing law so I can feel alive, (4) serve sophisticated purchasers of legal services who "get it"--corporate clients with in-house counsel normally represented by much larger firms--and put them first, and (5) treat my law practice and firm as both a shop and a laboratory for new ideas.
"Immersion" is what I seek in life and work. So that my life is full, and full of surprise. For me, this is exactly what William Shakespeare (or whoever authored the works bearing his name) and Hunter Thompson had in common. It is the gift, and courage, to get us to fully participate in the story along with its creator. The Singer, if you will, becomes the Song.
April of course is National Poetry Month. Today, April 23, is the day on which William Shakespeare was very likely born and also (strange as it seems) most definitely the day on which he also died. Happy 448th Birthday, Sir--and thank you. In your plays, characters, story and theme strut, bellow, work, play, dart and dive in and out together with all the surprise and verve of real life. As in Thompson's work generations later, you are always "there". With us. In fact, the sense of writer participation in the work of both Shakespeare and Thompson shoots through each line. In Thompson's case--"as your attorney, I advise you to take a hit out of the little brown bottle in my shaving kit"--writer involvement is impossible to ignore as he throws himself into the narrative. The capacity for detachment, while occasionally important and present in the works of both, is just one tool in the arsenal of storytelling. These two authors are fully-engaged. In the story. With us. Now. Immersed.
I want to be that kind of lawyer, too.
Six years ago, in Blawg Review #43, Boston's Diane Levin gave us a fine Shakespeare edition which celebrates a man whose 38 plays, 154 sonnets and other poems changed the English tongue forever and made it work harder, bend more, stretch mightily and finally give England a language that could keep up with its cascading, unrelenting and wonderfully vibrant and ancient imagination. He used words, made new words and experimented with word-combinations so that both the writing and the author were fully-engaged, participating, immersed in the story, risk-taking. It was not like anything that had gone before it. Read, for example, the entire Hamlet scene above.
Hunter Thompson--I have inadvertently channeled this journalist for nearly three decades since I covered for a college daily an infamous speech he gave--took participatory one step further in his feisty-funny yet oddly clear-eyed new journalism. But, for his time, William Shakespeare's body of work revolutionized what the English language could do. Changed forever how we saw ourselves. His work demonstrated in and of itself what humans could do to change the world. Simply put, Shakespeare, like Geoffrey Chaucer before him, made English cool. Very cool.
And all of you? I hope all of you will do the same thing with your law practice--and with the entire law profession itself. Please push the envelope a bit for us all.
But first things first, as they told me when I exited my Final LL.M Program. Shakespeare's Works? Who wrote them? Francis Bacon or Edward de Vere, 17th Earl of Oxford, are my two personal favorites for the honor. Perhaps a number of people or a combination wrote them. But not Shakespeare. The chances that the historical person, a well-meaning actor-bumpkin from Stratford named William Shakespeare, wrote all these assorted, richly-layered erudite and intricate gems in a working life in which he retired at 49 is about as likely as learning in a few years that Billy Carter, Jimmy's brother, invented the Internet, thought up Twitter, and did both theoretical and initial lab work resulting in three Nobel Prizes in Physics over a 20-year period. Or, staying with rogue presidential brothers, that Roger Clinton brokered several Middle Eastern cease fires, engineered Procter & Gamble's Gillette acquisition, and still had time to join the special forces, get buff and shoot Osama bin Laden.
If he were living today, Will Shakespeare would reside as a community theater local "star" amongst my many cousins in eastern Tennessee in a house with a front porch decorated by all-year-long Christmas tree lights and featuring a really big Coke Machine. My childhood friend Ernie from Glen Burnie, who has an English degree from Yale, and is now a partner and trial lawyer in a well-known DC-based law firm, dismisses the historical Will Shakespeare more comprehensively, if crudely: "Kind of guy who'd try to blow himself with a Dust Buster, if you ask me." Note: Just heard that Ernie lost his slot again at The University Club.
So Shakespeare couldn't have written "Shakespeare". But Someone Cool, Brave and Hard-Working did--and he, she or it changed Everything: character, story, our sense of an inner life, consciousness itself, words--and how they could sing.
So let's celebrate those who do things, whoever they are, famous or unsung, and especially those who do great things. Which are almost always difficult, frustrating things. A gentleman from South Carolina, trial lawyer Bobby G. Frederick, reminds us at Trial Theory that today is also the 112th anniversary of Teddy Roosevelt's "Citizenship In A Republic" speech delivered at the Sorbonne, Paris, France, 23 April, 1910. It is an Ode to Quality long-loved by hard-working full-time lawyers worldwide. Excerpt:
It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.
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You get the idea. This Edition of Blawg Review for lawyers who get up and do it every day. Let's start with three "non-virtual" friends of mine. Patrick Lamb, the Chicago business trial lawyer and law firm innovator who got me interested in blogging back in 2005, is a "trench lawyer" if there ever was one. We share similar career paths and a real drive to build a completely new kind of law firm for higher-end clients. I've spent more time personally with Pat than any other lawyer who writes. For several years, and directly due to our connection through blogging, our respective law firms were main drivers together in the same invitation-only international business law consortium based in Austria. We are still members together of a second invitation-only group based in Charleston. We've served on each other's panels on the subjects of higher-end customer service, law practice, and litigation. Pat has great business sense (rare in lawyers) and a fabulous legal mind. See his commentary in "WSJ on ever increasing hourly rate: anyone else get a sense of deja vu?" at his always-provocative In Search of Perfect Client Service. He is one of a handful of people who is changing our profession.
Brit pundit, law professor and velvet-voiced Charon QC, another innovator and doer I met in London in 2007, is one of the funniest and most erudite human beings alive, in or out of the law. If Pat Lamb got me writing again, Charon kept me doing it because he always made blogging, well, great fun. And there were all these great young female "assistants" around him when we met in Mayfair. Anyway, a useful and serious guest post on the UK Facebook litigation by Stephens Scowns Solicitors comes our way in "Careless talk costs jobs". The UK now has 30 million Facebook users. In Preece v. Wetherspoon, an employment tribunal held that a pub manager was fairly dismissed for gross misconduct after she used Facebook during working time to make comments about two difficult customers. You say you had your privacy settings on? Sorry, Sweetie, not a defense. It's still public domain.
The ultimate New York City trench lawyer, and non-virtual friend, is criminal defense lawyer Scott Greenfield at Simple Justice. Scott's made legal blogging--there is no other way to say this--important. Scott, like any number of great lawyers, and great men, is a straight-up pain in the ass. Verbatim quote: "Not trying to be difficult. I just am." He owes me lunch. He owes me at least $5. But I would, and will, refer any corporate criminal investigation I encounter to any general counsel I know to this man. In serving clients, which is the hardest thing on earth to do well, he gets the importance of: speed, lightning application of law to fact, being right there and being organized. He knows how to talk to the most sophisticated clients in the world when they need a little tough love. Hear him, for example, charm Cambridge, Massachusetts, Harvard Yard and Harvard itself in this one: "Taxing the Frugal Future". Talk about immersion in the subject matter.
Another Brit doer, David Allen Green, aka Jack of Kent, is a lawyer-blogger with an impressive record of investigative journalism. He asks "should there be a legal blogging prize?, based on his experience last year of reviewing 2000 blogposts for the George Orwell political blogging prize. One of his sources for this thoughtful piece? Our man Charon QC.
Back in the States, well-known Miami trial lawyer Brian Tannebaum writes at "The Practice", his "combat pay" column at Above the Law, "It's Not Always About the Clients", about abusive clients. It's at once a brave and common sense article that educated me about other practices, especially in the criminal defense area. I did not like the title--I can think of a few others that might fit better here--but I liked what he had to say. He made me think.
Another Alpha Dog, Innovator and Doer: Fellow Midwesterner and Seattle-based Dan Harris writes China Law Blog. Like Greenfield and Tannebaum, he lawyers--and writes--every day. If you work, or want to work, in Greater China, follow Dan. See "The Apple-Proview China Trademark Litigation. It’s Gonna Settle. Bet On It". Can you ever imagine Dan not telling a client what he really thinks? I can't.
Super-Athlete and New York PI lawyer Eric Turkewitz covers the Boston Marathon, The Importance of Drinking Water, and my second favorite poet in The Boston Marathon (Highway to Hell)". This Don Rumsfeld (disclosure: I like and admire the guy) quote and triple-haiku, frankly, has always made sense to me:
There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.
And humorist-lawyer Kevin Underhill of Shook, Hardy & Bacon, a name which is at once lyrical and kind of funny-sounding, but I am not sure why, has written "Plaintiff: This Soap Did Not Attract Women as Promised" at his Lowering the Bar. In my next lawyer life, I would like to do some serious class action work in male pheromone or enhancement products that fail.
Mega-Doers in the Profession:
See the ABA Journal's interesting piece, which echos my thoughts on how powerful GCs have become, called The Rise of General Counsel". "The supply of sophisticated business lawyers has increased beyond demand, increasing the power of a few hundred general counsel who control the budgets," the article notes. And I think that is a very good thing for the right outside lawyers who can make the transition from specialists to "quarterbacks" and project managers.
At Above The Law, find out what lawyers worldwide are among the most influential people in the world on the Time 100 list.
At Jamison Koehler's Koehler Law, see a post addressed to the dreaded Slackoisie as infants. It's entitled "Advice To An Incoming 1L: Humble Yourself Before The Law. Surrender".
AttorneyatWork has something that I, for one, can use: "Staying Healthy: 10 Tips for Traveling Lawyers".
The Economist and the Judge on the Bigger Picture, Services, Subsidies: Near and sadly dear to my heart is a must-read by Decline of U.S. Manufacturing by Richard Posner of the enduring Becker-Posner Blog, where Judge Posner hits a few Rust Belt nails on the head. Excerpt:
Becker points to the analogy of agriculture. Employment in agriculture has plummeted, leading to anxieties spurred by agricultural companies about the decline of the “family farm” and the loss of the imagined virtues of the independent farmer, to combat which agriculture continues to be heavily subsidized. The subsidies are widely recognized to be a pure social waste, and the same would be true of subsidizing manufacturing. Like manufacturing, American agriculture is thriving with its historically small labor force.
Finally, here's a soulful, erudite and off-beat article by Steve McConnell, one of the writers of Dechert LLP's Drug and Device Law called "The Long Goodbye".
What About Paris/Clients? is grateful for the opportunity to host Blawg Review a third time. Blawg Review needs to sign up future hosts. It's always an experience. If you are game, get in touch with Ed, the Editor 'n' Chef. The next scheduled Blawg Review will be on May 21 and hosted by Cyberlaw Central, by Kevin Thompson, of Chicago's Davis McGrath LLC.
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Sainte Genevieve
I know it, I see it. The Huns will not come.
And what or who is your Attila? In 451, Sainte Genevieve (422-512) saved Parisians from the Huns, the legend goes. People had started to flee Paris in anticipation of the invasion led by Attila--but stopped when she told them she had a vision that the Huns would not enter Paris. She became the city's patron saint. In 1928, a still-grateful Paris erected a statue to her on the Pont de la Tournelle, a bridge now about 400 years old. Genevieve is facing east, the direction from which the Huns approached.
She is also said to have converted Clovis, king of the pagan Franks, to Christianity. She hasn't worked that magic on me. But I visit St. Genevieve in Paris anyway. You walk in a southwesterly direction--from, say, the Place des Vosges on the Right Bank--to get to the Left Bank, and use that bridge: Pont de la Tournelle. If you do, you walk right under Genevieve, with Notre Dame and Ile Saint Louis on your right.
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April 22, 2012
Romain Rolland: Builders. "There are no living beings but those who create."
There is no joy except in creation. There are no living beings but those who create. All the rest are shadows, hovering over the earth, strangers to life. All the joys of life are the joys of creation: love, genius, action.
--Romain Rolland (1866-1944), Nobel Prize winner, in "Lightning Strikes Christophe".
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April 21, 2012
Detroit's MC5: Pluperfect American Rock Warriors.
(Warning: Skip 52-second "Gail Intro" on Ramblin' Rose unless you have near-perfect mental health.)
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Have a job? It doesn't mean you're smart, Jack. Not even a little smart.
It may mean you're conformist, unimaginative, risk-averse, white or lucky enough not to live and work in El Centro, California, a vibrant, hot, tough and hard-working large U.S. farming border town I've spent lots of time in since 1996. See at MSNBC "Cities where unemployment is double the national rate".
AP Photo. El Centro has 26.7% unemployment
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Do Big Clients need Big Law More than 5% of the Time?
Managing Partner, Astana branch, Big, Clumsy & Talent-Diluted.
About 95% of the important corporate legal work being done right now by firms between 500 and 3000 lawyers can be done by boutiques and smaller firms. If it has the right people, your firm can land Fortune 500 companies and keep them. So remember to get off your knees. Don't forget to maintain or raise your rates. Competing on price for higher-end work is for chumps and will only hurt you in both marketing and client retention. Remember, in this "model", your lawyers and services/products are first-rate, and your client service is superior. Plus: (a) your firm is more efficient, (b) your overhead is likely lower, and (c) your work in any event is better. And there is no "piling on". Find out what the "Big Law" rate or price is--and match or exceed it.
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Sensitive Litigation Moment No. 106: Use Litigation to Fix Client Problems Now. Not Later.
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The Tyrolean ex-Mrs. Oliver could fix anything.
If you are truly service-driven for corporate clients, you live it, breathe it, get it. And all your employees do. It's not a ruse you lay on clients to get new work through the door because you need a new one-night stand to make ends meet, or because it sounds good (i.e., you and yours are could care less about clients, and are in fact the "Eddie Haskells" of client service; yet "client service" must be in your promotional materials and it's cool these days to make even specious noises about it). Instead, you know that "doing the work is marketing". For you, keeping good clients is a passion, preoccupation, a religion. It's not just for show.
Here's an idea for lawyers who are serious about service:
In many business litigations your firm has opportunities to isolate and bring to the client's attention "areas for improvement" highlighted in litigation. Your trial lawyers make mental notes about how lawsuits either arise or are made complicated and expensive by conditions, procedures or documents which need corrective action at the client's shop.
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April 20, 2012
Sensitive Litigation Moment No. 105: "An objection must be stated concisely in a nonargumentative and nonsuggestive manner."
An objection must be stated concisely in a nonargumentative and nonsuggestive manner.
--from Rule 30(c)(2), Fed. R. Civ. P.
Lawyers who "testify" during discovery are being bad. But he/she without sin should cast the first stapler. In defending in a deposition, giving speeches and coaching your witness on the record is "bad" because it may be suggestive of the answer the witness should give. At Evan Shaeffer's The Trial Practice Tips Weblog, see "Depositions: How to Stop Coaching".
We could go on and on and on about this--but you can just read it.
Now where's that whistle?
Dang. Puttin' the hurt on my ears, here.
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What happens when you think on your own, anyway?
At Saatchi & Saatchi, Paul Arden's ad campaigns changed everything for British Airways.
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Camus on Oran, Algeria: "Our citizens work hard."
Our citizens work hard. Their chief interest is in commerce, and their chief aim in life is, as they call it, "doing business".
--Narrator describing Oran in opening pages of The Plague (1947), by Albert Camus
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Rule Five: Don't make me guess. Don't make customers guess.
Bombard, Copy and Confirm. Do that in Real Time. See Rule Five in our annoying but failsafe 12 Rules. Not everyone agrees with this one. If the client wants something different, do that. Adjust. But if you work hard at consistently informing clients of everything as things happens, you can't lose. In short, provide a real-time experience. It's harder to do this with balance and people-savvy than it sounds. Chances are, however, that your firm does not have the Moxie, the right employees or the discipline to make it work. (Sorry, but getting it right for 3 days in a row on one project doesn't count.) But do try to prove us wrong. With our thanks to CS guru Jay Foonberg.
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April 19, 2012
Shakespeare, Law and Literature.
See from three years ago a post by Dan Ernst in Legal History Blog on "Law and English Literature". Ernst reviews and introduces two papers by Eric Heinze, of University of London School of Law. On the first Heinze paper:
Legal scholars' interest in Shakespeare has often focused on conventional legal rules and procedures, such as those of The Merchant of Venice or Measure for Measure. Those plays certainly reveal systemic injustice, but within stable, prosperous societies, which enjoy a generally well-functioning legal order.
By contrast, Shakespeare's first historical tetralogy explores the conditions for the very possibility of a legal system, in terms not unlike those described by Hobbes a half-century later. The first tetralogy's deeply collapsed, quasi-anarchic society lacks any functioning legal regime. Its power politics are not, as in many of Shakespeare's other plays, merely latent, surreptitiously lurking beneath the patina of an otherwise functioning legal order. They pervade all of society.
Dissenting from a long critical tradition, this article suggests that the figure of Henry VI does not merely represent antiquated medievalism or inept rule. Through Henry's constant recourse to legal process, arbitration, and anti-militarism, the first tetralogy goes beyond questions about how to establish a functioning legal order. It examines the possibility, and meaning, of a just one.
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Don't compete on price. Don't compete on price now--or any other time.
In this economy, the great corporate clients we always wanted at our mid-sized firm will now come to us for our lower rates. They will never leave us. There will be Sweetness, Light and Good Crops.
--An over-served lawyer at an American pub named "Trevor" we know said this, more or less, just last night.
No. Probably not. No. Not ever. Right now, it's tempting--but resist the urge to lure new clients with lower price or rates. Clients who come to you for price will leave you for price. Think about value first, price second.
Above: "Trevor", sober. Is "Trevor" supposed to be a real male name?
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Storytelling.
Don't tell me the moon is shining; show me the glint of light on broken glass.
--Anton Chekhov (1860-1904)
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April 18, 2012
Paul Arden: When you can't solve a problem.
If you can't solve a problem, it's because you're playing by the rules.
--Paul Arden (1940-2008). Saatchi & Saatchi Executive. Legend. Wizard. Believed Fresh Thinking was Fun, Subversive, Lucrative.
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Poetry Month, Year, Age, Whatever: Seamus Heaney's Toome.
At Toomebridge
Where the flat water
Came pouring over the weir out of Lough Neagh
As if it had reached an edge of the flat earth
And fallen shining to the continuous
Present of the Bann.Where the checkpoint used to be.
Where the rebel boy was hanged in '98.
Where negative ions in the open air
Are poetry to me. As once before
The slime and silver of the fattened eel.--first poem in Electric Light (2001)
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Pantheon: Juliette Binoche. "You don't need money with a face like that."
You don't need the money with a face like that. Born in Paris, she's now 48. She is the daughter of Jean-Marie Binoche, a director and sculptor, and Monique Stalens, a director and actress. She won an Oscar at age 32 for The English Patient but was only 23 when she starred in The Unbearable Lightness of Being. After seeing it, and her performance, one famous Yank critic wrote that she was "almost ethereal in her beauty and innocence." Welcome, ma'am, to our Pantheon.
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April 17, 2012
Greater China: More than a feeling. Try not to screw up, okay?,
Do see "The Legal Faults With Faulty China Translations" at China Law Blog.
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Tripoli or The Hague: Can Muammar Gaddafi’s son get a fair trial in Libya?
Our take: The International Criminal Court in The Hague makes more sense. At South Africa-based IOL News, see "Al-Islam Faces Justice on Libyan Soil". It begins:
Muammar Gaddafi’s son and former heir Saif al-Islam will be put on trial inside Libya and there will be a verdict before the middle of June, a Libyan official said on Monday.
The decision comes despite appeals by rights groups to Libyan authorities to hand him over to the International Criminal Court in The Hague for trial, amid fears that he may not get a fair trial in Libya.
A trial in the capital Tripoli would, however, mark a small step forward for the central government, which has been struggling to unify the country under its authority since Muammar Gaddafi’s capture and killing last year.
Reuters: Saif al-Islam.
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April 16, 2012
Spring's Poetry: It comes up from the Earth.
ACT II - SCENE I. A wood near Athens.
Enter, from opposite sides, a Fairy, and PUCK
PUCK
How now, spirit! whither wander you?
FAIRY
Over hill, over dale,
Thorough bush, thorough brier,
Over park, over pale,
Thorough flood, thorough fire,
I do wander everywhere,
Swifter than the moon's sphere;
And I serve the fairy queen,
To dew her orbs upon the green.
The cowslips tall her pensioners be:
In their gold coats spots you see;
Those be rubies, fairy favours,
In those freckles live their savours:
I must go seek some dewdrops here
And hang a pearl in every cowslip's ear.
Farewell, thou lob of spirits; I'll be gone:
Our queen and all our elves come here anon.
from A Midsummer Night's Dream
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The Real Work.
Your work is to discover your work--and then with all your heart to give yourself to it.
--Hindu Prince Gautama Siddharta (563-483 BC)
The Buddha with his Protector, Vajrapani, by a sculptor in Gandhāra, 2nd century AD.
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At China Law Blog: China IP Rights. Deja Vu "All Over Again".
See "China IP Protection. Deja Vu All Over Again" at Dan Harris's China Law Blog. Enduring, honest, excellent and useful.
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Poetry Month, Millenium, Age, Whatever: Michael Drayton & Ray Davies Get Wild for Old Blighty.
O famous Kent
What country hath this isle
That can compare with thee?--Michael Drayton (1563-1631)
Canada to India. Australia to Cornwall. Singapore to Hong Kong.
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