February 04, 2008
Blawg Review #145
VENI, VIDI, VICI : Super Bowl Blawg Review
Super Bowl XLII: New York Giants 17, New England Patriots 14. Patriots fan WAC? has 3 reactions: (a) Whoa. (b) Huh? (c) Greatest Super Bowl ever. Congrats, New York.
So welcome to Blawg Review #145: The Super Bowl Edition.
Or The Test-Your-Mettle Edition. The "Got Sand?" Edition. The Prepare for Battle Edition. You get the idea. We like "wake-up" themes. Over-dog themes. Under-dog themes. "Grandiose" themes. Anything to make us think, make you think, make us both money (it's a business; get used to it) and have fun at the same time.
We are honored to host again. Our first Blawg Review appearance was #65: The World Cup Blawg Review. BR #65 was about opening American lawyers' minds to the brave new world and global services economy developing all around us.
BR #145 is about Who You Really Are and how you prepare and engage for Lawyer Life. No, we haven't gone all soft and PC on you. We still think that generally "work-life balance" and "professionalism" are red herrings being cooked up by people who should have never gotten involved in the law profession in the first place. Sorry. We just know this: What Kind of Human You Are Drives What Kind of Lawyer You Are.
It's that simple.
VENI, VIDI, VICI. "I came, I saw, I conquered". Sounds pretty macho, huh? But there's a gentler side to it. First, as a Human Being, and a lawyer, are you prepared to meet the challenges before you? Second, can you think and develop a strategy to survive, prosper and get what you want in life and law? Do you have the right Tools? Third, can you Act? Do you have the sand, the spirit and the moxie for the Arena?
Talk about "grandiose". Take a trip to Rome, even now, and you see around you the still proud stone remnants of the most grandiose earthlings ever. Romans walked "it" and talked "it" for centuries until they got, well, uh, positively and internationally "over-extended" by around the Fifth Century AD. Ah, devil hubris. In better but turbulent times, according to the historian Plutarch, a flushed and preening Julius Caesar sauntered into the Roman Senate in 47 BC and declared after a recent victory in what is now Turkey: "Veni, vidi, vici".
Be bold, but watch yourself, folks. Don't trip over your hubris. Three years later Caesar was dead on the floor of the Theatre of Pompey. Three centuries later Rome was starting to fail. But don't worry about it--we know you came to this party prepared.
I. VENI (We came...)
"As our case is new, we must think and act anew." -- Abraham Lincoln
PREPARE, OBSERVE, LISTEN, CALM THE MIND, CHANT A LITTLE, TEST YOUR LOLITA IQ, EAT RIGHT, TOOL-SHARPEN, SAVOR THE EXCITEMENT TO COME.
Practicing law is hard. So is life. Before we begin, and before the contest heats up, let's prepare. Let's start with, well, just us.
For starters, can you think for yourself?
And can you get others around you to think for themselves? See a post by Georgetown law prof Carrie Menkel-Meadow at Concurring Opinions called "The Phenonmenology of Political Correctness." PC peer pressure: Obama, HRC or flavor of the week?
Are you a parent--or not?
Seattle law prof Julie Shapiro at Related Topics asks "should a man who engages in an isolated incident of casual sex with a woman be considered the parent of a child that results from the encounter?" She says no, and her reasons make sense. See "The Obvious Objection".
Got Cultural Literacy?
Who is Plutarch, anyway? Super-lawyer Cicero? The Manchester School? Longshanks? Alexis de Tocqueville? Rumi? Who was Hunter Thompson? And why is Keith Richards still alive? In olden days, lawyers were classically educated and well-rounded--check out Tom Jefferson's resume--and proud of it. And they knew the answers to these kinds of questions because it was part of their culture and knowing the answers enriched their lives. These days, "specialization", while undeniably important, has given most lawyers brains that look like the inside of a Wal-Mart: everything seems to be there, but nothing you see is that important in the grand scheme of things.
What a rook. Not fair. You have a liberal arts degree in American or Asian Studies or Art History from Yale or Tufts or Middlebury, and now you're....defending in car accident cases, or doing wills for people who don't appreciate your "art". J. Craig Williams at May It Please the Court wants you to know, inter alia, about Lolita, the persona, the book, and who wrote the book: What Do You Mean? We Didn't Know That! How Were We Supposed To Know? Don't worry, Woolworth's Department Stores didn't know who Lolita was either. They had to look it up.
Focus, focus, focus.
No one writes about the inside of a client's head better than Michelle Golden at Golden Marketing. She reminds you that--with either would-be or existing clients--Make Every Date a First Date. And that last interaction? That's THE interaction.
Gathering and Organizing Facts.
It's one of the most important things lawyers do, no one talks about the hard work involved, and even Congressional committees remember themselves and their charges and give it the old college try from time to time. At Balkinization re: Spygate: "Finally, the Senate Judiciary Committee to Investigate Videotape Destruction".
Also see Jamie Spencer's Listening to the Client, Telling the Story, and Homework, partly inspired by a fine Susan Cartier Liebel piece.
And does your firm listen to its young?
At her MediationChannel.com, die-hard Patriot's fan and trusty but demanding Blawg Review sherpa Diane Levin--a fancy ADR lawyer with enough personality for 10 lawyers and 5 regular humans, and a closet beatnik if we ever saw one---has this for us: "Up my sleeve: body art reveals the inner life of lawyers". See this online gallery of photos of lawyers, doctors, and other professionals and "the body art they keep hidden from their colleagues". Jesus, Diane.
Is your mind clean?
Our old Cincinnati buddy Potter Stewart always knew it when he saw it. Brett Trout, at BlawgIT, asks Who Surfs This Much Porn?, in a post on the firings of nine randy DC employees through special software detection. Tragedy. When WAC? worked in DC, there was no such tech; all porn had to be live and in the open, and limited to lunch times in main hallways.
Are you eating right?
And will Germans start to go the way of Americans--each citizen eventually big enough to have his or her own zip code? Cheeseburgers now served in German cans? See at the Berlin-based Atlantic Review, run by German Fulbright alums and one of our favorite sites, "Anti-American Food". Excerpt: "The stereotype of the fat Americans with their daily diet of fast food is pretty popular in Germany, but more and more Germans are obese themselves".
And here's a bonus "Americans-are-way-fat" post for Blawg Review's increasing European readership. At a Stitch in Haste, you find "Is There Really a 'Too Fat to Eat Out' Bill in Mississippi?" Yeah, there really is. See Mississippi H.B. No. 282.
Are you watching your GC's costs?
In-house lawyers won't believe it at first--but they'll love you if you do it and may think of you as (1) more than a one-night stand and (2) not the enemy. They have seen enough law firms of the looter variety--and guess what? Law firms aren't seen as producers in the scheme of things. See at the Wired GC "Amorphous Support Services". And WAC? Rule 8: "Think Like the Client: Help Control Costs".
So how's the writing going?
WAC?'s made no secret that lawyers everywhere are now officially permitted to start writing full sentences with full thoughts with simple words designed to express and hold the reader's attention. Legalese is medieval and your clients hate it. Read at Legal Andrew "Be a Better Writer with Leo--Write to Done".
Ethics, Ethics, Anyone?
II. VIDI (We saw...)
NEW TOOLS, NEW RULES FOR THE NEW ARENA.
King Billable Hour v. Value Pricing:
The Greatest American Lawyer is not alone in his sentiments. Is the tide turning? Or are the much-maligned billable hour and alternative value pricing methods two ways to reach the same goal: value for the client it can sense as soon as the bill gets there. Will lawyers themselves want to dump the BH? Read GAL's "As Bad as Hourly Billing is for Clients, It’s Worse for Lawyers" about a talk he recently gave to lawyers in Michigan.
Tech, tech and more tech--and you need it:
The mysterious Ed. at Blawg Review reminds us that ALM's LegalTech New York 2008 event is this week (February 5-7) at the New York Hilton Hotel. An interesting bonus this year--along with The Common Scold tech diva Monica Bay has promised in the form of "lousy coffee and mediocre Danish"--is Ed. himself. You can meet the boy wonder and buy him a drink. I've met with him twice now in California--and this accomplished and cosmopolitan man never disappoints. His real name and hometown? Don't even think about getting the answer. Even the hooch you feed him won't help much. Thus far, "Milky Way Galaxy" is all Ed. will allow.
Oklahoma's Jim Calloway of Law Practice Tips Blog is another law technology pioneer you can meet at LawTech New York 2008. Jim, with little effort, did a lot for our blog when we started it 30 months ago--he wrote about it once and suddenly people were reading WAC? His recent post on the eve of LawTech: "Client Development: Keep 'Em Coming Back for More with Technology".
Enrico Schaefer--that's Mr. Greatest American Lawyer to you--notes over at Traverse Legal that ICANN, the Internet Corporation for Assigned Names and Numbers, Unanimously Votes to Change Policy To End Domain Tasting.
At Robert Ambrogi's Law Sites, learn about "Sophisticated Search for Public Domain Law" and PreCYdent, a new free and possibly superior open source legal database started at the University of San Diego Law School. It will operate on ad revenues.
Securing Innovation makes clear that its company IP.com is NOT suing Nokia for $17.7 Billion. A German IP licensing company with a similar-sounding name---IPCom GmbH & Co. KG--that is demanding billions in patent licensing fees from Nokia is a different entity.
Charon QC Check:
In the U.S., and in like jurisprudence systems across the Atlantic, The Rule of Law, well, rules. WAC?'s friend and Super-Brit lawyer-educator Charon QC so reminds us in his recent interview-podcast of Andrew Holroyd, President of The Law Society, the United Kingdom's counterpart to the American Bar Association (if the ABA had a serious and effective international human rights focus which, let's face it, it does not, but it could...). Holroyd: "The Law Society continues to urge the government of Pakistan to return to an internationally recognised standard of the rule of law and to release and reinstate those lawyers and judges who remain in detention.”
St. Louis lawyer George Lenard at his "Employment Blawg asks: Does the ADA (Americans With Disabilities Act) Need 'Restoration'?"
Randy Braun at Juz the Fax tells us the Second Circuit Says "No" To Conditional Overtime. In Chao v. Gotham City Registry, Inc. (06-2432-CV - Decided: January 24, 2008), the U.S. Court of Appeals for the Second Circuit held, in a case of first impression, that an employer policy requiring prior authorization for overtime work does not relieve the employer from paying overtime absent such pre-approval.
First, Jury Work. We prefer to think of this piece as "Meditation on a Mont Blanc Pen", and it's wonderful. Elliot Wilcox at Winning Trial Advocacy Techniques Blog instructs on "How to Capture Important Details During Jury Selection". Milwaukee lawyer-jury consultant Anne Reed offers "Who Should Stay And Who Should Go?" at her always-insightful Deliberations.
At Settle It Now Negotiation Law Blog, Victoria Pynchon has some advice on "Impeaching Witnesses in Depositions to Improve Your Bargaining Power".
Constitutional Law Theory:
Noted Florida-based con law scholar Stanley Fish recently asked in a NYT piece whether American constitutional theory--which contains the building blocks of most U.S. Supreme Court decisions--"matters" anymore. In short, is it now "irrelevant" in the face of current commercial and cultural realities? Essentially Contested America took notice: "What's Stanley Fish's Beef with Constitutional Theory?".
III. VICI! (We conquered...)
First, explain something to me.
If the media and TV shows about lawyers have made lawyers out to be forthright heroes and scrappy fighters for adoring and trusting clients embroiled in noble causes, then how come about 98% of us in reality are gentle and sweet if intelligent risk-adverse creatures who would rather choke to death alone in the dark than write a strong letter to the Editor of Town & Country about a feature on hard-wood floors we didn't really like? When the chips are down, most lawyers we know won't stand up for themselves--much less a valued client.
Practice of law is too unpleasant and too contentious for most of us. So we hide behind our passivity under the rubric of "professionalism". What's up with that?
Well, most of this next group is of a different breed.
Take New Yorker Eric Turkewitz at New York Personal Injury Lawyer, a guy with enough energy, dry wit and moxie to intimidate Zeus. We loved his marathon Blawg Review #134, and we really like a few posts he did lately. "Bloggers Head to NY High Court As Both Defendant and Counsel in First Amendment Lawyer Advertising Battle" involves court battles of a couple of Eric's friends--Scott Greenfield of Simple Justice and Andrew Bluestone of New York Attorney Malpractice Blog--which association Eric discloses in a classy and tasteful way. And see his "Philip Morris $79.5M Punitive Award Reinstated By Oregon High Court".
Another fighter, and friend of the Irish:
At DUI Blog, Lawrence Taylor, a fellow Californian and guy I could have made moderately rich in the 1970s, has written "DUI Double Jeopardy and Multiple Punishment". DUI Blog is subtitled: "Bad Drunk Driving Laws, False Evidence and a Fading Constitution".
Here's another serious trial dog, this one named Beldar. BeldarBlog asks "Benches, birds, and bees: Daddy, where do judges come from?" We watch courts some--and so we'll be watching Beldar. He notes: "...state-court trial judges around the country generate few written opinions, and in many states...they typically generate practically none". We've noticed, too.
Sox First reports that The Donald just got sued for $4 billion by a Las Vegas property management company which claims Trump unfairly blocked it from leasing out a number of the condominiums in the Trump International Hotel and Tower. Theory: monopolistic practices and violation of anti-trust laws, false promotion and unfair competition. The suit asks for $1 billion in compensatory damages and $3 billion in punitive damages.
Nothing in American life is more contentious than the U.S. presidential election cycles every 4 years. Mixed in with the schmaltz is a real conversation. What are Americans really about, what do we want, and how do we get there? There are more bedrock and fundamental issues with human faces (often reposed in the candidates themselves) in 2008 as never before. Race, gender, privacy, the establishment clause, presidential power, and real character, for examples. Over at the Word on Employment Law with John Phillips, Miller & Martin's John Phillips writes about Race, Gender, Politics and Employment Law.
Established author and now Cornell law student Gregory Parks is guest writer this month at BlackProf.com. See his "Implicit (Unconscious) Race Bias and the 2008 Presidential Election: Does Obama Stand a Chance?--Part I".
Yale's Jack Balkin thinks that television has rendered national elections a referendum on presidential character rather than substantive issues. That's hard to argue with if you think back to what Americans have voted on since the Nixon-Kennedy TV debate of 1960: personality and trust issues move us the most, and they have propelled John McCain among Republican candidates in a compelling way in the past few weeks. See "Television Culture and the Politics of Character".
Finally, about last night.
Your office a little quiet today? Did your prized ex-U.S. Supreme Court clerk Weldon in Boston call in, maybe from the Newton slammer, despondent and too-drunk-to-bill? Or is it just the "cold and flu" season? A useful clue is offered at Strategic HR Lawyer in Super Bowl Monday "Flu" - 1.5 Million to Call in Sick".
No one ever said Super Bowl was pretty--or even legal. Howard Friedman's Religion Clause points out that Large Church Super Bowl Parties Violate Copyright Law", according to NFL lawyers.
"A useful lawyer is like pro football coach. He needs to be smart enough to understand the rules--and dumb enough to think it's important." --Overheard at Harkness coffee shop, recently. Really.
Thanks for visiting BR #145. Samuel Johnson said: "He who makes a beast of himself takes the pain out of being a man." Or a woman. Or a lawyer. Being a lawyer isn't so bad once you get the human being part down. Even a little. We feel refreshed and ready--at least for this week.
Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.
Posted by JD Hull at February 4, 2008 11:59 PM
JD: Great post! Achooooooo. Seem to have caught a cold sometime last night and thought it best to take the day off. Hopefully, it is not the (super bowl) flu! I should be better tomorrow.
Posted by: Enrico Schaefer at February 4, 2008 08:46 AM
A brilliantly masterful Blawg Review, Dan.
But you've got it all wrong, pegging me as a "a closet beatnik if we ever saw one". Seeing as how the post of mine that you linked to concerned the secret lives of tattooed lawyers, surely you meant to say instead, "a closet biker chick". ;)
Congratulations -- and allow me to offer my sympathy as a fellow Pats fan.
Posted by: Diane Levin at February 4, 2008 09:13 AM
Super job. I'd say you hit a home run but don't want to mix the metaphors.
Posted by: Eric Turkewitz at February 4, 2008 09:24 AM
As a New Yorker transplanted to Boston I'll stay out of the whole Super Bowl discussion, but if I could conjugate verbs in Latin, I'd say you saw, you came, you conquered. Great job.
Posted by: David Harlow at February 4, 2008 09:59 AM
Wonderful job -- as everyone expected, since you're anything but an underdog in this game.
Posted by: Anne Reed at February 4, 2008 10:02 AM
Does it count if we only make it in because Eric the Turk wrote about a case? At least I was the lawyer of the barely yet oddly mentioned duo.
Posted by: Scott Greenfield at February 4, 2008 01:11 PM
Good stuff, Dan... most enjoyable.
The Romans have a lot to answer for!
Posted by: Charon QC at February 4, 2008 08:15 PM
Posted by: Jamie at February 5, 2008 07:02 AM
Keep on rockin' in the free words.
Posted by: Neil Young at February 5, 2008 10:06 AM
Wow, Dan, what a great BlawgReview! And thanks for the nice words, too! Now back to clicking all these links...
Posted by: Michelle Golden at February 5, 2008 12:28 PM
a year's worth of reading in one entry
Posted by: Moe Levine at February 5, 2008 01:48 PM
Well done, Dan.
Posted by: Justin Patten at February 8, 2008 03:27 AM