attorney

Orin Kerr, a professor of law at George Washington University Law School and leading law blogger, picked up on recent comments by Justice Anthony Kennedy on the importance of law blogs.

On August 19th, Justice Kennedy gave an address that included an interesting passing remark about the role of blogs. Justice Kennedy was talking about how law review case comments generally come out too late to be of use to the Court (especially in the context of deciding whether to grant certiorari in a case). As a result, when Justice Kennedy asks his clerks to look to see what the law reviews have said about a particular case, there isn’t any commentary yet. Justice Kennedy adds: “I’ve found, what my clerks do now, when they have interesting cases — They read blogs.”

Justice Kennedy’s comments weren’t lost on University of Wisconsin Law Professor and noted blogger, Ann Althouse.

This means that the lawprofs who keep up high-profile blogs have disproportionate influence. You have traditional lawprofs laboring over law review articles, but these articles come out too late to discuss a case that’s pending in the Supreme Court. One answer — I’m not the first to say this* — is that law review articles should properly be about something other than the latest pending or just-decided cases, something more timeless and profound. But I think that most law professors would like to be involved in the legal developments of the day. It must be irritating to see that the lawprof bloggers have a special line to the Court.

Althouse goes to ask what I’ve always wondered, will law professors be required to blog?

This may stir up an old question that I know nags at some law professors: Will I be required to blog? Very soon after I started blogging, I heard the question is it acceptable for lawprofs to blog? and then, right after that, the question will I be required to blog? jumped up. In the minds of some non-blogging lawprofs, it preceded the question is it good for lawprofs to blog? — which seemed like a more appropriate question to me. But I can see why someone with a legal mind would ask will I be required to blog? before is it good for lawprofs to blog? It’s the same reason lawyers think what do I want the answer to be? before they try to figure out what the answer is.

Anyway, Justice Kennedy’s remark shows why it’s good for lawprofs to blog, but it would be ridiculous to require lawprofs to blog. Wouldn’t it? Or is it ridiculous to require lawprofs to write law review articles?

UCLA Law Professor and noted blogger in his own right, Stephen Bainbridge took it a step further arguing, ‘Why Blawging Ought to be Part of the Law Prof Biz.’

Citing Althouse’s comments, Bainbridge made clear that the Judges in Delaware were reading law blogs.

I have good reason to be confident that Delaware jurists also are reading those of us who toil in the corporate law blogosphere. Now the powers that be just have to figure out metrics and rewards for those of us who do so successfully.

There’s no question Bainbridge was referring to comments from his friend and LexBlog Network blogger, Francis Pileggi, that the Chief Justice of the Delaware Supreme Court is a regular reader of Pileggi’s Delaware Corporate and Commercial Litigation Blog.

The practice of lawyers bringing in associate counsel who have authored treatises, law reviews, and articles to associate with on important cases is widely accepted. The reason being that such lawyers may have greater influence with trial or appellate court judges.

Well today influence is more apt to be measured by whether a lawyer publishes a blogs that’s read by judges and their clerks.

Hat tip to the Washington Times’ Culture Briefs for turning me on to this discussion.

 I was fortunate that when I got out of law school there were more opportunities for young lawyers to receive mentoring from experienced lawyers. In general, there were more chances to learn how to be a good lawyer. Federal courts used to have oral argument on motions as a matter of course. Very few judges had permanent clerks, and so there was more direct supervision between a judge and his or her clerks.

The greatest value of mentoring, to me, was being guided in how to look at situations. A young lawyer can become intimidated by the simplest thing, usually something that should have been covered in law school (e.g. how to make proper service). A lot of what lawyers do is not that hard. But, since law school only addresses theory (because many professors don't have much practical experience, and because it's more fun to theorize about law than to discuss practical solutions to common problems), young lawyers don't really know much that can help them in the day-to-day practice of law.

But, the next crop of lawyers are in a unique position to graduate armed with practical knowledge that is completely beyond the grasp of most lawyers. I'm talking about litigation lawyers, not transactional lawyers. So, if you're a law student and you might want to litigate when you get out of school, listen up. I'm about to reveal a valuable secret that very few lawyers would tell you (even if they were aware of this in the first place).

Litigation is a battle about who can prove their version of "truth" better than their opponent. Your client, or your client's employees, are not the most reliable sources for proving what actually happened. Documents are much more reliable, mostly because they are inert objects and have no animus or bias. They say what they say, and that's it. So far nothing I've said is controversial or beyond the awareness of most lawyers.

Here comes the part you need to pay attention to.

These days most 'documents' are in digital form, and most lawyers are very uncomfortable dealing with computers, much less digital documents. There are lawyers out there, respected lawyers who are paid a lot of money, who don't read their email on a computer. They have their secretary print out the emails, which of course is insane.

More common, though, are the lawyers who simply don't use computers enough to understand the basic nature of digital information. They barely know how to navigate a common file system, and they certainly don't know that you can search files easily on any computer system. There are lawyers who don't know what the scroll bar is for, so they navigate through their email inbox by using the down arrow repeatedly. And then there are the lawyers who think that spreadsheets are just a grid to organize financial information; they don't realize that the spreadsheet calculates values for them, and so they do that manually (or have their equally tech-unsavvy secretary do it for them).

A few years ago the Federal Rules of Civil Procedure were amended to address so-called 'electronic discovery,' and lawyers dutifully read the rules. Then they assumed that they were ready to deal with discovery of electronic information. Google the phrase "e-discovery and adverse inference" to see how well some of them are doing. (Spoiler alert: not well). But it's not because they haven't read the federal rules.

Most lawyers today don't understand the nature of digital information. And they won't admit that this poses a problem for them. They think that they can be effective as litigators (not to be confused with 'trial lawyers', which is a topic for another post) simply because they're smart and know legal procedure.

But, remember what we said about documents? They matter more than witnesses in most cases, because they aren't as easily discredited. So if you do a better job than your opponent in gathering and organizing documents then you'll have an advantage. If your opponent does such a bad job that you wind up getting the court to give the jury an adverse inference instruction (e.g. tell the jury that they should assume a fact in dispute is favorable to you) then you'll win a case you might not otherwise have won.

Remember that old story about being out on a hike with a friend, and seeing a bear in the distance ready to chase you down and eat you? It makes no sense to stop and put on running shoes if you're thinking you can outrun the bear.  But you don't have to outrun the bear. If you can outrun your friend the bear won't be your problem; it'll be your friends (er, former friend) problem. That's why you take the time to put on the running shoes.

So, that's my advice to you. Go learn as much as you can about how to manage digital documents using a computer. Get a scanner (the Fujitsu ScanSnap 1500) and get comfortable with scanning. Get a copy of Adobe Acrobat (student versions are about half the cost of what the rest of us pay), and learn how to manipulate PDFs. Sure, none of this will make you a great lawyer by itself. It will, however, give you an edge over even very experienced lawyers.

That kind of edge is hard to come by, and in the case of digital information it won't last. In a few years there will be lots of people in the legal profession who understand digital information. But until that happens, you can put yourself ahead of the pack. If you're willing to stop and spend the time (and maybe money) to learn a valuable skill, that is.

56% of lawyers personally maintain a presence in an online community/social network such as Facebook, LinkedIn, LawLink, or Legal OnRamp. This compares with 43% in the 2009 and 15% in the 2008.

Such are the findings of the American Bar Association’s Legal Technology Resource Center Survey of ABA member lawyers in private practice about the technology in use at their firms.

Why do lawyers maintain a presence on social networks?

• Professional networking (76%)
• Socializing (62%)
• Client development (42%)
• Career development (17%)
• Case investigation (6%)

What social networks do lawyers use?

• LinkedIn (83%)
• Facebook (68%)
• Plaxo (18%)
• Martindale.com Connected (4%)
• LawLink (2%)
• Twitter (2%)
• Avvo, LegalOnRamp, and LegallyMinded (1% each)

Thanks to the ABA’s Legal Technology Resource Center for the survey and its director, Catherine Sanders Reach, for the summary of the survey’s findings in Law Technology News.

A $750,000 Illinois police brutality settlement has been reached in a federal case accusing Jefferson County sheriff’s deputies of using a stun gun on three children at an emergency youth center. The federal lawsuit, filed in 2009, stemmed from an alleged July 4, 2008 incident at the Southern Thirty Adolescent Center.

According to the complaint, Jefferson County deputies David Bowers and Lonnie Lawler arrived at the home for youths in response to a call that three of the kids were being disruptive. These children are not the ones that sought Illinois personal injury damages.

While at the youth center, Bowers allegedly shoved one boy onto a bed and shocked him repeatedly with a stun gun. He then stunned another boy several times and threatened to sodomize him, which caused the youth to soil himself. A third child obeyed the deputies when they told him to sit on a couch, but Bowers allegedly stunned him repeatedly and Lawler handcuffed him. A fourth youth, a girl, begged the deputies to stop. Lawler allegedly handcuffed her, while Bowers picked her up and choked her while pushing her against a wall. She was then thrown into a closet. All four alleged victims were younger than 18.

Chicago Police Brutality
Police violence is never justified—especially when there is no need or other warranted cause to use force. Chicago police brutality is a violation of one’s civil rights and can lead to personal injuries, emotional trauma, mental anguish, and wrongful death. Do NOT be afraid to report an incident of police violence or explore your legal options.

Lawsuit over Ill. deputy’s use of stun gun settled, Salon/AP, August 3, 2010

Related Web Resources:
Sheriff’s Office of Jefferson County

Southern Thirty Adolescent Center

As a Texas oil and gas lawyer, I have followed with interest the proposals to add new regulations for onshore, as well as offshore, drilling in the wake of the Gulf of Mexico oil spill. Several initiatives to tighten federal regulation of offshore drilling are making their way through the halls of Congress. These bills are perhaps inevitable, considering the magnitude of the spill, the confused federal and BP response to the spill and the adverse public reaction to both the spill and the subsequent mitigation and clean up efforts. At the same time, however, environmental groups and some in Congress are using the push for new offshore drilling regulations to call for tighter federal rules for onshore oil and gas drilling. These new regulations are designed to make it more difficult for oil and gas companies to start drilling in the first place, and to more closely monitor their post-drilling operations for alleged threats to public health and the environment.

It’s perhaps a little too simplistic to blame the BP spill for the new regulatory push onshore. Given the Obama administration’s stated goals of favoring alternative energy and the environment over the pro-drilling energy policies of the Bush administration, perhaps new regulations were inevitable. But the debate appears to have taken on greater urgency in some quarters. As Kevin Book of Clear View Energy Partners says (referring to shale drilling), “the perception of risk has changed, and the reason for it can be summed up in one word—Macondo.”

The first signal of new regulations to come surfaced in May, when Interior Secretary Ken Salazar announced tighter regulations for oil and gas drilling on public lands. These new rules make it much more difficult for oil and gas companies to obtain drilling approval, and drilling on certain public lands would require a period of public comment. While environmental groups praised the regulations as reversing the allegedly destructive Bush administration drilling policies, the Independent Petroleum Association of the Mountain States (now the Western Energy Alliance) stated in a press release that the new rules would “delay the development of clean, domestic natural gas on Western federal lands.”

The desire for tighter regulations focused Congress’ attention on two bills introduced over a year ago. One, the Consolidated Land, Energy, and Aquatic Resources Act (the CLEAR Act), passed the House on July 30, 2010 and went to the Senate. Among other things, the bill requires oil and gas companies engaged in drilling on federal lands to adopt “best management practices” designed to minimize threats to health and the environment; requires public disclosure of the chemicals used in drilling or hydraulic fracturing (often referred to as “fracing” in the oil industry or “fracking” by the media); and repeals 2005 legislation allowing companies to drill on public lands without a full environmental review process. Another bill, the Fracturing Responsibility and Awareness of Chemicals Act (the FRAC Act), originally introduced last summer, specifically targets the practice of hydraulic fracturing by removing the exemption of the practice from regulation by the EPA under the Safe Drinking Water Act. This bill and a companion bill introduced at the same time in the Senate have never come up for a vote. Similar language was stripped from the CLEAR Act, but the Clean Energy Jobs and Oil Company Accountability Act, introduced in the the Senate by Majority Leader Harry Reid (D-Nev.) would require companies to make their fracing formulas public on the Internet.

While the ultimate fate of all these bills has yet to be determined, these initial efforts to increase federal regulation of onshore drilling spurred calls for even further regulation. In late July 2010 a number of environmental groups, including the National Audubon Society, the Natural Resources Defense Council, and the Sierra Club, sent a letter to Senate Majority Leader Harry Reid and Speaker of the House Nancy Pelosi, urging the passage of new onshore drilling regulation to target what they call the damaging environmental and health effects of current practices. In addition, they urged an end to tax benefits for oil and gas companies, more federal money for research into public safety and environmental protection, and an end to “fast-track” approval of oil and gas drilling on federal lands.

What impact will increased federal regulation have on domestic oil and gas drilling? Only time will tell. Oil and gas companies oppose federal regulations, saying that existing state regulations are quite sufficient to protect the environment and public health and safety. Marc Smith, the executive director of the Western Energy Alliance, points out the folly of giving more oversight of onshore drilling to the same federal regulators who failed to prevent the BP oil spill: “It doesn’t make sense to take more control away from state oil and gas regulators and give it to the federal agency that just oversaw the worst environmental catastrophe in the history of our nation.” Here in Texas, for example, we have the Texas Railroad Commission, which does an excellent job of regulating oil and gas drilling and production. Industry representatives also claim that the regulations embodied in the CLEAR Act will make drilling on public lands more expensive, increase Government control over the market, and create a new and unnecessary layer of bureaucracy.

There is an economic and national security aspect of these proposed regulations that sometimes gets lost in the debate. If regulations for onshore drilling are increased, oil companies will need to spend more time and money in compliance. That means the cost of oil and gas and the products derived from oil and gas will increase for consumers. In addition, increased regulation will almost certainly mean fewer wells will be drilled, and this will result in even greater unemployment for workers in the oil and gas industry and all the many industries that service the oil and gas companies (the majority of which are small businesses). Ultimately, if the higher regulatory cost leads to lower domestic production, we will have to increase, rather than decrease, our reliance on Mid-East oil. This factors should make us consider carefully: is increased reulation is really the direction we should be heading?

A Northlake mother is suing McDonald’s for Chicago personal injury on her daughter’s behalf. Vicki LaRocco claims that her daughter sustained serious burn injuries on April 28, 2009 because the hot chocolate she ordered was placed in a cup with an improperly secured lid. The drink order was placed at the drive-through window at a McDonald’s in Schiller Park.

LaRocco says that the chocolate liquid spilled onto her daughter’s leg, causing severe pain and scarring. She contends that McDonald’s should have known that the hot chocolate was too hot to drink. LaRocco is seeking an unspecified amount of damages for Chicago injuries to her child.

Restaurants can be held liable for Chicago injury if their food or drink causes serious injury or death to a customer. Food poisoning, burn injuries from hot liquids, Salmonella, and other injuries caused by foreign objects in food are examples of injuries and illnesses that have been grounds for such cases.

Recently, Robert Miner filed a Chicago, Illinois personal injury complaint against Chipotle Mexican Grill because he claims that he was served and ate a burrito that contained a black metal wire on September 61, 2008.

The 2-inch piece pierced his throat and he had to undergo surgery to have it removed. Miner is also suing the licensees and owners of the Chipotle that is located on East Ontario Street. He is seeking an unspecified amount of damages.

In other food injury news, Philip Hodousek and his wife have settled their personal injury case with Claim Jumper Restaurants for an undisclosed amount. Hodousek sued the restaurant chain because he ended up chewing on a used condom that had been floating in his French onion soup. The couple said the incident caused them emotional distress and they worried that Hodousek might have caught a disease from the prophylactic, which contained traces of female DNA.

Hot chocolate spill leads to lawsuit, Chicago Tribune, August 25, 2010

Settlement reached in condom soup case, OC Register, August 25, 2010

Man sues Chipotle, claims wire was in his burrito, Chicago Breaking News, August 3, 2010

Related Web Resources:
Claim Jumper Restaurants

Chipotle Mexican Grill

McDonald’s

14 years after the death of her husband from lung cancer, Liz Piendle has been awarded $2.2 million for the Palm Beach wrongful death of her husband and $270,000 in punitive damages against tobacco giants Philip Morris and RJ Reynolds. Piendle’s 55-year-old husband Charles was a smoker who lit up two packs a day for 30 decades. The 60-year-old Royal Palm Beach resident has expressed satisfaction with the Palm Beach tobacco litigation verdict.

Although jurors didn’t that find either RJ Reynolds or Philip Morris had been negligent, they did hold them 55% liable for Charles’s death. They found the longtime smoker to be 45% at fault, which is why Piendle will get $2.2 million out of the $4 million they said she should receive for her pain and suffering. Piendle’s case is the first of about 300 Palm Beach County tobacco injury lawsuits to go to trial.

The cases stem from a Miami class-action complaint from that in 1999 led to a jury awarding smokers and surviving family members $145 billion in damages for tobacco companies’ negligence in trying to hide that smoking was dangerous. The Florida Supreme Court tossed out the award in 2006 and ruled that smokers must file separate Florida tobacco lawsuits each explaining how tobacco companies and their cigarettes impacted them.

Piendle claimed that her husband got addicted to smoking when he was a teenager and was only able to stop seven years before he died. While the defendants argued that Charles could have quit smoking, Piendle’s tobacco litigation attorneys claimed that the “misinformation campaign” that lasted for decades wasn’t Charles’ fault.

Out of 22 Florida tobacco lawsuits decided by juries, 17 cases have gone in the plaintiffs’ favor. Tobacco companies have only won 3 cases.

Some 8,000 tobacco litigation cases have been filed in Florida.

Jury orders two tobacco giants to pay $270,000 in punitive damages to widow of smoker, Sun-Sentinel, August 20, 2010

Widow to get tobacco award, Herald Tribune, August 20, 2010

Tobacco companies ordered to pay $2.2 million to widow of smoker, formerly of Royal Palm Beach, Palm Beach Post, August 19, 2010

Related Web Resources:
Philip Morris

RJ Reynolds

Bulletin: Cigarettes Remain Dangerous to Your Health, Politics Daily, June 18, 2010

Engle v. Liggett Group, Inc., Florida Supreme Court Decision (PDF)

It’s 4 o’clock in the afternoon on the eve of Labor Day weekend; I’m not expecting too many people to still be in the office. Nevertheless, it’s time for a roundup of the latest publications to join the LexBlog Network.

• Mississippi attorney Jeramie Fortenberry authors the Nonprofit Law Report. Already off to a good start, the publication discusses the ongoing legal issues affecting nonprofit and charitable organizations. Jeramie brings a unique level of experience to the publication, having previously served as the Vice President of Development for a regional non-profit corporation with a $20 million budget. 
• The D&O E&O Monitor is published by nationwide firm Tressler LLP. Expanding on the abbreviations, this blog monitors issues and other news in directors & officers and errors & omissions liability and insurance coverage.
• The blog for the New York Injured Workers’ Alliance also joined the LexBlog Network this week. In their own words, the NYIWA "seeks to include a broad range of individuals and organizations (injured workers, claimant attorneys, medical providers, union and political leaders) that are willing to take on powerful interests in Albany to protect the rights of injured workers."
• Also joining the LexBlog Network this week is Ley de Compensación Laboral de Nevada. This is the Spanish language version of Las Vegas attorney Virginia Hunt‘s Nevada Workers’ Compensation Law Blog. Virginia comments on associated with workers’ compensations law and aims to provide helpful information on the claims process.

The LexBlog Network sees 111 posts on a relatively calm but still respectable day. Bryant Esquenazi continues to stay on top of major criminal and personal injury law stories making the news as he comments on the arrest of hip-hop artist T.I. and his wife.

• Washington Court of Appeals Finds College Instructor Violated State Law By Lobbying For Tenure Legislation Via School E-mail – Seattle lawyer Todd Sorenson of Williams Kastner on the firm’s Northwest Education Law Blog
• How Risky Is China? – Seattle attorney Dan Harris of Harris & Moure on the firm’s China Law Blog
• TI and Tameka Arrested – If It’s Sizzurp, Where’s The Drug Company Responsibility? – Miami lawyer Bryant Esquenazi on his blog, Miami Beach Injury Law News
• Pedestrians and Motor Vehicle Accidents in South Carolina – Anderson attorney Trey Mills of Trammell Law Firm on his South Carolina Injury Law Journal
• Class Certification Denied in Microwave Popcorn Litigation – Philadelphia lawyer Sean Wajert of Dechert LLP at his Mass Tort Defense Blog
• Director Of Nursing Cleared Of Charges Alleging That She Interfered With Nursing Home Inspection – Chicago attorney Jonathan Rosenfeld of Strellis & Field’s on his Nursing Homes Abuse Blog
• Is Client Responsiveness A Good Measure Of A Lawyer’s Quality? – Philadelphia lawyer Maxwell Kennerly of The Beasley Firm at his blog, Litigation & Trial
• Which Mass Tort Cases Deserve Settlement? – Virginia attorney Andrew Trask of McGuireWoods on the firm’s blog, Class Action Countermeasures
• Fraudulent Transfer: What Does It Mean and Why Do I Care? – Dallas lawyer Keith Mullen of Winstead on the firm’s blog, Tough Time for Lenders
• What Difference Does it Make that Paulson "Instructed" Lewis Not to Disclose the Fed Backstop of the BofA/Merrill Deal? – Ohio attorney Kevin LaCroix of OakBridge Insurance Services in his blog, The D & O Diary

New York speeding tickets are a dime a dozen but the speed trap on the Henry Hudson parkway north between the George Washington Bridge and about 1/2 mile before the Henry Hudson Bridge is just inexplicable. The speed limit is 35 miles per hour in the vicinity of Fort Tryon Park while it is 50 mph on the identical stretch of highway heading south bound and 50 mph before and after this stretch between the George Washington Bridge and the Henry Hudson Bridge.

Without any explanation several months ago the speed limit signs were changed to 50 mph on this stretch of highway and then just as mysteriously went back to 35 mph within the last several days. Of course, the New York City Police are aggressively enforcing the new speed limit.

To add to the absurdity, the speed limit goes up to 50 mph about 1/2 mile before the speed limit suddenly drops to only 10 mph just before the Henry Hudson Toll Plaza.

If anyone has any explanation for this seemingly ridiculous speed trap please post a comment to this blog. I for one would love to know and so would the many motorists who received New York City traffic tickets in this area. In the meantime, if you drive on this stretch of New York City road be careful and pay close attention to the signs. A motorist who drives just 56 mph (believing that the speed limit is 50 mph) faces 6 points on their license if caught in this area. The 6 points brings all types of headaches such as the driver responsibility assessment and insurance headaches.

If you are ticketed in this area contact Tilem & Campbell or visit drsummons.com to learn about your options.