Here are today's three burning legal questions, along with the answers provided by the blawgosphere.
1) Question: The D.A. is charging me with robbery, but I say I'm innocent. In fact, I was busy on Facebook at the time of the robbery. Successful alibi?
Answer: Yes. Charges dropped. (WisBlawg)
2) Question: The D.A. is charging me with murder, but I say I'm innocent. In fact, I was busy running the country (President Bush did everything I told him) and working on a solution to global warming. Successful alibi?
Answer: Sorry, no. (Bad Lawyer)
3) Question: I lost the tip of my index finger in a pole-dancing accident on Ladies' Night. The bar says I should have known of the "perils of pole-dancing." Should I have?
Answer: The jury will decide. (OnPoint News)
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Posted by Bruce Carton on November 13, 2009 at 04:17 PM | Permalink
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On April 23, 2008, Judges Daughtrey, Cook and Farris of the 6th U.S. Circuit Court of Appeals in Nashville donned their robes and heard oral argument in the matter of Bridgeport Music, Inv. v. UMG Recordings, Inc. Last week, the 6th Circuit delivered its considered judgment in the case: The phrase "bow wow wow, yippie yo, yippie yea" belongs exclusively to funk legend George Clinton, who used it in his song, "Atomic Dog."
In a 2006 interview with NPR, Clinton admits he ad-libbed most of the lyrics in the seminal 1982 funk track.
I just had the word 'dog,'" Clinton says. "That's all I had in my
mind. I had to ad lib a lot of it. The track was atomic. It's a
futurist track... I don't still hear no tracks like that one.
Bits and pieces of the song have been sampled dozens of times by hip-hop artists, perhaps most famously by Snoop Dogg in "Who Am I? (What's My Name?)." But the 6th Circuit affirmed the lower court's jury instructions concerning the defendant's alleged misuse "and repetition of the word 'dog' in a low tone of voice at regular intervals and the sound of rhythmic panting" in Public Announcement's allegedly infringing song, “D.O.G. in Me.” Among other things, the court cited the testimony of an expert musicologist, who said that "the Bow Wow refrain 'is one of the most memorable parts of the song.'" In terms of iconology, the Court explained, the Bow Wow refrain was "perhaps the functional equivalent of 'E.T., phone home.'”
Refresh your memory of "Atomic Dog," "bow wow wow, yippie yo, yippie yea," and the "repetition of the word 'dog" in a low tone of voice at regular intervals and the sound of rhythmic panting" below.
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Posted by Bruce Carton on November 13, 2009 at 03:45 PM | Permalink
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As I wrote back in August, the number of Twitter followers one has continues to be an extremely misleading metric. This week, Mark Britton, CEO of Avvo, advanced that idea further, writing on the Legal Technology blog that it was time for him to "let the cat out of the bag" and debunk the notion "that the number of Twitter followers one has is positively, if not perfectly, correlated to the amount of influence someone has in the marketplace."
Britton states flat-out that "the number of one's Twitter followers has nothing to do with his or her influence." He explains, as I discussed in August, that with very little effort anyone can pick up tens of thousands of followers simply by following tens of thousands of people themselves. Britton says that, in fact, the "true Twitter litmus test on the influence front" is as follows:
Look at the ratio of the number of people someone is "following" vs. their "followers" (i.e., divide their "following" number by their "follower" number). The closer that ratio is to 0 (e.g., 125 "following" divided by 40,000 "followers"), the more influential that person is. And, conversely, the closer that ratio is to 1 (e.g., 34,956 "following" divided by 40,000 "followers"), and especially if it exceeds 1 (e.g., 42,566 "following" divided by 40,000 "followers"), the *less* influential that person probably is. Rather than being a thought leader, maven or ninja, they are regular people just like you and me -- they just work harder at spamming Twitter for followers than you or me.
Today, Scott Greenfield added to this discussion on his Simple Justice blog, pointing out that big follower numbers continue to impress many Twitter users who lack "a clear understanding that followers on Twitter are too often named 'Britney' or [are] themselves only interested in gathering as many followers as possible in their simplistic quest at marketing hegemony." In a comment to Greenfield's post, attorney Mark Bennett disagreed with Britton's ratio-based index, arguing that it does not properly measure influence. Bennett writes that:
A person who follows nobody but is followed by his mother would score a perfect Zero.
Britton's index measures boringness. The more people you follow divided by those who follow you is your Twitter Boring Index. The inverse is your Twitter Interesting Index. The most interesting people might have very little influence.
Bennett adds that "to measure influence, we would need to somehow account for the number of followers who are actually paying attention. I haven't quite figured out yet how to do that." In my original post on this in August, I suggested a count of "Interested Followers," defined as the total number of followers who have ever responded in any way (i.e., via a "re-tweet" or an "@" message) to something the user has posted.
Twitter, are you listening?
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Posted by Bruce Carton on November 13, 2009 at 12:21 PM | Permalink
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I thought we had completely maxed out on the Supreme Court geekiness with the baseball cards and then the oral arguments available on iTunes, but no... not even close. Today, I present you with the new gold standard in Supreme Court geekery: "FantasySCOTUS.net, the Premier Supreme Court Fantasy League."
FantasySCOTUS.net is the brainchild of Josh Blackman, who admits to being an "unashamedly big Supreme Court nerd." At the beginning of the October 2009 term, he writes, "a friend asked me to predict the outcome of several Supreme Court cases. After making my predictions, I thought it would be cool if Vegas took bets on Supreme Court cases like they do on sporting events. And then I wondered, why not a Supreme Court Fantasy League? FantasySCOTUS.net was born." He adds, "I know there are more people out there like me."
In this fantasy league, participants compete against friends, colleagues and adversaries to determine who has the greatest ability to predict the outcome of Supreme Court cases. At the end of the term, the winner "will receive the venerable title of the Chief Justice of Fantasy SCOTUS," not to mention the "Golden Gavel Trophy."
So put down your Justice Roberts trading card, take off your headphones playing Bush v. Gore, and make us all proud by bringing home the Golden Gavel Trophy.
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Posted by Bruce Carton on November 13, 2009 at 11:41 AM | Permalink
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The doctrine of judicial immunity shields judges from lawsuits that target their actions on the bench. But when a judge's conduct is particularly egregious and perhaps even violates someone's civil rights, should the shield come down?
In a piece published today in the Wall Street Journal, Ashby Jones, lead writer for the WSJ's Law Blog, considers this question. It is actively under consideration in Pennsylvania, where two judges of the Court of Common Pleas were accused of routing juveniles to detention centers in exchange for millions of dollars in kickbacks. (For more background on the story, see complete coverage of the affair from The Legal Intelligencer.)
In civil suits filed against the judges, lawyers are seeking to recover monetary damages on behalf of the children and their families, alleging that the judges violated their civil rights. The judges countered with motions to dismiss the lawsuits, arguing that they are protected by the doctrine of judicial immunity. Their motions are pending.
"Legal experts say the plaintiffs face an uphill battle in piercing the immunity shield," Jones writes. "Dating to 1872, the U.S. Supreme Court has repeatedly supported the notion that judges should express their legal convictions without having to worry about personal consequences."
As a matter of policy, it makes sense to immunize judges in all their judicial functions, even when a judge acts with malicious intent, University of Pittsburgh law professor Arthur Hellman tells Jones. "On one level, it seems outrageous to ban someone from suing a corrupt judge," he says. "But if you allow plaintiffs to pierce the immunity by alleging bad motive, it opens the floodgates."
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Posted by Robert J. Ambrogi on November 12, 2009 at 03:33 PM | Permalink
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It is hard to know just what the take-away should be from the PricewaterhouseCoopers 2009 survey of U.K. law firms. For the Times Online, the headline from the survey is that the economic downturn has not kept London's leading law firms from producing hundreds of millionaires among their partners. For Bloomberg.com, the headline is that profit at the U.K.'s 100 highest-grossing firms fell an average of 30 percent. For the Birmingham Post, the headline is that lawyers in that city are likely to face a continuing period of job losses and potential mergers.
Whatever you take away from reading this survey, you are unlikely to quibble with the conclusion of PWC partner Alistair Rose, who said, "This year has seen the greatest turmoil in the law firm sector since our survey began in 1991." But amidst that turmoil, the survey makes clear, there were winners as well as losers.
The winners were the U.K.'s top 10 grossing firms. Yes, they averaged a 21 percent drop in profits per partner. But even so, average profits per partner at the top 10 were £872,000, almost twice the average profits of £444,000 at the 11th- to 25th-ranked firms. In U.S. dollars, that means that partners at the top firms averaged profits of $1.4 million. In a global economic downturn, that's the breadline I want to be in.
Harder hit were the firms ranked 11 to 25, "with the result that there is now a much reduced difference in terms of profitability amongst the Top 11-25 firms and the Top 26-50 firms." These are the firms, PWC says, that have "been operating in the most competitive and depressed markets, e.g., transactions, property and UK corporate."
Back up at the top of the law-firm pack, the survey goes so far as to say, "We see clear daylight emerging." These firms, PWC predicts, will continue to do "significantly better than the chasing pack." The reason these top 10 firms stand on firmer economic ground is not that they are finding significant new sources of revenue growth. To the contrary, the survey found that business confidence remains weak among the managing partners at these firms.
Instead, the top 10 firms shored up their footing in two ways. For one, they focused early in the downturn on reducing their costs and restructuring their operations. "A relatively small number of firms rightly predicted the likely extent and severity of the economic recession and began to reduce headcount and take out cost early in the second half of FY09." Secondarily, the did a better job of penetrating existing markets, from which they continue to draw new business.
Looking to the future, the survey repeats the prediction that is now commonly heard throughout the legal industry, on whichever side of the pond you practice, that the structural changes firms have made are here to stay. "Fierce competition has made firms think hard about how to become distinctive in the eye of the client," says PWC's Alistair Rose. "Client relationship and engagement management, sustainability and innovative delivery models are all moving fast up the agenda as a result." If what Rose says is true, then those who stand to gain the most from these changes are clients.
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Posted by Robert J. Ambrogi on November 12, 2009 at 12:49 PM | Permalink
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It is not too early to start your holiday shopping and what better gift for that special lawyer or judge than a bottle of Lawyer's Breath hot sauce or a jar of Hot Lawyer's Nuts. These and other legally themed delectables are available for purchase online through Judicial Flavors, a company started by Auburn, Calif., solo lawyer Wendell Peters.
Peters is a criminal lawyer engaged in the pursuit of hot. He sells a complete line of hot sauces with names such as Contempt of Court, Juvenile Justice, Last Will & Testament, Under the Influence and his extreme hot sauce So Sue Me. There is also his Shyster Sauce barbecue sauce, Whole Truth pasta sauce, and a variety of salad dressings, fruit sauces, glazes, jellies, rubs and other products.
A 1985 graduate of McGeorge School of Law, Peters credits his home state of Texas and a childhood spent helping his mother with pickling chores as the inspirations for his recipes. But it was not until he was well into his legal career that he came up with his hot sauce. His Web site explains:
It wasn’t until he was "messing around in the kitchen making all kinds of sauces" that Wendell happened upon the idea to focus on hot sauce. After a few years of testing out his concoctions on fellow lawyers, Wendell went home to Texas to compete in the first international Chile Expo. In his first competition in 1997 he walked off triumphantly with a "Best of Show" award for his sauces.
His recipes have since gone on to win 60 awards and honors. Lawyer's Breath was his first hot sauce and bears the distinction of having been served in the luxury suites at the 1998 Super Bowl. The label on the Lawyer's Breath bottle promises it will "bring out the orator in you" but that "your breath will not reek of broken promises and hidden clauses."
You can order a bottle of Lawyer's Breath for $6.99 or get the Trial in Session gift pack of three different sauces for $19.95. Where else can you get a lawyer's hot and spicy output for so cheap?
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Posted by Robert J. Ambrogi on November 12, 2009 at 11:53 AM | Permalink
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One World Series ended last week but another is just getting started. Yes, the New York Yankees triumphed over the Philadelphia Phillies. But in the Family Division of the Superior Court in Los Angeles, what may prove to be the World Series of divorce cases is only in its opening innings. And one diehard baseball fan and self-described law nerd has launched a blog to help us keep score.
The divorce at issue is that of Frank and Jamie McCourt. Frank is the owner of the Los Angeles Dodgers, which he bought in 2004 for $430 million. Jamie is a lawyer who was chief executive officer of the Dodgers until Frank fired her last month. A few days later, on Oct. 27, Jamie filed for divorce. The next day, Oct. 28, Joshua Fisher launched his blog, Dodger Divorce.
The divorce, after 30 years of marriage, is already proving to be ugly, with Frank accusing Jamie of having had an affair with her driver and of having performed poorly as CEO. For Dodgers fans, however, the central issue in the divorce is proving to be ownership of the team. Frank says he is sole owner while Jamie contends she is a co-owner.
As Dodger Divorce (and any number of news accounts) describes, the ownership issue could be decided by a post-nuptial agreement signed by the McCourts shortly after the purchase of the Dodgers. The agreement is described as having given Jamie control over the couple's residential properties and personal assets and Frank control over the Dodgers and other business assets.
In an interview published yesterday in the Los Angeles Times, Jamie insisted she had no idea what she was signing when she agreed to the pre-nup. "I met Frank when I was 17, dated him for eight years and was married to him almost 30 years," she said. "I trusted the man."
But Frank's court filings say it was Jamie, "an experienced businesswoman and attorney who actually specialized in the practice of family law for many years," who was the driving force behind the post-nup. "When Frank McCourt acquired the Dodgers in February 2004, the organization was losing tens of millions of dollars every year. Jamie McCourt repeatedly told Frank McCourt and their attorneys that she wanted to protect herself from the financial risks associated with her husband's businesses -- most particularly, the risks associated with ownership of the Dodgers."
Another court filing
by Frank provides more details about Jamie's legal career. After
graduating from the University of Maryland School of Law in 1978, she
first practiced international and securities law in New York. She then
moved to Boston, where she concentrated in real estate and family law
for many years. She then obtained a master's degree from the Sloan
School of Business at MIT and joined Frank's construction company as
vice president and general counsel.
As the unofficial umpire of this dispute, Dodger Divorce calls the ownership issue for Frank. "If Frank wins on the post-nup, he probably keeps the Dodgers," Fisher writes. "If Jamie wins, we'll have to wait to see if one has enough money to buy out the other. Based on the very limited information I have in front of me, I like Frank's chances more today than I did yesterday."
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Posted by Robert J. Ambrogi on November 12, 2009 at 10:53 AM | Permalink
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Here are today's three burning legal questions, along with the answers provided by the blawgosphere.
1) Question:
I'm a patent lawyer. My white-collar defense colleagues have cool movies and TV shows about their practice areas. Is there anything out there for me and my patent buddies?
Answer: Of course not. Oh, wait. How about a play? (BlawgIT)
2) Question: I'm going through a divorce. Any advice?
Answer: Change your BlackBerry password ASAP and DO NOT use your new girlfriend's name as the new password. (National Law Journal)
3) Question: I'm a law partner with a big book of business looking to make a lateral move. I haven't found the right fit yet -- any suggestions?
Answer: Have you tried Craigslist? (Legal Pad)
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Posted by Bruce Carton on November 11, 2009 at 04:03 PM | Permalink
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Bizarre calls to the "9-1-1 emergency" line are the stuff of legend. There is the woman who called 9-1-1 (audio available here) because she thought the police officer who had just visited her house on a complaint was a "cutie pie" and she wanted him to come back (he did come back and arrested her for misusing 9-1-1).
There is the woman who called (audio available here) because she believed she was locked inside her car when the electrical system failed. The dispatcher suggested "pulling up the lock," which promptly ended the emergency.
But what about the Oct. 24, 2009 call made by Wisconsin's Mary Strey? Strey used her cell phone to call 9-1-1 and report that "Somebody's really drunk driving down Granton Road." The dispatcher then sought more information on her location:
Dispatcher: Are they going toward Granton or going toward Neillsville?
Strey: Towards Granton.
Dispatcher: OK, are you behind them, or?
Strey: No, I am them.
Dispatcher: You am them?
Strey: Yes, I am them.
Dispatcher: OK, so you want to call in and report that you’re driving drunk?
Strey: Yes.
The New York Daily News reports that Strey told the dispatcher she called because, "I don't want to hurt anybody. I'm drunk." The dispatcher convinced her to pull over, and she later told officers she'd had seven or eight brandy and Cokes at several bars.
Strey's call joins the 9-1-1 call Hall of Fame, but her call may well have saved someone's life, as well as her own.
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Posted by Bruce Carton on November 11, 2009 at 03:25 PM | Permalink
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