Electronic Communications, Privacy, Data Protection, and More

Seattle Blawger Meetup

Venkat — Sun, 15 Apr 2012 18:07:55 GMT

I really enjoyed last week's Seattle blawger meet up. It was great to see a bunch of Seattle law bloggers and twitterers. (In attendance: Colette, Mike Atkins, Bruce Johnson, Tonya Gisselberg, Heather Morado, Asher Bearman, Ziff, Brian Rowe, Joe Skocilich, the 'other Kevin' from LexBlog, Eric Goldman, William Carleton, Josh King, and Mark Britton.)

I'm not sure what it is, but I've always enjoyed meeting law bloggers (and bloggers generally). Lawyer gatherings tend to be relatively mundane and mostly unenjoyable affairs, but law blogger gatherings are different. There's something about a law blogger's personality perhaps that makes finding common ground easier? On thing is for sure, it's the most painless form of networking that exists (in the lawyering world).

Here's @wac6's recap: "Last Night's Tweetup for Seattle Blawgers." (Thanks to Avvo for hosting.) [Do we look like a bunch of gangsters, or what? Check out the picture below:]

On a related note, I also enjoyed meeting Eric Goldman in person last week. It's funny to meet someone in person that you've exchanged thousands of emails with. This isn't the first time I've experienced this but there's that feeling of wondering whether the person will match up in person to their 'online personality'. Sort of a professional version of meeting someone in an online dating context after you've corresponded with them a bunch (in this case, a ton). Eric is great. Very fun to hang out with. He treated me to dinner at a vegetarian restaurant and to gelato (and they say blogging isn't profitable!).

A Reading List for the Novice Social Networking Lawyer

Venkat — Fri, 06 Apr 2012 04:50:44 GMT

The other day, a lawyer pinged me out of the blue and asked if I would be willing to chat about social networking and share some tips. This has only happened two or three times before, but this is still enough to concern me (you want to be known for your lawyering skills and not your social networking skills). Anyway, I did what I usually do, which is to drink the coffee and chat for 15 or 20 minutes. It was enjoyable.

The person asked me if I had any interesting links or reading materials to pass on about social networking for lawyers. I didn't have any links off-hand, but I thought about it again over the next few days and came up with (sorry, 'curated') a few links. I don't think you have to read anything if you are thinking about dipping your foot in the social networking waters, and it may even be preferable to not go in with any preconceptions, but here are a few of the articles (among the many thousands) that I think are worth reading beforehand:

1. "Lawyers: You're Being Played by Twitter" (Keith Lee). This is an excellent post by Keith Lee that talks about 'gamification' and social networks. It's a simple enough concept but crazy when you think about it--the fact that the gaming instinct is what drives so much of behavior on social networks. You put something on Facebook and Twitter and the anticipation of seeing how people react to it is what makes you click over and over again. I can't say that reading this article affected my behavior much, but it provides some very helpful context. It's tough to deny that the process described here doesn't at least form a part of everyone's social networking drive. This is not something I would have realized naturally, even after having spent a significant amount of time on social networks.

2. "Why Digg's MrBabyMan is the King of All Social Media" (Farhad Manjoo). This article profiles Andrew Sorcini, a Los Angeles area film-editor, who Manjoo describes as the "Michael Phelps of Digg." You may not have heard of Digg. That's not really important. (See below.) What I really liked about the story is that it gave a human face to someone that spends a lot of time on social networks, and describes his process for scouring the internet for interesting stories and posting these links to a social network. I'm not sure what Mr. Sorcini is up to these days and whether he still posts in Digg, but that's neither here nor there. This is the profile of someone who is (or was) a "power social networker."

3. "The Great and Powerful Reddit" (Farhad Manjoo): This is another Manjoo article that talks about Reddit. He describes Reddit as once having been a "second-tier aggregator" (it was formerly a Digg competitor) but is now a driving force in online discussions. Reddit has become a barometer for what news is important online (and thus to the world at large). It was very influential in the anti-SOPA/PIPA debates. The big takeaway for me on this one is that networks live and die. They constantly change. No network lasts forever. For that matter, nothing lasts forever, but this is stating the obvious.

Two bonus reads.

First, I would read anything by Brian Tannebaum. Tannebaum is one of my favorite social networking lawyers (of those that I've come across). Why? He seems to share my almost irrational dislike for legal marketing. I just have an instinctive aversion for how it plays out, particularly online. (This probably says more about me than about legal marketing, but again, that's neither here nor there.) Tannebaum is a die-hard skeptic about marketing over the internet. That's not entirely true. He writes a blog and sends out a fair amount of tweets, but let's just say he calls a lot of BS on what's going on out there. When it comes to online marketing, this is an extremely healthy trait.

The final read isn't an article, it's a book. A book by a former Rolling Stone reporter turned pickup artist, called "the Game". I'm happy in a long-term relationship and don't have much practical use for a book about getting dates, but it is a compelling read. A good friend of mine who was a lawyer mentioned it to me about ten years ago and told me that a mutual friend of ours who was a geeky lawyer read this book and achieved some success with it. I dismissed the whole story as typical pub chatter, although I was sort of curious about it. A couple of years ago, another friend actually sent me a copy of the book. It appeared to me that he had downloaded the copy from a torrent site and for some reason one morning I was feeling paranoid (maybe somewhat guilty) and decided to buy the book on Amazon. I never thought about it or read the book until I was sitting on a long plane ride and ran out of books to read on the Kindle. I started in on The Game and ended up blazing through it over the course of the next four or five days. The Game ended up providing some good insight into a topic I have forever been curious about: self help subculture. The book was marginally interesting for its treatment of the tricks of the pickup artist but what was more intriguing about the book was how it delved into the self-help world. This is something that is prevalent in social networks. Whether you talk about the "gratitude economy" or the "like economy," a very very interesting social phenomenon you will inevitably come across online is people building little communities that they then impart knowledge to, often for a small fee. (I haven't read Seth Godin but I think this is what his "Tribes" concept is all about.)

Anyway, here is my list of the key reads on social networking. Enjoy.

Randazza

Venkat — Sat, 24 Mar 2012 17:31:32 GMT

I meant to post a congratulatory note to Marc Randazza about four or five (or six) months ago on the Righthaven smackdown but never did. This post from Scott Greenfield reminded me that I never got around to doing it.

For the few who may not be familiar with him, Randazza is a~~n awesome~~ kick ass lawyer and uber blogger. He was and is one of the provocative voices in the blawgosphere who to me exemplifies what law blogging (and blogging in general) is all about. At the Legal Satyricon, he and his band of Satyriconistas post on a wide range of topics from online liability and the First Amendment to politics and the ethics of eating meat (see "Ethics challenge - come up with a good reason for being a carnivore"). In an era where lawyers and others are increasingly concerned with "brand perception" and "personal branding," it's refreshing to say the least to see someone who is not weighed down by these things. I haven't talked to him about it but I would guess that he scoffs at the idea of a personal branding consultant. I'm guessing he's not following Klout with keen interest either.

Anyway, Randazza (and others at the Randazza Legal Group) deserve serious kudos for taking down Righthaven, taking away their domain name, and their intellectual property. The domain name was bought at auction and now offers "hosting service with a spine." As Eric Goldman said, it's a pleasure to watch Randazza litigate. More important than his blogging exploits are his accomplishments as a lawyer. And Righthaven is just one of the many cases where he's achieved a big win. The Glenn Beck domain name smackdown is one that sticks out in my mind. (See "Glenn Beck's Attempt to Rape and Murder Free Speech in 2009 - Thwarted.") Here's a list of some of his successes, many of which vindicate First Amendment/free speech rights or involve pushing back aggressively against people who try to bully bloggers and others: "Marc Randazza: First Amendment Badass."

I sometimes get mildly depressed when I think about the era of the "social media lawyer" and lawyers doling out advice in 140 characters. It can be dispiriting to say the least to see the direction social media has taken much of the legal profession. It's nice to see people like Randazza out there in these times.

[That's not to say I don't disagree with some of the positions Randazza takes. I have some some core philosophical differences with the position he takes in this post, for example.]

Walmart Viewers

Venkat — Fri, 10 Feb 2012 16:25:07 GMT

This exchange between a defense lawyer and a security guard in a shoplifting trial struck me as funny.

The security guard says the accused is looking around furtively, like a shoplifter would. Defense counsel asks the security guard whether there may not be an alternate explanation for the defendant wanting to look around the aisles of a Walmart:

Q. [DEFENSE COUNSEL:] Okay. Now, Mr. Rowe, you were talking about she was leaving the isle [sic] and she appears to be looking around; is that correct?

A. [ROWE:] Yes, sir.

Q. That she's looking at other customers?

A. Yes, sir.

Q. Isn't there a phenomenon going on now concerning go [sic] to Walmart and watching the other customers, what do they call that? Have you heard about that?

A. I have not heard about this, sir.

Q. In fact, people are taking pictures of Walmart customers and putting them on my book [sic], my face [sic], or Facebook or You Tube or whatever, aren't they?

A. I--

Q. You don't know that?

A. No, I haven't heard about this.

Q. Okay. Called Walmart viewers or something like that, people checking out what other customers are doing. Checking out the different types of people that go into Walmart, have you not heard about this?

A. I have not heard about this.

Q. All right. Thank you. I have no further questions.

The jury convicted appellant of theft of property valued at $50 dollars or
more but less than $500.

Huff v. The State of Texas [link]; (People of Walmart).

Please be Honest and Tell me This Post Sucks

Venkat — Wed, 08 Feb 2012 21:49:17 GMT

Scott Greenfield posted a couple of weeks ago about the delusion of finding a mentor online: "Twitter and the Mentor Delusion." Honest criticism ("telling you when you suck") is a key part of mentorship. I would say it's integral. I have learned the most from lawyers (and others) who tell me unabashedly that my work product left a lot to be desired. I recently sent a brief off to a lawyer who falls in this category. I had labored over it for hours. Hours and hours. I knew it wasn't perfect but I thought it was pretty good. His first words: "you're off to a good start here."

Honest criticism is tough to find on the social web, and this is why we should be skeptical of the whole idea of online mentorship, particularly on sites such as Twitter and Facebook. Far from telling you that you suck, people tell you that your stuff is great. This is a double whammy.

I recently came across a post from a totally different realm that captured this nicely:

Positive reinforcement is your enemy. Your Facebook friends, your Twitter followers... hate you. Instead of taking ten seconds to say. "This doesn't work. You need to do better". They readily push that "like" button, because it's easy and they hope to get the same from you, but also because they're cowards.

They're afraid of the internet mob. Nobody wants to get on the wrong side of a mob, so it's easier to play nice. Go along to get along seems to be the secret to a happy online life.

("Chances Are, You Suck.")

For a second there I almost thought Scott Greenfield went off and started a photography blog and wrote those words.

I don't know that I necessarily subscribe 100% to why people are reluctant to be negative online (in the social context), but I think his point rings true. For whatever reason, people are free with their praise, and if you are looking to hone your craft, feedback from the social web isn't necessarily the best place to go. In fact, it's probably the worst.

Added: Pew Internet released a survey (Feb. 9, 2012): "The tone of life on social networking sites:"

The overall social and emotional climate of social networking sites (SNS) is a very positive one where adult users get personal rewards and satisfactions at far higher levels than they encounter anti-social people or have ill consequences from their encounters.

I'm shocked! (Two other parts of the survey were somewhat interesting, but the first finding was entirely predictable.)

(For what it's worth, I've met a lot of people online who I've learned a lot from so I don't recommend being closed off in this sense. Maybe not a lot. At least a few.)

Twitter's Decision to Censor

Venkat — Sat, 28 Jan 2012 21:33:28 GMT

Twitter recently announced its decision to censor tweets on a country-by-country basis. People were up in arms and planned a #twitterblackout. It was a big story last week. (Needless to say, I didn't participate in the blackout.)

As an initial note, Twitter's decision is entirely defensible and I thought Twitter (and its General Counsel Alexander Macgillivray) handled it with poise. I also don't know that its decision can easily be placed in the 'censorship' category since it's implemented by a private entity, which has tremendous discretion in blocking content. (Some of this depends on the actual policy, which we don't know the contours of.) Anyway, this is neither here nor there. What was striking about this story was how it played out in the media. In particular the muddled nature of the media narrative that followed this story.

What Types of Takedown Requests Will Twitter Honor?: I would have thought the key question here would be the contours of Twitter's policy--did it remove content in response to a court order? An administrative request? A takedown from a private party? Did it matter whether the request was premised on IP infringements? (no) Could it make certain topics totally off-limits in response to a government request? Would it block accounts? (yes) Hashtags? Would it make Twitter totally unavailable in a country? Here's a blurb from a NYT article titled "Censoring of Tweets Sets Off #Outrage" (italics added):

Twitter, like other Internet companies, has always had to remove content that is illegal in one country or another, whether it is a copyright violation, child pornography or something else. What is different about Twitter’s announcement is that it plans to redact messages only in those countries where they are illegal, and only if the authorities there make a valid request.

Huh? What's a "valid request"? An Associated Press story ("Twitter's new censorship plan rouses global furor") was similarly vague about what types of takedown requests Twitter would respond to:

Twitter said it has no plans to remove tweets unless it receives a request from government officials, companies or another outside party that believes the message is illegal. No message will be removed until an internal review determines there is a legal problem, according to Macgilliviray.

There's a big distinction between a takedown notice from a government, one from an individual (including one sent under a takedown regime such as the DMCA) or a corporation. Another story from the Times of India adds some detail and hints at this specific question ("Twitter's censor move with eye on China?"):

some experts wonder if Twitter's position was really different from that of Google or Facebook. "Google and Facebook have said that they would remove content if ordered by the courts, and Twitter too is saying that it can block tweets if required by the law," said an expert. "Where laws are codified, as in Germany and France about pro-Nazi propaganda, Twitter can block pro-Nazi tweets proactively. But in countries like India, where the laws are not that specific, this will be done reactively on the basis of court orders. That's all Twitter is saying."

(??) It's strange that the stories all described the key decision in question in totally vague terms. Obviously it wouldn't make sense for the stories to describe in painful detail the innumerable types of requests an entity such as Twitter receives and how it deals with each of these types of requests, but it was clear after reading these stories that the media didn't have a firm grasp on the contours of Twitter's 'policy'. This was somewhat strange because this was the crux of the story, right? There's one larger aspect of the story which was clear which is that Twitter decided that whatever its policy is regarding takedowns, its response can be limited by country or region--i.e., if one particular country or region decides to send a takedown this may not affect all Twitter users. (The content will be available elsewhere. Also, as others quickly pointed out, depending on how Twitter's policy is implemented, there are ways around the blocking of content even in the local jurisdiction.)

Not surprisingly, many press reports cited to EFF's statement regarding Twitter's policy but even EFF's statement was fairly vague on the particular point of what takedown requests Twitter will honor ("What Does Twitter’s Country-by-Country Takedown System Mean for Freedom of Expression?"):

Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.

From what I gather, Twitter's blocking policy will be implemented on a case by case basis and it didn't announce any sort of policy for what types of takedown requests Twitter will automatically honor. But to me this is a key point that none of the stories really dug into.

Will Twitter Implement its Policy Only Where it has People and Offices?: This is another question that I was curious about. Will Twitter honor requests from countries where it doesn't have offices or does this work on a case by case basis also? If Twitter's assets, offices, or people are at stake then this obviously changes the calculus, but what about far-flung jurisdictions where Twitter has no presence and no expected or future relationships? EFF's post also hints at this but doesn't really offer specifics:

Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).

For what it's worth, the tradeoff between keeping a local presence and complying with a foreign court order is not anything new. Google has dealt with it, among other countries in Italy. (For all I know @amac could have been one of the lawyers who dealt with this while at Google.) Yahoo! dealt with it in France when it was ordered to take down Nazi memorabilia. In evaluating Twitter's policy, I would guess what people would want to know most (apart from what types of takedowns Twitter intends to honor) would be what types of jurisdictions Twitter intends on screening content in.

__

Maybe Twitter's decision isn't really a policy decision to screen content at the request of governments or entities but to make available the capability to screen content by geographic regions. There's a fundamental difference between the two. I certainly got a clear sense that there was a policy change afoot from the stories announcing Twitter's decision. Either way, none of the stories bothered to get into the details on what I thought were the two core issues. We're not much wiser in terms of Twitter policy than we were when we started. On the one hand, this is somewhat strange, given that most reporters live and breathe Twitter, regardless of whether this is their reporting beat. On the other hand, maybe it's an example of how social media can infect journalism? Reporters are friendly with Twitter so maybe they were reluctant to ask the hard questions? Maybe everyone was in a rush to get their stories out so they didn't dig deep? Either way, I thought most of the stories were fundamentally lacking.

As for how the people on Twitter themselves reacted to the story, that's a depressing one. Take a cruise through the #twitterblackout hashtag and see for yourself.

[For my money, one of the best stories on this was from Al Jazeera, which raises the fundamental question of what Twitter's policy is exactly: "Making sense of Twitter's censorship."]

Other posts worth checking out:

Twitter's initial blog post which wasn't crystal clear on the issue: "Tweets still must flow."
Lauren Weinstein: "Twitter's censorship muddle."

Happy National Compliment Day

Venkat — Tue, 24 Jan 2012 23:13:08 GMT

This has been simmering around for like six months and I have to get it off my chest.

Is there a controller for National Days? Any sort of registry? Any process through which you have a National Day certified? Is there any sort of regulation of "National Days"? Should there be?

I ask because (probably owing to my time spent on Twitter) I've noticed that there's a "national day" for everything. I'm not taking about holidays, or days honoring a particular country's independence. I'm talking about things like National Donut Day, National Hugging Day, National Peanut Butter day, and National Day of Unplugging.

Do people just make up their own National Days and put up a website? Is it usually a commercial event?

I'm mildly curious.

BTW: on a related note, Happy National Compliment Day (You. Are. So. Awesome!). This National Day is my personal favorite and yielded a new rallying cry. YASAAAAAA! (h/t @LilyJang)

Why Lawyers Should Use Pinterest

Venkat — Fri, 20 Jan 2012 15:18:45 GMT

I don't know whether lawyers "should" use Pinterest. I don't know whether lawyers should use Instagram. I don't know whether lawyers should use Google+. I don't know whether lawyers should use Foursquare.

Why are people asking these questions? Why are people answering these questions? There are lawyers out there who are doing good work. Being hungry. Being ethical, zealous, and responsive. Helping people. Advancing causes. Mentoring other lawyers. Doing interesting things with their lives outside of lawyering.

Do you really want to be one of those lawyers who spends their time worrying about whether "lawyers should use Pinterest?"

Podcast: Honk if You Love Free Speech

Venkat — Fri, 25 Nov 2011 16:52:00 GMT

My first podcast, with Mike Reitz of the Supreme Court of Washington Blog (published by the Freedom Foundation): "Honk if you love free speech."

I've never done a podcast before, and Mike was a great host. We talked about State v. Immelt, a case where the Washington State Supreme Court struck down a Snohomish County noise ordinance which prohibits horn honking except when the honking is done for public safety or as part of a public event.

Check out the podcast here. Also, check out the excellent Supreme Court of Washington blog. It's a great resource for following the Washington State Supreme Court.

Of course, you can also follow Mike on Twitter.

Ceglia's New Lawyer Derides Facebook's iPad-Less Legal Team

Venkat — Wed, 16 Nov 2011 15:55:54 GMT

I posted some time back about lawyers and iPads ("What is the 'iPad for Lawyers' Crowd Smoking?"). At Simple Justice I see that the debate continues, and Scott mentions some back and forth that took place on Twitter. ("The 7 "P's" and the iPad"). (See the kind of stuff you miss out on if you aren't on Twitter?)

I'm over this debate. If you are a lawyer or other professional and you're extolling the virtues of having an iPad I can chalk it up to you pushing your pet issue. Maybe you don't like carrying briefcases? Maybe you're one of those people who likes their toys. Who knows? If you are a consultant of some sort, this is more problematic, and borders on negligent.

Anyway, I noticed that someone else chimed in on the whole debate, and it happened to be Paul Ceglia's latest lawyer! Ceglia, who is suing Mark Zuckerberg and claiming a significant ownership interest in Facebook, has been through several lawyers. ("Facebook Claimant Paul Ceglia Gets New Lawyer.") Ceglia's latest lawyer has posted a bunch about the Facebook dispute, but here is one post of his that caught my attention: "Tech Behemoth Facebook's Un-Techy Legal Team."

Another day another expedited discovery hearing in Ceglia v. Facebook. An amazing sight, which I am sure that Mr. Zuckerberg does not know. Let me paint the scene. I walked in to the courtroom and took my seat with Paul Argentieri, local counsel, and setup my iPad. No pen, no paper, just an iPad2 and some great apps like Goodreader and Evernote. In walks Facebook’s Dream Team. Three lawyers at the table and four other lawyers sitting on the bench behind the three. Seven lawyers and take a guess how many laptops? iPads? Think small. Think zero. An amazing irony today that between a huge law firm and a small town lawyer, the most tech savvy lawyer was NOT the one paid millions by one of the largest tech companies in the world.

I have no idea how Ceglia's lawsuit will turn out. Like most people, I'm skeptical. Also, you raise the skepticism meter as a litigant about a thousand notches when you go through a bunch of lawyers. I did think it was strange that his lawyer knocked Facebook's allegedly untechy legal team, and did so in a post that highlighted the virtues of the iPad! For what it's worth, I wasn't particularly sold on his post (really, he could find documents faster?), but as I said earlier I'm over the debate.

Athletes and Singers Have Coaches. Should Lawyers?

Venkat — Thu, 06 Oct 2011 18:08:58 GMT

I'm not a fan of talking about law practice consulting (coaching). One reason is that I don't think I've cracked the code on lawyering and I'm thus hesitant to opine on what goes on in the world of lawyer-consulting. I'm also not sure about whether someone needs to be a standout in a particular field in order to coach in it. (My strong instinct is, "yes," but one look at athletic coaches make me rethink this every time.)

However, I've noticed a proliferation of lawyer-coaches out there and I've developed a deep skepticism about their trade in general. While I know I may not have cracked the code, I'm fairly certain that no lawyer-consultant has cracked the code either. You know why? If they had, they would be lawyering and not consulting. Lawyer-consultants will offer up a variety of reasons for why they would rather be consulting than lawyering, but I think it pays to be skeptical of these justifications. The work-life balance justification, the flexibility justification. The modern law practice (at least as the consultants would have you believe) allows you to achieve all of this and still maintain a law practice. Why wouldn't they be doing it? Let's leave aside the question of money (you can easily draw your own conclusions there) but when pressed, lawyer-coaches rarely offer convincing justifications for why they do what they do. There's a final justification that I've seen often raised but I think this deserves to be dismissed this as an outright joke: they're doing it out of a sense of altruism or to improve the profession. Right.

At the end of the day, the minimal requirements to be a lawyer who keeps his or her head above water can be summarized in a few short sentences. I have yet to come across a lawyer who is implementing these strategies (tactics? -- I don't know the difference but I'm sure a consultant will be quick to point out the difference) but who is still struggling. Consider this my own contribution to the well of lawyer-consulting knowledge. If you're a lawyer and you are considering hiring a lawyer-coach, try implementing these strategies first and then come talk to me.

Here are the basic traits* a lawyer needs to survive:

be diligent
be zealous (as in, a zealous advocate)
be highly ethical
be honest
be friendly (as in, don't be a jerk)

If you develop these traits and you are still not surviving as a lawyer, drop me a comment. I'm happy to take you out to lunch and offer my consulting services. For free. (There's a final element which is getting more difficult for young lawyers and that's to gain experience in the field. I doubt a consultant will help you much in this regard, and this is something that has always been a challenge to young lawyers outside the organized firm/collective setting.)

In the three week lag between when I drafted this post and hit publish, I came across an article from author and surgeon Atul Gawande in the New Yorker: "Top Athletes and Singers Have Coaches. Should You?" This is a great article that explores this very question. I urge you to read it if you are interested in this topic. Gawande concludes that it's helpful for surgeons to have coaches so they can continue to develop (it's helpful to have an "outside perspective," he says, even for accomplished musicians, athletes, and even surgeons). Gawande grapples in the article with the question of whether coaches need to be standouts. Regardless of how he resolves the question ("no," he says), you'll notice one thing. The person who he picks to rely on for coaching is no slouch:

a retired general surgeon, whom I trained under during my residency, to see if he might consider the idea. He’s one of the surgeons I most hoped to emulate in my career. His operations were swift without seeming hurried and elegant without seeming showy. He was calm. I never once saw him lose his temper. He had a plan for every circumstance. He had impeccable judgment. And his patients had unusually few complications.

Food for thought.

* you will notice I did not include "become an expert marketer" on the list. If that's what you are hiring your consultant for, you have a long road ahead of you.

[I should add that mentorship is incredibly important as a lawyer, even for experienced lawyers. But in the legal realm, there's a grand canyon of difference between a mentor and a paid consultant.]

Lawyers and Klout

Venkat — Thu, 25 Aug 2011 14:17:35 GMT

Kevin O'Keefe posts about Klout and provides a sensible take ("Klout for Lawyers: what is it? does it matter?").

Other than if you are interested in snack foods and subway sandwiches, I don't know the answer to the question of whether "Klout really matters." (If you're into free snack foods and subway sandwiches, there's definitely some measurable ROI from Klout.) There's not a whole lot to disagree with in Kevin's post, but what struck me is that a lawyer actually asked Kevin this question. I understand that Kevin is steeped in blogging and the use of media by lawyers and often provides useful information and would very likely have an opinion on this topic, but let's step back for a second. A lawyer actually asked someone whether they should be using Klout?

Lawyers are supposed to be critical, be able to do their due diligence. We may not be whiz marketers, but something like the efficacy of Klout for our own practice should be something we should be able to readily develop an informed opinion on, right? This is the type of thing we're called on to do every day in our practices, whether you are evaluating a case, business transaction, an argument, etc. In the time you email someone to get their opinion on Klout, you could check out Klout's website and figure out what they are about. The next step is to determine whether any of your clients or potential clients use Klout or will care about it. There's a pretty obvious way to do this: ask them! (In fact asking one or two of your clients is probably a better way than reading any number of blog posts to figure out whether Klout is at all relevant to your professional life.)

I understand there may be a variety of opinions on Klout, but seriously people. Let's get it together. Should the legal profession really be having a discussion on whether Klout is useful for lawyers?

There are lots of reasons to fear for the future of the profession, but this definitely makes the list.

Added: I came across this detailed piece from The Time Blawg: "UK Law Firms With Klout -- A Clearer Picture," which takes a look at a 'report' from The Lawyer, a UK publication: "Top firms losing out to upstarts in social media sphere."

The picture looks bleak is about all I can say.

Koncision's NDA Builder

Venkat — Thu, 16 Jun 2011 16:49:45 GMT

Thanks to Ken Adams who blogs at The Koncise Drafter (f/k/a AdamsDrafting), I tried out Koncision's NDA builder product.

It basically takes you through a questionnaire aimed at the terms for your soon-to-be built non-disclosure agreement. After answering the various questions, the product generates a non-disclosure agreement tailored to your needs. You can then freely edit and use this document.

The product is easy to use and supported by the type of clean and precise drafting language that you would expect from a person such as Ken Adams.

My one very minor qualm is that it basically builds you a robust agreement and doesn't give you a choice to build the scaled back version. (It may have, but it wasn't apparent to me.) I have mixed feelings on NDAs and some people like them and others think they are useless. (Still others will refuse a meeting with you if you ask them to sign an NDA.) It would be nice to be able to choose between the scaled back/minimalist NDA and the big Kahuna, without having to answer all of the questions.

Either way, I was impressed with the product. It's intuitive and easy to use and I can see this being useful for in-house counsel or even business folks. Is this the Susskindian revolution in action? Time will tell. I can see many other agreements being templatized in this way. (Either way, good luck to Koncision. I've always been a fan of Ken's blog and work.)

Added (see Ken's comment below):

If you want a fewer-bells-and-whistles NDA, you would answer "No" to questions addressing issues that are irrelevant. Sure, that means you still have to answer all the questions, but once you're used to the questionnaire, you can zip through it.

And even simpler, if you want to create an NDA that closely resembles one you created previously using Koncision, you can simply relaunch that earlier questionnaire and make the necessary adjustments, thereby avoiding having to redo the entire questionnaire.

More:

from Carolyn Elefant: "How to get a Piece of Ken Adams, Without Paying an Arm or a Leg."

Are Social Media Legal Issues Overhyped?

Venkat — Sun, 05 Jun 2011 06:06:42 GMT

I have an interest in the legal issues raised by social media, but I wonder if the issues are being overhyped?

I attended a conference last week (where I actually presented on social media legal issues) and I happened to sit in and listen to another panel where the panelists also covered some related issues. Mark Herrmann, ex Drug and Device blogger and currently a columnist at Above The Law (and general counsel at Aon), was talking about social media policies. He pointed to some good resources, but ultimately he raised the question of whether a policy that is tailored specifically to social media really added anything to the mix. He posed the question of whether common sense and whatever existing policies you have in place get you 90% of the way there? (I'm paraphrasing, but this was what I took away from some of his comments.)

This got me thinking about the tremendous amount of attention that is paid by law bloggers, and the legal and tech media to the legal issues raised by social media. Mark also said something else that resonated--he said that the "blogging echo chamber" tends to disproportionately amplify legal issues related to the internet (and to blogs). This makes sense. If you are into spelunking as a hobby, you probably get excited to read about and discuss any issues, including legal issues, relating to caves. So it's not surprising that bloggers in general, and law bloggers in particular, get really excited about the legal issues that relate to the internet and to blogs.

For the most part, many of these legal issues will be resolved with reference to traditional rules. There are a few big exceptions obviously, such as the protection afforded to online intermediaries, but apart from these, a legal issue that presents itself in an online context may be novel from a factual standpoint, but the baseline rules are the same. Despite this, we as law bloggers get pretty excited when we see a legal issue that relates to Facebook or Twitter (or, in the old days, MySpace). I'm as guilty as the next person here. I have Lexis alerts set for many of these companies and a big portion of the cases in my blogging queue are cases involving these companies. However, it seems like a chunk of the legal profession seems to use these legal issues as a scare tactic to drum up business from clients and potential clients. I can't tell you how many posts I've seen that follow this formula:

there's a very cutting edge legal issue out there in the social media space and this presents significant risk for you or your company;
if you put in place a social media policy you can limit your risk with respect to this issue;
for further information, call me at xxx-xxx-xxxx -- I'd be more than happy to help draft a policy for you [for a small fee, of course].

The general public has a sense that the social media space is a legal minefield. And the ones who are significantly responsible for this misperception aren't necessarily the old school press or the lawyers who haven't yet joined the blogging and tweeting revolution. This leaves those lawyers who are active online. Are lawyers who blog and tweet actually responsible for this misperception? I don't know, but my sense is that we're certainly contributing to it (some more than others).

It's also worth stepping back and asking a big picture question of how social media has informed the general public and actually resulted in the dissemination of useful information in a way that will minimize waste with respect to dealing with lawyers. Through the slow and painful embrace of social media by lawyers, have clients become better informed in a way that has allowed them to save money and save dealing with lawyers for the real issues that matter? Have lawyers empowered clients to allow the clients to deal with many of the issues that would otherwise require a phone call or an email to the lawyer? Or have lawyers used the social media bugaboo to try to drum up more business for themselves? In other words, has social media ushered in the beginnings of a "revolution" that legal industry commentator Richard Susskind predicted or has it had the opposite effect in some ways? I don't know the answers to these questions, but I think it's a question worth asking. There are some interesting things going on such as wikis and drafting tools, and a push to standardize and templatize (and make paperless) certain contracts and transactions, but I don't see this much when it comes to social media. I don't get the sense that the general public has become well informed as to the true risks (if any) from using social media.

[While you are at it, take this survey about the "Impact of Social Media on Access to Legal Information" (via Scott Greenfield).]

Beware of the Online "Filter Bubble"

Venkat — Wed, 18 May 2011 05:32:00 GMT

Bubbles are bad, unless you happen to be a kid playing with those soap bubbles you blow. They have a bad connotation in the economic context. Most often they are used to describe someone whose views are limited. 'Living in a bubble' is the equivalent of wearing rose colored glasses. It's like having a fundamental block or a screen that prevents you from seeing the relationship of your day-to-day actions to the overall scheme of life.

I'm convinced that people can and do develop bubbles online. The social network or website where you most spend your time. It's probably a bubble. (That bubble for me, happens to be Twitter. Specifically, the group of people I follow and interact with on Twitter.) There's this view that online networks open you to connections in far flung regions of the world and subcultures that you would not otherwise experience offline. Therefore, interacting online presents less of a danger of the bubble. This seems like the exception to me. For the most part, you form a network online like you do offline, and you filter the information you take in through this network. I'm tempted to say that if your network is good, there's no real downside of having this filter, but my instinct is that this is wrong. It does not matter what your network consists of. A bubble is a bubble, and if you fall prey to it, it results in myopia. It does not matter if your network consists of tattoo artists, punk rock musicians, bloggers, Fortune 500 CEOs, entrepreneurs, marketers, multi-millionaires, high powered lawyers, or politicians. You may think you have carefully selected and curated your own eclectic and varied mix of online friends, but I'm really skeptical that this somehow negates the effects of the bubble. Virtually every single person I've observed and interacted with online (and in real life) has this bubble. I think the problem is that we're lulled into a false sense of security into thinking that since we're interacting online, the serendipity of online interactions will somehow save us from this bubble or negate its effects. I'm not so sure this is the case. (I posted a ways back about Journalists and the social media bubble: "Social Media and Journalism - Downsides?")

In thinking about the effects of the online bubble, I mostly considered the ever-narrowing influences of one's online friends. I did not think at all about the effect of another participant in this interaction - the social networking service itself. Google, Facebook, and others are increasingly interested in "personalizing" your online experience. The obvious reason is that the more personal the experience is, and the more targeted it is, the more the network could charge an advertiser. But what is the unconscious effect on the users of the network? Are we even aware that our bubble is being tweaked by the likes of Google or Facebook? We may be aware on a general level that the algorithms of Google or Facebook result in slight changes to our online experience and what we see and read, and who we interact with, but I doubt this is something any of us thinks about on a day to day basis when we spend increasing amounts of time online.

Eli Pariser has come out with a new book which delves into the effects of this: "The Filter Bubble." I just picked up the book and I'm very excited to read it. In the meantime, check out Pariser's TED Talk - this is really interesting and important stuff (h/t @rocketmatter):

Seeking: a Seth Godin Decoder Ring

Venkat — Wed, 04 May 2011 14:06:00 GMT

I've long struggled with the appeal of Seth Godin. He's a successful guy, having built and sold several companies and written several books, but I've found his writing (what little I've read of it) to be lacking practical value. There never really seems to be anything actionable there that will move your life or business forward. But maybe this is just me. I'm not a marketer by trade, or the sharpest marketing knife in the cabinet, and maybe this has something to do with it. He's a crack-shot marketer so maybe only other marketers truly understand him? I'm also not a huge reader of self help books, including those that can be categorized as professional self help. (For my money, Neil Strauss's "The Game" provides excellent insight into this issue, but that's a subject for another post.) Much of Seth's writing seems to fall into this category. Feel-good, but difficult to act on. But many people I like and respect from several different walks of life seem to like him and must find his advice useful. So I figured there must be something wrong with me. Some block I have that prevents me from grasping his gems of wisdom and putting them to use.

The few times I've read his stuff (while scratching my head) he's usually talking about marketing, or business organizations, or personal inspiration, so it's fairly tough for me to really assess if it's just me or his writing. These aren't topics in which I claim much expertise, so it's hard to say. Then he finally wrote about a subject I actually know about and have some personal experience with: the law ("Hard work vs. long work"). Finally, a topic where I could probably relate to his writing, if it was ever possible. I excitedly clicked over to see if I could digest (and hopefully put to use) his latest nuggets of wisdom and to see if they could unlock a whole new universe for me:

Long work is what the lawyer who bills 14 hours a day filling in forms [docs].

Hard work is what the insightful litigator does when she synthesizes four disparate ideas and comes up with an argument that wins the case--in less than five minutes.

Long work has a storied history. Farmers, hunters, factory workers... Always there was long work required to succeed. For generations, there was a huge benefit that came to those with the stamina and fortitude to do long work.

Hard work is frightening. We shy away from hard work because inherent in hard work is risk. Hard work is hard because you might fail. You can't fail at long work, you merely show up. You fail at hard work when you don't make an emotional connection, or when you don't solve the problem or when you hesitate.

Unfortunately, I fared no better with this than with the bits of his writing I had previously read.

I looked to the members of my peer group to see what they were saying about Seth's latest. They all passed it around. The law firm consultants surmised (not surprisingly): "Seth really nailed the legal profession with his latest." The mentors at large excitedly directed their mentees to immediately soak up Seth's wisdom and put it to use. I'm sure the legal marketers gave it the virtual thumbs up ("oh yeah...that's what I'm talkin' about!"). Pretty much everyone was nodding along as if they understood exactly what Seth was talking about. Except for me. I had no clue. It's almost as if Seth's post was written in an ancient forgotten language and everyone else had access to the translator but I didn't.

So...can someone please help me out and explain exactly what Seth was talking about here. Is it some variation of the "work smarter, not harder" rule that your Spicoli-esque co-worker at the pizza place or movie theater probably told you back in the day? Is this just the (similarly wonderful sounding but always elusive in application) so-called 80/20 rule, revisited? Or is there something more there? I understand his concept that in law, there is grunt work and there is more strategic work. That's stating the obvious. Everyone tries to avoid the grunt work as they gain experience and move up the food chain. Once you come to this (glaringly obvious) realization, what is Seth telling you that's putting you on that path? The "long work" will always need to get done. It will not magically disappear. You may be able to chip away at some of it and eliminate some parts of it, but nothing in Godin's post even comes close to helping you in this regard. Either way, there's still plenty of "long work" left to go around.

Maybe I'm missing something? I'm probably just not "thinking outside the box."

What Lawyers Can Learn From Journalists

Venkat — Tue, 26 Apr 2011 16:52:00 GMT

I'm not a fan of what "[___] can learn from [___] posts," both because anyone can learn something from anything, and because this type of a post has been stretched to the limit by blogs. But this article ("How Your Journalism Sausage Gets Made") by Susannah Breslin caught my eye, and I think lawyers can learn something from it. Breslin writes a blog called "Pink Slipped" for Forbes, and she decided she was going to chronicle an article from conception to printing (or posting).

Journalism is similar to lawyering in many ways. Of late, journalists are struggling with a professional malaise which bears an uncanny resemblance to one that seems to have afflicted lawyers. Both professions are under attack from all sides. Gone are the days when you aspire to have a comfortable and stable byline in a town (or city) newspaper or a partnership in a law firm (or established practice on your own). We both live in danger of being replaced by machines, algorithms, or content farms (LegalZoom . . . Huffington Post), or so goes the conventional wisdom. An enormous premium is placed on personal branding, and marketing one's self, in a way that almost eclipses the question of someone's actual work product. Twitter and social media are all the rage. Professional consultants, camps, and conferences dominate the advice landscape. Against this backdrop, it was refreshing to see Breslin's piece about how to be a journalist. It included none of this.

First and foremost, she dismissed (as "obvious and, frankly, rather dull") the conventional wisdom, which included advice to "intern, join a group, Twitter." That got my attention right there.

The second thing which caught my attention was that her vision was not clouded by technology. When she talked about what gear she packed she did mention an iPhone, but she mentioned something else:

Several pens. If you’re a writer, and you don’t have a pen, you look stupid.
Notebooks. I use 9.75 in x 7.5 in Composition books and 5 in x 3 in notepads.

Wow, a proponent of paper. Interesting. While most journalists (and lawyers) who dole out advice include mastery of social media (and of course, the iPad) near the top or at the top of the tools in a journalist's (or lawyer's) toolbox, it didn't make the list for her. She didn't say - "check with your Twitter stream to see what they think is interesting . . . find your story there."

Her overall advice was to get out of your comfort zone - it was focused on actually "doing stuff":

The real reason I like journalism is because I feel like it shows whether or not you are a coward. A couple of years ago, I wrote a big story about how the recession had effected the adult movie industry. Before I decided to go, I was very conflicted. I wanted to go, and yet I didn’t want to go. I couldn’t decide what to do. Finally, one day, I was cooking something, and I looked at the cupboard in front of me, and it occurred to me that the only question worth asking was: What kind of person do you want to be?
...

I hope you will go out and do good stories, the hard stories, the weird stories. Not because they need to be told, even though they do, but because they are fun, because they are the places in which you will find yourself, because they are the times that will crystallize your understanding of who you really are. That’s the thing about journalism I always forget until I’m back in it, until days like today. That packing up your gear and heading into the unknown of a story unfolding is really what journalism is all about, not jobs, not your peers, not the words. It’s just you and the story and whatever is about to happen.

I'm not a big proponent of self help materials, but the article is excellent, and young lawyers (particularly) would benefit from reading it from a professional development perspective.

Related: Her "what kind of person do you want to be" question reminded me of a post at Rebecca Tushnet's 43 (B)log about a lawyer who was on the tail end of a tongue-lashing from a court in a foreclosure case. The post (and entire transcript) are both worth a read as well.

Also related: Brian Tannebaum: "Where Have All the Lawyers Gone?"

The Vandals Blast Variety Magazine and its Lawyers

Venkat — Mon, 18 Apr 2011 20:42:00 GMT

First in court (in Delaware) and then on the internet. (h/t Brenda Speer)

Ouch!:

What is the "iPad for Lawyers" Crowd Smoking?

Venkat — Sun, 10 Apr 2011 21:23:00 GMT

I'm not sure what exactly the "iPad for lawyers" crowd is smoking, but whatever it is, it's potent.

A quick bit of personal disclosure on my own work experiences with the iPad. I tend to be pretty free in my purchases of gadgets and tech. tools. I don't have any sort of committee I have to ask when I buy something, and as a small business owner, I have the relative freedom to buy and experiment. (Some would say that I freely indulge.) I own an iPad and use it frequently (daily). However, I find it fairly difficult to use the iPad for anything more than "light work" without jumping through a lot of hoops. I may read a document here and there, send a few emails, but beyond that I rely on my iPad for one thing: surfing the web. (And for this, it's wonderful, unless you like to frequent flash sites.) My first jarring realization that the iPad could not function as a workhorse came when I decided to take the iPad instead of my computer on a trip. I was sitting in an airport lounge trying to crank out a blog post, and it was easily one of the clunkiest experiences of my entire life. I decided to scrap the post and move on to more mundane tasks such as paying my bills. This was easily as clunky. Let's just say that if you have to log on to a site in order to accomplish something, the iPad does not make this easy. Well, that's not entirely true, it can be easy, if you have the right app or add-on! The same goes with producing any sort of written material. If you want to crank out a short letter on the iPad, you have to hen-peck your way through the iPad's keyboard. I guess this can be made easy as well, if you have the auxiliary keyboard that you can use with the iPad. As I contemplated my increasingly poor-looking choice of deciding to use the iPad instead of a laptop (or netbook/Macbook air) an email popped up in my in-box. Someone had suggested redlines to a document I had written. I opened the email and the document. No redlines. Another task which would have been dead simple on a laptop seemed Herculean on an iPad. Again, it is accomplishable, if only you had the right app. (I think.) The fact that you could not even see the redlines on a document someone emailed you without purchasing something additional was a pretty clear indicator to me that the iPad was not going to be a substitute for my laptop any time soon. (On a loosely related note, Seattle lawyer and app mogul Michael Schneider released a track changes app for the iPhone. Check it out here.)

With this in mind, I'm constantly surprised by the refrain from many lawyers and consultants about their wonderful time and energy saving-experiences using the iPad. You almost get the sense that the iPad has transformed their practice (and their lives). Exhibit A: "A day in the Life of an iPad Lawyer." In this post, Josh Barrett provides an example of how he incorporates his iPad into his daily professional life, and uses the iPad in his lawyering. He wakes up, surfs a bit on his iPad. He listens to a podcast on his way to work on the iPad. Next he's at a client meeting and he takes notes on the iPad. Later in the day, a client asks for a current version of the agreement, and he accesses the document using GoodReader, annotates it and sends it off to the client. The post contains many similar examples, but they all have one thing in common. For every task, he calls on an app (e.g., Goodreader, DropBox, Elements, PlainText). (See "The iPad for Lawyers: All About Apps.") After reading this post, I'm left with a big question - "why?" What's the benefit of using the iPad and jumping through all these hoops to complete tasks which would be otherwise simple on the laptop? Does the one extra minute it takes you to boot up your laptop totally undermine your work experience? Does the profile of the laptop (which interposes a screen between you and the person you are meeting with) really detract so much from a client meeting? Does the extra 0.7 pounds that the MacBook Air require you to lug around really weigh you down that much? To each his or her own, but the choice to jump through a bunch of hoops to incorporate the iPad into your practice seems forced. We all know people who try a bit too hard telling you (and in the process themselves) that everything is going great. This is the iPad lawyer, when it comes to the iPad and productivity.

There's another question that's lurking in the background, and that is, does the modern lawyer really need to work so much "on the go?" Do we really need to be listening to podcasts in the car, and reviewing documents while at Starbucks? (I understand if you actually work from Starbucks full time, but that's a separate issue.) Even if you take the view (which I do) that the old style view of the work/life balance could use some shifting, it seems like a stretch to think that lawyers need to work on the go in order to maintain a liveable work/life balance. It's one thing to work remotely, work from home, etc., and have some flexibility in terms of where you work from. But do we need to really work from 4 or 5 different locations in a given day? Do we really need to work from mobile devices? And how does this affect the quality of our work? I don't know about everyone else, but I find it harder and harder to focus these days (thanks internet!) and my work product while I'm on the go (e.g., from an airport lounge) just lacks. There's no two ways about it.

The real question isn't the mobile work issue. If people want to work from the road, that's fine, but what about the time spent that is spent figuring out how to use your iPad in your legal practice. This is what gets me. There are entire sites devoted to "how to be an iPad lawyer." In this day and age, if you need to read stuff to figure out how to use a tool in your professional life (and the tool is not accomplishing something you otherwise could not do) it's probably a waste of time to incorporate this tool into your professional life. There's a reason why you don't see masses of blog posts devoted to "how to be a laptop lawyer," or "how to be a mobile phone lawyer." No one would read these posts. They state the obvious. At the end of the day, the iPad for lawyer guidance just seems overwrought. It would be one thing if people were telling you how to be more efficient, but they're just telling you how to get what you can get easily and effortlessly done on a laptop on an iPad. (In their defense, there is a coolness factor when you are working on the iPad. You may or may not be cranking out the work, but hey, at least you look cool. Seriously, if you are pressed for time, trying to juggle the various aspects of your life, wouldn't ramping up to use the iPad be the last thing you want to do? As a young lawyer who is trying to soak up as much experience and knowledge as possible, do you want to spend your precious time trying to figure out how to incorporate the iPad into your budding legal practice?)

Crazily, someone actually wrote a book for lawyers about how to incorporate the iPad into your legal practice (actually, it may be an app, not a book): "iPad in One Hour for Lawyers." I don't run any bar organizations, but if I did, I would consider automatically revoking the bar card of anyone who buys this book.

See also: "Bye Bye iPad" (William Carleton)

Added: if you go down the "iPad for Lawyers" route, check out this column by Niki Black "iPad Apps for Lawyers." I'm sure it's useful. (See also "The iPad as an Indispensable Lawyering Tool" from the Lawyerist.)

Also, a funny tweet from ABA's TechShow:

LOL RT @Ethics_Maven: 1/2 lawyers here have iPads, but conf materials are only on USB drive. Why no web download option? #fail #ABAtechshowless than a minute ago via TweetDeck Favorite Retweet ReplyJason Wilson
jasnwilsn

Flourishes in Judicial Opinions

Venkat — Sat, 09 Apr 2011 19:28:00 GMT

An article in the Globe and Mail ("The judge who writes like a paperback novelist") raises a good point about embellishments in judicial opinions. I cringe when I see overly indulgent prose in judicial opinions. The same goes for pop culture references.

The judge referenced in the Globe and Mail article changed his writing style to be "more accessible." Here's an example:

And in a murder case last year, R v Simon, Judge Watt commenced: "Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here."

The article includes a few other examples as well.

There is no requirement that judicial opinions be dry. In fact, there are many judges whose opinions are a pleasure to read because the are the opposite of dry (e.g., Judge Kozinski). (These judges would probably all make good bloggers as well I'm guessing.) Good writing also helps the author make his or her point and judges are no different. However, at a certain point, prose can be overly indulgent, and if the judge is merely writing to demonstrate how clever he or she is, this is a disservice to the litigants and the public. There's also the point (made by Prof. Tanovich, a law clerk for former Supreme Court of Canada Chief Justice Antonio Lamer) that an opinion that is sarcastic or glib can "sensationalize and desensitize" tragic events that are the subject of opinions.

The article does not mention pop culture references but these are particularly problematic. These are the worst form of indulgences in court opinions. The judge is obviously citing the reference to show that he or she is "hip" or "with it." Pop culture references mean different things to different people, and are surely lost on people who aren't tuned in to pop culture. (Last year someone cited in a blog post to a Texas Supreme Court opinion which referenced Star Trek II: The Wrath of Khan. It was cute, and received attention in certain circles, but what if the litigants were not treekkies?) An opinion containing pop culture reference will also not stand the test of time. Justin Bieber may be popular now, but he may turn out to be unknown hundred years from now, and if you drop a reference to him in your opinion, people who are reading a hundred years from now may have no clue as to what you are talking about. (OK, this particular example isn't a great one, but . . .)

How about references to the quotations of historical figures which have withstood the test of time (in this case Sun Tzu)?

Survey Says?

Venkat — Wed, 23 Mar 2011 14:44:00 GMT

I swore off (and cut short my brief foray into) blogging about the future of the legal practice, but this deserves a comment. Apparently someone conducted a survey about where people look for legal services and a very low percentage of people use online sources to find a lawyer. Shockingly, most people - rather than searching online - ask a trusted source for a referral. People "consult" websites - 20% consult Facebook, 15% blogs, and 9% Twitter (??). The survey had a bunch of other facts and figures and if you're curious, you can access the survey here [pdf]: "Perspectives on Finding Personal Legal Services."

The kicker? The survey was conducted by polling people over land lines:

The survey of more than 1,000 adults was conducted through land line telephones. The results could be different if cellphone users were surveyed, the standing committee report cautions.

What forward thinking organization would conduct a survey by interrupting good people on their home phones when they are eating dinner to ask about where and how they shop for legal services? That would be the American Bar Association!

Paper.li Combines the Evils of Faux Curation and Spam

Venkat — Sat, 19 Feb 2011 17:37:00 GMT

I'm surprised that there is even a debate over the merits of paper.li. (I'm equally surprised that I'm wasting a blog post on this topic, but that's neither here nor there.)

Scott Greenfield complained about paper.li's use of content without attribution or the addition of anything meaningful. ("Rocket Doesn't Matter.") In response, Rocket Matter (whose daily prompted Scott's post) quickly commented, posted, and killed Rocket Matter's paper.li daily. ("Boy Did I Step into a Hornet's Nest with Paper.li.") Brian Inkster canvasses this activity, adds his own thoughts, and asks: "Should lawyers have their own Paper.li" (via Charon QC, who sums up my sentiments: "The *Seriously Sh*t Daily.Li* is OUT! – gawd help us…").

It's somewhat distressing that we even need to have this debate. I agree with Scott and Charon, and I'm surprised Brian even treats this one as a close question. (Read the comments to his post by the way.)

There are a few things that are wrong with paper.li:

1. faux curation: First, paper.li is billed as a "curator." Even if - unlike me - you don't think curators should be restricted to museums, or that curation is just an annoying buzzword du jour, paper.li is a terrible curator. Among other reasons, paper.li does not distinguish between positive and negative feedback. If someone in your stream mentions an article, it doesn't matter whether it's mentioned in a positive or negative light, it's signaled for inclusion into your "daily." As others have noted, this inclusion is attributed to you, and no commentary is added. I guess people can click through to the original tweet, but the daily itself omits any positive or negative feedback. Curation may or may not be on your list of top one million ideas for the new millenium, but paper.li is a terrible curator. (Not that algorithms make good curators to begin with, but that's a separate story. See "Rise of the Curators." If you're looking for a collection of tweets and stories from people in your stream that's presented in a nice, readable format, check out flipboard. I still prefer the serendipity of the twitter stream itself, but flipboard is a fun app.)

2. paper.li is spammy: Not only is paper.li a bad curator, paper.li is spammy. It may not fit within the conventional definition of spam, but this does not mean that it's not spammy. Its default settings are set to send out daily tweets with your "daily" - these tweets also mention the top "mentions," which are the people who get prominent billing in your daily. The sole currency of paper.li is people retweeting dailies because they are mentioned. (The bulk of traffic to paper.li dailies are from people who check to see whether their tweets are mentioned in the dailies.) I'm sure the traffic patterns to the dailies will verify this in a heartbeat. The fact that paper.li "publishers" send out daily tweets with links to their dailies - rather send out their dailies via email subscriptions or rss feeds - is telling. This is partially explained by paper.li's poor opt-in/default features, but the telling fact is that no one ever subscribes to a paper.li. You'd be hard pressed to find a paper.li with over 10 subscribers. A paper.li has a home on the web, but it does its dirty work on Twitter. "Publishers" send out tweets which reference people who are "mentioned" in the daily. And people who are mentioned blindly retweet these links. Brain Tannebaum captures everything that's wrong with this practice here. (As a side note, continuously letting people know via @twitter that you've mentioned them in a blog post or article is just bad form. Anyone with a pulse can figure it out for themselves, without you having to point it out. It's a growing pet peeve out there to see someone write an article and then follow it up with a series of -- "@johndoe, you've been mentioned in my blog post" - tweets.)

3. paper.li crosses the streams: A wise old social media guru once gave me four words of priceless social media wisdom: "don't cross the streams." Social media accounts should be kept largely separate. There's nothing wrong with cross-posting once in a while (or promoting your blog posts via Twitter or Facebook), but setting your accounts from one service to automatically post to another is a cardinal sin. Paper.li and its publishers violate this basic rule.

4. paper.li is an insult to newspapers: The newspaper industry is obviously going through cataclysmic shifts and has been over the past five to ten years, but it's a disrespect to newspapers everywhere to equate what paper.li puts out with even the smallest, dying, most irrelevant newspaper in the most obscure newspaper town. I'd take the Timbuktu Tribune over anyone's paper.li daily any day of the week. (Shockingly, the Guardian puts out the "Guardian Law" daily, which has a paltry 29 subscribers. Any newspaper publisher worth his or her salt would have killed this one a long time ago.)

__

So, if you fancy yourself a "publisher," and want to put out content that you have no control over and that's spammy, go for it. Set yourself up with a paper.li "daily."

Hotmail Updates

Venkat — Mon, 07 Feb 2011 16:55:00 GMT

Hotmail released a new feature I guess - temporary email addresses that you can use for things like "spam, lukewarm dates or evil deeds." Meanwhile, a British rapper (Dan Bull) released this Hotmail dis video that's pretty funny [via TNW; Seattle PI; Boing Boing]:

Google also has some fun at Microsoft's expense: http://www.hiybbprqag.com. [Marshall Kirkpatrick; John Paczkowski]

On a more useful note: "TigerText Service Allows for Temporary Text Messages That Delete Themselves." Also, there's a Farmville for Dummies coming out.

Tribes, and The Attention Marketing-Positivity Dynamic

Venkat — Sat, 29 Jan 2011 19:20:00 GMT

I've drafted and deleted several posts about Seth Godin. People I like and respect swear by him .. emphatically. I've had trouble digesting anything of his. It just never seemed that useful practically to me. He is a good marketer and businessman, and great at coming up with short posts that get you enthusiastic about doing stuff, but none of his writing ever resonated with me. But I think one of Godin's ideas is actually harmful: the so-called concept of the "tribe." I don't know if he came up with it, but he certainly popularized it (or is seen as having popularized it). (See, e.g., "Tribe Management.") As I understand this concept of the "tribe," companies and individuals are not supposed to market to their customers and prospective customers - instead they should connect with them personally, and build a circle of friends that they eventually will sell to. You're not really selling anything at this point, just recommending products or services (some of which happen to be your own) to your fellow tribesmen (or women). People have embraced this concept over the years and have built online tribes for themselves. Some helpful, and many (in my opinion) harmful. From what I see, the entire dynamic is harmful.

How do most people build tribes these days? In the old days, I imagine tribes were built or formed by necessity - your tribe is something that is marked out by nature that encompasses a group of people who endeavor to survive against the forces of nature. I wasn't around in the old days, but tribal life likely involved a fair amount of violence and force. In contrast to the tribes of old, the modern (online) tribe is not something that is characterized by violence. The modern tribe is built around positivity and enthusiasm, fueled by social media. You go out there and promote something you like - the chieftain of the tribe recognizes your promotion (and value to him or her) and voila, over time, you become a member of his or her tribe. (In the old days, people were battling for their limited piece of the survival pie - these days, we're battling for our piece of the attention pie.) What's the result of all this? A psychophantic cycle of online promotion. Another way of describing it would be a pyramid scheme built around attention marketing. (You promote my content or brand and I promote yours.) Geoff Livingston highlights this in a blog post that aptly captures the dynamic: "The Age of the Sycophant." It's tough to quantify something like this, but the emergence of actual business built around measuring influence (e.g., Klout) is to me a sure sign that there's probably a lot of this going on out there.

I've railed on the overabundance and excessiveness of online positivity here before. I am an avid user of Twitter, but one of my complaints about it is that it skews to thoughts and sentiments that are positive, and this may have negative consequences in the long run. (People are more positive than they are otherwise and positive about things they may not be off-line.) This positivity is a core ingredient in the online tribe's dynamic. What's the anecdote? Mike Cernovich has a very interesting post where he urges people to "Go Start a Fight." Mike flags the exact same dynamic that I'm seeing as the toxic ingredient in the mix:

People wake up wondering what nice things others have said about them. People actually Google their names on a daily basis! Mornings are made when someone has given us a virtual blow job.

Yet as a nation of druggie, we understand the unstated deal. The dealers dole out the good stuff to those who praise them. If you criticize others, you will not get the soma.

I am probably too peace-loving to take Cernovich's medicine, but he makes a great point and offers an intriguing solution to the problem. Either way, I'm convinced there's a problem, and that's the first step (as they say).

More on this topic from Scott Greenfield: "Because We're Not Really Friends."

CA Court of Appeals: State Spam Statute Imposes Strict Liability and is not Preempted by CAN-SPAM

Venkat — Fri, 21 Jan 2011 03:11:00 GMT

CAN-SPAM decisions over the years have been fairly unfriendly to plaintiffs, but one open question was the extent to which CAN-SPAM preempted state spam statutes. Lower courts, particularly in California, have been across the board on this. The California Court of Appeal recently issued a blockbuster of a decision in Hypertouch v. Valueclick.

The court held that CAN-SPAM does not preempt California's spam statute, even though the state's spam statute does not require plaintiffs to prove the elements of fraud. This means that plaintiffs can sue for emails that contain misleading subject lines, incorrect header information, or which are sent through domain names without the registrant's permission, all regardless of whether they can prove reliance and damages. Second, and even more important, the court held that companies whose products or services are advertised through non-compliant emails can be held liable, even if they didn't know or had no reason to know of the underlying violation - i.e., the statute imposes strict liability. This means that if a company contracts with someone else to market the company's product, even if the parties have an agreement in place that the marketing will comply with state and federal spam statutes (and even if the company spot checks the marketers work) the company can still be held liable for emails that are found to violate California's spam statute.

This is a pretty significant decision, which I'm sure will be appealed. We'll see what the State Supreme Court does with it if it decides to hear the case. I blogged in a bit more detail on the case at Professor Goldman's Technology & Marketing Law Blog (with comments from him as well): "CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM."

Given the significance of this case, I can see companies or trade groups weighing in as amici on this case. They should certainly think about doing so.

Texting Fountain Lady Mulls Lawsuit

Venkat — Thu, 20 Jan 2011 19:25:00 GMT

I missed the video when it first came out but apparently a woman was walking while texting in a mall and fell into a fountain. She got up, brushed herself off, and went about her merry way . . . but the video of her texting while walking and falling into a fountain went viral (to the tune of 1.6 million views on Facebook and YouTube).

Mediaite reports that she's mulling her options and considering a lawsuit: "Fountain Lady Wants Revenge." My immediate reaction is: "she wants to bring even more ridicule on herself by suing?" But others pointed out that it may not have been proper for the security guards to release the video.

The only problem with the texting fountain lady is that she can't make up her mind as to what went wrong and why anyone should be held liable. Reading Eagle reports ("1 Step Leads Fountain Girl to Unwanted Fame") that one of her qualms is that the security guards were unprofessional and enjoyed a laugh at her expense, rather than helping her:

'My issue is I don't think security was professional because they didn't send anyone to check on me until 20 minutes later and I had already left,' Cathy said Wednesday in her first interview since the accident.

[via dlisted: "The Texting Fountain Lady Comes Out"] They didn't do the right thing, but their conduct hardly seems tortious. The mall/security company is investigating whether the release of the video violated any policy - I'm guessing they'll end up disciplining the security personnel involved.

As to her claim that the security guards improperly released the video, if you watch the video, you can't recognize her from it. Although the facts aren't clear, she seems to be the one that connected the dots between her and the video, by coming forward. She does state in one of her interviews that after the incident, a friend of her who watched the video called her to ask if she was OK. Apparently, the friend recognized the way she "walks"? (??)

We'll have to wait to see what happens, but her potential for a lawsuit is not looking so good right out of the gate.

Update: "texting fountain lady's problems bigger than YouTube fame."

Related: "Study Suggests There's a 'Texting While Walking' Epidemic"

Review: Typography for Lawyers

Venkat — Fri, 14 Jan 2011 15:38:00 GMT

Jason Wilson was kind enough to send me a review copy of Matthew Butterick's "Typography for Lawyers." Butterick - who runs a website also named Typography for Lawyers - has a visual-arts degree from Harvard and worked as a font designer and later a web-designer. He's now a lawyer who practices civil litigation in Los Angeles. His experience qualifies him to write this book.

TFL is full of helpful tips, ranging from the selection of appropriate fonts to spacing, sizing, the use of small caps (etc.). What makes the book incredibly useful is that Butterick:

explains his rules and suggestions;
talks about rules which are now outdated and why they developed the way they did; and
includes technical tips on how to implement his rules in various word processing programs.

You could literally open the book to any page, read for five minutes, and come away with some helpful information about typography and how it affects a document. You can then easily implement his rules and suggestions. The short book (216 pages, including the foreword and acknowledgments) covers just about every aspect of typography, and its thoroughness will seem daunting, even to those who are tuned in to typography and formatting. For example, here are the rules for text formatting that he covers:

Reading the book will cause most people to examine their basic formatting and typography practices that they have taken for granted their entire writing lives, and this is a very useful exercise. (Personally, I have focused much more on formatting than typography in the past. It will certainly take some time to implement the helpful suggestions from the book. Of course, typography is not something I pay much attention to when blogging, so don't bust my chops over poor typography practices when I write online.)

The book is not just useful for lawyers, but for drafters of all kinds of documents. It would make the perfect gift for the legal professional in your life. You can't go wrong if you are buying it for yourself. I highly recommend it. You can buy it at the Jones McClure website here or at Amazon here. At $25.00, it's a steal.

Other reviews: Scott Greenfield; Molly DiBianca; Ernie Svenson; Mark Bennett.

Added: Legal Geekery interviews Butterick in a podcast here: "Episode 21: Typography for Lawyers, CES, Searching Cell Phones, and More."

Related - The two space controversy: Farhad Manjoo in Slate pens a polemic on using two spaces after a period: "Why you should never, ever use two spaces after a period." Butterick of course has weighed in on this topic. Here is his take:

Some topics in this book will involve discretionary choices. Not this one.

Always put exactly one space between sentences.

Or more generally: put exactly one space after any punctuation.

There you have it!

Parties are not shy about splattering their spleens through cyberspace.

Venkat — Fri, 14 Jan 2011 02:41:00 GMT

An awesome line from a frustrated judge dealing with a contentious divorce case (footnote 23 in Bruni v. Bruni, 2010 ONSC 6568 (Nov. 29, 2010)) [pdf].

The rest of the footnote rings true as well:

In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Asserting credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens through cyberspace.

(via Lowering the Bar) (Eric Goldman)

Loosely related: "Ex-BigLaw Partner Disbarred for Bogus Time Entries, Expensed Meals for Internet Dates":

Denti and the divorce client had both denied a sexual relationship, but flirtatious e-mails told a different story, according to the opinion. The document goes through a series of questions presented to Denti during the ethics hearing and his denials, including this question: “Let's talk about your e-mail. What are you talking about with a whole case of raincoats and using them all in one night?”

“I think I’m joking,” he replies, and then says it probably refers to the client's husband.

The emails and the explanation are a painful read - even funnier than the language quoted in the ABA Journal story is the fact that when asked about emails discussing soreness and fatigue from the evening before, Denti said it was because he or she had been using a new trampoline. "Three times," the questioner asked .. you used the trampoline "three times?" Oy.

[pdf].

Blog By Date - When is Something too Stale to Blog?

Venkat — Tue, 11 Jan 2011 17:06:00 GMT

A silly, menial, meta-question, I know, but the first sentence in this post by Ryan Gile brought it to mind.

UK Watchdog to Crack Down on Celebrity Tweets - Will the FTC Follow Suit?

Venkat — Mon, 10 Jan 2011 02:48:00 GMT

The celebrity Twittersphere is marginally interesting to me personally, but celebs seem to carry a fair amount of clout on Twitter and in the online space in general. It seems like celebrities are among the most followed (if not the most followed group on Twitter). They plug many products and services, and I often wonder whether there's any financial motivation behind these efforts. My instinct is that the answer is yes, and there has been some coverage on how much certain celebrities earn per Tweet. See these articles from Business Insider and SF Gate for some eye-popping figures: "How much celebrities and sport stars make per tweet" and "Startups cash in on Twitter with pay-per-Tweet."

The Daily Mail reports that UK's Office of Fair Trading (which seems like the US equivalent of the FTC) has ordered a crackdown on these celebrity tweets. (See "Stop Tweeting - or we will take you to court! Watchdog's crackdown on celebrities who plug products on Twitter" (via Leanne O'Donnell) and "Twitter endorsements face OFT clampdown".) The article asks around for comment on some of the products or services endorsed by these celebrities, and finds some instances of money (or discounts) changing hands - one involved Henry Holland and Range Rover:

Henry Holland (133,035 followers)
Range Rover
‘CAN’T WAIT FOR MY NEW RANGE ROVER . . .!!!!’ – November 24
‘It’s the dream! Waiting for me in the car park! – December 2

A Range Rover spokesman said their VIP scheme meant celebrities signed contracts ‘in return for them driving our cars.’ She added: ‘It’s not free...Under the terms of the deal they Tweet . . . ‘They Tweet about the car.’

Range Rover later told a different story, but its initial comment was interesting. Other celebs/products include:

Elizabeth Hurley (66,603 followers)
Estee Lauder

Peaches Geldof (97,919 followers)
The May Fair Hotel

Lily Allen (2,573,958 followers)
PlayStation and Grey Goose vodka

I wonder if the FTC will eventually crack down on this practice in the US. Obviously, under the FTC regulations promulgated last year, this is the type of thing that should come with a disclosure, and an endorsement without disclosure can subject both the celebrity and the company being endorsed to penalties. The sole crackdown to date under those regulations involved fake reviews for a game posted by a PR company. (See "FTC Dings PR Firm for Fake Reviews -- In re Reverb Communications.") I hadn't heard of either the PR company or the product it endorsed, and it seemed like an odd choice for an FTC poster child. It will be interesting to see what the FTC does with celebrity endorsements in 2011.

Loosely related: "Khloe Kardashian and Twitter Spam."

Also loosely related: "How 50 Cent Made $9M From One Weekend of Tweeting." I'm not suggesting there was anything improper with that 50 Cent did, but encouraging followers to invest through frequent tweeting and plugging (of a stock that you own) sounds like the type of thing that could raise some agency's eyebrows.

Portrait of a Lawyer Turned Anti-Spammer

Venkat — Tue, 28 Dec 2010 10:48:00 GMT

Ryan Burns of the North Coast Journal profiled Asis Internet, a long-time anti-spam crusader who ultimately closed up shop. (Previous post: "The Rise and Fall of a Spam Plaintiff.") The AP takes it turn on this topic, this time profiling Dan Balsam, a lawyer turned anti-spam crusader: "Man quits job, makes living suing e-mail spammers." (Balsam says the scourge of spam inspired him to go to law school.)

The AP's piece mentions the millions of dollars in judgments racked up by Balsam. However, it doesn't answer the critical question of what percentage of those judgments he actually collects on? Nor does the article mention Balsam's recent loss in the 9th Circuit, where he tried to hold a registrar and its privacy protection services liable for a million dollar judgment. (See "Domain Name Privacy Protection Services Not Liable for Failure to Disclose Identity of Alleged Spammer.")

In fact, this is something I've been curious about for a long time. Companies and individuals have been awarded millions in (often default) judgments against spammers. How much of these judgments have actually been realized? Inquiring minds want to know!

(h/t Eric Goldman)

In the Age of YouTube, there's no need to take my word for it

Venkat — Sat, 18 Dec 2010 18:33:00 GMT

In the Age of YouTube, there’s no need to take my word for it: There is a video of the incident that I’m “happy to allow . . . to speak for itself.” Scott v. Harris, 550 U.S. 372, 378 n.5 (2007); see www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010) [no shortened URL?]. This video (also found in the record) clearly shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever.

Interesting quote from Judge Kozinski in his 9th Cir. concurring opinion in Norse v. Santa Cruz.

(h/t Eric Goldman; see also Techdirt.)

ABA Journal Blawg 100 2010 - Recommendation No. 2 (Tech & Marketing Law Blog)

Venkat — Sat, 18 Dec 2010 18:28:00 GMT

My second recommendation for the ABA Journal Blawg 100 2010 - Eric Goldman's Technology & Marketing Law Blog.

Why? Because I guest blog there with some regularity, and Prof. Goldman has promised to double my pay if he wins. I'm kidding, even if he did double my pay, it would still be zero. Seriously, his blog has always been a go-to resource for those who follow tech. and marketing law developments. I was always amazed at his encyclopedic knowledge before I started posting over there, and I'd always exchanged emails with him on cases, but now I do so with some regularity, and I'm in awe of the volume of relevant material that must pass through his gmail and scribd accounts. In fact, one of the downsides of blogging over there is the sheer torrent of material that's available. I don't know how he does it, but he stays totally on top of ongoing cases. No (even loosely relevant) case passes by without him noticing.

How to Vote:

Register to vote here.

Cast your vote in the "Legal Tech." category here.

Bias alert: See above. Also, thanks to Ron Coleman for the kudos.