Prawfsblawg is hosting a contest for your "favorite bad legal argument."  We could all enter that contest -- with arguments we have heard and, unfortunately, arguments that we have made.  Anyway, the entries are fascinating and somewhat educational!  Enjoy. 

And thanks to Appellate law & Practice! 

You know I enjoy Grammar Girl.  Check out her brother Legal Lad.   His recent posts include discussion of the legallity of recording conversations, living wills and power of attorney, the Fifth Amendment and Filing for a Tax Extension.  Each podcast begins with a disclaimer: 


Grammar Girl is Mignon Fogarty, but I have not been able to find Legal Lad's real name. Anybody know? 

Welcome to another edition of Blawg Review – where bloggers come for their legal news every Monday. 

I am very glad to be hosting Blawg Review.  For one thing, it gives me a good reason to explore new blawgs and to read familiar blawgs more closely. As you can see from my blog, I have not written much lately, so hosting Blawg Review is getting me back into the swing of blogging.  I blame my blogging slowdown on a charity fundraiser that I am co-chairing this week.  Keep your fingers crossed for good weather in Nashville on Friday night. 

My work and interests obviously influence the posts that I chose for this Blawg Review.  My practice is limited to research and writing so those subjects are the ones that draw my attention in reading blogs.  In my mind, things such as grammar, linguistics and new research are significant to any law practice so you will see a lot of posts on those subjects here.
 
First, blawgs mentioned many new articles on a variety of subjects.

 Legal History Blog tells about an essay on billboards and how the public and the court have judged billboards’ aesthetic qualities.  

Workplace Prof Blog tells about an article on “Reframing Women Employees' Responses to the Harms of Sexual Harassment.”  According to the abstract, an employee’s response to sexual harassment generally focuses on whether the employee failed to report the harassment.  The writer suggests that the discussion should instead consider the ways in which the employee is harmed by the harassment and the ways in which the employee avoids the harm, beyond merely reporting it to a superior.  Looks interesting.  

Trial Ad Notes looks at a new study of pro se felony defendants.  It seems that they do pretty well, sometimes even better than represented defendants. 

SCOTUS discusses the “curious decline in the number of paid petitions filed” with the Supreme Court.  Is it a combination of the low probability that a petition will be granted and the cost? 

The Wired GC criticizes an op-ed by Professor Michael Seigel (a former prosecutor) in the Washington Post regarding the corporate attorney-client privilege.  Professor Seigel is concerned that pending legislation prohibits waiver of the privilege. According to the Wired GC, Professor Seigel “fails to note is that some prosecutors have essentially abused waiver and used it to fashion paper-thin criminal cases out of what is really civil wrongdoing (if any). Prosecutors have demanded almost real-time production of all attorney-client communications, sitting back and seeing what they can reel in.” 

Antitrust Review also has an interesting post on the effect of after the fact extensions of the copyright term.   “If John Steinbeck felt sufficiently  incentivized to write East of Eden in 1952, extending the copyright term in 1998 – absent time travel or extraordinary foresight on his part – would not have given us a better book.” 

Carolyn Shaprio, a guest blogger at Empirical Legal Studies is working on an analysis of whether judges accurately report the facts.  Her focus is on summary judgment where the court must evaluate whether a reasonable jury could find for the plaintiff.  Although the Supreme Court has provided a framework, the courts chose which facts to report and don’t report every fact or piece of evidence.  She is soliciting comments to let her know what you think .

Point of Law points out a new article on “civil justice reform.”  The article focuses on the move from limiting damages to reforming/changing procedural aspects of litigation.  According to the abstract, the authors take the position that opponents to the procedural changes continue to address the damage caps because “it’s easier to rally opposition to such caps among legislators, editorial pages, activitsts, and lawyers themselves than it is to get into discussions of areas like forum-shopping, fee-driving class actions and unprincipled experts-for-hire.” 


Blawgs are an excellent and time-efficient way to keep up with pending litigation and learn about new decisions.  This week was no exception. 

The California Appellate Report explains the difference between a street prostitute and a prostitute who works through escort services, thanks to an opinion from the California Court of appeals. 

The Patry Copyright Blog discusses a Ninth Circuit opinion regarding copyright ownership by a partnership.  The issue is probably quite common because bands frequently form partnerships or other entities and then transfer existing works to those entities.  The opinion is quite brief and I wish the Ninth Circuit had addressed the facts and legal issues in more detail. 

Jamie Spencer at Austin Criminal Defense Lawyer thinks that Whorton v. Bockton was decided wrongly.   He gives examples of problems that can result from the holding. 

Simple Justice discusses a bad case making bad law.  In particular, he examines a case in which a driver was convicted of murder for driving drunk the wrong way on a highway in Nassau County, New York.  The victims included a seven year old flower girl in a wedding party.  According to Simple Justice, this was the first drunk driving case in the State of New York to be tried as murder 2.  Does the outcome of the defendant’s conduct justify the murder 2 charge?   Simple Justice thinks not and is concerned that all of us “will be saddled with the outcome” of this defendant’s appeal. 

Sui Generis asks whether there is a first amendment right to access porn at the public library.  No, she's not asking on her own behalf; the issue arose in Rochester when a television station did an “expose” based on library patrons using computers at the public library to access porn in full view of anyone and everyone, kids included.  She asks for comments from constitutional scholars. 

The Duncan Law Firm reminds me that the Tennessee Rules of Civil Procedure are being amended effective July 1, 2007.  Day on Torts does the same.  I should read up on that. 

The Scruggs law firm in Mississippi gives updates on Katrina issues.  Once again, Dickie has taken on a battle that no one else would touch.   Speaking of Scruggs, the National Law Journal questions whether fast food litigation will be the next Big Tobacco litigation. 

Split Circuits, a blog that I always find interesting, reports on the split in decisions regarding the first and last served defendant rule for removal under section 1446.  This split is especially significant because removal is invalid if you don’t get the timing exactly right.  So don’t assume you know the rule if you are working outside your usual circuit. 

The Legal Scoop briefs the Supreme Court’s punitive damages opinion in Phillip Morris case . Legal Scoop argues  that the plaintiff’s attorney could have avoided this issue by not calling on the jury to send a message to the cigarette industry for all the people being harmed.  Legal Scoop asks why this case was not brought as a class action.  He also points out that the Supreme Court’s opinion had an interesting group of dissenters -- Stevens, Ginsburg, Thomas, and Scalia.  Not surprisingly, Stevens and Scalia dissented on different points.

There seems to be an inordinate number of sports-related cases this week.  Legal Scoop reports on a case by soccer player Freddy Llerena against the D.C. United franchise.  Llerena seeks $5 million in compensatory and $5 million in punitives for damages he suffered in a game.   Another sports-related case is the subject of a post at Overlawyered.  A resident of the apartment building into which New York Yankee pitcher Cory Lidle’s plane crashed has sued the Lidle estate for $7 million.  The comments are especially interesting and even include references to Seinfeld.    The Sports Law Blog asks whether potato sack racing is a “contact sport”  because that is one of the primary issues in an Ohio case.  The court decided that “intentional tackling is not a customary part of the sport or activity of sack racing” so that “sack racing is not a contact sport.”  Wonder how you would find an expert witness for that case.  

One post that generated quite a lively discussion is at Overlawyered and discusses the effect of safety rules that exceed government requirements.  The issue came up in a Staten Island ferry case where a “federal judge hearing the case held that the existence of these rules could actually be a factor in its liability (NYT).”  Several commenters point out that this is not uncommon.  Other commenters disagreed with Overlawyered’s analysis of the holding. 

The death of Ralph de Toledano last month prompted Overlawyered to recall Ralph Nader’s case against de Toledano in 1975.  That suit arose from De Toledano’s suggestion that Nader had “falsified and distorted” evidence about the Corvair automobile.   I did not know anything about this case and have put it on my list of things to research later. 

Antitrust Review weighs in on Vertical Minimum Price Restraints that are before the Supreme Court in the Leegin case.  He discusses some of the different economic opinions of whether VMPR should be governed by a per se rule or the rule of reason. 

Several blogs discuss the lawsuit filed by Public Citizen and an upstate New York personal injury law firm for a preliminary injunction against New York’s new ethics rules.  The New York Personal Injury Attorney blog opines that "the issue is not simply ads in poor taste, but rather, any attention getting technique” and concludes that it “seems that New York's judiciary wants to prohibit ads that are in bad taste, but has well exceeded such a goal. And while that may be a laudable objective to many, actually defining it is another matter. The new rules simply seem to be another version of the vague, ‘I know it when I see it.’”  You can get a copy of the briefs through Nicole Black’s blog, Sui Generis.  Nicole has several helpful posts on this issue.  And there is even more discussion at  LawBizBlog. 


And then there are the really fun posts on my favorite research, writing and grammar issues.

Lisa Solomon of Legal Research and Writing Pro (where I also post blawg entries) writes about a frree legal research and writing resource from Thomson West.  Who knew anything was free?  According to Lisa, who also operates the Billable Hour, Thomson West offers free newsletters that give helpful research tips. 

Guy Kawaski  posts this week include George Orwell’s 1946 essay,: “Politics and the English Language.”   Even if you have read it before, read it again.  Guy got some interesting comments too, including some disagreement and criticism from one reader who considered quoting the essay as “lazy.”  I disagree  and am glad that Guy took the time to share the essay. 

Even though I am a litigator, I have always enjoyed Ken Adams'  blog about contract drafting.  One of his entries this week rethinks the use of the terms “material” and “material adverse change” in contracts.  Those terms are included in many contracts, but, as Ken points out, they are both vague and ambiguous.  He also offers alternative language and ideas for clearer contract drafting.     Some clients apparently think that writing contracts and briefs should be done by associates rather than higher paid attorneys. Ken  addresses that issue: 



My favorite posts are those about grammar, punctuation, and word usage. 

In case you think that grammar and punctuation are not legal issues, think again.  John McIntyre at the Baltimore Sun reports that the Arkansas legislature is considering legislation to declare that the possessive form of Arkansas is Arkansas’s.  This follows 1881 legislation that formalized the spelling and punctuation of the state name, “making the final ‘s’ silent.”    Coleen Barger at the Legal Writing Prof Blog has written a letter to the legislator who proposed the bill, giving more support for the possessive form. 

Jargon is related to grammar and Roy Jacobsen gives a link to The Ridiculous Business Jargon Dictionary.  What kind of jargon is ridiculous?  What about “herding cats,” “at this juncture” (instead of “now”) and “interface” (instead of “talk”).  Lawyers could fill a couple of those dictionaries. 

Pam Nelson at the News Observer has a quiz on word choice.  I surprised myself and got them all right.

Not really grammar, but Wayne Scheiss gives us some random words that he dislikes.  

Ray Ward, as usual, has interesting writing tips.  He discusses the difference between “forego” and “forgo”  and whether you should start a sentence with a conjunction.  He says that he “occasionally” comes across an adult who still thinks it’s improper to start a sentence with a conjunction.  I am probably one of those adults, but I am being converted, especially since Ray is using the King James Version of the Bible to convince me.   By the way, Ray Ward is giving up milk in his coffee for Lent.  Ray, I started drinking coffee black (and no sugar) several years ago because there was only a split second of time when the coffee was perfect and some waiter would spoil it by choosing that time to freshen the cup.  The problem with drinking black coffee is that it takes a long time to cool.  Most people at the table have finished their coffee before mine is cool enough to drink.  Good luck. 

Wordsmith has a word that I would love to use in a conversation with some opposing counsel:  misology (mi-SOL-uh-jee) noun -- Hatred of logic or reason.

Mark Liberman and Languagehat are discussing the most annoying phrases in the English language and the core issue of why we even care.  Do we complain about grammar to show that we know the rules and are therefore somehow superior?  And how important are those rules?  Language Hat posits:  “If anything, the list of rules and infractions that began growing in the 18th century has worked to stifle creativity, and the best writers have always been willing to break the rules.”  Interesting points. 
  
The Writing Coach provides some good tips for going beyond the first draft.  When you edit that draft, take the opportunity to reshape and focus, trim flab, nail the theme and hide the seams.  

Lynn Gaertner-Johnston recommends Visual Thesaurus to find just the right word.  Visual Thesaurus “is an interactive dictionary and thesaurus with an innovative display that encourages exploration and learning. You'll understand language in an exciting new way.”  Give it a try. 

You know I love Grammar Girl and this week she podcasted on two good subjects:  (1) “although” versus “while,” and (2) semincolons, my favorite punctuation mark. 


And maybe the most important posts this week are on Above the Law.  Don’t miss your chance to vote on Librarian Hotties – male and female. 


Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues. 

Bruce MacEwen talks about the “Law Library of the Future” at Adam Smith, Esq.  Bruce has an interesting characterization of the attitudes of four generations of lawyers regarding media, technology, and research.  He concludes: 


Law libraries are definitely changing and, as a lawyer who has created a practice based on the availability of online legal research resources, I like the change.  Bruce is right that it is all about “knowledge management.”  No matter how easily accessible knowledge may seem to be, there will always be a need for those who know how to find it. 

That said, there is still something wonderful and inspring about a traditional library and those rows and stacks of books. 

The Legal Dockets Online Blog lists the court dockets that are not available using CM/ECF.  The list is especially helpful because it identifies alternative means to obtain dockets and documents.

The Harvard Law Library has a Multi-State Legal Research guide.  It lists internet resources such as nonprofit interest groups.  The guide also includes compilations of laws by topics, such as abortion, adoption/foster care, bar examinations, Good Samaritan laws, legislative histories, trade secrets and uniform laws. 

Thanks to Mary Sexton at Heafey Headnotes.

Reference Question of the Week considered a request for suggestions for a book to give a second year law student for Christmas. 

The post listed nine books, none of which I have ever heard.  Guess I should check them out. 

If I were answering that question, I would include The Art of Cross Examination by Francis L. Wellman (mentioned in an earlier post), and any book by Bryan Garner.

The Wall Street Journal Law Blog reports that Merriam-Webster Online listed “Pettifogger” as its word of the day.  What is a pettifogger?   “pettifogger PET-ee-fog-ur noun  1 : a lawyer whose methods are petty, underhanded, or disreputable : shyster.” 

I did a LEXIS search for the word and got 48 hits.  I learned that “pettifogger” can be used as a verb, as in he “had been pettifogging for two hours and a half.”  United States v. 16,000 Acres of Land, 49 F. Supp. 645, 654 (D. Kan. 1942).  “Pettifogger” is primarily used in older opinions where the judges wrote  lovely sentences. For example:  "He is a pettifogger who was mischievously bent on impeding a great reform demanded by the people, without regard to his chances of success in achieving his ostensible purpose, or else.”  Kennedy v. Item Co., 213 La. 347, 354 (La. 1948).  Or this sentence:  “In these representations they were backed by old tories and worthless pettifoggers, with such matchless effrontery that the men finally yielded to the solicitations of their officers, and concluded to set the laws at defiance.”  SUMNER v. BUEL, 12 Johns. 475 (N.Y. 1815).  Not sure what those sentences mean, but I enjoy the way they sound. 

Also, while advice of counsel is generally a valid defense, be wary of relying on pettifoggers:  "While an honest reliance on the advice of counsel, who has been fully informed of the facts, may be a complete justification in an action for malicious prosecution, the advice of a lawyer who is a pettifogger will be no justification. * * * And a reliance upon the advice of a person who is not a counselor or attorney at law is incompetent to disprove malice."  EIHLERT v. GOMMOLL, 1902 Ohio Misc. LEXIS 191 (Ohio Misc. 1902). 

Unfortunately, “pettifogger” is probably a word that only judges can use.  I think that if one lawyer calls another lawyer a “pettifogger” in court, that is reversible error and perhaps an ethics problem. 

The IRS website includes its Audit Techniques Guides (ATGs).  The Guides "focus on developing highly trained examiners for a particular market segment" and "contain examination techniques, common and unique industry issues, business practices, industry terminology and other information to assist examiners in performing examinations."  Not surprisingly, lawsuit proceeds are a "market segment" covered by the Guides. 

The Guide for "Lawsuit Awards and Settlements" was "developed during a project in Alabama, which began with media coverage of relevant tax issues. Analyses of newspaper articles revealed that numerous lawsuits were being resolved in the state either by verdict or settlement for substantial amounts. As a result, a separate project relating only to lawsuit verdicts and settlements was initiated and approved." 

These are the issues for lawsuit proceeds received after August 20, 1996: 



Keep these things in mind when you settle your next suit! 

thanks to Bizblawg. 

The office of Special Counsel Patrick J. Fitzgerald is posting each day's exhibits in the Libby trial. The website also includes the indictiment and subsequent motion filings.  I would like to know how many people look at those exhibits and why.  The website is handy for the media and for bloggers who want to comment on the trial.  But who else is going to read them?  I looked at a few of the documents but, without a detailed chronology and information about the factual context of the documents, they did not tell me much.  Having read some of the documents, however, I may have a more informed perspective when I watch news reports of the trial. 

Boley Blogs also lists blogs that are following the Libby trial. 

Press release:  "Fiscal year 2006 statistics for each of the 12 regional U.S. courts of appeals and 94 U.S. district courts – plus national totals for the appellate and district courts – are now available."    You can read the stats here.

I have used these statistics a few times in support or opposition to motions to transfer to compare how long it takes to get to trial in various districts. 

  WisBlawg reports that the Judiciary is considering a one year pilot project to assess the effect of offering free public access to PACER through the Federal Depository Library Program.  

The Government Printing Office conducted a survey of federal depository libraries last year and the results are here.  Of the 263 libraries that responded (123 were academic libraries), only 52 currently use PACER.  Of those 52, 30 had PACER expenditures less than $100.  One library had PACER fees excess of $14,000.  I think that PACER is a great resources for my legal practice, but also for all kinds of research.  So I am surprised that there is such limited usage in depository libraries. 

Like most lawyers, I recently attended a seminar on electronic discovery.  As Byron Stier at Mass Tort Litigation Blog points out, however, electronic discovery is nothing new: 

Accounts in the popular press seem to have missed the point, suggesting either that the availability of e-discovery is something new . . . Electronic discovery is nothing new.  Skilled lawyers have been requesting information from disks, floppies, CDs, memory sticks, hard drives, back-up tapes, e-mail, Palm Pilots, Blackberries, and cell phones as long as such information has existed.  The rule amendments give a name to a category that previously lawyers simply included in their definition of "document," and the amendments establish a rational set of procedures to apply to ESI.  By spelling out more clearly the applicable rules and by calling attention to ESI, the amendments may increase the amount of e-discovery, and may cause companies and to be more careful in tracking electronic information.  But if anything, the overall thrust of the rules -- particularly the safe harbor of Rule 37 and the presumptive non-discoverability of "not reasonably accessible" ESI -- is toward protecting litigants against unduly burdensome electronic discovery.

Thanks to Sound Evidence, which also has another interesting post on the preparation of IT departments for these new rules. 

The ABA issued a press release on November 9, 2006 about a new ethics opinion:

The opinion is contrary to the view of some legal ethics authorities, which have found it ethically impermissible as a matter of honesty for lawyers to search documents they receive from other lawyers for metadata or to use what they find, according to the ABA Standing Committee on Ethics and Professional Responsibility.

I have not seen the full opinion, but it should make all of use review our procedure for transmitting documents. 

 Thanks to Wisblawg!

 

BarclayBlog links to the NCSL 50-State Legislative Tracking Web Resources, a compilation of legislative resource from all fifty states.  It includes a topical, alphabetical listing of legislative and statutory databases, compilations and state charts/maps. 

This could be a very helpful research and searchable resource.  The first page identifies categories and subcategories.  Within each subcategory, you can formulate your own search terms and/or search by state, topic, year, bill type and status.  I looked at the subcategory of “Healthy Community Design” within the Agriculture and Rural Development category.  I then searched for any documents relating to “direct marketing” and got a list, by state, of pending and recent legislation that relates to direct marketing by farmers.  The links, like a search of any statute database, tell me the law in various states.  But this database goes further and gives me a means to compare what the states are doing recently on a particular topic.  Check it out. 

The issue of direct marketing by farmers is especially interesting to me because last week we received our last delivery of goodies from the Community Supported Agriculture (CSA) program in which we participate.  For the last six months, we have gotten a chicken, a dozen eggs and a surprise bin filled with fruits and vegetables every week.  In addition to having great, fresh food all summer, I have expanded my knowledge of fruits and vegetables and cooking skills.  The winter CSA starts soon and I am looking forward to that.  If you don't know about CSA's, the USDA has some information here. 

Students at Stanford University Law School’s Center for Internet and Society  will answer questions about the upcoming elections.  According to the site, those questions will include things like: 


I don’t have questions, but will be interested in watching the site to read the answers to others’ questions. 

California Western School of Law offers Law in 10, “a weekly podcast produced by California Western School of Law, which brings you an expert analysis of the latest legal news, all in 10 minutes.”  The topics so far have included North Korea, immigration, the Supreme Court’s 2006-07 term and polygamy.  I listened to a few of them and found them informative.  Good job California Western! 

Thanks to Barclayblog for the link. 

Gruntled Employees listed the thirty riskiest firings and emphasized that just because firing one of the listed employees is risky does not mean that an employer should not do it. 

I want to add to the relevant considerations.  If an employer has an employee who did not get paid for all time worked (#22) or who did not receive all overtime pay (#23), the employer should get its house in order.  Otherwise, summary judgment will be mighty difficult. 

Of course, there is not much an employer can do about #29 – those pesky employees who “are related to, friendly with, or live near a lawyer.”  Who would want to be friendly with a lawyer? 

Have you ever been reading an opinion and noticed that "United States" has been misspelled as "Untied States?"  The typo probably makes you chuckle or cringe as you think of all the typos that you have made in the past. 

But think about it this way.  If you used "United States" as your search term, you would not find this reference.  In the case of "United States," your search probably will not suffer because that opinion probably has plenty of correctly spelled references to "United States."  But if you notice that a key search term is often misspelled or can be spelled different ways, you might want to adjust your search to include all possible spellings. 

Terry Bullard and Tina Gunther have put together a list of most common typographical errors in library databases and the list is fascinating. Check it out here.  Also, there is a blog devoted to the subject:    I hope that blog never has occasion to mention me! 

Thanks to Marylaine Block who always directs me to the neatest new stuff on the web! 

Here is the interesting history of West Group. 

Thanks to Legal Writing Prof Blog.