June 28, 2011
Winklevoss Twins Are Back In Court
After a recent loss in court, the lawyers for the twins told that court that their clients were calling it quits in their litigation against Facebook and Mark Zuckerberg. Not so fast! The litigation continues.
Cameron and Tyler Winklevoss were back in court on Thursday, a day after their lawyers had submitted to a court in California that they would not appeal to the US Supreme Court their $65 million settlement with Facebook and its CEO Mark Zuckerberg.
In a status report before the United States District Court for the District of Massachusetts, the Winklevoss twins and Harvard classmate Divya Narendra said they will move the court for discovery on the issue "whether the Facebook Defendants intentionally or inadvertently suppressed evidence", and then move for appropriate relief from the court.
Here’s the story.
June 27, 2011
Documentary about 6 law students studying for the California bar
This documentary, called "A Lawyer Walks Into a Bar . . . ," was released in 2007 but I just learned about it from a former student who is now studying for the California bar. The start of the trailer leads you to believe it's about the public's attitude toward lawyers. By minute 1.33, it's into the real subject matter which profiling six law students who are sitting for the California bar, including one poor soul who's failed it 41 times.
Hat tip to Corey Friedman.
4th Circuit holds missed deadline due to computer glitch causing calendaring error not exclusable neglect
From Law Technology New:
In a recent decision, the 4th U.S. Circuit Court of Appeals analyzed the excusable neglect standard in the context of a notice of appeal from a district court judgment that was filed one day late as a result of a technical error by counsel's computer calendaring system. The court's May 23 opinion is captioned Symbionics Inc. v. Ortlieb.
On Dec. 4, 2009, the U.S. District Court for the Eastern District of Virginia entered judgment on the defendant's counterclaims against Symbionics. Pursuant to Fed. R. App. P. 4(a)(1), the notice of appeal with respect to that judgment had to be filed within 30 days. The 4th Circuit opinion said Symbionics filed one day late, on Jan. 5, 2010, but requested that the district court permit the late filing on the grounds that "a quirk in the functionality of counsel's computer calendar caused counsel to miscalculate the deadline to appeal as Jan. 5, 2010, rather than the correct date of Jan. 4, 2010."
The mistake allegedly resulted from a computer glitch that calculated the deadline based on a January, 2009 calendar rather than the correct 2010 version. The district court concluded this was excusable neglect, Ortlieb appealed and the 4th Circuit reversed. Applying the applicable three part test from Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the 4th Circuit examined:
"(1) danger of prejudice to the opposing party, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith . . . [noting] that the third factor -- the reason for the delay -- is the most important consideration to the excusable neglect inquiry.
. . . .
The court found that Symbionics' explanation for its delay did not present the type of "extraordinary" circumstance satisfying the excusable neglect standard. Symbionics had argued its delay was caused by a computer miscalculation: counsel had used his computer calendaring system, which, according to counsel, had a glitch causing him to believe the applicable period expired one day subsequent to the actual deadline. The court found that this explanation was not extraordinary or unusual, nor did it excuse Symbionics' failure to comply with the deadline set forth in the federal rules.
You can read the court's unpublished, per curiam opinion here.
Hat tip to Above the Law.
Practical Skills at St. Louis University
The St. Louis University School of Law has had a Law Practice Management class in its summer session for several years. Barbara Gilchrist teaches the class.
The syllabus shows the expansive reach of the class - business forms, marketing, client managment, technology, finances and much more. As part fo the class, students go to the highly-regarded Missouri Solo and Small Firm Conference. If that's not enough, the students get to hear a wide range of speakers with expertise in each of the areas of coverage.
I (Dennis Kennedy) have had the pleasure to speak to this class several times in recent years about legal technology and related matters. I take an all Q & A approach and am always intrigued by the great questions I get and what issues the students focus on each year.
I spoke to this year's class last week and had a great discussion with the students. Perhaps not surprisingly, a lot of the questions related to social media. I enjoyed getting some of the most sophisticated questions I've ever gotten about use of social media and the Internet by lawyers. Unlike most groups of lawyers, these students not only knew what cloud computing was, they were asking about its positive aspects while still being cognizant of security and other issues. We spent quite a bit of time talking about ethical and professional responsibility issues relating to technology in general and social media in particular.
As we discussed recent state regulatory and ethical decisions on these subjects, the students voiced their concern that the rules seemed to block (or want to block) uses of social media and the Internet that seem very natural to the current generation of students. At one point, a student suggested that the disciplinary approaches seemed more directed at protecting a cartel than protecting clients.
I took my professional responsibility class in law school in the same semester as my antitrust law class, and I must admit to having similar thoughts over the years.
The conversation gave me, and should give all of us, much to think about as ethical and disciplinary approaches based on a shaky understanding of technology seem to make difficult uses of technology aimed at providing better, faster and cheaper service to clients. I liked the way that the students wanted to learn how to get involved in the rule-making process.
I like the way practice management courses such as this one help students not only learn basic practical skills and get insights about the actual practice of law, but also let them apply their academic skills to practice management areas and come up with fresh ideas and approaches.
Supreme Court Overrules Stream of Commerce Principle?
While most of the media attention was directed elsewhere, the Supreme Court today decided two important personal jurisdiction cases. In a unanimous decision, the court in Goodyear v. Brown rejected a lawsuit filed in North Carolina by parents of two North Carolina children killed in a Paris bus accident involving tires manufactured by a Turkish subsidiary of Goodyear Tire & Rubber. According to the Court, the fact that Goodyear, the parent, does business in North Carolina doesn’t mean its foreign subsidiaries can be haled into court to answer for an accident that occurred in a foreign country. In making its ruling, the Court reiterated the "continuous and systematic" rule from International Shoe.
In J. McIntrye Machinery Ltd. v. Nicastro, which concerned a worker who was injured while using a metal-shearing machine made in England and imported into New Jersey from another state, the plurality "overruled" the "stream of commerce" theory from Asahi. Justice Kennedy thought that the theory, which was also contained in a plurality opinion, overemphasized fairness to consumers and underemphsized whether a court has jurisdiction. He also wrote that the "foreseeability" of a product ending up in the forum was too little for jurisdiction. He declared that
"The owner of a small Florida farm might sell crops to a large nearby distributor, for example, who might then distribute them to grocers across the country. If foreseeability were the controlling criterion, the farmer could be sued in Alaska or any number of other States’ courts without ever leaving town. And the issue of foreseeability may itself be contested so that significant expenses are incurred just on the preliminary issue of jurisdiction. Jurisdictional rules should avoid these costs whenever possible."
Justices Breyer and Alito concurred, but they thought that the plurality had gone too far in rejecting the stream of commerce theory.
These two cases provide greater protection for corporations from state court jurisdiction than previous cases. They allow a large corporation to avoid jurisdiction in a state by using a subsidiary in another country, and they have probably ended the stream of commerce principle.
This author believes that there should be minimal constraints on the assertion of personal jurisdiction by states (The Boundary of Personal Jurisdiction: The 'Effects Test' and the Protection of Crazy Horses's Name). The boundary of personal jurisdiction should prevent states from asserting jurisdiction over defendants who have no significant connection with the state, yet permit broad jurisdiction so that plaintiffs have the opportunity to litigate their grievances. In this author's view, the proper test for personal jurisdiction under due process should be the following: 1) Does the defendant have a significant, purposeful contact or connection with the forum or has the defendant knowingly received some benefit from the forum state in connection with the forum’s regulatory authority? 2) If so, is defending the lawsuit in the forum so burdensome that the defendant cannot mount a proper defense?
In McIntyre, the defendant clearly benefited from its tires being sold in New Jersey--it increased its market and profits, so there should be jurisdiction. Goodyear is a harder case. Under corporation principles, corporations and their subsidiaries are separate entities under state law. The corporation cannot be sued for debts or torts of the subsidiary unless there is a reason to pierce the corporate veil. Reluctantly, this author finds no reason to change this rule for jurisdiction in this case. The subsidiary lacks a significant, purposeful contact or connection with North Carolina, and it has not received some benefit from the forum state in connection with the forum’s regulatory authority. The problem is not personal jurisdiction law, but corporate law.
Evolution to Digital Law & Free Access Issues
“This goes beyond permitting “free access to law” and into the realm of positive obligation to help citizens overcome barriers associated with poverty, disability and availability of basic internet access.”
The library is an important component here. You can read my article Access to Justice Starts in the Library at 62 Maine L. Rev. 473.
Employment Law: More Jobs for Lawyers?
Employment lawsuits have risen to their highest peak in history, with almost 100,000 claims files in 2010, according to the EEOC. Incredibly, that number reflects a 31% increase from just 4 years ago! There is a never-ending flow of new court cases and decisions that change the employment landscape, making it extremely difficult for employers to stay ahead of the curve.
So writes Ari Rosenstein at Articlesbase. These statistics suggest that employment law is a place for lawyers to seek employment. In addition, there are many jobs available in labor relations that do not require a J.D. However, a J.D. and a few courses in the subject areas can make the new graduate a very attractive candidate.
June 26, 2011
Sitting too long at your desk can kill you more than think
It's "health day" here at the Legal Skills Prof Blog (see below). Most of us already now that Americans are far too sedentary; we spend most of the day sitting on our butts in front of a computer screen. I don't know about you, but I always figured that regular exercise, after hours at the gym and weekends at home, was a good antidote. Not so says this study (published in 2010 but reported on Friday at CNN.com) from the American Cancer Society; regular exercise cannot make up for the deleterious health effects of too much desk-time. From CNN:
[An] American Cancer Society study finds that women who sit for more than six hours a day were about 40% more likely to die during the course of the study than those who sat fewer than three hours per day. Men were about 20% more likely to die.
That large study focused on the numbers of people who died. Other studies have focused on specific conditions affecting the most Americans, things such as cardiovascular disease, obesity, type 2 diabetes and depression. In those studies, too, extended periods of sitting increased risks of illness.
And earlier this year the evidence against many hours of sitting expanded further: The American Journal of Epidemiology published a study finding that those who work a sedentary job have almost twice the risk of a specific type of colon cancer.
What's particularly interesting about recent research is the revelation that sitting for extended periods of time does significant damage to human health that cannot be undone by exercising. Sitting for several hours each day is bad for you, like smoking is bad for you, regardless of whether you do healthful activities, too.
The American Cancer Society points out that public health guidelines make little or no reference to reducing time spent sitting, instead focusing on increasing the activity level.
For example, in 1995, the American College of Sports Medicine and the Centers for Disease Control and Prevention jointly issued national guidelines called Physical Activity and Public Health, which were updated in 2007. The government's recommendation was specific: "Moderate-intensity aerobic physical activity for a minimum of 30 min(utes) on five days each week or vigorous-intensity aerobic physical activity for a minimum of 20 min(utes) on three days each week."
With what we now know, public health guidelines should address both physical activity and physical inactivity, according to public health researchers.
It's a shift in thinking that is rippling through places of work, schools and homes as the very fundamentals -- chair at desk -- seem to cause harm when used for the lengths of time now considered normal.
Internet addiction may alter the brain
Nicholas Carr wrote a best selling book called "The Shallows" arguing that the internet is re-wiring our brains making us more distracted. For the record, well respected Harvard cognitive psychologist Steven Pinker, author of the "Blank Slate" among several other popular books on the inner workings of the brain, disputes this. Now comes this Chinese study showing that MRI scans do indeed show alteration in ye 'ol gray matter among adolescents addicted to the internet:
Recent studies suggest that internet addiction disorder (IAD) is associated with structural abnormalities in brain gray matter. However, few studies have investigated the effects of internet addiction on the microstructural integrity of major neuronal fiber pathways, and almost no studies have assessed the microstructural changes with the duration of internet addiction.
. . . .
Our results suggested that long-term internet addiction would result in brain structural alterations, which probably contributed to chronic dysfunction in subjects with IAD. The current study may shed further light on the potential brain effects of IAD.
Cross Examination Advice
James A. Johnson has given some good advice on cross examination in a recent article in the Michigan Lawyers Weekly, titled Coss Examination: Let Me Ask you this . . .
Cross Examination: Let me ask you this...demonstrates that cross examination is more than a search for the truth. For the skillful trial lawyer it is an opportunity to persuade the fact finder to your position in the case and set up ammunition for final argument. With this view, cross examination is not for the witness, but it is for you. It is your opportunity to present your side of the witness's story. Out of the mouth of an adverse witness responding that everything you ask is true, consistent with the facts and the cannons of ethics.
A low tech alternative to clickers.
Um, hands? From the Chronicle of Higher Ed.:
Clickers are great for implementing the pedagogy, but sometimes the expense or technology can be a hindrance to using them for the student, the instructor, or both. And there is always the chance the technology can fail. Here are several low-tech alternatives you might consider if you want to use classroom response systems, either to help you get started using the pedagogy or to have as a backup plan in case the technology fails.
- Flash cards. Up until last summer, I was pretty well set in my ways for using actual electronic clickers for CRS use. That was, until I heard Ed Prather speak at a conference. Prather is a faculty member in the Department of Astronomy at the University of Arizona. He gives his students, members of very large courses (200+ students!), a page which can be folded to reveal one of four numbers as desired. He uses these to solicit student feedback to clicker-type questions, and because the numbers are colored in differently he can scan quickly for student feedback. Implementing CRS in this way requires some pretty stringent rules. For example, Prather requires his students to display their chosen number right up under their chin, and he’s got a strong enough presence to call students out if they start looking at their neighbor’s response before they should. I was impressed by the method and think it would be great for implementing CRS in a quick and easy manner.
- Fingers. Similar to flash cards, you could ask students to display one, two, or three fingers to correspond with their answers of A, B, or C to a multiple choice question. Also like using flash cards, you would have to make sure students are not looking at each other for their answers, at least initially, but this could be an even quicker way to get clicker-type questions going in your classroom.
- Mini whiteboards. Sometimes it’s helpful to write questions for this type of pedagogy that don’t lend themselves easily to brief multiple choice answers. Depending upon the topic, you might be interested in how a student draws a diagram, as I am in physics with free-body diagrams, or maybe you want to see how well your students are picking up the ways to draw three-dimensional chemical structures. The Paradigms in Physics project at Oregon State University advocates giving out to your students mini whiteboards, which they can use (sometimes in groups, sometimes individually) to draw their answers to a posed question. The students can then display their boards as a group to the instructor, who can scan them to get a better understanding of the group’s work and how the rest of the session might be tailored to their progress. One idea for producing these is to get something as basic as a shower board and cut it up into 12″ by 12″ pieces and giving them out in class.
Great pedagogy is timeless and shouldn’t be tied to one particular technology. Its strength is proven when it can be implemented in multiple ways.
Exam Review: Talking to Disappointed Students
At this time of the year, students who have done poorly in our Spring courses sometimes show up at our door, wanting to go over the exam or paper. Sometimes they are polite, and sometimes they are aggressive. I have always found it best to remain polite.
Here is my most important advice: Empathize with the student. I don't mean agree with the student who thinks your exam was ambiguous and the grading was arbitrary. Rather, I mean say to the student, "I'm sorry the exam (or paper assignment) didn't work out well for you." In this way, you let the student know that the grade is not how you measure the student's worth as a person or maybe even as a future lawyer. You show the student respect. I can't promise that this approach will mollify every hostile student, but most students will appreciate your empathy.
Job opening for environmental law clinician
Here's the posting from U. Chicago:
The Law School at the University of Chicago is seeking qualified applicants for a full-time position leading its newly created Environmental Law Clinic. The position would begin during the 2011-12 academic year and would be on the Law School's clinical professor track. The attorney who fills the position will have primary responsibility for developing the new Environmental Law Clinic; engaging in case selection, litigation, and other advocacy to promote the Environmental Law Clinic's mission and goals; supervising clinic students in all aspects of the Environmental Law Clinic's work; and teaching a related seminar and/or clinical skills courses.
Candidates must have a J.D.; must have at least three years of experience in the environmental law field, and be admitted to or eligible for and able to obtain admission to the Illinois bar. Candidates who teach in a law school legal clinic or who have prior experience supervising or teaching law students or other attorneys are strongly preferred. Experience in litigation and/or policy concerning water pollution preferred. Excellent writing, editing, and supervision skills are required.
Each candidate should submit a curriculum vita or resume, a list of references, a legal writing sample, a detailed description of the candidate's relevant practice experience and teaching experience, and course evaluations from prior teaching experience if any. Other material relevant to your candidacy may be included as well. Candidates must apply on line and upload application material at: https://academiccareers.uchicago.edu/applicants/Central?quickFind=51699. All application material must be received by August 19, 2011.