February 12, 2011
Want to know more about Wexis alternatives Casemaker, Fastcase, and Loislaw?
Then read this report, courtesy of 3 Geeks and a Blog, from a panel discussion held during the Houston Area Law Libraries conference which featured representatives from each company. Here's an excerpt:
Are the non-Wexis products viewed by Courts as a "trusted source?"
This question actually came in from an academic law librarian, but it really had a Court librarian angle. The vendors talked about how they work very hard to make their products dependable and trustworthy. Loislaw pointed out that they include pagination on all of their resources; Fastcase talked about the fact that over 500K lawyers had access to Fastcase; and, Casemaker said that they are a trusted sources because they supply the material to the state bar associations.
What about proprietary citations that Westlaw and Lexis use when citing to new decisions? Will an increase in non-Wexis provider usage break the court's reliance upon these?
This was an interesting question on the issue of those ____ WL ____ or ___ LEXIS ____ cites that go up on new cases until a print version of that case appears in the National Reporter System (sometimes months later.) This question got Ed Walters back up on his soapbox about how there is a need for libraries, librarians, researchers, lawyers, and the associations that represent them to stand up and demand a neutral citation system. No one said that the "WL" or "LEXIS" cites were going away anytime soon, however.
The conversation did expand to include the issue of the copyrighting of the "catchlines" (titles) of state statues. In some states, the actual title of a statute is copyrighted by the vendor that prints the official state statutes. I ran into this problem in Oklahoma when it came to Westlaw claiming copyright. Ed Walters discussed this about Lexis owning the copyright to the Georgia state codes. Walters said he was stunned that when he asked Lexis to license the catchlines to the statutes, he was told that they would never do that… at any price. Casemaker's Harriman added that when Michie was publisher of the state codes, they gave the copyright of those catchlines back to the 26 states that they covered. Harriman explained that publishers had to create those catchlines, and thus claimed copyright on them, but in Michie's case, they wanted to give that back to the states to build goodwill. Walters said that the copyright should be viewed as a "work for hire" and should never go to the publisher. I think that everyone in the room agreed that the issue of catchline copyrighting is one that no one (except the vendors that hold that right) view favorably.
Read the rest of the report here.
Food Stamp Information in Plain English
SNAP (Supplemental Nutritional Assistance Program), the new name for the USDA food stamp program has created clear English, low literacy brochures for interested consumers. They are free for the asking, and some items are available in Spanish as well as English. We have to applaud this effort. The brochures use short sentences. However, I think some of the vocabulary could be simpler. In any case, you and a group to which you or your students belong may be interested in distributing this information.
February 11, 2011
The study of happiness among the practitioners of the professions has become a visible trend. The February 2011 issue of the ABA Journal is in step with the trend. It offers two articles of interest. The first is the cover story: “Why I Love Being a Lawyer,” in which 17 lawyers briefly tell us why they love being lawyers. The second is “Hunting Happy: In Grim Times, a Search for Joy in Law Practice Gains Ground,” by Becky Beaupre Gillespie and Hollee Schwartz Temple. Becky Beaupre Gillespie is a journalist and Hollee Schwartz Temple is Director of the Legal Writing program at the West Virginia University College of Law.
A sidebar lists five myths about happy lawyers:
1. There aren’t any.
2. High pay leads to happiness.
3. You can’t make an unhappy job better
4. Law firms eat you up and spit you out. (partially true)
5. You’re stuck.
A new bar association launched for attorneys specializing in videogame law
[February 10] marks the launch of the Video Game Bar Association with invitations having been sent to over 100 attorneys in North America and Europe. The worldwide association will focus on practicing law related to the interactive entertainment industry.
. . . .
In order to be eligible for membership, attorneys must (a) be admitted to practice law in any jurisdiction; (b) have two years experience as a games industry attorney with substantial responsibility/practice area within the business (i.e., in-house); and (c) be recommended by at least 2 existing members of the membership who are not from the same firm (or one member of the Board).
'The legal issues facing a games attorney are unique,' said [Board member Patrick Sweeney, head of Reed Smith's Video Game Practice]. 'With the rapid growth of a worldwide games industry, an association of like-minded practitioners in this dynamic industry is long overdue.'
Sweeney determined that such an organization was needed due to the increasing needs of the multi-billion dollar games industry. He surveyed other game lawyers at E3 and Gamescom last year, and found that:
Nearly 75% of those who responded to the survey had four or more years of experience representing game industry companies or clients (half of whom have 11 or more years’ experience);
Nearly 75% of the respondents said that their representation of game industry companies or clients accounts for between 76% and 100% of their professional time;
86% of the respondents said that the opportunity to meet other game attorneys face-to-face was very important to them. Many felt that an association with global membership would be valuable for referrals and advice;
Between 63% and 83% of the respondents said that they were interested in continuing legal education, professional standards and “best practices” for our industry.
You can read more here.
Hat tip to the National Law Journal.
One BigLaw firm develops business training program for mid-level associates
Millbank has announced that it will be sending mid-level associates to an 8 day "boot camp" at Harvard for training in business skills. According to experts interviewed for this Law.com story, Millbank is the first firm to offer such training:
The firm has agreed with Harvard Law School to launch what it believes is a first-of-its-kind associate development program. Midlevel associates will attend annual eight-day training sessions focused on business principles at the Cambridge, Mass., campus.
The program is called Milbank@Harvard.
. . . .
'They're talking about teaching things like economics and finance,' Richard [a Hildebrandt consultant] said. 'Will every lawyer be interested in that? I don't know.'
Still, sending associates to learn about business and client relations can't hurt, Richard said. The team atmosphere that results from bringing together associates from all offices may well prove the biggest benefit. 'There is an indispensable role that face-to-face contact has in building connections,' Richard said.
We've blogged before about law firms wanting new grads to have more business training. It looks like Millbank isn't waiting for law schools to take the initiative.
You can read more about this interesting development here at Law.com.
I will freely admit that I am a PowerPoint devotee - when it comes to presentations, I just don't feel comfortable moving away from its familiar features. But that doesn't mean I love the program - and I'll wager that many of you aren't fans, either. So in the interest of equal time, take a look at these 5 Web-Based Alternatives to PowerPoint.
You'll find some intriguing alternatives here - I'm especially interested in trying out Prezi, which is less like PowerPoint and more like using a whiteboard, and 280 Slides, which reminds me a lot of Apple's Keynote. One of the tools, SlideRocket offers collaborative features, but to get good functionality you'll need to spring for the Pro or Enterprise plan. If collaboration is an important feature for your presentation software, then check out Google Docs or Zoho Show.
None of these tools are truly as powerful as PowerPoint, or Keynote, for that matter. They don't have the animation or transition features that many people like to use in their presentations. Come to think of it, maybe there's a reason for that, seeing that many presenters how are going away from complicated animation in their presentations. Give these tools a look if you're interested in trying a new presentation tool.
February 10, 2011
Friday remembrance: Tura Satana - belted, buckled, booted . . . gone
Movie fans lost a true icon this week - Tura Satana. She made only 3 films but one of them was Faster, Pussycat! Kill! Kill!, a 1965 exploitation job that's so wonderfully eccentric - it's hard to believe it even exists. John Waters called it the greatest movie ever made owing to Ms. Satana's performance.
R.I.P., Ms. Satana. You will be greatly missed.
Do legal educators need to teach students how to single task?
More than a decade ago, law schools began installing wireless access and made students buy laptops both to take advantage of the in-class teaching opportunities the internet provides and as a way to model how lawyers work in practice. Laptops and mobile devices are now so ubiquitous that students don't need to rely on their law schools to learn about them. (I nevertheless believe that law schools should offer a specialized course in applied legal technology to teach students about the specific devices, apps and software they'll need in practice. But that's different than handing them laptops that mostly get used to surf during class).
Ironically, what digital natives don't know how to do is unplug and concentrate on a single task. An associate who surfs during a deposition may blow the case and get fired as a result. With students who only know a world where everyone is wired all the time, legal educators are going to have to teach them about the critical importance of unplugging and developing their ability to focus.
Here's some advice for doing just that from Tony Schwartz at the Harvard Business Review:
The social critic Linda Stone has coined the term continuous partial attention to describe the fractured way we now focus. "With continuous partial attention," Stone explains, "we keep the top level item in focus and scan the periphery in case something more important emerges." Or something more alluring, reassuring, or simply less demanding.
Staying singly focused on a task in this digital era is like trying to resist eating while sitting in a bakery as cookies, pies, cakes and tarts emerge fresh and fragrant from the oven. There's a reason Cinnabon points its air vents out into the corridors at airports.
[Try these practices to build your capacity for sustained attention]
1. Slow down. The faster you're moving, the more likely you're reacting rather than reflecting. Set aside intentional times during the day — they can be as short as a minute or two — to check in with yourself. Think of them as "wake up" calls.
2. Build deliberate practices, ritualized behaviors you do at specific times until they become automatic. For example, begin by doing the most important thing first in the morning, uninterrupted, for 60 to 90 minutes. Make the start time and the stop time inviolable, so you know exactly how long you're going to have to stay the course.
3. Create "precommitments" to minimize temptation. Our capacity for self-control gets depleted every time we exercise it. Turn off your email entirely at certain times during the day. Consider working at times on a laptop that isn't hooked up to the Internet. Do this for the same reason you should remove alluring foods from your shelves (or avoid all-you-can-eat buffets) when you're on a diet.
4. Start small. Attention operates like a muscle. Subject it to stress — but not too much stress — and over time your attention will get stronger. What's your current limit for truly focused concentration? Build it up in increments. And don't go past 90 minutes without a break. That's the time to let your attention wander.
You can read the rest of Tony Schwartz's column here.
More advice on when to use (and not use) social media to enhance your law practice
The long and short of it is - forget Facebook. LinkedIn is where it's at. But limit the amount of time you spend on social media because it can be a workday-killer according to the blog Attorney at Work:
Don’t get consumed by [the social media trend]! Limit the amount of time you devote to it and focus on social media sites such as LinkedIn, which people use for business purposes. You won’t build your practice by sharing recipes or discussing your recent vacation on Facebook or Twitter.
Read more here.
More advice if you're thinking about doing freelance legal work
Following up on an early post directed at recent and not-so-recent grads who are thinking about doing freelance legal work, here's a checklist courtesy of the blog Attorney at Work to help you assess whether it's a good fit.
To be profitable, you must enjoy and be comfortable with the characteristics required of a freelancer. Let’s take a look at what they are.
- A love of independence. Some people just don’t make good employees. They want to feel in control of their own lives, define their tasks and agendas, work in environments that are comfortable to them—where and when they choose, and escape office politics. If this is you, then you’re off to a good start.
- A high tolerance for uncertainty. Anyone who is self-employed needs to be comfortable with the fact that work comes and goes. There’s no steady paycheck, no paid vacation or benefits. Being able to succeed under those conditions, however, is very fulfilling for some people.
- Self-motivation. Although the hiring attorney will give you deadlines, you are the only person around making sure you get the work done. You must have the discipline to stay on schedule.
- An enterprising nature. Building a freelance practice requires ambition and initiative. The work does not come to you without effort. Are you good at spotting and taking advantage of opportunities for business development? Are you resourceful in new situations and with new people?
- Business management know-how. Freelancing is a business. Do you know, or want to learn, how to run one? Are you good at managing time and money? Organized and efficient when juggling several projects at once?
You can read more here.
Criteria for Promotion to Partner
Legal management consultant Joel A. Rose notes that in deciding whom to promote to partner, quality performance is no longer the single most important issue. Based on his work with mid-sized and larger firms, he offers 12 criteria:
1. Economic consideration—the past, present, and predicted ability of the individual to contribute to the firm financially.
2. Non-billable hours, as a yardstick for measuring the individual’s level of interest in the firm’s success.
3. Longevity—how long has he or she worked at the firm.
4. Client origination—the ability to attract new clients.
5. Collection of hours billed, as opposed to just the number of hours billed.
6. Community involvement.
7. Client relations.
8. Ability to handle complex matters with minimal partner supervision.
9. Professional skills.
10. Case management
11. Cooperative spirit.
12. Personal presentation.
Students often don’t realize that there is more to practicing law than honing analytical abilities and producing quality work. I regularly remind students that there are plenty of bright folks graduating from law school every year, and to stand out as young lawyers, they need to think about networking, developing a “book” of clients, and getting along with their co-workers.
February 9, 2011
How the varying format of e-books make citations difficult
This article from the Chronicle of Higher Ed points outs that because the pagination for e-books differs (or is non-existent) depending on the device (e.g. Kindle, Nook, iPad, Sony, etc.) it makes it difficult for scholars trying to accurately cite to those sources.
The trouble is that in electronic formats, there are no fixed pages. The Kindle, developed by Amazon, does away with page numbers entirely. Along with other e-book readers, the Kindle allows users to change font style and size, so the number of words on a screen can vary. Instead of pages, it uses "location numbers" that relate to a specific part of a book.
Other devices, like the Sony Reader, which reflows text based on font size and model of device, have different methods, so the same passage might have a different identifier. Things get more confusing when readers come in various screen sizes.
One solution suggested by the Chicago Manual of Style is to use "section and paragraph numbers, along with section titles, if page numbers are not available. Another alternative: listing the chapter name or heading over a section of text, or even writing a short, searchable string of text in the citation to help users find it."
I can see lawyers running into the same problem as they increasingly rely on free search engines such a Google Scholar which don't use the same pagination as West. Sure, attorneys can later get the correct pagination for Bluebook purposes by looking up their cases again on Westlaw prior to finalizing their court briefs but that's time consuming, expensive and repetitive. I predict that there will be increasing pressure to reform citation rules so that attorneys can reference cases and other materials in the public domain without having to pay money to later look up the West pagination in order to comply with Bluebook form.
You can read more about the citation issue in the non-legal academic world here courtesy of the CHE.
Even though in-class practical exercises can seem goofy, students need to take them seriously
The problem with a lot of in-class simulations for students - client interviews, negotiation exercises, etc. - is that they can seem goofy, awkward or unrealistic because they're matched up against their friends rather than real clients or lawyers. This blog post from the Lawyerist, though, reminds students to suspend disbelief and take those exercises seriously because they're a great opportunity to practice one's legal chops without consequence:
Many skills-based classes emphasize simulations as the way to develop practical skills. If you are a law student, think of these simulations as your sandbox. Simulations are your chance to try different strategies, approaches, and think outside of the box. Law school is your chance to learn without real consequences.
It can be hard to take simulations seriously. Maybe your classmate is pretending to be the client and you cannot take them seriously. Maybe you have to negotiate a contract with your classmate that is your best friend or your worst enemy.
To the best extent possible, engage in the experience. This is your chance to counsel a client, or figure out your negotiating style. Believe it or not, your friends may become your clients someday. Even more likely is that your good friend or worst enemy will be opposing counsel someday. Use simulations to figure out what works and what does not work, along with potential strengths and weaknesses of various approaches.
Simulations are your chance to try something, screw up, and learn from it. Many times, you will try something and succeed—laying the foundation for future success. Either way, getting a free practice run is a good thing. When you are an attorney fresh out of law school, having those experiences are incredibly beneficial.
You can read the rest here.
Law firm liable for trademark infringement when it purchased competing firm's name as a Google search term
There's been a lot of litigation over the past few years, mostly directed at Google itself, for selling trademarked search terms as part of Google's AdWords campaign. A California federal district court just held that a law firm specializing in disability law was liable under the Lanham Act for purchasing the law firm name "Binder & Binder" as a Google search term in order to drive traffic to its website. The case is Binder v. Disability Group Inc., C.D. Cal., No. 07-2760, (1/25/11). From the BNA E-Commerce Law newsletter (password required):
The purchase of a competitor's registered trademark through Google Inc.'s AdWords program for sponsored keyword advertising on the search engine website constitutes use in commerce under the Lanham Act
The court went on to find likelihood of consumer confusion (a necessary element to the plaintiff's trademark infringement claim).
Having concluded that Binder & Binder held valid trademark registrations, the court applied the eight-factor test for likelihood of confusion as set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 204 USPQ 808 (9th Cir. 1979). The court found that the factors addressing similarity of the marks, the strength of the plaintiff's marks, the similarity of services, the intent of the defendant, and marketing channels all weighed in favor of likelihood of confusion.
The court also found actual confusion, based on the results of a survey, witness testimony, and other evidence.
The lesson? Don't try to enhance your law firm's business by purchasing a trademarked competitor's name through Google AdWords - at least not within the 9th Circuit.
Does Your Brief Sing?
That’s the question that Adam Freedman’s old law firm would ask. The musical metaphor calls for a brief that is persuasive and elegant. How to accomplish the task? (1) Boil your argument down to a single theme that tells a compelling story. (2) Use the plainest language possible. (3) Concede the obvious weaknesses in your argument. (4) Delete anything that does not advance your theme. Here is the link to the full article in the Wall Street Journal.
February 8, 2011
How do you like to proofread? Hardcopy or e-copy?
The death of print has been greatly exaggerated. The (truly) paperless office is a myth. In the future, p-texts will coexist along side e-texts and office workers will find paper to be a superior medium for certain tasks. Take proofreading, for example. Do you find it better to proof the screen or a hardcopy?
Over at the Business Writing blog, Lynn Gaertner-Johnson says that for really important jobs, she thinks it's much better to proof a hardcopy instead of a screen.
[Affecting my best Amazing Criswell voice - here too] I predict that in the future, legal skills profs will not teach students about laptops or mobile devices (they'll know more about them than we do). Instead, my friends, we will teach students about the joys and virtues of p-technology (of which they would not otherwise be exposed).
A new bar review "app" for the iPad
For those studying for the New York bar from BarMax. According to this press release:
BarMax NY for iPad . . . will provide greater flexibility and accessibility for law students preparing for the NY bar exam. Key features of BarMax NY for iPad include:
- Native app built from scratch to take advantage of iPad's large screen size, which eliminates the need for tangible books
- Enhanced outline reader layout with ability to highlight text, create notes and bookmark pages
- Redesigned multiple choice section
- Students who do not own an iPad can purchase BarMax and an iPad for just $1500, which is still more than 50% less than other leading bar exam prep courses
Read the rest here.
Hat tip to Above the Law.
Harvard Law School names two Boston superstar lawyers "Professors of Practice"
U.S.D.C. judge Nancy Gertner, formerly a litigator with Dwyer, Collora & Gertner (and Silverglate & Gertner before that) and Steven Shay, Deputy Assistant Secretary for International Tax Affairs at the Treasury Department and tax partner at Ropes & Gray before that. As described by the HLS press release:
The professorships of practice at Harvard Law School are given to outstanding individuals whose teaching is informed by extensive expertise from the worlds of law practice, the judiciary, policy and governance. “With the appointments of these two superbly accomplished and talented individuals, we continue to strengthen the bridge between Harvard Law School and law-in-practice. Their involvement in our community will offer our students and faculty vitally important perspectives, questions, and insights informed by deep experience in the world,” said Harvard Law School Dean Martha Minow.
You can read the rest of the press release here.
Hat tip to Above the Law.
Training First-Year Transactional Lawyers
In his newsletter for Fox Professional Development, Charles Fox offers five proposals for firms needing to train new attorneys in transactional lawyering. Here is a summary.
1.Develop a training curriculum that provides all first-year transactional associates — regardless of practice area — with the basic knowledge and skills that your firm considers to be most important. Some examples of the kind of subjects that might be covered are (a) how entities are created and used in transactions, (b) how contracts are structured, negotiated, and drafted, and (c) the rationale and methodology of conducting due diligence. Poll the partners on what should be included in this curriculum.
2.Encourage your internal trainers not to overestimate the level of practical understanding that first-year lawyers have when they start. Experienced lawyers often forget how little they knew when they started. As a result, it is not unusual for those training junior lawyers to assume a level of
3.Transactional lawyers are business lawyers and should be trained accordingly. To be successful, deal lawyers must understand how businesses work and must be able to speak the language of business. As a result, good training in financial literacy — basic accounting and the reading of financial statements — is absolutely essential.
4.Encourage day-to-day training on how contracts work. Most law school graduates have never seen a real contract.
5.Provide cross-training among the different transactional practice groups. A good transactional lawyer does not have tunnel vision. Regardless of the degree of expertise associates have in their specific practice areas, without a grasp of how other transactions work they will never reach their full potential as trusted advisors to clients and as successful business originators.
ABA announces open forum on legal ed "standards" including faculty job security and student learning outcomes
The Standards Review Committee of the ABA Council on Legal Education and Admissions to the Bar will hold an open forum in Chicago on April 2, 2011 to hear comments about the following topics currently under its consideration:
1. Student Learning Outcomes.
2. Security of Position, Academic Freedom, Governance, Attracting and Retaining Competent Faculty.
3. Valid and Reliable Admission Test.
4. All other Standards, Interpretations and Rules of Procedure.
Anyone interested in speaking at the open forum is encouraged to submit a written notice of intent by March 1. Here are the other details:
Speakers are requested to advise the Committee by March 1, 2011 if they wish to speak at the open forum.
Persons who wish to speak are encouraged to send written comments by March 28, 2011.
The amount of time allocated to each speaker will be determined after speakers have registered their interest in speaking.
If there is insufficient time for all interested persons to speak at the open forum, preference will be given to individuals and organizations that have attended prior committee meetings or provided written comments on previous drafts.
The Committee will post new drafts on its website by March 15, 2011.
Requests to speak and written comments should be sent to JR Clark, JR.Clark@americanbar.org
The open forum will be held at the following time and address - Saturday, April 2, 2011, 9 a.m. to 12 p.m., Hotel 71 - Penthouse Ballroom, 39th floor, 71 East Wacker Drive, Chicago.