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Lawyer2Lawyer Internet Radio Takes To The Air Over The Atlantic To Examine Air France Crash

On May 31, 2009, Air France flight 447, out of Rio de Janiero bound for Paris, vanished into thin air.  A frantic search for passengers and the black boxes, turned up with a number of bodies but no black boxes. Please join me and my co-host Bob Ambrogi as we invite Attorney Justin T. Green, partner with the firm Kreindler & Kreindler and Attorney John A. Greaves from the firm Baum, Hedlund, Aristei & Goldman, PC, to discuss the crash, the litigation and jurisdiction issues and the quest for compensation for the victims' families.

Lawyer2Lawyer Internet Radio Examines Hate Crimes And First Amendment Rights

When an 88-year old white supremacist walked into the Holocaust Museum in Washington DC opening fire, reaction was swift to question if this tragedy could have been prevented. And with those questions comes the examination of First Amendment rights. Please join me and my fellow Lawyer2Lawyer co-host Bob Ambrogi as we welcome Attorney Brian Cuban, a Dallas Attorney working for Mark Cuban Companies, Attorney Steve Freeman, Director of Legal Affairs for the Anti-Defamation League and renowned trial lawyer and First Amendment lawyer, Attorney Martin Garbus, to discuss First Amendment rights - the balance between protecting free speech for the many and restricting hate speech for the few

Lawyer2Lawyer Internet Radio Looks Up At A Down Economy In Law Firms

Layoffs in the legal profession have been in the news lately, but downsizing from the top?  More experienced attorneys, even senior partners in some larger law firms are not as secure in their jobs as they once were in what may be more signs of practicing law as a business.  Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Ed Poll, a recognized expert and author in law practice management and Stephen E. Seckler, president of Seckler Legal Consulting, to discuss the new benchmarks the legal profession is seeing in job performance and what the business of law may look like in the future.

Lawyer2Lawyer Internet Radio Huddles On College Quarterback vs. EA Sports and NCAA

This month, former Nebraska quarterback Sam Keller filed a lawsuit against EA Sports and its partner, the NCAA, claiming they illegally used the likenesses of college athletes in video games without sharing profits with players. Please join my co-host Bob Ambrogi as he welcomes Peter Goplerud, Dean and Professor of Law at Florida Coastal School of Law and Clay Travis, attorney, former editor at Deadspin.com and writer for FanHouse.com, to discuss the legal issues behind this lawsuit and how athletes can legally protect their image.

Lawyer to Lawyer Internet Radio Reviews Judge Sotomayor's Nomination To High Court

Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we discuss the Sotomayor nomination with Professor Jenny Rivera, Director of Center on Latino and Latina Rights and Equality and Professor of Law at CUNY School of Law, and Professor Stephen Wermiel, Supreme Court expert and adjunct professor at American University Washington College. Together they offer a unique perspective on this important nomination.  Click on the podcast link below to get the full story.

Lawyer2Lawyer Internet Radio Sizes Up The Impact Of The Recession On Law Firms And Lawyers

The economic downturn has taken its toll on law firms, especially lawyers.  Please join me and my fellow Law.com blogger and co-host  Bob Ambrogi welcome Attorney Skip Simpson from the Law Offices of Skip Simpson to explore the rash of suicides hitting the legal community and what law firms need to do to prevent them.  Later in the program, we welcome Peter Zeughauser from the Zeughauser Group to take a look at the long-term changes in law practice caused by the recession.

Lawyer 2 Lawyer Internet Radio Explores Asbestos Litigation

There has been a lot of talk in the mainstream media lately about a revival of sorts in asbestos litigation. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Attorney Kirk Hartley from the firm  Butler Rubin Saltarelli & Boyd and Attorney Steven Kazan Managing Partner at Kazan, McClain, Abrams, Lyons, Greenwood & Harley, to discuss the recent victory for W.R. Grace in a Montana trial, how attorneys have been filing cases in other states with friendlier courts and what is being done to put the asbestos litigation system on the right path.

Lawyer 2 Lawyer Internet Radio Talks About Finding a New Souter

At the age of 69 and after 18 years on the Supreme Court,  Justice David Souter made the announcement that he would be retiring from the Supreme Court at the end of this year's term in June.  Law.com bloggers and co-hosts, J. Craig Williams and Bob Ambrogi welcome Professor Daniel J. Meador, James Monroe Professor of Law Emeritus at the University of Virginia School of Law and Kermit Roosevelt, Professor of Law at University of Pennsylvania Law School and Justice Souter's former law clerk, to reflect on Justice Souter's career, look at the potential list of replacements and the opportunity for President Obama to leave an imprint with his choice for the High Court.

Lawyer2Lawyer Internet Radio Gets The List On Craigslist

Recently the popular online advertising site, Craigslist was in the spotlight after a medical student was accused of killing a Boston masseuse who advertised on the site.  Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Attorney Edward Wes, Outside Counsel for Craigslist, and David Ardia, fellow at the Berkman Center and director of the Citizen Media Law Project, to talk about regulations on online advertising sites and what is being done to monitor illegal activity on these sites.

You can download the podcast here.

Lawyer 2 Lawyer Internet Radio Walks the Plank

The first prosecution of a pirate in the U.S. in 100 years! The world watched closely as Richard Phillips, Captain of the Maersk Alabama cargo ship was rescued, after being held hostage by four Somali pirates.  Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we welcome piracy law expert, Professor Samuel P. Menefee, Maury Fellow at University of Virgina's Center for Ocean Law and Policy and Attorney Joseph R. McFaul from Sedgwick, Detert, Moran & Arnold LLP and a retired Commander in the U.S. Coast Guard Reserve,  to explore the legal issues on the high seas surrounding the Somali pirates, the future of the captured pirate and how this case could be a deterrent in other incidents of piracy.

Can Someone Explain Twitter To Me?

I'm a card-carrying computer geek.  I actually have a pocket protector and sometimes wear my floodwater pants too high with my white sox showing.  Well, for those who know me, I'm kidding about that last sentence.  I really am a computer geek, though.  As proof, I submit Exhibit A - I am typing this post from a computer in my family room.  Actually two computers:  one I work on and a media center hooked to the plasma screen.

See?  I told you I was a geek.  Heck, I even understand HTML better than Spanish - and I live in Southern California where Spanish is almost our native language.

But I don't get Twitter.

It's not for a lack of trying. I made a point to stay on it for two weeks.  I followed others and signed up for news blasts.  It just tied up my telephone with what for me was largely useless information.  I really don't care if my friend in New England missed his flight because of snow.  That's part of living there.  That's why I live in Southern California.  I don't need to relive that experience.  In fact, it's exactly why I left there, and why I will call my family in the dead of winter when it's warm out here. 

On the other hand, I get Facebook.  LinkedIn even makes sense.  Plaxo is a bit of a different story - it's just plain boring.  I even get semi-social networking sites like Avvo (probably because I'm on their advisory board - disclaimer there).  I can see pictures, get updates, make more friends and scroll through the list of what they're doing. 

And no, it's not just the pictures.  In case you haven't notice, I'm really into words, so the concept of 160 characters isn't the problem for me.  It's just that it doesn't provide me anything more than I can get elsewhere on the Internet - with more accouterments.

When you strip a service down to its most basic element and there's still nothing there, then it has no value.  Sure, 15 million people are on Twitter at last count, but what's there that isn't elsewhere?

What is Twitter able to accomplish that can't be had elsewhere just as quickly and without the expense?  And if there's no advertising on it, how does it pay for itself?  Or am I just a twit for not getting it?

Lawyer2Lawyer Internet Radio Finds Online Interference in the Jury Box

Jurors Twittering details of a trial. Jurors Googling information about a case. And last month, a kudge declaring a mistrial in a big federal drug case in Florida when jurors conducted research online.  On this edition of Lawyer2Lawyer, we're talking about the advances in technology, communication and information flow interfering with the justice system and the potential effect on ‘trial by jury.' 

Please join me as I welcome jury behavior expert, Dr. Edward P. Schwartz, Attorney Peter Raben, defense attorney from Miami, Florida and Attorney Sean Ellsworth managing partner at Ellsworth Law Firm P.A, to discuss this hot legal topic.  My fellow Law.com blogger and co-host Bob Ambrogi is off this week.

Green Your Career: Incisive Media To Host Networking Breakfast At Legal Tech West

The Incisive Media folks (the ones who sponsor this blog in the Law.com network) want to help -- so we've decided to team up at LegalTech West Coast and offer a simple, heartfelt gesture:  on Day 2 (Thursday June 25, 2009) we will host a very informal, free "Green Your Career" networking breakfast, from 8-9 a.m. at the Los Angeles Convention Center.

It will be co-hosted by Law Technology News and law.jobs, with the support of the LegalTech crew, and has a simple format:  We're inviting jobseekers -- as well as vendors and law firm leaders (even if you do not currently have an available opening).

For the first half-hour, we plan to network together, and enjoy coffee, tea and danish - it's a chance to "work the room" and hone your skills.  Then we'll gather at round tables, where at each table a leader of our community will talk about how he or she survived/thrived through a career transition. Among the scheduled speakers are:

• John Tredennick, who was a litigator partner at Holland & Hart when he spun off Catalyst Respository Systems.

• Tom Collins, former owner of Juris Inc., who survived cancer and now is a murder mystery novelist!

• Yours truly, who shuttered a small firm and joined Sedgwick, Detert, Moran & Arnold.

We'll have news of more speakers shortly.

The event is free and all attendees will be invited to stick around and visit our exhibit hall and the Day 2 Keynote Address (immediately following the breakfast) on us.

Jobseekers will be encouraged to post their resumes on lawjobs.com, and all firms/vendors who attend will get free access to lawjobs.com (for a limited period, of course).

Our concept is simple:  let's provide an hour of inspiration, nurturing, contacts, and networking. 

Please come, whether you need a job, or just want to offer encouragement.  If you are coming to show support, please bring along a gift card (you can pick them up at most supermarkets or drug stores), so we can give a day brightener "party favor" to each jobseeker. If you can't attend and want to send a gift card, you can send them to Monica Bay, who's organizing this get-together c/o Law Technology News, 120 Broadway, 5th floor, NYC 10271.

Jobseekers can come for warmth, support and new contacts.  Firms/vendors:  if you do have a spot open, there likely won't be a better place to find great talent.  Even if you don't fit into either category, you might tomorrow -- so bring lots of business cards.

As an added incentive for technology vendors: we will raffle off a wonderful lunch or dinner with Monica Bay (rumor has it that you can even use the word "solution" and she won't cringe).  You you can tell Monica about your company's plans, products and services and get a great meal on LTN.

Visit www.legaltechshow for details, or e-mail LTN at lawtech@incisivemedia.com.

Sanctions For Not Settling? Not Any More

Settlement can occur in a case at any time - from the time before the complaint is filed, during a deposition, in the middle of trial, after the judgment, even after the appeal.  Most typically, settlements occur during a formal process known as the Mandatory Settlement Conference.  For many reasons, judges like it when cases settle..

When a case settles, there's no appeal and no jury.  The judge doesn't have to spend time handling the trial, which leaves room for other cases that won't settle and moves the process along.  One more case off the docket.  Judges usually set MSCs before trial and after all the discovery in the case has been completed.  That way, everybody's got all the facts developed and understands the pros and cons of each side.

The parties arrive at court for the MSC and a temporary judge (usually not the judge who will hear the case) listens to both sides and tries to bring the respective offers closer together.  Sometimes, however, cases don't settle. 

When they don't, that failure means exactly the opposite of the benefits I described above.  More time on cases, more cases on the docket and more juries to listen to cases.  And sometimes a cranky judge.

So cranky, in fact, that one judge sanctioned one of the parties in this case.  The judge relied on a Rule of Court and several other rules as the authority to sanction the party that he believed did not participate in good faith. 

The case here involved a dispute over an auto accident, with $15,000 in possible damages.  The parties negotiated, but Mercury Insurance refused to offer more than $1,000 in settlement.  Here's how the appellate court described the judge's reaction to the MSC:  "the court was harshly critical of the conduct of Hernandez's representatives at the settlement conference itself and, in particular, the refusal to offer more money than the section 998 offer of $1,000 for each plaintiff:  'The point is that there was no negotiations.  They just came in with the firm opinion we're paying a thousand dollars . . . .  [A]t least some movement under the circumstances, and some discussion was in order.  That is the reason why [sanctions are being imposed].'"

Then, the appellate court pointed out:  "The [trial] court also characterized the lack of "communication back" to the court as "uncivil" and "impolite." So, the trial court held a hearing and afterward ordered Mercury Insurance to pay over $1,800 in sanctions. 

The appellate court, however, wasn't buying the sanctions the trial court imposed and overruled the trial court's order.  The appellate court said a court could impose monetary sanctions for failure to comply with " any rule of court relating to general civil cases..." absent showing of good cause. Previously,however,  Rule 2.30 included language that made the "failure to participate in good faith in any conference" sanctionable conduct.  Noting that particular language was removed in 2001, the appellate court said no go on the sanctions.

Whether the parties negotiated in good faith is a difficult call to make in any case, especially since you may believe you can win at trial. 

That's a chance you have to weigh.  At least you know that you can't get sanctioned.00000

April 15 Tea Party Tax Protest Under Full Swing

What Would The Founding Fathers Do?

Just in case you're wondering, May It Please The Court is a member of the Decline To State party, voting for the best candidate instead of the best party.  It's nice to be able to choose that way, even if you can't vote in the primaries.  If you've read the recently republished Oliver Wendell Holmes, Jr.'s The Path of the Law (with a Foreword by yours truly), then you know that the right to swing your arm ends where the other person's nose begins.  That's vintage Holmes, and vintage America.

But it's not just this side of the pond that thinks that way.  As Margaret Thatcher said, "The trouble with socialism is that pretty soon, you run out of other people's money."   Back more than 200 years ago, the Brits tried to tax the daylights out of the colonists, who promptly rebelled by throwing tea into Boston Harbor.  Read about it here, if you've forgotten your high school history lesson. 

So is it time to organize another tea party-style protest?  The members of the New American Tea Party seem to think so.  They're not asking the question, "Where's my bailout?"  They're asking the question, "Why take my money?"  Actually, if you think about the size of the bailout, they're taking not only yours and my money, but my granchildren's money, too.  It's going to take a long time to pay back - how much is it now?  Have they invented a word for that much money.

With apologies to Senator Dirksen, "a trillon here and a trillion there and pretty soon you're talking about real money."

If you're interested in throwing a tea party and helping out with the protest, learn how here and then check in here, and try and make your own money.

What's your recipe for a tea party?

What Witnesses See: Credible Or Inexperienced?

Melissa files an Zivko Edge 540 stunt plane, and she's 25 years old, having logged more than 1,500 hours in the air from when she started at 18 to when she got into a bit of trouble at 22.  She got her new plane to her family at the Butler County airport in Pennsylvania, climbed into the cockpit and took off.  Once in the air, she made a turn and then landed the plane.

Melissa is a stunt pilot, and a very good one at that.  Aerial acrobatic maneuvers are prohibited below 1,500 feet for obvious reasons:  they're somewhat dangerous and we don't like planes to fall out of the sky.  The rationale is that a stunt pilot can probably recover from failed maneuver within that 1,500 safety window.

When Melissa took off, two others watched her in addition to her family.  According to the Ninth Circuit's opinion, "Andrew Pierce, an aviation safety inspector for the Allegheny Flight Standards Office, and Christopher Hayden, the chief pilot for AirQuest Aviation, were at the Butler County Airport that day and witnessed Andrzejewski's flight. Neither Pierce nor Hayden had experience with Edge aircraft."

What they saw was a steep takeoff, followed by a wing wag and a steep incline landing.  They turned her into the FAA, which without any hearing suspended her license.  She appealed to an Administrative Law Judg, who saw the dispute this way:  "I'm not saying that the [FAA's] witnesses didn't see what they say, but perhaps they misunderstood what they saw."

In other words, they might not have known what they were talking about.  On the other hand, one of Melissa's witnesses saw it this way:  "Her three expert witnesses testified that Andrzejewski's flight was within the normal operating procedures for the Edge aircraft, which procedures include steep takeoffs, high speeds, and clearing turns. Robert Holland, an aerobatic pilot and flight instructor, specifically noted that a witness unfamiliar with the Edge might think that Andrzejewski's flight was abnormal, while in fact, for an Edge, the flight was actually 'very normal.'"

Not surprisingly, the ALJ restored Melissa's license.  Unhappy with that outcome, the FAA appealed to the National Transportation Safety Bureau and got her license revoked again.  Melissa appealed, and somehow the case ended up out here in the Ninth Circuit.

The court first wrote this observation:  " This is precisely what triers-of fact should do when confronted with expert witnesses whose testimony conflicts on such basic issues as whether the pilot operated the particular plane in an "aerobatic flight" or in a "careless or reckless" manner. After all, what may look like derring-do to a Sunday driver may be a routine cut to a NASCAR driver."  For some unknown reason, the court took that language out of its opinion, but sent the matter back to the NTSB with instructions to defer to the ALJ's observations about the credibility of the witnesses.

Melissa still has a chance to climb back in the cockpit, but it appears that she's been grounded for more than three years.  Although I'm not a pilot and I doubt any of the judges who heard this case on the Ninth Circuit are pilots either, at least they saw what's going on. 

Hopefully, she'll get her wings back.

Lawyer 2 Lawyer Internet Radio Gets SaaS-y

If you've been hearing a lot about legal software as a service or SaaS lately, you'll want to listen to this Lawyer2Lawyer program. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we welcome Jack Newton, Co-founder and President of Clio, who holds an M.Sc. in Computer Science and Erik Mazzone, the Director of the Center for Practice Management for the North Carolina Bar Association to take an in-depth look at the advantages, disadvantages, risks and even ethical issues when it comes to legal SaaS.

Blawg Review #206: Tartan Week - All Things Scottish

Robert Burns, Scotland's favourite son, turned 250 this year, and as with all things Scottish, the celebration will last for 26 fortnights (you figure it out), so you might as well book your tickets now.  On this side of the pond, we're having a few celebrations of our own. 

This, stolen directly from Wikipedia (links not in original):  "In Canada, the idea of a 'Scots Day', immediately renamed 'Tartan Day', to visibly  promote recognition of Scottish heritage originated with the Federation of Scottish Clans in Nova Scotia in 1986. Petitioned by Jean Watson, President of Clan Lamont, first the legislature of Nova Scotia, in 1987, then consequently the legislatures of each of the other nine Canadian Provinces proclaimed April 6 as Tartan Day. Currently a private member's bill is moving through the Canadian Parliament for national recognition of the day in Canada as well as a bill to declare the Maple Leaf Tartan the official tartan of Canada. An annual 'Gathering of the Clans' will take place each April 6 on Parliament Hill in Ottawa at 12 noon with pipes, drums, and dancing hosted by the Sons of Scotland Pipe Band, Canada's oldest civilian pipe band.  Don't think we've missed out South of the border, though."

New York has its Tartan Week this week.  And all good Scots have already attended his January 25 birthday dinner.

By the way, that last link is one you should click on - you'll get to see your author in his official kilt, side-by-side with his lassie.  Before we get on with this week's Blawg Review, you might want to look at this travelogue I wrote when I visited:  the Edinburgh Edition, the Hero Edition, the Highlands Edition, the Scotch Whisky Edition, and the Inverness Editions: Part I, Part II, Part III and Part IV.

Inventors and Inventions

Scots are proud folks.  We've invented just about every useful thing on the planet, or so my grandfather told me.  Although he isn't credited with the invention of the steam locomotive, inventive Scotsman James Watt did develop the steam engine that made later developments possible. Modern-day successors to the pioneers who developed the steam trains would be wise to heed the advice offered by Train Law blogger Charlie Goetsch -- refusing to cooperate with OSHA investigations of allegations under the Federal Railroad Safety Act will result in adverse inferences being drawn and in the imposition of punitive damages.

More Things Scottish

And before we get started, you'll need your dose of Braveheart.  Stop here and watch.  Then as you read, just let this link play and listen to get into the mood.  Or just rent the movie.  You could always go to Renaissance Faire and really get into it.  Then there's the military tattoo at Edinburgh Castle, or one of my favorites, Stirling Castle. 

But if you're looking for pageantry, pomp and circumstance, nothing beats the Top Secret Drum Corps, from Switzerland.  This show is simply one you have to watch - even if you're French.  Doesn't everyone want to be a Scot?

And let's not forget Scotland Yard.  Norm Pattis recounts an infamous English country house murder investigated by Scotland Yard which, even after a confession was obtained, still fascinates people nearly a century-and-a-half later.  Can't wait for the new Sherlock Holmes movie.  Yes, of course he's a Scot, too.  Things have changed a bit since Sherlock solved crimes.  Richard Bales notes that the Scottish Police have instructed their male officers not to use terms such as "love", "pet", and "dear" when dealing with the public.

Scots are know for their love of golf. David Dawsey describes a patent which covers a rather complex method for determining the proper length of a golf club. What accounts for the complexity? Possibly the fact that the inventor was a German rather than a Scot. Diane Marie Amann notes that Dr. Louise Richardson's appointment as head of the University of St. Andrews has caused a bit of discomfort --  she is an Irish-born woman who is also a Catholic and a naturalized U.S. citizen. As a woman, she's unable to receive the customary honorary membership at the legendary St. Andrews golf club and, perhaps most troubling to her new neighbors, she doesn't much care.  I'd be remiss if I left out golf, and Robin Williams's (he's a cousin, too) foul-mouthed description of how the game got invented.

Talk, Talk, Talk, Just Like A Scot

And here's your preview of what's to come, from Mike Semple Piggot, author of Charon QC, who interviewed me about this week's post.  Listen up here.  Fellow Scotsman Charon QC covered the G20 (even though there's only 19 member countries) protests in London, surveying the people and issues involved from the turret of a Tiger Tank he purchased on eBay.

Now that you're sufficiently oriented, let's get on to the issue at hand:  Blawg Review.

We start with that original Scot, Bruce McEwan and his Scottish alter ego, Adam Smith, Esq.  A Scottish student's ramblings.  If he were alive today, would Scotsman Adam Smith be able to explain the origins of the current world financial crisis?  Nate Oman calls instead on Friedrich Hayek to illuminate risk-taking and its role in creating the instruments which have brought us to this point.  Are the Scots frugal, as the stereotype would suggest? If so, they might appreciate Rick Georges' "Frugal Lawyer" post  about reducing, reusing, and recycling old gadgets.

Next, there's Andre or Redbeard or Maz. Marketer to law firms and accounting firms. Web 2.0 Advocate. Social Media Traveler. Outdoorsman. Scottish Highland Heavy Games Athlete. Starbucks Junky. Cape Bretoner. Torontonian.

Scots apparently get divorced, too, if they don't kill each other first.  You would be well advised to take a stop at the Wellmeadow Café and figure out the mace.  A fuller dose of Scots law can be found here and here.

The Struggle

Scotland's history has often been a story of the little guys' struggle against the big guys.  In the legal world, the small guys (solo and small firm practitioners) now have many tools at their disposal which levels the playing field with the big guys (BigLaw firms).  Grant Griffiths explains something which many Blawg Reviewed bloggers have found -- that blogging can give solos a marketing advantage over firms which treat online sites as extensions of their traditional marketing collateral.  

Irish or Scottish, I don't know, but Kevin O'Keefe goes a step further, suggesting that lawyers who properly leverage social media don't necessarily need a "traditional" web site. Mary Abraham considers whether social media-based (rather than real world-based) relationships can be "real": "What I've discovered is that my social media Third Place is increasingly important to me and the relationships I've formed online are just as "real" as some of the relationships I've formed the old-fashioned, face to face way." Sometimes, the virtual and real worlds can meet-up.

Then there are the get-togethers, just like a clan. Eric Goldman hosted his fourth meet-up of legal bloggers in the San Francisco Bay Area and posted a recap of the (sometimes challenging) topics discussed.  

Like Scots who won't stop talking, several other bloggers discussed whether microblogged "tweets" of 140 characters or fewer can be copyrighted. Venkat Balasubramani was emphatic that an individual tweet could not be copyrighted, but suggested that a collection of tweets might be. Evan Brown discussed whether Twitter's terms of service disclaim the legal rights it needs to display its users' tweets, concluding that a number of defenses cover their situation. Jonathan Bailey posted what's probably the most complete analysis of the issues involved.

Finally, Some Foreigners?

Some bloggers just wish they were Scottish - or maybe they are (is a string cite Scottish, too?):  the Downtown Lawyer, Adams Drafting, HealthBlawg, Jim Beck and Mark Hermann's Drug and Device Law,  Max Kennerly's Litigation and Trial, Miranda rights at SCOTUSBlog, The Passover Story and the Parable of the Four Sons at My Shingle, Does Michelle Obama need a "core message"? at Legal Satyricon, A luminous wealth ponzi scheme in California reported at BizOp, The State as stick up artist at Public Defender, Cyber-bullying at Slaw, Orange alert for bloggers at Simple Justice, The unbearable lightness of lawyers:  risk aversion at What about clients?, An ear in the ivy at Legal Juice , The death rattle of the big firm billable hour model? Cash on the barrelhead to high billing associates at the Legal Times, SoCal 2L raises the bar on public service, Leaving the evergreen forest at Software Licensing Blog, Robots inventions and patent rights at Patent Baristas, How to describe a catch-22 at Likelihood of Confusion, Interviews with ADR giants at the Mediation Channel, Making a decision?  How is your adversary doing the same thing?  Look into the crystal ball of meta-cognition at Brains on Purpose, Money has been called frozen desire and Peter Madoff's just melted at $10K/month at the WSJ Law Blog, the midwest hands gay men and women their right to marry while California continues to consider breaking up the gay marriage party at Concurring Opinions, Family Fairness and, Are you a social media chew toy?  Check it out in All Media is Social Media at BlawgIT.

Two Final Thoughts

Lastly, remember where the desire for freedom was announced and why this blawg review was able to be written without censorship. 

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

Tartan Week Coming To Blawg Review

Both sides of the pond have come together to offer a preview to this week's upcoming Blawg Review, hosted by MIPTC, with the theme of Tartan Week, which starts next Monday.  Give a listen to the podcast recorded by Mike Semple Piggot in London, who hosts the inestimable blog, Charon, QC.

College Senior Seeks Input From Lawyers For Specialization Guide Wiki

Here's your chance to help a struggling college senior.  Read his email below, republished here with permission, and comment away below.  Tim needs all the help he can get.

Mr. Williams,

I am currently a Senior at Elon University, and slated to enter law school in 2009. Before that happens, however, my project in senior  seminar is to create a wiki that will act as a guide to other law students attempting to choose a specialization in law. I have found your blog to be extremely helpful and approachable, and I would like to ask you to share your experience. To gather some more specific information, I have constructed four interview questions that I would greatly appreciate your time in answering.

-This wiki is intended to help law students choose a specialization. What do you wish you knew when making this choice? Do you have any advice for law students making this decision?

-In your experience, when a potential employer looks at a lawyer's resume, what level of importance do they ascribe to the job applicant's pecialization? Where do they rate it compared to other factors such as law school, work experience, etc?

-Obviously some types of lawyers are more desirable to employers than others. What are some specializations that are notoriously difficult to land a job in? What tracks offer more and more desirable options? What do you feel about your own specialization in terms of options, experiences, etc?

-Most lawyers work 50 hours a week or more. Are some specializations more work-intensive, highly competitive or stressful than others? How so? And vice-versa?

Again, I thank you for your time and apologize for the verbose e-mail.

-Tim Yahner

If comments are closed, send your email directly to Tim:  tyahner at elon.edu. 

Thanks for your help.

Lawyer2Lawyer Internet Radio Discusses the Employee Free Choice Act

There has been much debate as of late on the proposed Employee Free Choice Act (EFCA) of 2009. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we welcome Professor Richard A. Epstein, Professor of Law at the University of Chicago Law School and Attorney Nancy Schiffer, Associate General Counsel with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), to explore both sides of the Employee Free Choice Act debate and what the outcome would mean for the future of unions and employers and the lawyers who represent them.

Driving Drunk, Crashing And Calling 911 For Your Injuries: All On A Bar Stool

Go ahead.  Read that headline again.  That's right, it's called juxtaposition with an illogical conclusion.  Before we get to the rest of the punchline here, let's just look at that carefully crafted silliness we call life.

Here's the setup.  Kile Wygle must have had some spare parts for a go-kart, a kitchen bar stool, a lot of time on his hands and presumably a lot of beer in his refrigerator.  And at least four wheels and a working engine.  Let's take this piece by piece. 

First there's the four wheels, spare parts for a go kart and the kitchen stool.  Then swirl in some extra time, a dash of creativity - notice I said a dash here.  That means a small amount.  Oh yes, and let's not forget the frame for this mechanized wonder and some welding tools.  Put all of that together and you get a mechanized go-kart with a bar stool that can hit 38 miles an hour on the open flats.  Not bad for a 28-year old aspiring mechanic.

Makes the trip to the refrigerator for some beer all that much more interesting.

Imagine.  You're watching the Monday night football game and your brew is empty.  You don't have to say to your buddy, "Hey dude, bring me back a beer with the chips and cheese in a can."  You can just shift your bar stool into high gear and get it yourself, all from the comfort of your own bar stool without even getting up.  I can hear it now, "Man, you should patent that thing.  Everybody's going to want one."

Right.  Not after the rest of the story.

Kile's Monday night football game went on a little too long.  Well, at least long enough to go back and forth to the kitchen for 15 beers, which - yep, you guessed it - caused Kile to run out of beer.  No problem.  He's got a go-kart bar stool that goes 38 miles an hour.

Just a quick trip to the 7-11 at the end of the block and problem solved - if it hadn't been for that little thing called a curb.  At 38 miles an hour.   Kile ends up no longer on the bar stool / go-kart speedster but instead with some pretty serious road rash.  No problem, though.  He's got a cell phone.  A quick little call to 911 and he'll be good as new by morning.

When the cops arrive, they see the bar stool / go-kart, Kile on the ground with injuries and ask the inevitable questions we're all dying to ask:  how and why?  Being the upstanding citizen that he is, Kile responds honestly:  15 beers and a go-kart bar stool that does 38 miles an hour.

Kile ends up charged with a DUI and driving - if you can call it that - with a suspended license.

Here's the real story, which is shy on a few details I presumed likely to be the case and added to connect the missing dots.  Call it poetic license.  Kile certainly would.

The Easiest Way To Make $10,000+++ Every 30 Days

For just a few hours a week in your spare time, you too can make money by searching local real estate records, locate holders of privately held mortgages, or "paper," and then either purchase the paper or broker deals with companies interested in purchasing the paper.  You can read John Stefanchick's book Wealth Without Boundaries and buy his video and audio tapes, course materials, attend his workshops and even pay his coaches to help you when you want to figure out how to make even more money.

Or you could buy some swamp land down in Florida, invest in subprime mortgages or send money to Nigeria.

The Federal Trade Commission didn't believe Mr. Stefanchik's claims and investigated.  The FTC found he defrauded consumers - to the tune of some $17 million - and sued him.  The Court granted the FTC's motion for summary judgment and an award for the $17M, which Mr. Stefanchik promptly appealed - as his own attorney - claiming the FTC didn't prepare its survey data correctly.  Mr. Stefanchik failed to present evidence that any consumer actually made $10K a month by working just five to ten hours a week.

The FTC, on the other hand, did present evidence from consumers that they had been unable to make the amounts of money claimed by Mr. Stefanchik and from coaches who likewise said consumers couldn't make the money as promised. 

The FTC also submitted evidence that Mr. Stefanchik sold $17 million in books, DVDs, coaching services and audio tapes in just a little over two years. Not surprisingly, the Ninth Circuit upheld the court's decision and monetary award. 

Maybe the FTC missed something here.  You can still buy another one of Stefanchik's books about a similar-sounding method:  The Stefanchik Method:  Earn $10,000 A Month For The Rest Of Your Life In Your Spare Time. 

Who needs Bernie Madoff when there's these get-rich-quick schemes available?

Slander Per Se Versus Slander Per Quod

Defamation generally falls into two categories:  slander and libel. Slander is spoken defamation, libel is written.  Within slander, there are several types of speech that constitutes defamation.

In California, there are five types of slander (this part is right out of the Civil Code section 46 statute):  Speech that:  1. charges any person with crime, or with having been indicted, convicted, or punished for crime;  2. imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; and, 4.  imputes to him impotence or a want of chastity; or 5., which, by natural consequence, causes actual damage.

The first four fall within the category of slander per se, or slander in and of itself.  The last one is slander per quod, or false statements that cause some special damage.  Malice and the special damage must be alleged and proved to constitute slander per quod.

On the other hand, slander per se arises when the false remarks in themselves may form the basis of an action for damage in which both malice and damage are presumed as a matter of law.  In other words, if someone utters something about you in one of the first four categories, then you don't have to prove malice or damages.

The law considers the statements so bad that you're automatically entitled to damages.

Now don't get excited here if you're in court and an attorney slanders you.  We have immunity from liability for making just those kind of statements (see Civil Code section 47(b).  After all, it's just our job.

So, now that you've spent the last five minutes in law school wondering what the heck I'm talking about, let me explain why I gave you all of that background.  Here's the setup.

J. B. Nethercutt, the now-deceased father of Jack B. Nethercutt, II, founded the Merle Norman Cosmetics Company and began collecting automobiles in 1956.  In 1978, Michael Regalia left his position as a partner in an automobile body and paint shop to work for J. B. Nethercutt on J. B. Nethercutt's private automobile collection, then known as the Merle Norman Classic Beauty Collection. 

What else would you call it?

Everything went smoothly for a long time.  Then, in 1995, the Merle Norman Classic Beauty Collection became The Nethercutt Collection, an automobile museum that also restored cars. J. B. had established The Nethercutt Collection as a not-for-profit foundation funded by his estate.  J. B. first appointed Regalia executive vice president of the foundation and then promoted him to president.

When J. B. was hospitalized in August 2004, his son, Jack B. Nethercutt, II assumed control of the overall operations of The Nethercutt Collection, subject to his father's approval.  Unfortunately, J. B. died in December 2004. 

According to Regalia, he thereafter met with Junior to talk about his salary.  Regalia pointed out to Junior that he had played an integral part in obtaining a donation from Betty Locke of her Talbot-Lago automobile, which was appraised at $2.3 million.  Regalia also told Junior that he had been under budget every year he had been president, and he believed he had earned "consideration for more compensation." 

Junior offered Regalia a $10,000 raise.  Not happy, Regalia asked for more, and Junior said he'd think about it overnight. The next day, Nethercutt raised Regalia's salary by $35,000, to $160,000 per year.  Because J. B. had died recently, Junior believed that Regalia was still needed. 

That's where things started to go south. 

Junior claimed Regalia wanted a 10 percent finder's fee for the "Talbot" donation or $230,000.  Junior refused to pay Regalia the finder's fee.  On the other hand, Regalia denied that he asked for a commission for the Talbot-Lago contribution. 

Just to set the record straight, Junior fired Regalia. 

Junior then held a meeting of employees of The Nethercutt Collection.  According to Christopher Parker, one of the employees at that meeting, Junior said he thought that Regalia acted as if he owned the museum.  Junior also said certain people did not want to work for Regalia, and, therefore, Junior had to terminate Regalia.  According to Kenneth Sisk, another employee who apparently described the same meeting, Junior said that "people would leave if Mr. Regalia had stayed." 

Here's where things really went south. 

The following week, Junior and his wife Helen, a board member of the foundation, held a meeting attended by most of the restoration staff.  According to Parker, Helen said that Regalia had said some hurtful things about her and that he wanted a $250,000 finder's fee for the Talbot-Lago donation.

Yes, it's hearsay, but admissible in trial.

According to Junior, in April 2005, Locke - who had donated  the Talbot Lago, was at The Nethercutt Collection's facility having work performed on an automobile.  According to Lisa De Lao, the secretary for The Nethercutt Collection, Locke asked Junior why Regalia had been terminated.  Nethercutt said Regalia had been terminated for the good of The Nethercutt Collection.  Nethercutt told Locke that Regalia had demanded a finder's fee on the donation of her Talbot-Lago. 

Junior apparently did not think that Locke believed him.  Nethercutt then told Locke that "the employees couldn't get along with Mike Regalia, or Mike Regalia couldn't get along with the employees"; that "people were threatening to leave if [Regalia] stayed"; and that, in his opinion, Regalia "had been abusive." 

Things got worse. 

Apparently describing the same conversation, Locke testified that Nethercutt told her that he terminated Regalia because, "if he had not fired him, all of the other personnel would have quit." 

According to Bruce Meyer, another board member of the foundation, Junior told him that Regalia demanded a finder's fee for helping acquire Locke's Talbot-Lago.  Meyer did not believe that Junior would fabricate such an account.  If the event actually occurred, Meyer would view such a demand as inappropriate because Regalia was an employee and he Regalia's efforts to acquire the Talbot-Lago were "just part of his line of work." 

In his deposition, Regalia's lawyers asked Junior if his wife had told people that Regalia had tried to extort money from The Nethercutt Collection.  Nethercutt responded, "Only in the aspect that he demanded a finder's fee for the Talbot-Lago."  There is no evidence that Junior actually said that Regalia attempted to extort money.

Here's where that law school lesson comes in handy.  Notice that this statement does not fall within one of the first four categories.  It's actually only in the last category - the one that requires a showing of both malice in making the statement and damages from the statement being made.

In an attempt to show damages, Regalia testified that his new restoration business, Regalia Concours Restoration, depended on the car collecting community, and his potential customers were those at the top level of that community.  Such customers needed to trust Regalia and believe in his integrity. 

The jury, however, didn't buy Regalia's testimony, probably because he didn't have any Regalia Concours Restoration testify that they didn't use him because of the allegations that Junior made against him.

The Court agreed, and said since there was no showing that Junior or Helen intended any malice and that Regalia failed to show damages, the jury was correct in holding for Junior and Helen against Regalia.

Now where did I park my Lamborghini?

Hair Spray For ... Lawns?

My hairdresser knows for sure:  she tells me I am lucky to sport a full head of hair even though I complain that some of it is gray.  My younger brother Todd, on the other hand, inheirited my grandfather's hair:  only on the sides and back, none on the top. Chrome dome, in other words.  Now don't write in and comment if you're follically (is that a word?) challenged.  It's not my fault I'm not bald, and it's not your fault that you are.

There is, after all, hair spray for men, as you may know from commercials or from watching The Fabulous Baker Boys.  Ronco is not going to let you down.

But the current economic and subprime mortgage crisis is letting down California lawns.  In fact, statistics show that there are more bald spots in California than in any other state.  It's a combination of the crisis and the heat.  You see we have to water our lawns here in order for the grass to grow.

You thought I was still talking about hair?  Catch up here bucko, it's a long, fly ball and the center fielder is still going back.  And it's not even summer yet. 

In Perris, California - the middle of the Inland Empire - it's hot.  To top it off, those whose houses have been foreclosed or are trying to conduct a short sale aren't watering their lawns either.  The net result?  Brown lawns.

What's a troubled city like Perris to do?

Rush to the rescue with $2 million - yes, you read that right - two million dollars - to spray paint those brown lawns green. Gives a whole new meaning to graffitti by spray paint.  Just think of all those kids this program will keep off the streets by moving them to the lawns of Perris.

Two million dollars to spray paint lawns?  And it only lasts six months?  Why not buy astroturf and make it permanent?  The town fathers and mothers say they're stabilizing the neighborhoods.

I just hope none of my bailout money makes it to Perris.