More Twittering From the Courtroom

CORRECTION: An earlier version of this post incorrectly stated that Kansas-based reporter Ron Sylvester would be reporting on a trial in Colorado.

Last May, we wrote here about Ron Sylvester, the Wichita Eagle reporter who was covering a capital murder trial through a series of Twitter posts -- each capped at 140 characters. At her blog Deliberations, lawyer Anne Reed called Sylvester's work "Twitter journalism." Now, he's speaking up in defense of tweeting in a Colorado courtroom. Earlier this week, a judge in Boulder, Colo., dismissed the objections of prosecutors and defense lawyers in a child-abuse case and ruled that the use of cell phones and computers will be permitted in the courtroom.

According to reports in the Boulder Daily Camera and The Colorado Independent, lawyers objected that live-blogging and tweeting the sensational case could interfere with defendant Alex Midyette's right to a fair trial by tipping sequestered witnesses to proceedings in the courtroom. But Boulder District Judge Lael Montgomery said she would give clear instructions to jurors to refrain from reading or viewing any media accounts of the case. "I think there are other manageable options and less restrictive options than shutting down the flow of information during the trial," she said.

At least two other newspapers have practiced Twitter journalism in a courtroom. A newspaper in Spokane, Wash., the Spokesman Review, had a reporter post to Twitter to report on closing arguments in a capital murder case there in August. And the Orange County Register is currently covering the corruption trial of a former sheriff on Twitter as OCcrimescene. Even lawyers are getting into the act of tweeting from court. Lawyer/podcaster Jersey Todd told me in a Tweet this morning that he sometimes posts to Twitter from the counsel table during trial.

Thanks to Social Media Law Student for pointing out this latest instance of Twitter court reporting.

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Posted by Robert J. Ambrogi on January 6, 2009 at 02:58 PM | Permalink | Comments (0)

ABA Publishes Bio to Settle Lawyer's Lawsuit

The American Bar Association's book division recently published Fearless: The Richard A. Sprague Story. The ABA calls the biography the chronicle of "the significant events of a renowned Philadelphia lawyer" and the "compelling story of a man who wasn't afraid to risk everything to fight for his fellow man."Amidst all this praise for the book, the ABA never mentions that it agreed to publish it only as part of a settlement of Sprague's libel lawsuit against it.

In a legal career that spanned more than five decades, Sprague became almost as much an institution in Philadelphia as the Liberty Bell. But when a 2000 ABA Journal article called him "the most powerful lawyer-cum-fixer in the state," he sued the magazine for libel. The ABA asserted that the description was intended as a compliment used to describe Sprague's "effectiveness as a problem-solver and trouble-shooter." But Sprague contended the words also suggested the criminal act of fixing cases. (As I noted in a 2003 post about this case, the article's author, Terry Carter, is a longtime friend whom I consider to be a top-notch journalist.)

Just weeks before the case was set to go to trial in federal court in Philadelphia, the ABA agreed to settle. Under the terms of the settlement, it agreed to pay Sprague an undisclosed sum of money, publish a half-page apology in the magazine, and put out his biography. The biography was written by Joseph R. Daughen, a retired reporter for the Philadelphia Daily News and author of earlier books about former Philadelphia Mayor Frank Rizzo and the collapse of the Penn Central Railroad. At a recent gathering to unveil the book, the business manager for the electricians' union in Pennsylvania bought hundreds of copies and passed them out as party favors, the Daily News reports. The gesture was intended as a shot at a state senator whose friendship with Sprague fell apart in a dispute over legal fees, the paper says.

A nod to Law Librarian Blog for picking up on this. Meanwhile, the question remains for another day: Is it libel to call a lawyer a fixer?

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Posted by Robert J. Ambrogi on January 6, 2009 at 02:50 PM | Permalink | Comments (0)

Lawyer Wins Top Liar Award

Cynics might say that Garth Seehawer had an unfair advantage. Winner of the award for top lie of 2008 from the Liars Club of Burlington, Wis., Seehawer is a retired Wisconsin lawyer. Out of 160 entries from all over the world, he won first place for this fib: "My grandson is the most persuasive liar I have ever met. By the time he was two years old he could dirty his diaper and make his mother believe someone else had done it."

The Burlington Liars Club was started in 1929 after two local journalists fabricated a news story about a lying contest between the Burlington police and fire departments. The police chief won after he said he'd never be good at lying because he never told a lie, Associated Press reports. From there, the club grew to some 2,000 members from around the world. Each member pays a lifetime membership fee of $1 for the right to submit an unlimited number of lies each year.

The 71-year-old Seehawer came close to winning once before, with his lie that a winter breeze was so stiff it blew off his brother's bald spot, leaving him with a full head of hair. "A good lie isn't just a tall tale or exaggerating," he told AP. "You have to have something fun, not believable but impossibly true." Despite having earned the lying profession's highest honor, he insists his former profession as a lawyer had nothing to do with his ability to bend the truth. That, the cynics would say, may be his second-best lie.

For the fibs that came in as runners-up in the Burlington Liars Club contest, read them here. Hat tip to ABA Journal for the pointer.

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Posted by Robert J. Ambrogi on January 6, 2009 at 02:45 PM | Permalink | Comments (0)

Legal Advertising's Biggest Spender

Three years ago, James Sokolove invited me to lunch. The Massachusetts-based legal advertising pioneer wanted to pick my brain about Internet trends and discuss a possible business arrangement. We had a nice talk and met once more, but nothing came of it. When I got home after that first meeting and mentioned where I'd been, my 11-year-old son -- who could hardly name a lawyer outside our circle of family and friends -- knew exactly who James Sokolove was. "The lawyer on TV," he exclaimed.

I should not have been surprised. No lawyer in the country advertises more or spends more on advertising than Jim Sokolove, according to a profile of him in this month's Boston Magazine. In 2007, he spent more than $20 million to advertise his firm, twice as much as the next biggest spender. Somewhere in the United States, a Sokolove ad runs roughly every eight seconds. That means, as profile author Francis Storrs observes, that somewhere, a Sokolove ad is always running.

A pioneer of lawyer advertising, Sokolove ran his first TV ad in 1982. More notably, he pioneered a business model built on referrals. Sokolove does not handle the cases his ads bring in. He has not seen the inside of a courtroom in nearly three decades. He refers the cases to other lawyers and collects a percentage of their recovery. His success in advertising and referrals has made him the idol of some within the legal profession and the whipping boy of others. And now he is expanding his reach even further.

Until 2000, his ads aired only in New England. That year, he set out to become a national "brand." By 2003, he had quadrupled his number of affiliates, from 14 to 50. In 2006, he branched out with commercials on Bloomberg Television targeting aggrieved inventors who could become patent plaintiffs (registration required). And by 2008, he had established 400 relationships in all 50 states. Next month, he is rolling out a marketing effort that seeks to add another 200 affiliates to his network. "It's all about national branding," Sokolove tells Boston Magazine. "If you're a realtor, you can't exist unless you become part of a system. That's the same thing that is going to take place in legal services -- consumers want to have trust in a name."

Writer Storrs quotes Sokolove telling a group of Suffolk law students, "I'm not in the religion business." Even his family has become used to people thinking of him as a heartless ambulance chaser. But during my meetings with Sokolove three years ago, I detected a different side of him. He proudly emphasized his work after law school as a VISTA volunteer and in legal services and his decades of charitable endeavors. Just recently, he joined with Stanford University's Center on the Legal Profession to launch Roadmap to Justice, a project that aims to create a national action plan for building broad access to civil justice. Maybe it isn't religion, but Jim Sokolove does seem driven to make it easier for consumers to find a lawyer. Not everyone applauds his tactics, but it's tough to argue with that goal.

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Posted by Robert J. Ambrogi on January 6, 2009 at 02:38 PM | Permalink | Comments (0)

Good News for Nation, Not for Harvard

The four lawyers President-elect Barack Obama named yesterday to senior posts in the Justice Department are described by the Washington Post as "pragmatic leaders who are likely to reverse some of the more divisive policies of the Bush administration." The only remotely controversial pick is Dawn E. Johnsen to lead the Office of Legal Counsel. And all that makes this Indiana University law professor controversial is her opposition to the current administration's overreaching in the realm of presidential power. Obama's choices for second in command at Justice, David W. Ogden, and for civil division chief, Thomas J. Perrelli, met general praise, with even conservatives telling Legal Times the selections are "not remotely as bad as they could have been."

But in the nomination of Harvard Law School Dean Elena Kagan to be solicitor general, reactions vary according to proximity to Langdell Hall. In Washington, the early reviews are favorable, as Tony Mauro reports at The BLT. Comments are peppered with superlatives such as "absolutely superb," "completely top-notch," and "brilliant." Her nomination garners praise not only because of her credentials, but also because she would be the first woman to serve as solicitor general. "The country is long overdue for a woman to serve in that important position," former Solicitor General Seth Waxman told Mauro.

But glee wanes as one comes closer to Harvard Square. There, the reaction to Kagan's nomination may be best summed up by Charles Fried, a law school faculty member and solicitor general under Ronald Reagan, who told the Harvard Crimson, "I'm happy for her but sorry for us. She's a very hard person to replace." Indeed, as we wrote here in October, Harvard Law has been undergoing a revitalization in recent years, with much of the credit going to Kagan's leadership. As The Boston Globe said of her at the time, Kagan "has galvanized the place with her ambition and adroit management style, knitting together the faculty, charming the students, and attracting top-flight talent to the school."

The naming of Kagan's successor will fall to Harvard President Drew G. Faust, who yesterday sent an e-mail to students lauding her. Because of Kagan, Faust wrote, "the student experience is richer, the curriculum fresher, and the school continues to enhance its worldwide leadership in legal education and scholarship." One of Kagan's recent faculty recruits, Jonathan Zittrain, told The Boston Globe yesterday, "I think it's going to take a while to sink in. She made a really hard job look effortless." By all accounts, she is likely to do the same as solicitor general.

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Posted by Robert J. Ambrogi on January 6, 2009 at 02:31 PM | Permalink | Comments (0)

Blawg Review #193

Charon QC, who blogs across the pond, has the privilege of hosting the first blawg review of 2009, Blawg Review #193. Adopting the theme of the Seven Deadly Sins, Blawg Review #193 has already garnered praise from What About Clients, which called it "vigorous and first rate," and a great example of how European blogs can offer "a new way of looking at, and reacting to our own world." Make sure you don't commit the eighth deadly sin of missing this installment of Blawg Review.

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Posted by Carolyn Elefant on January 5, 2009 at 03:31 PM | Permalink | Comments (0)

Fired on Facebook

These days, Facebook isn't just a go-to social media application. The Web site's ubiquitous role in everyday life is also transforming it into a conduit for lawsuits. A few weeks back, I posed about the Australian court that allowed lawyers to serve a couple with lawsuit papers via Facebook. Now, the Calgary Herald reports that a Canadian spa used Facebook to fire an employee, esthetician Crystal Bell.

Is it illegal for an employer to fire a worker via Facebook, or just imprudent? Here in the United States where employment is entirely at will, there aren't any laws, at least as far as I'm aware, that would protect an employee from being fired on Facebook. However, the Supreme Court of Canada, in a 1997 ruling known as the Wallace decision, set out how a firing, if done in a cavalier way, can result in "bad faith"damages in addition to normal severance pay. However, the ruling does not address the issue of whether being fired electronically equates with bad faith. Moreover, at least one lawyer whom Bell contacted advised that she didn't have much of a case -- she'd only been at the spa for two weeks.

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Posted by Carolyn Elefant on January 5, 2009 at 03:23 PM | Permalink | Comments (0)

What Counts as Experience for Women Who Wander Off the Partnership Track

If you've left the law to raise children, what counts as "work experience" when you seek to return? Is it part time work on a contract basis for other lawyers or teaching as an adjunct at a nearby law school? What about volunteer work for a nonprofit or reviewing vendor contracts for the PTA?

Columnist Lisa Belkin discusses that question in her piece "The Senator Track," where she argues that recent Senate appointee Caroline Kennedy's past experience on the board of the NAACP and the Commission on Presidential Debates, and authorship of books on privacy and the Constitution duly qualifies her to hold the Senate seat. Likewise, Belkin points out that much of the experience that Hillary Clinton touted in assuming the Senate seat and then running for president was that she had acquired relevant experience in her role as First Lady.

Of course, most lawyers (Kennedy and Clinton are lawyers, too) don't fare quite as well when they step off the partnership track. Belkin's article contrasts Kennedy's experience with that of Whitney Hoffman, who spent a year in practice before taking a "mom sabbatical" 14 years ago to raise her sons. Hoffman spent her time away from the law researching a book on public assembly law, serving on a charitable board and creating a bi-weekly podcast, yet she worries that if she seeks to return to conventional employment, she won't be able to articulate precisely what she is experienced to do.

 Belkin's point is that we need to:

Unfortunately, Belkin's examples don't necessarily prove her point. Clinton was an appealing candidate not just because of her outside credentials, but because of her marriage to a popular president. Likewise, Kennedy makes a viable choice for a Senate seat for New York because her political connections will help her constituents. In short, both Kennedy's and Clinton's "outside" credentials -- family ties, not their service on boards or charitable work -- are precisely what make them appealing.

Whether it's a job in politics, law firms or anywhere else, experience alone is almost never the deciding factor. It's always who you know and how much of a difference that you can make to a company's financial bottom line. If Caroline Kennedy had wanted to get a job as a partner at a New York law firm, no doubt she would have had an edge over a lawyer like Whitney Hoffman or any female lawyer who took time off, if only because Kennedy could attract business for the firm by dint of her name and connections. 

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Posted by Carolyn Elefant on January 5, 2009 at 03:09 PM | Permalink | Comments (0)

Will Blagojevich's Burris Appointment Wind Up in the Supreme Court?

The Supreme Court probably isn't eager to hear another presidential election-related Constitutional question after all of the controversy generated by the Bush v. Gore decision of 2000. But it's possible that a constitutional question tied to Obama's election, albeit indirectly, may ultimately wind up at the Supreme Court.

I'm not referring to the somewhat meritless challenge to Obama's citizenship that the Court summarily disposed of back in December. The potentially Court-bound constitutional question arises out of last week's appointment of former Illinois Attorney General Roland Burris by embattled Illinois Governor Rod Blagojevich to fill President-elect Obama's now-vacated Senate seat. Recall that Blagojevich was arrested on charges of attempting to sell Obama's seat, though no indictment has yet been announced, and it's unclear whether the charges against Blagojevich will stick.

Notwithstanding the fact that Blagojevich is still the legitimate governor of the state of Illinois and, as such, holds the power to appoint Obama's replacement, Senate Democrats intend to block, or at least delay Burris' appointment. Hence, the legal issue: Does the Senate have the constitutional authority to prevent a duly-appointed replacement from being seated? Naturally, the blogosphere splits on the question.

There's some precedent for allowing the House or Senate to refuse to seat a duly-elected congressman, contends Larry Tribe in this Forbes op-ed. Back in 1967, the House of Representatives refused to seat Adam Clayton Powell, a senior member of the House of Representatives who was re-elected by his constituents, despite various alleged improprieties, including refusal to pay a court-ordered judgment, misappropriation of congressional travel funds and putting his wife on the congressional payroll for work she had not done. The Supreme Court upheld the House's decision in Powell v. McCormack, holding that Article I, Section 5 of the Constitution gives each house of Congress the power to judge whether an elected member has met the qualifications for office set forth in Article I, Section 2 of the Constitution. Of course, Tribe fails to mention that the Supreme Court in Powell ruled in Powell's favor, finding that under Article I, Section 2, the House was limited to evaluating membership criteria such as age and residence, which Powell had met. The Court acknowledged that the House could expel (as opposed to exclude) members for any reason based on a two-thirds vote. But because the House had not exercised its expulsion authority, the Court was precluded from approving the exclusion on that ground. Professor Calvin Massey takes this position at The Faculty Lounge.

Professor Hills at PrawfsBlawg, like Tribe, believes that the Senate can refuse to seat Burris, but for a different reason. Hills relies on another clause of Article I, Section 5, which gives the executive authority of a state the right to fill an empty Congressional seat. Hills suggests that Blagojevich, who is on the verge of impeachment, is not truly the executive authority of Illinois, thus rendering the appointment invalid and giving the Senate reason to refuse to seat Burris. 

Burris finds support from Steve Chapman at Reason Online, who makes the point that the Illinois legislature could have impeached Blagojevich but didn't do so -- and therefore, under Illinois law, Blagojevich remains the legitimate executive. In addition, Chapman points out that even if the Senate could challenge Burris' qualifications for reasons beyond age and citizenship, it's Blagojevich's legitimacy rather than Burris' credentials that are issue. To be sure, Chapman doesn't necessarily like the result, but emphasizes that the rule of law must prevail.

Of course, at the end of the day, whether Burris wins or loses, someone needs to pay for the fight, notes Dennis Byrne of the Chicago Daily Observer. Byrne points out that it's unlikely that Illinois Attorney General Lisa Madigan, traditionally responsible for defending the state, will spend money to defend Blagojevich (after all, she tried to have him thrown out of office), so Burris will be left to scramble for representation to retain his position. On the other hand, there's likely little appetite among traditionally liberal pro bono groups to side with Senate Democrats to reject Burris, who would be the only black member of the Senate.

As for me, in a worst-case scenario, Burris holds the Senate seat for two years. He's one of two Illinois senators and one of 100 nationwide, so how much harm can he do? More importantly, there's no indication that Burris has done anything wrong, except to have the unfortunate luck to be appointed by Blagojevich and the ambition to accept the appointment. Some constitutional disputes, like Bush v. Gore, have such monumental consequences that there's no choice but to fight them. The Burris appointment just isn't worth it.

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Posted by Carolyn Elefant on January 5, 2009 at 02:11 PM | Permalink | Comments (0)

Legal Tweets Find a Place to Perch

We've talked up Twitter quite a bit here at Legal Blog Watch (see posts here, here and here), but legal media gadfly Kevin O'Keefe has launched a new tool called Lextweet that builds and unites the legal community on Twitter, and will perhaps help shed light on the online social networking tool for the many lawyers perplexed by or ignorant of Twitter.

Says O'Keefe:

Justia.com has had a section devoted to lawyers who Twitter for a little while now, but Lextweet appears to be a more comprehensive tool, with more information and opportunities for networking. It's still in beta mode, so users may run into bugs along the way, but O'Keefe says he and the developers are open to suggestions. The only problem I can see so far is that the site will incite a mad dash of legal Twitter users looking to up the number of their followers in an attempt to jump up the rankings on Lextweet... Did I mention you can follow Legal Blog Watch on Twitter?

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Posted by John Bringardner on January 2, 2009 at 06:30 PM | Permalink | Comments (0)

Madoff Mess Hits Funding for Legal Groups

Fallout from the collapse of disgraced financier Bernard Madoff's alleged $50 billion Ponzi scheme continues, with news of several legal foundations and organizations losing funding because their endowments were tied to investments in Madoff's funds. The National Law Journal identifies eight legal groups, from the ACLU to the Center for International Environmental Law, that are losing part or all of their endowments. The worst-affected group mentioned in the article is the JEHT Foundation (the acronym stands for justice, equality, human dignity and tolerance), which last year gave out $24 million, mostly to criminal justice advocacy and reform organizations.

MoveOn.org, The Open Society Institute and Atlantic Philanthropies highlight several other legal organizations facing Madoff-related funding cuts, including New York University's Brennan Center for Justice, Human Rights Watch and Advancement Project, according to Philantropy 2173. MoveOn is organizing a grassroots effort to generate individual donations to each of these groups to "help repair some of the damage Madoff has done."

In other Madoff news, Bloomberg reports that in Sept. 2000, Weil, Gotshal & Manges corporate governance specialist Ira Millstein cleared financier J. Ezra Merkin to continue to accept Yeshiva University (with which Benjamin N. Cardozo School of Law is affiliated) as an investor, even though Merkin was a trustee on the school's investment committee. Yeshiva invested in Merkin's company, Ascot Partners LP, which in turn put the money in Madoff's funds. According to the New York Times, Yeshiva lost $110 million investments with Madoff, who himself had been on the school's board of trustees since 1996. Ira Millstein's legal advice was consistent with professional standards, according to the Bloomberg article, but the entire affair represents "[a] lack of due diligence," says Hank Higdon, an executive recruiter quoted in the piece. "That's where they fell down and that is inexcusable. You cannot assume that everything is OK because someone is on your board and has a good reputation."

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Posted by John Bringardner on January 2, 2009 at 04:34 PM | Permalink | Comments (0)

Patent Application Points to iPhone Gloves

The New Year brings news of a handy accessory for iPhone users who want to check their e-mail, change a song or send a tweet while standing outside in the cold. An Apple patent application, published Jan. 1, reveals an idea for winter gloves with special iPhone-responsive fingertips for the thumb, index and middle finger.

The iPhone's touchscreen responds to the electrical response from a user's fingertips, according to AppleInsider, which makes typing with gloves on a futile effort. The plans outlined in the patent application show a two-layered glove: The outer layer is weatherproof, but under a removable cap on your typing fingertips is a second layer that simulates the electrical feedback of human skin.

The application was filed by Ropes & Gray lawyers on June 28th, 2007, the day before the iPhone's launch, but there's no telling yet whether Apple will be releasing its own iGloves anytime soon. In the mean time, Dots Gloves LLC has just released its own variant, the iPhone Glove.

As any cold-weather iPhone user can likely attest, the sleeker the handheld electronic device, the more likely it is to go flying from your knit-gloved paws as soon as you take it out of your pocket. A word of advice to Apple product developers: Add a rubber mitt to the inside of these gloves, and make sure that your lawyers write a thorough and prominent product disclaimer.

[Hat tips to iLounge and Pocket-lint]

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Posted by John Bringardner on January 2, 2009 at 02:34 PM | Permalink | Comments (0)

Wishes for the New Year

As we wrap up another year here at Legal Blog Watch, I would like to offer to all of our readers and friends our wishes for a happy, healthy and prosperous 2009. May your work be fulfilling, your transactions seamless and your litigation aboveboard. And if change was nipping at your heels in 2008, make it happen in 2009. Thanks for your readership and comments during 2008. See you next year.

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Posted by Robert J. Ambrogi on December 31, 2008 at 12:28 PM | Permalink | Comments (1)

Survey Non-Shocker: Part-Timers Mostly Women

Just under 6 percent of U.S. attorneys work part time, but three quarters of those who do are women. That news is unlikely to startle anyone, but it is the finding of a new study compiled by the National Association for Law Placement and reported today by The National Law Journal.

According to figures compiled by the National Association for Law Placement, 5.6% of U.S. attorneys work part-time, and about 74% of them are women. That represents only a slight increase from the previous year, when 5.4% of attorneys worked part-time and 75% were women. ...

Part-time attorneys are more common among the associate ranks nationwide, with 4.9% working less than a full-time schedule. By contrast, only 3.2% of partners work part-time, according to the NALP survey. Women constitute 90% of part-time associates and nearly 70% of part-time partners. Close to 20% of staff attorneys and of counsel currently work part-time.

Lawyers remain reluctant to take advantage of part-time opportunities, suggests NALP Executive Director James Leipold, possibly because they fear it will stall their careers. Still, the number of attorneys working part-time has grown since NALP began tracking the numbers in 1994, from 2.4 percent then to this year's 5.6 percent. Over the same period, the number of law offices that say they permit part-time work has has also grown, from 86 percent then to 98 percent now.

The numbers of part-time lawyers skew geographically, the report indicates. San Francisco, San Diego and Portland, Ore., have the highest percentage of part-time partners, ranging from 6 to 7 percent, while New York is lowest at 1.9 percent.

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Posted by Robert J. Ambrogi on December 31, 2008 at 12:15 PM | Permalink | Comments (0)

An Inaugural Dis-Invitation for God

Invitations will be sent out any day now for the Jan. 20 inauguration of Barack Obama as 56th president of the United States. But one who will not receive an invitation, if California lawyer Michael Newdow can help it, is God. Newdow, a physician as well as a lawyer, is lead plaintiff in a lawsuit filed in Washington, D.C., this week by atheists and atheist groups. As reported by Tony Mauro at The BLT: The Blog of Legal Times, the complaint seeks an injunction to prevent Chief Justice John Roberts Jr., in administering the oath of office to Obama, from inserting the words at the end, "so help me God."

That phrase, it turns out, is an editorial enhancement to the oath as set out in the Constitution. Mauro explains:

The oath of office that presidents take on Inauguration Day is right there in the U.S. Constitution -- at the end of Article II, Section 1. Take a look, and you will see that the oath does not include the words "so help me God" at the end, though presidents and the chief justices who swear them in have apparently added the words in every inauguration since 1933. Some historians say George Washington used the same words in the first inaugural, but others dispute that, and in any case the practice did not become common until the inaugurations of Franklin Roosevelt.

Newdow is known for his lawsuit against a California school district to remove the words "under God" from the Pledge of Allegiance. In that case, he won in the 9th Circuit, which found that the words constituted an endorsement of religion. But the Supreme Court later dismissed his suit for lack of standing.

Newdow and the other plaintiffs say in the complaint that they "have no objection at this time" if Obama chooses to add the words himself. "The president, like all other individuals, has Free Exercise rights, which might permit such an alteration." But Chief Justice Roberts, in administering the oath, has no such rights, they assert. The full text of the complaint is here.

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Posted by Robert J. Ambrogi on December 31, 2008 at 12:07 PM | Permalink | Comments (0)

A Civil Liberties Icon Is Let Go

Nat Hentoff is not a lawyer. But in five decades as a columnist for The Village Voice, he has done more to uphold and advance civil liberties than an army of lawyers. Thus, it is sad to hear the news, as reported yesterday by the New York Times, that after 50 years as a columnist for the Voice, Hentoff, 83, is losing his job. Here is how the Times announced it:

The troubled Village Voice laid off three employees Tuesday, including Nat Hentoff, the prominent columnist who has worked for the paper since 1958, contributing opinionated columns about jazz, civil liberties and politics.

Hentoff's writing about legal affairs has always been at once biting and straight down the middle. In 1980, the American Bar Association honored him with its Silver Gavel Award for articles he wrote detailing abuses of civil rights and liberties at a correctional facility and mental institution in New York and for his in-depth analysis of the secrecy provisions of the Atomic Energy Act. His most recent column talks about police abuses of students in New York City public schools.

Known as much for his writing about jazz as about civil rights, Hentoff's layoff is unlikely to silence his voice. He is the author of some 30 books of nonfiction and fiction, including the 1993 book, "Free Speech for Me -- But Not for Thee: How the American Left and Right Relentlessly Censor Each Other." According to the New York Times, he will continue to write a weekly column for the United Media syndicate and contribute pieces to The Wall Street Journal. Even at age 83, he told the Times, "I've never been more productive." Still, Hentoff's layoff is unwelcome news to end the year -- news that perhaps reflects the end of an era.

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Posted by Robert J. Ambrogi on December 31, 2008 at 11:56 AM | Permalink | Comments (0)

Help for Law Firms Abounds in the Blogosphere

Large law firms are facing one of their worst crises ever. As 2008 draws to a close, layoffs are at an all time high (roughly 1,760 so far) and several prominent law firms, most recently Thacher Profitt & Wood, have met their demise. Fortunately, there's an abundance of advice in the blogosphere on what firms need to do to get back on track. Here's a sampling:

Don't follow in the auto industry's footsteps: A post on The Am Law Daily includes a summary of the Leading Legal Innovation conference organized by the Southern California Innovation Project at the University of Southern California's Gould School of Law, which asked whether law firms,  by failing to innovate, might be headed down the same path as the Big 3 automakers. Though many doubted that large institutions like law firms are capable of change, one participant, Professor John Coates (formerly of Wachtell, which he left because he felt that the firm's structure and clients stymied true innovation) offered the idea that law firms might follow the example of big pharmaceutical companies that have created innovative research subsidiaries, often teaming with startup companies.

Don't stick your head in the sand or follow the crowd like the Madoff investors did: Bruce MacEwen at Adam Smith, Esq. implores firms to stop following what others are doing because it's "socially comfortable" and to prevent single dominant practice groups from driving firm strategy, because those practice groups won't be profitable forever. MacEwen draws an analogy with the Madoff situation: Those investors who failed to perform their due diligence on Madoff's investments now find themselves in a deep hole. Likewise, law firms that don't ask hard questions and think critically about their futures may find themselves similarly situated.

Get rid of the Ponzi business model: Securities lawyer Mark Astarita says that BigLaw's Ponzi-like business model of borrowing money to pay bloated associate salaries and partner draws instead of covering these costs through revenue can't work in this recessionary climate. His advice: Get rid of the Ponzi business model and focus on efficiency instead of billing hours.

Time for a new paradigm: Finally, Toby Brown of Three Geeks and a Law Blog (don't let the name turn you away -- this blog has great analysis) says it is time for a new paradigm. But the new model needs to come from firms, not from clients who "are not in a position to dictate law firms' business models." Ultimately, Salazar anticipates that firms will (and must) shift their focus from leverage to profitability which "will shine a bright light on the limitations of the billable hour."

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Posted by Carolyn Elefant on December 30, 2008 at 03:10 PM | Permalink | Comments (0)

When Memoirs Are Fiction, Lawsuits Are a Fact

We've all heard the maxim that real life is stranger than fiction. But what happens when memoirs purportedly about someone's real life turn out to be fiction? Bring on the lawyers. 

That's what's happening in the latest chapter of the saga of Angel at the Fence, a Holocaust memoir recounting a survivor's concentration-camp romance with his wife that this past weekend was exposed as a fraud. The story has drawn extensive publicity because Oprah recently featured Angel author Henry Rosenblat on her popular television talk show. When news of the fraud came to light, Berkley Books announced that it would cancel the book's Feb. 3 release, a move which has sent those involved in the book deal as well as a subsequent sale of movie right scurrying to their lawyers to "protect their interests."

Berkley intends to seek repayment of the $50,000 advance that it paid for the book rights. That may be complicated, however. Fifteen percent of the advance went to Andrea Hurst, Rosenblatt's agent, who is currently seeking counsel on whether she's legally obligated to return that money (she emphasized, however, that she has no intention of fighting Berkley). Another chunk was paid to Susanna Margolis, who ghost-wrote the book and, presumably, intends to retain payment for work performed. Thus far, Rosenblat only received $4,000. 

And the plot thickens from there. Harrison Salomon, who purchased the film rights, believes that Berkley may have overreacted in pulling the memoir, and may have a claim for tortious interference. From the New Republic:

Of course, if this plot line sounds familiar, it should. Almost three years ago, James Frey's memoir, A Million Little Pieces, named as an Oprah book club recommendation, spawned a million little lawsuits by readers claiming damages for having bought a book touted as true that turned out to be fabricated.

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Posted by Carolyn Elefant on December 30, 2008 at 02:53 PM | Permalink | Comments (0)

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