Re: Encouraging Discretion in Blogging Is Better Than Restricting It

Carolyn Elefant of the Law.com blog recently published an interesting post, here, entitled "Encouraging Discretion in Blogging Is Better Than Restricting It." Elefant's post was itself a response to Connecticut Employment Law blogger Daniel Schwartz' "The Blog Post I Didn't Publish," here, and here is my two cents:

I am a relatively new blogger, but there are definitely some difficult choices in deciding what to post. First, blogging is habit forming, and as a junior associate I don't want it to detract from my work. Second, there is a danger of damaging a pending case. In fact, a week or so ago I read a post that discussed an appeal where I had written the bulk of the winning brief, and I was tremendously tempted to post a comment that drew from an an off-the record discussion with the opposing attorney about his theory of the case. The comment likely would have been harmless, and was well intended, but with the possibility of the matter being re-filed I thought it tread into some questionable territory.

If my firm were to create guidelines, however, I would hope they would be along the lines of the ethical canons, as opposed to strict directives. The nice part of blogging is the freedom of it. Most of what I write is heavily constrained by seriousness and a desire to maintain a certain level of decorum, but in a blog post you can -- in theory -- write whatever you want and be as stylistically creative as you want.

Letter Writing

So, I've spent my day writing letters. I recently completed one full year since graduating law school, and every day is still a series of learning experiences (as, I suspect, it will always be). I am something of a writer-in-residence for a midsize firm, but I also manage a small case load of more complex cases. I've developed a habit of making lists. Almost every day I sit down and write out four or five major goals for the day, and usually only finish one or two of them.

For the last week or two there has been a lull in motion/appellate writing. I still have one motion and one appeal on my to do list, but they aren't as time sensitive as usual. With this lull, I have had the opportunity to follow up on discovery matters that, unfortunately, have settled to the bottom of my to do list and have been piling up.

Whenever I start on this type of administrative work, in the back of my head I think: I can't wait until I'm more established and I have an associate to pawn these things off on. I complete these assignments well, of course, but it doesn't make them any more fulfilling. When I draft a brief, I have work product that I can look at proudly and beem at as-if it were a trophy; making a productive phone call simply doesn't have the same affect.

My new strategy, however, is letter writing. Not only does it help document the progress of the case, and hopefully speed the case along, but it also provides a tangable work product. So, now I am taking a little more pride in my "to confirm our earlier phone conversation" letters, and I am mentally structuring my nebulous list of "discovery" tasks as a series of letters that need to be written.

Contingent Fee Set-Off In Legal Malpractice

The Poppe Law Firm Blog of Louiseville Kentucky today published a post, here, discussing the debate over whether an attorney subject to a malpractice suit can seek a set-off of the contingent fee they would have earned if they had been successful in the case.

My Comment:

I know that in New York you cannot take a set-off, and it makes sense. The 1/3 now goes to the malpractice lawyers, not the tortfeasor lawyers. For the tortfeasor attorneys it seems unfair, since they have the double-hit of not only losing the fee but also paying the damages. There is nothing unfair about that, however, because the tortfeasor attorneys are the ones who screwed up, and thus should not be allowed to complain about their own lost profits. If a doctor commits malpractice and kills someone, he cannot claim a set-off for the profits he would have gained from seeing that patient in the future; the attorneys fee setoff relies on the same rational.

Re: Jobs At Biglaw Limited - So Why Is This News?

In "Jobs At Biglaw Limited - So Why Is This News?," here, Carolyn Elefant of the "My Shingle" Blog offers the observation that the recent WSJ article, describing how prospective law students misunderstand their future salary prospects, in part, because of misleading marketing by law schools, can be read "not as a caution to law students who attend lower tier schools but as a scare tactic to remind lawyers that as much as they hate their 80 hour billable weeks, life could be much, much worse"

Here's my comment:

Your take on the WSJ story is interesting. I think there are a few factors that played into the timing of the story. People have been complaining about misleading law school marketing for years. I know I started complaining about it, with many of my fellow students, during my second year of law school in 2004, and over the last year I have since written several blog pieces, and a letter to AG Cuomo. And many people have been voicing their complaints for at least as long, and often with more diligence.

One factor is the job market: it is getting worse. Another is the financial aid scandal, which led people to question the assumed integrity of institutions of higher education. A third factor is the big firm salary wars, and I think your "conspiracy theory" plays into that factor. For the past several months there has been a great deal of press coverage discussing BigLaw first year associate salaries, and many 1st year associates at large firms, despite making multiple times what their slightly lower-ranked classmates earn, legitimately feel that they are underpaid. Large mega-firms appear to simply have money to burn, so why not give it to the new associates. In fact, many new associates whose firms have raised to 145 or 150 but are still below the top firms salaries, feel that they are underpaid.
In that respect, the WSJ -- which is one of the newspapers that provided the most coverage to the salary wars -- was providing much needed scope to its coverage of the legal job market, and making amends for its role in proliferating the myth that a law degree is a license to print money.

One startling fact, however, is that -- unlike the financial aid crisis -- there has been little response to this issue other than increased traffic in the blogosphere. To my knowledge, none of the law schools named in the article have made any statements on the issue, and no public investigations have ensued.

The only somewhat related ameliorative measure is the government's new student aid package. Government financial aid, however, is a scam, even if well intentioned. Students do not borrow from the government; rather, the government subsidizes financial institutions who lend to students at a discount. The effect of this system is that higher education institutions raise tuition in response to easy money, the financial institutions push as much debt on the students as possible under the guize that there is a low interest rate. In the end, the private schools and the financial institutions are huge winners, while any benefit the students gained by low interest rates is negated by the increased debt load and the tax payers overall are hurt.
If nothing else, although it does not directly address the misleading marketing issue, a better system would be for the federal government to institute a direct lending program that is funded through a special bond release subsidized with a tax on high-tuition private schools. That would help unravel the tangled web of conflicting interests that have hampered higher education oversight.

Another step would be for consumer lawyers to start going after law schools for misleading marketing practices, but what self-respecting lawyer wants to sue a law school?

Family Guy

Family Guy has been sued for an episode where Peter Griffin, one of the main characters, sings "I need a Jew," set to the tune of "When You Wish Upon A Star." 

For anyone who is unfamiliar with the show, Family Guy is comedy cartoon focusing on pop culture satire/parody. In the "infringing song," Peter explains his poor financial skils and decides that he needs to hire a jewish person to manage his money. Here is the complaint, courtesy of the WSJ, (typos and all). Although the lyrics were technically antisemetic, the song was clearly intended in good fun and I doubt anyone, other than someone who finds Family Guy offensive overall, would be in any way consider the parody as a factor in valuing the tune negatively. The show is often politicaly incorrect, but rarely if ever mean spirited. Can a case be made that The Family Guy's parody has decreased the value of "When You Wish Upon A Star"? Come-on! In fact, the parody exposure (like the exposure the plaintiffs attorneys are gaining from this lawsuit) probably has positive marketing value. If anything has hurt the value of the tune, it is the fact that the copyright holder, Bourne Co., is bringing this lawsuit. As sympathetic as I am for plaintiff's lawyers going after deep pockets, that's just not right. Not only am I a Family Guy fan, I am also a fan of the First Amendment.

I hope the Seth Macfarlane does a parody of overzealous copyright infringment and defamation lawsuits next.

Re: Marci Hamilton, "Did the Six Supreme Court Justices Who Chose to Attend the 54th Annual 'Red Mass' Exercise Bad Judgment?"

In her Findlaw Writ column, here, Cardozo Law Professor Marci Hamilton, also a noted law and theology scholar, argues that the Supreme Court Justices who attended this year's "Red Mass" exercised poor judgment in that their attendence offered the appearance of impropreity. I disagree, for the most part.

Prof. Hamilton's view is well thought out, and she is careful to explain that she is not arguing that the Justices should be banned from religious observance, but to the extent she argues that mere attendence gave the appearance of impropriety, I find it doubtful that the Justices' attendence at the mass in any way reflects that the Catholic Church is exercising undue influence over United States law.

What I take from the Justices' attendence is a demonstration of respect for the First Amendment, gratitude towards those people of all religious persuasions who elevate the Law to a stature of something sacred, acknowledgment of the county's sizeable Catholic population, and encouragement of that population to take an active role in the process of Law. I once attended a lecture by Guido Calebrisi where he spoke -- in wholly secular terms -- of "faith and trust in the rule of law," and I believe that the Justices' attendence sends a message to American Catholics that they can have such faith in the American Judiciary.

What is not acceptable, however, is the Catholic Church using this opportunity as a political pulpit for hot button issues. By attending, particularly for those Justices who are not Catholic, let alone not Christian, the Justices offered a showing of respect to the Catholic population of the United States. To the extent the sermon focused on areas of discord rather than offering a unifying and supportive message, this was disrespectful to both the Judiciary and the American Catholic populous.

I was raised in a traditional Catholic household, and still consider myself a Catholic despite the fact that I disagree with the Church's viewpoint on almost every issue of controversy (and many that aren't even that controversial). Catholics should be angry at their church. The Church is of course entitled to its viewpoint on moral issues, but should express that viewpoint in an appropriate manner and forum. If the "church" wants to express its opinion on an issue of constitutional law, request to submit an amicus brief (with sound, rational arguments that comport with American notions of democracy and civil liberty).

In my opinion, silencing personal freedoms is about as un-catholic as an idea can be. Catholic means "universal," afterall. The First Vatican Counsel, I think (or somewhere thereabouts) defined the Church by saying something to the effect of "the Church is the community of believers bound together by the pursuit truth." The Church's persistent attack on personal freedoms runs counter to its central mission of pursuing the truth.

Faith is meant to be uplifting and socially beneficial, and in this context it appears -- although I have not read the actual sermon -- that the sermon was misquided proselytization. So, kudos to the open minded justices; shame on the Church.