May 2012

When you consider what would make a qualified state judge, what comes to mind? Empathy, lots of in-court experience, evenhandedness, fairness?

Pssh. I think we all really want a judge who bench presses in a tank top with his name on it, builds boats at his house, and knows how to cook a stew. A colorful bowtie and rapping hype-girls are also important, of course.

That’s why Jim Foley, an attorney in Olympia, Washington, has created the wonkiest campaign ad we have seen in a while. Love it or hate it, watch the video and you will be singing, “Holy moley, I hear Jim Foley is running for judge in the city of Oly,” for the rest of the afternoon.

Let’s take a look at the clip….

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Ryan Karben

This restores credibility to the system, which should be used to help solve the real problems of real people.

– Attorney Ryan Karben, commenting on the recent dismissal of Richard Katz’s lawsuit against the Setai Wall Street Club and Spa and Karben’s client, Amanda Wells. Katz, a lawyer, had demanded a six-figure sum in damages due to the ritzy spa’s failure to provide a “full complimentary breakfast.”

We’ve got two unrelated First Amendment issues floating around today that I’m mashing into one post, because it is my right to do so.

We all know that money is speech. How we got to the point where money is worth just as much speech as talking is a manner of some contention (see Jeff Toobin’s New Yorker piece and Tom Goldstein’s response), but the question is what other things that don’t involve people saying anything can also be construed as “speech.”

Now Mitt Romney will tell you that money is speech and “corporations are people, my friend.” Fair enough. But I’m not sure he’d defend the free speech rights of people who don’t have any money so they’re asking for it on the streets of Chicago.

And I have no idea how he’d respond if you asked him if cars are people that can flash each other under the protection of the First Amendment….

double red triangle arrows Continue reading “Free Speech Potpourri: Begging Might Not Be Speech, But Flashing Your ‘Headlights’ Certainly Is!”

Tom Wallerstein

As readers of this site’s “Lawyer of the Day” posts everyone knows, lawyers and their clients can be guilty of all kinds of outrageous behavior. Litigation especially, with its inherently adversarial nature, seems to bring out the worst in people.

Bad behavior by lawyers comes in many forms. To non-lawyers, most if not all lawyers are jerks or worse. All bad behavior by lawyers is lumped together. But there are important differences.

A lot of bad behavior should be avoided simply because it is counter-productive. For example, an attorney may refuse to offer voluntary extensions of time to respond to discovery, or to a complaint. Aside from violating a principle of professional courtesy, that behavior also is ultimately self-destructive. In litigation, what comes around goes around, and granting extensions of time that will not prejudice your client is a prudent way to ensure later modest courtesies for yourself when needed.

Declining modest extensions to respond to discovery requests is especially unwise, as the responding party can always just serve objections, with the intention of serving substantive responses before a motion to compel can be filed. Because there is no instantaneous remedy for a failure to serve substantive responses, you often have little to gain by refusing a request for a modest extension of time.

Continue reading to find out when bad behavior crosses the line….

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If you’ve ever wandered over to Backpage.com and spent a few minutes reviewing the classified ads there, you probably realized that you had just discovered the seedy underbelly of the internet. Rife with ads for adult services — which is arguably just an elegant way of saying prostitution — the website, owned by Village Voice Media, has come under fire for its association with human trafficking.

Leave it to the company’s general counsel, Elizabeth McDougall, to take a stand for these scandalous online ads. After all, it’s great business! Backpage reportedly has a 70% market share for prostitution ads in the United States, generating millions in revenue.

This week, McDougall is taking additional heat from state attorneys general for her statements in an off-color op-ed column published in the Seattle Times. What could she have said that was so controversial?

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Yesterday brought some big news out of Chicago. Renowned federal prosecutor Patrick Fitzgerald — who successfully prosecuted such figures as Governor George Ryan, Governor Rod Blagojevich, White House adviser Scooter Libby, and media mogul Conrad Black — announced that he will be stepping down as U.S. Attorney for the Northern District of Illinois. Fitzgerald’s resignation will take effect on June 30.

I had the pleasure of meeting Pat Fitzgerald in October 2007, when he spoke at our alma mater, Regis High School (which he graduated from before going on to Amherst College and Harvard Law School). During the question-and-answer session for his talk, I alluded to his celebrity status and asked him: “What’s next for Patrick Fitzgerald?” I tossed out several possibilities, such as running for political office or working as a male model (in light of his 2005 designation by People magazine as one of the sexiest men alive).

The straight-laced, self-effacing Fitzgerald — who spent his entire talk discussing cases, saying practically nothing about himself — seemed slightly uncomfortable at having the spotlight on him in such a personal way. He diplomatically dodged my question, saying something about how he was just focused on doing the best job possible as U.S. Attorney. This was very proper of him, even if a bit boring.

My question to him, posed back in 2007, was just a hypothetical. But now it has turned actual: What is Pat Fitzgerald going to do next?

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There’s a Canadian out there living the dream. He graduated from law school at the University of Toronto in 2009, during the heat of the recession.

But now, just three years later, he’s completely debt-free. A little while ago, he made his last debt payment of over $100,000, in cash.

Of course, he didn’t make that kind of money being a lawyer. There aren’t a lot of people who graduated in 2009 from law school who were able to pay off their debts through their work in law.

But I still consider Alex Kenjeev my hero. Slow rolls his debts, makes a bunch on money, then dumps bags of cash on the bank to leave him alone.

It could still happen….

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I got caught.

In a column last week, I criticized a brief for using the alphabetical short form “EUSLA” to signify “end user software license agreement.” Depending on the circumstances, I suggested, one might shorten the name of that contract to “agreement,” “license agreement,” or “software license agreement,” but “EUSLA” just doesn’t work — it’s meaningless alphabet soup that doesn’t help the reader of a brief.

As I said, I got caught: The lawyer who had drafted the brief read my column, cleverly figured out who I was criticizing, and called to take issue with me. (Serves me right for using real-world examples in this forum, I suppose.)

“You’re wrong, Mark,” my outside counsel said. “We called that contract an ‘EUSLA’ in all of the depositions in the case. When we quoted deposition transcripts in the summary judgment brief, those quotations called the contract an ‘EUSLA.’ We would have confused things if we called the contract an ‘EUSLA’ in the deposition excerpts and a ‘software license agreement’ in the rest of the brief. ‘EUSLA’ was the right choice.”

This conversation illustrates, first, why you shouldn’t quarrel with me while I have this nifty megaphone at Above the Law and you’ve got bupkis; I can’t possibly lose. And the conversation illustrates, second, the meaning of “digging yourself into an even deeper hole.” “EUSLA” is the wrong short-form in a brief, and your earlier mistakes don’t justify your later one . . .

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* Secret Service Director Mark Sullivan apologized before a Senate panel for his agency’s prostitution scandal. We bet that you’d be “deeply disappointed” too if your employees were caught stiffing a hooker on her bill. [Miami Herald]

* Day four of jury deliberations in the John Edwards campaign finance trial closed yesterday without a verdict. The former presidential candidate is probably just waiting to pack it in, get this jury declared hung, and call it a day. [CNN]

* “This case is maybe something like a near disaster for Oracle.” A jury ruled unanimously that Google didn’t infringe Oracle’s Java patents in developing its Android software. Maybe they weren’t evil after all. [Bloomberg]

* A record low of 41% of Americans call themselves “pro choice” when it comes to abortions, and only a little more than half think it should be legal under “certain circumstances.” What is this, Roe v. World? [Reuters]

* Chief Judge Jonathan Lippman put together a task force to make recommendations on how to implement New York’s new pro bono prerequisite. Please let them take law school clinic hours. [Corporate Counsel]

* Remember the lawyer who sued his posh fitness club over its failure to provide free breakfast? Not only is his suit now toast, but he also has to fork over some cash to the club’s lawyers. [New York Daily News]

Judge Paul Watford

Congratulations to the newest member of the U.S. Court of Appeals for the Ninth Circuit, the Honorable Paul J. Watford. On Monday, Watford, currently a 44-year-old partner at the super-elite Munger Tolles & Olson, was confirmed to the federal bench. The vote was 61-34, and it came after a bit of drama in the Senate.

It’s surprising that Watford’s nomination was so contentious, given that he has a number of backers from the right side of the aisle. As noted by the San Francisco Chronicle, “[h]is supporters included conservative UCLA law Professor Eugene Volokh, who has described Watford as brilliant and ideologically moderate, and attorney Jeremy Rosen, former president of the Los Angeles chapter of the conservative Federalist Society” (and a noted appellate lawyer, who has appeared before in these pages).

That’s not all. Watford clerked for Chief Judge Alex Kozinski, one of a handful of prominent conservative or libertarian judges on the (generally liberal) Ninth Circuit. If you look at the ranks of former Kozinski clerks, you’ll see many members in good standing of the vast right-wing conspiracy (and some who are not, like Paul Watford — who went on to clerk for Justice Ruth Bader Ginsburg, and was nominated to the Ninth Circuit by a Democratic president).

Now that the handsome Watford has joined his superhottie boss on the bench, we have a trivia question: Who is the circuit judge with the most former law clerks to join him on the Court of Appeals during his lifetime?

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