Communications

Ed note: CommLawBlog is part of the LexBlog Network (LXBN). LXBN is the world’s largest network of professional blogs. With more than 8,000 authors, LXBN is the only media source featuring the latest lawyer-generated commentary on news and issues from around the globe.

As comments pile up in the Open Internet proceeding, straining the FCC’s systems, a post on the Commission’s blog got us thinking about transparency.

On July 14, 2014 – the day before the original deadline for initial comments in the Open Internet (a/k/a Net Neutrality) proceeding – in the spirit of transparency the FCC’s Chief Information Officer took to the Commission’s blog to tout the agency’s ability to track the numbers of comments flooding in over the transom. According to a couple of files linked in his post, the Commission had received nearly 170,000 Net Neutrality comments submitted electronically through ECFS (the FCC’s online filing system), and another 442,000 or so by email. Those numbers are a moving target, though, and the target is only moving up: according to a post on ArsTechnica, by 11:00 a.m. on July 15, the tally was up to about 670,000.

double red triangle arrows Continue reading “INCOMING! Commission’s Net Neutrality Comment Conundrum”

Ed note: The CommLawBlog is part of the LexBlog Network (LXBN). LXBN is the world’s largest network of professional blogs. With more than 8,000 authors, LXBN is the only media source featuring the latest lawyer-generated commentary on news and issues from around the globe.

Trying to make lemonade out of the lemon handed to it by the Supreme Court, Aereo has come up with Plan B.

The best stories never really end when you think they’re going to, do they? There’s always a nifty twist that keeps the plot chugging along.

So we really didn’t expect that the Supreme Court’s decision was the last word in the Aereo case, did we?

And right we were.

After pulling the plug on its service within a couple of days after taking a seeming knock-out punch from the Supreme Court, Aereo has come up with a plan. According to a letter filed by Aereo with Judge Alison Nathan of the U.S. District Court for the Southern District of New York (where the Aereo saga first got our attention back in 2012), Aereo is now a cable company that is entitled – by Congress, thank you very much – to retransmit over-the-air broadcast programming. As long, that is, as Aereo files the necessary “statements of account” and “royalty fees”required of cable systems. And in its letter Aereo advises that it “is proceeding” to file just those items.

Following the adage about making lemonade when handed lemons, Aereo has taken the Supreme Court’s decision and tried to turn it to Aereo’s advantage. Since the Supremes said that Aereo is “highly similar” to a conventional cable company, well then (according to Aereo), Aereo is a cable system and, therefore, “is entitled to a license” under Section 111 of the Copyright Act.

And even if it’s not entitled to such a license, Aereo’s got another argument. The Supreme Court concluded that Aereo is like a cable system because Aereo provides “near simultaneous” retransmissions of over-the-air programming. So (Aereo reasons) if Aereo’s service were to be limited to delayed (i.e., not “near simultaneous”) retransmissions – providing, instead, essentially an elaborate recording-and-playback service – then Aereo would no longer be like a cable system and would no longer be subject to the terms of the Supreme Court’s decision. (Blogmeister’s Note: Props to the Swami, Kevin Goldberg, for seeing this argument coming.)

Aereo’s argument is far from perfect. For example, while the Supremes did clearly indicate that Aereo is “highly similar” to a cable system, it’s a stretch to conclude (as Aereo does) that the Supreme Court issued a “holding that Aereo is a cable system under the Copyright Act”. A couple of years ago an operation called ivi, Inc., which provided an Internet-delivered system for streaming over-the-air programming and claimed it was a cable system, didn’t make it out of the starting gate. While Aereo’s system is arguably different in certain respects from ivi’s, the fact that ivi didn’t get very far should send Aereo a cautionary message.

How Judge Nathan will react to Aereo’s pirouette remains to be seen.

But, for now, Aereo lives on. It’s into Plan B and its now-proposed service is far from the service that got this melodrama started in 2012. But it’s still with us, at least for a while.

Are you tired of getting the same questions over and over again from prospective or existing clients?  Should I choose an LLC or incorporation?  Will I lose my house in bankruptcy?  What is a power of attorney?  How long will my divorce take?  Rather than respond to these same questions over and over, why not school your clients instead?

These days, schooling clients is easy. With the rise of online training and college courses, a broader segment of the population is now familiar with online education. Plus, there are a variety of powerful free tools to create online educational programs to educate clients so that they’ll have a grasp of the basics.

Here’s my experience with some of those tools….

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Christina Gagnier

Anyone who is a lawyer can relate to the perennial quest to find work-life balance, but this odyssey becomes compounded when you are also the boss. Even though acquiring all of your business, as well as making sure the legal representation you provide is good, determines whether you may be paying your rent in a given month, you have to decide where you draw the line with your clients.

Drawing this line also works to the benefit of your clients, who end up getting more comprehensive and meaningful counsel than through the superficial interaction that not drawing these boundaries may lead to…

double red triangle arrows Continue reading “Episode 11: Work. Life. Balance.”

I’m spreading my criticism widely here: Lawyers both in-house and out are often guilty of the sin I’m describing today.

Look: When people ask for legal advice, they need legal advice. They don’t need to hear from empty conduits through which information passes unfiltered by a human brain.

What’s today’s lesson? When asked for legal advice, give useful advice. Don’t regurgitate silly nonsense that doesn’t help anyone.

Let me give two specific (but fictionalized) examples, both analogous to real-life situations, and which give a sense of the broader issue.

Example number one: A regulator raises a concern about some statement that your company has made repeatedly or some product that you’ve sold widely. A business person — or another lawyer, or any living human being, for that matter — asks you, reasonably enough, “What’s our likely exposure in this matter?”

At this point, many lawyers turn off their brains and give the terrible, horrible, no good, very bad legal advice . . . .

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At a law firm, law matters. Law is the center of the institution’s universe, and it’s all everyone is thinking about.

It’s the other functions that don’t matter: “Another email from IT? Telling me about interfaces and gigabytes? Why don’t those clowns leave me alone?”

“Another email from finance hectoring me about time sheets? Don’t those morons know I’m busy?”

At corporations, law (and compliance) is an “other function.” The businesses are concentrating on their businesses, and law and compliance — along with human resources, information technology, and finance — are, at best, a means to an end. If you mirror the other “shared services” and send incomprehensible communications to the businesses, the businesses will soon realize that you’re just one of the pests, meant to be ignored.

Inevitably, if a business person accidentally steps over some legal line, you’ll hear that the business guy had no clue that the line existed: “Yeah, yeah. Now that you’re telling me about it, I understand that we have that rule. But how was I to know? The rule is buried on the fourth page of some impenetrable policy hidden somewhere in our computer system. I spend my time selling; I can’t waste time trying to make sense of your legalese.”

If you don’t sympathize with that guy, then you’ve been a lawyer for too long. His criticism is not just an excuse for having violated the rules; his criticism may well be the truth. How can you change that reality?

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Keith Lee

Email sucks.

Actually, let me clarify that. Email is a fast, open platform that has universal adoption and has changed the world. It’s convenient and probably how 99% of the people reading this conduct their client communications. But email client programs suck. Most of them are horribly designed and have morphed into unwieldy, user-interface nightmares, mostly due to the broken way most people use them.

If you’re like the vast majority of people, your inbox is a source of work. It’s also highly likely that you also treat it as a storage/repository of work. You begin to attempt to organize it. You start flagging things, creating folders, and soon you’re using your inbox as a task management system. Which is horribly inefficient, and not at all what your inbox is designed for. Furthermore, you’ve likely got your email client set to fetch and notify you on some ridiculous schedule, like every five minutes. Meaning that it’s quite possible that you never get more than five minutes into a task before being interrupted!

Stop. Just stop it….

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I’m closing in on 250 columns at Above the Law, devoting many of them to mistakes that I’ve recently witnessed (or heard about) (or, I should say to protect the privilege, simply ginned up out of whole cloth).

Remarkably, I’ve not yet written about an obvious error that occurs regularly: If you say that you will communicate with someone on a certain date, communicate with the person on that date.

Period.

Think for a minute about how often people screw this up, both in-house and at law firms.

In-house, some crisis arises. You take the helm. You send an email to the relevant folks in the organization saying, “I’ll get to the bottom of this, and you’ll know the answer by the close of business my time tonight.”

The close of business comes and goes, and what happens?

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Last week, I came across this great blog post: The Merits of Not Throwing Someone under the Bus. It touches on a few issues that come up all the time during the practice of law (and probably at any job that involves contact with other human beings, which I’m pretty sure describes a few of the legal ones out there, but correct me if I’m wrong).

In sum, Joey P. found herself in a situation in which she opted to be a team player by correcting some minor edits in a motion that another attorney in her office had prepared and then sending the document out to the client. Doesn’t sound like it would amount to anything, does it? Well, there was a big, dumb mistake in the motion, and the client emailed Joey to point out the blunder (while cc:ing a couple of partners because clients tend to be super nice and thoughtful like that).

Joey explained to her partner what had happened and wanting to be a team player, she took responsibility for not noticing the mistake made by the other attorney and decided not to rat that person out.

The way she handled the situation was pretty admirable (especially for a lawyer). There are, however, a couple of other steps that I would have taken if I had been in her situation that I think would have helped to further team dynamics and also to prevent a poor, innocent associate from being blamed for someone else’s screw-up….

double red triangle arrows Continue reading “Moonlighting: Giving Credit and Taking Blame”

Ed. note: This is the latest installment in a series of posts from the ATL Career Center’s team of expert contributors. Today, in the second part of a two-part series, Casey Berman gives some practical advice to attorneys considering a corporate in-house counsel position.

While some are viewed as a valuable resource, many non-lawyers in the company automatically stereotype company attorneys as mere red tape, as an expense, or as an obstacle to be avoided (or derided as the “Department of Sales Prevention”). “Often, lawyers are considered overhead in a corporate situation, and to be a success, it really helps to be able to show how you contribute to the bottom line or at least don’t add significantly to it,” says Katie Slater, former Assistant General Counsel at AEI Services, a Houston based energy company, who now runs Career Infusion Coaching, a career management firm for lawyers.  In-house attorneys always have to manage expectations and demonstrate over time how their legal skill set contributes to the collective goals of the company.

The best way to demonstrate this value is to be able to communicate and express ideas in a quick, clear way in order to give guidance and ideas for next steps. “Bottom-line communication ability — can you say things in three bullet points or less, and in plain English?” says Slater.  “Being able to break down a legal issue simply and coherently to get to why this is an issue from a business perspective is a huge skill that will be valued.  Can you give ‘Yes’ or ‘No’ answers, and, if the answer is ‘No,’ can you come up with alternatives or work-arounds?”

Many business types think lawyers are put on earth to tell them “No.” To combat this, successful in-house attorneys are responsive (even if they are still working on an answer), and provide the business units with alternatives to mull on and consider. This interaction can build trust and shows that the attorneys is indeed on their side and contributing to business persons personal goals and the overall growth of the company.

Read more at the ATL Career Center….

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