Law And More

Axed Partners: A Bottom Is a Terrible Thing To Waste

It's the uncertainty.  That's what pushes us to a bottom when we're out of work.  That's why Buddhist teacher Pema Chodron, author of "Comfortable With Uncertainty," has become a rock star in a jobless America.

For those over-50, that uncertainty usually comes as a head-snapping surprise.  We envisioned riding out of Dodge on our terms, with our saddlebags full. Then there's that reversal.  Six years ago I hit that strange, unexpected bottom.  Fortunately I didn't waste it.  Here is my story - a free e-book - which has been downloaded by more than a million over-50 strugglers just like you and me Download Geezerguts.

Battle in the Court of Public Opinion, particularly on the web - Caution Advised

The best recent example we have of how defendants, their attorneys and their public affairs representatives handled the court of public opinion has been the lead paint litigation, both class action public nuisance and personal injury.  The strategy seemed to be to stick to the points of law.  The website established by Prism Public Affairs to chronicle events in the Rhode island public nuisance trials highlighted the legal issues.  And, that, of course, was digital outreach.

Others in the loop for defendants might consider the wisdom of that buttoned-down approach.  The availability of the Internet can seduce the well-intentioned directly involved to argue the case in detail to diverse constituencies, indirectly or directly seek support, and/or rant.  That could backfire - badly.

First of all, it could annoy the judge.  Secondly, it could be perceived as the lady doth protest too much, methinks.  Third, it could cross the line into contempt of court or invite sanctions. 

That's a lesson which Harvard Law Professor Charles Nesson might learn.  Nesson is high-profile for his association with the HLS Berkman Center for Internet and Society.  Recently, he has gotten into possible trouble for his blogging on "Capitol Records Inc. v. Alaujan." 

In that litigation he represents the defendant Joel Tenenbaum, a Boston University student, in a music download case.  The federal judge Nancy Gertner, reports Sheri Qualters in THE NATIONAL LAW JOURNAL, sent Nesson an order "demanding a memo explaining why Tenenbaum or Nesson should not be sanctioned for Nessons' [sic] posting of parts of a deposition on Harvard Law School's Berkman Center for Internet & Society Web site."  Nesson rebuts the allegation.

In the perception business, the most credible opining and even the presentation of facts come from third parties, not those directly associated with alleged matter.  When attacked by 100 posters on Mediabistro.com, it was third-party advocacy which saved the day and my reputational capital embedded in search engines.

Controversial HLS Prof Nesson in Soup for Blogging

The world of the Internet is moving from Wild West behavior to clarification and imposition of rules.  Controversial Harvard Law School professor Charles Nesson might be learning a hard lesson about that.  Nesson is associated with the high-profile influential HLS Berkman Center for the Internet & Society. 

Nesson's behavior on the Internet, which could result in sanctions from a federal judge, concerns his representation of the defendant Joel Tenenbaum in "Capitol Records Inc. v. Alaujan."  Not surprisingly, the litigation is about student downloading of music. The federal judge is Massachusetts District Judge Nancy Gertner. 

The way Sheri Qualters reports the incident in THE NATIONAL LAW JOURNAL is:

"Charles Nesson faces possible court sanctions for an Internet posting of deposition excerpts from his defense of a college student facing copyright infringement charges for illegal Internet music downloads. ... Gertner [the judge] 'made clear' that deposition recordings were permitted but 'not to be made public via the Internet.'"

The judge demanded a response from Nesson why he or his client should not be sanctioned for Nesson's putting pieces of the deposition on HLS website for the Berkman Center.

The way Nesson describes the context is:

• He posted the material on his personal blog which the Berkman Center does not endorse or review.

• What was made public on his blog were about six minutes of the conversation between him and the plaintiffs' lawyer and a witness.  The latter was another HLS professor associated with the Berkman Center.  The content of that conversation demonstrated how the attorneys for the plaintiffs are attempting to limit how the attorneys affiliated with the defendants could communicate in public about the incidents on blogs as well as through Tweeter.

• The motion from the plaintiffs for sanctions "should be seen for what it is: a tactic to distract and sap the energy, and resources and reputations of those they oppose."

This has not been the only digital issue in the litigation.  In April, Qualters tells us, the 1st U.S. Circuit Court of Appeals reversed the judge's order to allow webcasting of a hearing in the litigation. The reason was, says Qualters, is "the confluence of a local rule, a Judicial Conference of the United States policy and a 1st Circuit Judicial Council resolution barred gavel-to-gavel webcasting."

If Nesson or his client receive a sanction that won't be the first setback in this lawsuit.  In mid-June, the judge denied the defendant's counterclaim against record companies in general and the plaintiffs.  It alleged that their lawsuits represent an abuse of process.

Legal Continuing Ed Books Being Sold by Amazon.com's Kindle

Thanks to the nonprofit Practicing Law Institute [PLI], legal continuing education books will be sold on Amazon.com Inc.'s Kindle. That will make buying them convenient and a little cheaper. 

For example, reports Jeffrey A. Trachtenberg in today's THE WALL STREET JOURNAL, the "Kindle edition of 'Copyright Law: A Practitioner's Guide' by Bruce A. Keller and Jeffrey P. Cunard, is priced at $236, a 20% discount from the $295 print price."  Currently, about 67 of PLI's 90 titles are listed on Kindle. To ease readability, footnote numbers are treated by Kindle as links.

This move into professional textbooks provides even more evidence of Kindle's reach.  The cover story in the July edition of FAST COMPANY predicts that Amazon.com's Kindle could dominate all of book publishing, ending the existence of all middlemen such as literary agents, book publishers, and book stores.  For example, Kindle would deal directly with authors, cutting deals, and handling all aspects of putting the content out there.  The author of the article Adam L. Penenberg speculates that this move by Amazon.com could do to the book publishing industry what Apple did to the music industry.

Currently, Amazon.com's Kindle distributes and sells this syndicated blog as well as my other syndicated one http://janegenova.com.  To me, that has become one of my most marketable credentials.  I highlight it in promotional pieces, ranging from my email signature to cover letters requesting communications assignments.

CA - Another Business Says Goodbye To All That

California-based, more specifically Los Angeles-headquartered, Creators Syndicate is relocating.  Its president Rick Newcombe tells us in today's THE WALL STREET JOURNAL the reason is because doing business there is such a headache.  He notes that the area's "bureaucrats rival Stalin's apparatchiks in issuing decrees, rescinding them, and then punishing citizens for having followed them in the first place."

Sound familiar?  It sounds a lot like the Santa Clara lead paint public nuisance lawsuit which wants to put on trial the defendants for making and selling a product which was, at the time, legal and in high demand.  That product was lead paint which consumers loved because of its durability and ease in cleaning.  Currently the contingency part of that lawsuit is being reviewed by the state's Supreme Court.  Here is the decision of the appeals court Download H031540.

Despite its budget woes, the flight of residents and businesses out, and the failure to attract new economic development, CA doesn't seem to get the link between public policy, law and growth.  Just about every state that has arbitrary regulations and jackpot justice in its legal system has a stuck or withering economy.  The leaders, ranging from the attorney general to the justices of the high court, might want to take a pragmatic look at this seeming correlation.

Are Catholic Law School Professors Ministers? MI court to decide that in "Safranek v. Monaghan"

Can't you smell litigation that has strong potential to wind up in the U.S. Supreme Court?  If you can, you probably already got a whiff from "Safranek v. Monaghan."  Next week, a Michigan judge will hear this employment dispute between three terminated law professors and Ave Maria Law School.

In THE NATIONAL LAW JOURNAL, Tresa Baldas reports on this two-year-old suit by three professors who contend they were axed because they questioned how this Roman Catholic institution was being run.  If your eyes bug, join the club.

Last month, the school's founder pizza tycoon Tom Monaghan filed an odd motion in this litigation. Says Baldas, Monaghan claimed "that the law professors are 'ministerial.' Therefore, he argues, because the school is a religious institution, the administration over these minister-professors is exempt from civil trial court under the 'Establishment and Free Exercise of religious clauses of the First Amendment.'"

There's more.  Baldas notes that "Monaghan also claims that the institution is eligible for 'ecclesiastical abstention,' requiring courts to 'abstain from inquiring into, or interfering with, governance of the religious institution.'"

Through their defense attorney Deborah Gordon, the three plaintiffs refuted the notion that the institution is insulated from liability because of its religious affiliation and that the faculty of the law school have the primary role of spiritual guides.

This trial is bound, like the abrupt resignation of the dean of Villanova Law School, to be high profile.  The cumulative impact of these two developments could erode the reputational capital of Roman Catholic schools of law as well as the religious denomination they represent.

Full disclosure: My experience matriculating for four years as an undergraduate at Roman Catholic Seton HIll was one I perceived to be negative, at least for me.

Smooth GOP Move: New Haven, CT Firefighters to Testify at Sotomayor Hearing

The triumph of the rights of the majority over those of the minority has set America on a new course.  And one the majority seems to love.  After all, they should, given the scarcity of decent-paying jobs.  The collective consciousness of the nation is in no mood for social re-engineering via affirmative action.

So, it's a shrewd and smooth move for the GOP to bring the New Haven, Connecticut firefighters at the center of that U.S. Supreme Court ruling to testify at the confirmation hearings for Sonia Sotomayor.  She faces a tough battle being confirmed for the U.S. Supreme Court.  The Obama Administration, which selected her, hasn't had enough economically-oriented wins yet to give her the aggressive support she needs.  Moreover, the President's poll numbers are headed in the wrong direction.

As many of us know, it was Sotomayor who had ruled earlier, reports Eric ZImmermann in Briefingroom.thehill.com, that "the New Haven fire department acted constitutionally when it discounted the results of a qualifying test for promotions after too few black firefighters scored as high as their white counterparts."

If conservatives block confirmation, this is a red flag for the Obama Administration and populism and a sign that there is life still in the Grand Old Party.

Jackie the Hottie, Ethel the Patsy

C. David Heyman's expose has Jackie coming off as the hottie and Ethel as the patsy.  This reconfiguration of the Kennedy saga could be good for the old family business politics.  Fresh interest in the clan and what they're up to or had been up to can help keep Uncle Ted's U.S. Senate seat in the family.  After all, in their eyes that slot belongs to them.

There may be more to come on Jackie.  In his Newser column Michael Wolff hints that media tycoon Rupert Murdoch might also have enjoyed her favors.  That titillating bit could help distract attention from the alleged wiretapping mess related to his empire.  Sex always will trump journalistic ethics.

ACORN - Makes Us Angry NonProfits Are Tax-Exempt

According to Matthew Vadum in the conservative THE AMERICAN SPECTATOR, sinner ACORN [Association of Community Organization for Reform Now] has sinned yet again. 

This time where ACORN has failed its mission of serving the powerless, reports Vadum, is in selling out the poor it was supposed to provide affordable housing to in the Atlantic Yards development in Brooklyn, New York.  Seems ACORN allegedly swapped its mission for money. 

Funding has not been too hot since those allegations of voter-registration irregularities.  Lead paint watchers remember ACORN's ragtag protests outside Sherwin-Williams's retail stories.  The groups were indicating solidarity with all the children who were exposed to the hazards of lead paint.  However, since that problem was being rapidly solved by government, federal and state, that solidarity really wasn't needed.

This side issue which Vadum raises - the tax-exempt status of ACORN - is the one which grabbed me by the throat.  Why does this tax treatment as a special institution prevail?  And not only for ACORN but big-business higher education, the United Way which also had its dark night of the public relations soul, and the Roman Catholic Church which might have outlived its social utility [socialization of first-gen Americans]?  This is a matter I welcome THE AMERICAN SPECTATOR to devote a full edition to.

Next Big Layoffs Late Summer - Meanwhile DLA Piper Cuts 21 Lawyers

The layoff numbers and the predictions for another major round of them in late summer make clear that the law business is not bouncing back and doesn't anticipate an early recovery.  

The lion's share of attorneys out of work likely have to surrender magical thinking about finding a comparable or any job practicing law.  Aside from stars making lateral moves, the field seems to be in lock-down.  The goal of the firms is to preserve PPP.  To do that they will have Reductions-in-Force, reduce compensation, delay start days, and simply not hire for a while.

Right now DLA is going through its second round of layoffs.  Yesterday, 21 associates lost their jobs as well as 100 staff.  Last February, reports Amanda Royal in THE RECORDER, the firm had cut 80 associates and 100 staff in the U.S. and 30 attorneys and 110 support staff in the UK.

About the ongoing cuts, Royal says that consultant Richard Gary of Gary Advisors observes that these "are an indication of a shift away from an old business model that relied on unsustainable increases in billing rates and lawyers worked longer and longer hours."