Welcome To My New Little Web World

I just spent all afternoon and evening moving my blog / blawg from Windows Live Spaces to a previously existing, but languishing, WordPress account. There was no easy way to do it. I had to manually move 32 posts drafted over the past five months, upload the photos and videos, edit so that it would like right and figure out how to get my picture in the sidebar and an RSS feed to my http://advantageadvocates.com website, the latter with the help of my esteemed, computer-geek husband. It was worth the effort. In the past five months, I got a grand total of zilch comments and one invitation to be the friend of a drunken barfly. In the past two hours, I have gotten two very nice comments. PayDay!

I hope you enjoy my blogblawg going forward. I try to post at least once per week, if not more, as the schedule allows. I have one salaried job, one business and one family with three children. It gets busy around here, but it’s all good.

Thanks for reading!

Blogs and Wikis As Legal Authority

Much has been said about the propriety of turning to the Web for authoritative information. As time passes, the idea that the Internet is a viable, legitimate resource is gaining ground.  There remains skepticism, to be true, as is evidenced by the negative comments to this article in the Wall Street Journal’s law blog condensing an interview with Drew Berry, chairman of McCarter & English, who had this to say about Google:

Get Yourself Smart on a Subject, Fast: When they get assignments, he says, self starters “contextualize” the issue by “Googling stuff for fifteen minutes.” Lexis and Westlaw, he says, are fine for focusing on a point of law. But the peripheral vision provided by a Web search is also invaluable. It can yield relevant law journal articles, blog posts, plaintiffs’ lawyers sites, law-firm newsletters and the like.

In a way, he says, see-what-I’ll-find Internet research is akin to the old hard-cover legal research methods which, he says, are more than powerful electronic search engines “give a feel for the evolution of the common law.”

A sturdy measure of the growing acceptance of the Internet as reference source is the citation to blogs, wikis and websites by Judges in legal opinions. We, the audience, are fascinated by this trend and there is no dearth of commentary on the subject. There are at least two online studies about the use of blogs as legal citations:  Ian Best, Cases Citing Blogs-Updated List, http://3lepiphany.typepad.com/3l_epiphany/2006/08/cases_citing_le.html (last visited August 6, 2008 and an update of Mr. Best’s list by Dave Hoffman, Court Citation of Blogs: Updated 2007 Study, http://www.concurringopinions.com/archives/2007/07/court_citation.html (last visited August 6, 2008. See the dissent in United States v. Booker, 543 U.S. 220, 278 (2005 (Stevens, J., dissenting), for such a citation by the United States Supreme Court.

As of today’s date, August 6, 2008, a Westlaw search of the term Wikipedia generated 214 hits across federal and state databases since first noted in 2004, with 62 of those cases dated on or after January 1, 2008. Wikipedia, the juggernaut of online, freely-editable-by-anyone, open source encyclopedias (I do shudder a bit when I use that word to describe it), has only been in existence since 2001.

Wikipedia was started as the content source for Nupedia. Nupedia is an English-language Web-based encyclopedia that, unlike Wikipedia, is both expert-written and peer-reviewed. See Richards, R. Jason, Courting Wikipedia, 44-APR Trial 62 (2008).  Wikipedia and Nupedia apparently parted company in 2007. Wikipedia seems to be well aware of the flaws in its system – as noted by Mr. Richards in his article, Wikipedia is armored with a serious set of disclaimers.  My favorite: “please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information.” The disclaimer language goes on to explain that the content of any article may recently have changed, vandalized or altered by someone without the proper expertise to provide you with complete, reliable or accurate information.

How’s that for authoritative? What makes Wikipedia any more valuable as a source of information than the guy sitting next to you on the train reading the latest People Magazine? Check out Mr. Richards’ article for many instances of inaccuracy, including incorrect references involving notoriously notable Judge Richard Posner of the Seventh Circuit Court of Appeals (who also has cited to the Wikipedia in a judicial opinion). Is the rise of Wikipedia, purportedly among the top ten most frequented sites, evidence that we have acquiesced in eschewing reliability for convenience? Well, I certainly have acquiesced – if you have been reading any of my prior blog entries, you may well recall my own citations to Wikipedia for definition of a term.

Ellie Margolis, in her article in the Yale Journal of Law and Technology entitled Surfin’ Safari – Why Competent Lawyers Should Research On The Web, 10 Yale J. L. & Tech. 82 (Fall, 2007), is concerned about the impermanence of the Internet and the information displayed:

The citations to blogs, Wikipedia, and other non-legal (and legal) information on the internet have raised valid concerns. The impermanence of the internet, as content is modified and/or migrates to other locations, means that a citation to a URL today may not lead to the exact same information tomorrow. For example, if a judge cites a Wikipedia entry in an opinion by using the URL, and the entry is subsequently modified, the reader of the opinion who tries to access the entry will not get the same information the judge relied on. In addition, reliability, authoritativeness, and accuracy are all important concerns, since there is often no way to know anything about the author of internet content, or be assured that the information has not been tampered with.

(Citations omitted). Mr. Richards also raises in his article a somewhat chilling concept: the idea of “opportunistic” editing of Wikipedia content by an attorney to favor a client’s case. Try that with the Encyclopedia Britannica! Mr. Richards also rightly challenges the use of Wikipedia as an evidentiary source based on the language of the Federal Rules of Evidence 201(b) regarding when a courts is permitted to take what is called “judicial notice” of a fact:

[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

For those facts that are not generally known within the territorial jurisdiction of the trial court, use of Wikipedia by a judge as a source for supporting “judicial notice” of that fact is seriously questionable since Wikipedia, by its own admission, is not “a source whose accuracy cannot reasonably be questioned.” But even Mr. Richards has some love for the big Wiki: in a somewhat tongue-in-cheek manner, he cites Wikipedia for its own definition. Sally A. ‘Irvin and Jason R. Sowards, in their report entitled ALR 2.0: When Advanced Legal Research Met Wiki, p.8, in the June Issue on the Advanced Legal Research Wiki at Wake Forest University School of Law in North Carolina point out a similar love-hate relationship:

Web 2.0 in legal scholarship is becoming almost commonplace, as if it had always been there. After all, even librarians who bemoan law students’ faithful citing to Wikipedia as the coup de grace of ‘good’ research must admit they’ve gone there once or twice themselves and recognize it for the amazing way it has organized massive amounts of information.

Which brings me to the other side of the coin. Perhaps my reason for using Wikipedia, which may or may not be shared by judges and other legal professionals, is the Rousseauian belief that people in nature are inherently good. Stay with me on this. If the vast majority, if not all, people who would bother to take the time to write a “scholarly” entry in Wikipedia are inherently good, then they would fashion their work with honesty and integrity. Or so I and many others would like to believe. Maybe it is just our human tendency to want to buy what the person next to us is so fervently selling.

Or, perhaps we should all engage in a measure of skepticism that is directly proportional to the degree of technical sophistication of the concept we employ Wikipedia, blog or other form of wiki to support. In other words, I should be far more comfortable relying on these “open source” sources for the definition of “net weight” than for the concept of “gravitational lensing.”

Whatever our reasoning, there is no denying that we attorneys are embracing on-line resources both officially and unofficially. Why, were we not among the first to accept on-line research via our treasured Westlaw and Lexis databases? Who hasn’t found an error in transcription while reading a case or article pulled from Westlaw or Lexis? As long as there is communication, there is the potential for error in translation. For better or for worse. I see no troubles, provided that we all keep in mind the pitfalls along with the benefits and measure the worth of our resources accordingly.

For more, visit http://advantageadvocates.com

Is There A Difference Between A Virtual Lawyer & An eLawyer?

I guess that I never considered that there could be a difference, but apparently the difference is more substantial than merely adding an “e” to the front of the word. Richard Granat at his eLawyering blog discusses the more than semantic variance in his entry on July 31. According to Granat, a virtual lawyer moves his firm onto the internet to avoid the cost of a bricks and mortar business, but continues to practice law in the same tradition as those bricks and mortar firms by billing clients for an attorney’s time at an hourly rate. eLawyering, by Granat’s definition, is more akin in my mind to “robo” lawyering in that it involves the substitution of an electronic solution or program for the work of a living lawyer.  An example of this is electronic document generation. Granat applauds the use of eLawyering to lower legal fees. I am somewhat more skeptical about its use. Flesh and blood lawyers have been employing time saving mechanisms for years: from physically cutting and pasting xerox copies of prior work to the use of word processing document repositories or libraries. While it saves time and money to avoid “reinventing the wheel” through the use of forms, we haven’t developed artificial intelligence to a level that safely permits the substitution of an eLawyer for the thinking lawyer’s oversight. Obviously, Granat is not suggesting a contrary conclusion. It does bear noting, however, that the existence of fantastic tools is not enough to make a “lawyer” – as Mr. MIller eloquently stated in his interview in my prior entries, we drive the technology, it does not drive us. There is no substitute for human creativity, learning, experience and careful consideration and oversight.

Check Out Gerry Spence's New Blog

Ahhhhhh. Fresh from my vacation in Fire Island with a dear high school friend.

 

Hard to pull back to reality, but here I am again, blogging away. In my absence, I see that I have new company in the blogging world. At the ripe age of 80 years, Gerry Spence shows his fearlessness by engaging in a decidedly modern mode of communication and appears to be enjoying it. 

 His blog started on July 16, 2008 with a humble introduction, followed by several entries on a topic of great interest to him: slavery and freedom.

For those unfamiliar with the man, Mr. Spence’s first big win was obtaining a $10,500,000 verdict against Kerr-McGee in the Karen Silkwood case on behalf of her children.

  (Meryl Streep as Karen Silkwood). He also secured a $26,535,000 verdict for Miss Wyoming against Penthouse and successfully defended Ed Cantrell in a notorious murder case out of Rock Springs, Wyoming. Mr. Spence won a $52,000,000 verdict against McDonald’s Corporation on behalf of noticeably smaller, bankrupt, private ice cream company arising out of McDonald’s breach of an oral contract. Mr. Spence ably assisted Imelda Marcos in avoiding guilty verdicts on multiple charges in 1990. In 1992, he obtained a $15,000,000 compensatory and $18,500,000 punitive verdict against an insurance company for emotional distress damages suffered by his client, a quadriplegic, based on the insurer’s failure to pay the $50,000 policy limit twenty years prior. Spence successfully defended Randy Weaver on murder, assault, conspiracy, and gun charges in an infamous Idaho federal standoff case. He has not lost a jury trial since 1969, and he has never lost a criminal case.

At his stage of life, who knows where Mr. Spence will take his blog. Never at a loss for words, there is no doubt, Mr. Spence will prove an interesting read.

SEE MORE AT http://advantageadvocates.com

 

Check Out Gerry Spence’s New Blog

Ahhhhhh. Fresh from my vacation in Fire Island with a dear high school friend.

 

Hard to pull back to reality, but here I am again, blogging away. In my absence, I see that I have new company in the blogging world. At the ripe age of 80 years, Gerry Spence shows his fearlessness by engaging in a decidedly modern mode of communication and appears to be enjoying it. 

 His blog started on July 16, 2008 with a humble introduction, followed by several entries on a topic of great interest to him: slavery and freedom.

For those unfamiliar with the man, Mr. Spence’s first big win was obtaining a $10,500,000 verdict against Kerr-McGee in the Karen Silkwood case on behalf of her children.

  (Meryl Streep as Karen Silkwood). He also secured a $26,535,000 verdict for Miss Wyoming against Penthouse and successfully defended Ed Cantrell in a notorious murder case out of Rock Springs, Wyoming. Mr. Spence won a $52,000,000 verdict against McDonald’s Corporation on behalf of noticeably smaller, bankrupt, private ice cream company arising out of McDonald’s breach of an oral contract. Mr. Spence ably assisted Imelda Marcos in avoiding guilty verdicts on multiple charges in 1990. In 1992, he obtained a $15,000,000 compensatory and $18,500,000 punitive verdict against an insurance company for emotional distress damages suffered by his client, a quadriplegic, based on the insurer’s failure to pay the $50,000 policy limit twenty years prior. Spence successfully defended Randy Weaver on murder, assault, conspiracy, and gun charges in an infamous Idaho federal standoff case. He has not lost a jury trial since 1969, and he has never lost a criminal case.

At his stage of life, who knows where Mr. Spence will take his blog. Never at a loss for words, there is no doubt, Mr. Spence will prove an interesting read.

SEE MORE AT http://advantageadvocates.com

 

Lawyers As Professional Writers

I really like Wayne Schiess’ Legal Writing Blog. This entry features a guest “blogger” Cheryl Stephens of Building Rapport, a blog about Plain Language.  I really enjoyed her passage: she urges lawyers to view themselves as professional writers, often drafting more pages in a day “than a novelist hones in a week.”

Trumpeting a refrain similar to the tune hummed by Arthur Miller in my prior blog entry, Ms. Stephens laments the poor quality of writing and reasoning exhibited by first year associates. Ms. Stephens presses these new lawyers to see themselves as “publishers” and advises them to adhere to the principles of Plain Language – “good grammar, standard English, no jargon, and well-formed sentences expressing well-formed thoughts.” Check out her new book, Plain Language Legal Writing.

After more than 17 years as a professional writer, I find myself still actively thinking about my writing on a regular basis. I would like to claim that perfect grammar and precise communication flow naturally, reflexively and abundantly for me, but the truth is that even the best writers must tend to their product no matter how skilled they are or believe themselves to be. Take a writing course, read examples of powerful persuasive writing, start a journal, or maybe even a blog. If you wish to improve your writing, take charge of your process, seek opportunities to rise above bad habits and avoid complacency. Your clients, your peers and your tribunals rely on your words.

What? Law Schools Not Teaching Legal Research?

Can it be true? Well, Arthur Miller, the King of Civil Procedure, says so. The Legal Writing Prof Blog has this entry about a recent Town Hall Meeting held in Portland Oregon sponsored by none other than West Publishing / Thomson. Apparently, law schools are sacrificing the practical for breadth of course selection. In Mr. Miller’s opinion, the pure practice apparently is suffering as a result.

Here is part one of the interview:

Here is part two of the interview:

 Mr. Miller believes that the deficit in research and writing skills begins in early elementary school and may not be rectified at the higher levels of schooling or on the legal job. This is particularly true if the new attorney ends up in somewhere other than the largest law firms, where there is some commitment to a certain level of basic research and writing training in-house for new attorneys.

Never fear. Even if you suffer from the deficits described by Mr. MIller, you can always find the best quality research and writing right here at Advantage Advocates!

What? Law Schools Not Teaching Legal Research?

Can it be true? Well, Arthur Miller, the King of Civil Procedure, says so. The Legal Writing Prof Blog has this entry about a recent Town Hall Meeting held in Portland Oregon sponsored by none other than West Publishing / Thomson. Apparently, law schools are sacrificing the practical for breadth of course selection. In Mr. Miller’s opinion, the pure practice apparently is suffering as a result.

Here is part one of the interview:

Here is part two of the interview:

 Mr. Miller believes that the deficit in research and writing skills begins in early elementary school and may not be rectified at the higher levels of schooling or on the legal job. This is particularly true if the new attorney ends up in somewhere other than the largest law firms, where there is some commitment to a certain level of basic research and writing training in-house for new attorneys.

Never fear. Even if you suffer from the deficits described by Mr. MIller, you can always find the best quality research and writing right here at Advantage Advocates!

The Twenty-Five Greatest Legal Movies of All Time?

Someone just recently asked me for a list of the best legal movies. I was somewhat at a loss, but pulled out of my hat “12 Angry Men”, “The Verdict” and “Erin Brokovich.” Thanks, ABA Journal, for refreshing my recollection with this list of favorites that I believe most people won’t dispute. See if you can match the pictures with the movies (no cheating):

Pictures courtesy of the ABA Journal

Why Unbundled or A La Carte Legal Services Just Make Sense

At my http://www.advantageadvocates.com web site, I market my contract legal services, primarily comprised of research and writing, to other attorneys. My sense is that an affordable, timely alternative to the late night cramming in of a research and writing session in advance of a tight litigation deadline necessitated by an all-too-busy practice is a welcome product.

Occasionally, I have been contacted by potential clients who are non-lawyers looking for per diem or piecemeal legal services for a specific task. I am not entirely surprised by this trend. Savvy lay people can find a wealth of legal information on the Internet. While some legal matters can effectively be performed by a non-lawyer representing himself or herself on a pro se basis, there remain certain tasks that are best left to a lawyer.  With legal fees heading in the same direction as and on a similar trajectory to oil prices, the idea of parsing out individual tasks to a lawyer on an “a la carte” basis, rather than via traditional retention for an entire legal matter, makes loads of sense.

Today I saw an article in the ABA Journal with the title “Are Lawyers Becoming Luxury Goods?” With the increasing expense, potential clients may not make retention of a lawyer a priority. The ABA article focuses on trends in the Canadian family court, but the concerns ring true in the U.S. system as well

The option of “unbundled” or “a la carte” legal services is not entirely new. This article from Arizona attorney Debbie Weecks concerning the whys and hows of unbundled legal services is from 2002. The ABA maintains a pro se / unbundling resource center here. At http://www.unbundledlaw.org, a national survey of ethical opinions as of November, 2003 regarding “discrete task lawyering” is maintained here. The ABA has added a model rule to its Code of Professional Conduct concerning unbundling as follows:

Model Rule 1.2(c) states that ”[a] lawyer may limit the objectives of the representation if the client consents after consultation.” According to the comment, the scope of services may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client, but the representation must nevertheless meet the threshold of competence required by Rule 1.1.

In line with the concerns raised in today’s ABA Journal article about us lawyers becoming luxury items, the Massachusetts courts have recognized the vital need for affordable representation in family and probate courts. The Commonwealth of Massachusetts Trial Court, Family and Probate Court Department, has implemented a “Limited Assistance Representation Pilot Project” permitting legal assistance to litigants on an unbundled, “pro se”, “discrete task, or “whatever-you-prefer-to-call-it” basis. Interestingly, John Dugan, Esq. and Edward Notis-McConarty, Esq., two of the attorneys credited with much of the work developing and implementing the Project, were very recently honored by the Massachusetts Supreme Judicial Court with the 2008 Adams Pro Bono Publico Awards for outstanding commitment to volunteer legal services.

So, while it is definitely not good news for lawyers that we are pricing ourselves out of the average client market, rest assured that novel and affordable ways of packaging and presenting legal services are making themselves known and may well become the legal wave of the future.