open source legal documents

Just got a note from the docracy folks. They’ve developed a new, US oriented, open source mobile privacy policy.

I’m quite intrigued by the whole notion of open source legal documents. As some readers of this blog may know, I am very much a fan of open source technology. That being said, I do wonder whether the application of open source models to legal documents will yield the same benefits as their application to code.

I suppose it should, but must admit I do have some doubts. For example, I don’t think that open source legal agreements will necessarily result in widespread adoption or create standards the way open source software does, for a variety of reasons – e.g. differences in each jurisdiction’s laws, variations in business models, or variations in risk tolerance for users.

Moreover, I’m not necessarily sure open source legal agreements that are freely available will supplant professional legal services, the way, for example, that Linux has (or at least has the possibility) of supplanting operating systems for which license fees are paid and no source is made available – like Windows.

Why? Because legal services are already provided in a manner similar to one open source business model – that of value added services. While I certainly wouldn’t mind trying to exploit my drafting work by licensing forms of agreements at $X dollars a pop, that’s not typically how legal services work. When someone asks me to help them create a  software license agreement, I’ll ask them various questions regarding their product, how they plan to license and distribute it, how they plan to charge for it, and so on, then take one or more existing precedents and start tailoring to their needs, charging by the hour to do that and perhaps to negotiate the terms from time to time. I don’t charge a license or usage fee for the use of the precedents, but rather only for the “value-add” services. It might be nice too, but if your competitors don’t (and I think most don’t) then it’s tough for you do so. Which is perhaps why legal services typically don’t scale quite as well as other industries.

Sorry, I digress. Anyway, my point was that this service model is quite similar to one approach to one open source business model – license the core product under an open source license, and sell value-add services, such as support, custom development, implementation services and the like – stuff that requires expertise for those that need it.

Just to be clear, I’m not suggesting that the concept of open source legal documents is bad (because it’s not), but rather that I can’t see it having the same impact on the legal services industry as open source code has had on the IT industry. But who knows.

it.can 16th annual conference

Does IT form a part of your practice area? If so, then you won’t want to miss IT.Can’s Annual Conference, taking place in Montreal this coming October 29-30.

The conference  offers an array of interesting, cutting edge IT, IP and related topics presented by distinguished speakers. The program will be accredited by the Bar of Quebec, British Columbia and New Brunswick for continuing legal education requirements. Registration is available for either one day or both days at a discount. Highly recommended.

For more information, take a look at the brochure (PDF). Or just go register.

free legal advice (at least in California, for now)

And no, I don’t mean this blog, because as you know I don’t dispense legal advice here.

In any event, read about a new startup called LawPivot in an entry from the venerable TechCrunch. It’s described by TC as “a self described “Quora for legal” that allows technology companies to confidentially ask legal questions to expert attorneys.” And currently, for free. By the looks of it, seems to be limited to California for the time being. But hurry! Apparently the business model is to eventually charge both the askers and the askees for access.

TechCrunch seems to be bullish on its prospects. Myself a bit less so. I would think that one of the drivers of something like this would be to develop a critical mass of legal information or advice, much in the same way that many law firms have started developing massive indexed and searchable databases both for their internal use and sometimes for access by clients. Limiting it to one-off queries seems to limit the ability to leverage advice and to result in, to some extent, a duplication of efforts by the various lawyers seeking to impress a potential client.

But who knows. Perhaps they plan to leverage content in some other way at a later stage. Worth keeping an eye on. And of course, if you’re in Calfornia, worth giving a spin if you’re looking for some free legal advice.

google legal?

Recently came across the news (now somewhat dated) that Google has now incorporated some full-text legal decisions from the US into Google Scholar.

From the Official Google Blog:

Starting today, we’re enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the “Legal opinions and journals” radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity of “separate but equal” facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

Perhaps not surprisingly, the announcement seems to suggest less an emphasis on targeting lawyers as the primary audience, but rather the general public. In fact, in a recent ABA Journal article, Google’s representative even suggested that Google wouldn’t be of much value to lawyers:

Google, meanwhile, is not trying to compete with the likes of West, LexisNexis, Bloomberg, Fastcase or any other commercial legal research company, says lawyer Rick Klau, a project manager at Google who helped build the Scholar database.

“There is no attempt to slay anyone here,” Klau says. “Google’s mission is to organize the world’s information and make it useful. This was a collection of content that was not accessible and well-organized.” He says Google Scholar was designed to make the information accessible for ordinary citizens. The company has no current plans to do more with the information than what is already available.

Google’s database allows users to search its content against any words, concepts or citations and will pull up opinions related to the searcher’s query. The results are ranked by relevance. Citations in the opinions are hyperlinked to other opinions. The results also provide links to other Google databases, such as books and law reviews, to help searchers get context.

But Google Scholar does not provide any sort of system to check the validity of the case, nor does it offer any type of taxonomy of the case.

Klau goes so far as to question the value of Google Scholar to practicing lawyers: “The two primary for-pay services provide tremendous value to their users and help you better understand and consume information, like whether an opinion is still valid. Those are things that practitioners rely on and will continue to rely on.”

Despite Klau’s protestations, others in the legal information sector are watching Google. “You are always very conscious of what Google is doing because the company has immense resources available,” says Warwick of Thomson Reuters.

That same article also describes how LexisNexis and Westlaw, the two Microsofts of the legal information industry, will be implementing sweeping changes in their services. I imagine those changes were prompted less by Google’s foray into the legal information industry and more by the entrance of Bloomberg into the market, and the desire to capture a greater share of what seems to be a shrinking market.

In any event, Google isn’t really reinventing anything here but rather making it a bit more convenient to access and use – apparently all of this material had previously been available on various court and other web sites. Google’s value add was to consolidate it all and make it easier to search and use.

Too bad. It would have been interesting to see Google shake things up a bit in the legal information industry (or for that matter the information industry more generally). Then again, you never know…

Shares and How Not to Give Them Away

Interesting post by Rick Segal on how a financing deal died mid-stream due to paperwork. The nub:

Last week I watched, live, a promising young start up die because of pesky paperwork and a VC that felt the need to go the distance when it came to covering thy butt. It was ugly and it will be nothing shy of a miracle if the lawsuits don’t come flying.

A VC offers up a term sheet, does due diligence, and decides, yep, we’re in, let’s go to legals.  The terms are negotiated, everybody appears happy, capital is ready to transfer.

VC lawyers offer up the shareholders agreement as one of the documents that needs to get signed off by all the shareholders.  No problem. Well, almost no problem.

All told, 42 shareholders which owned 22% of the company.  42 people spread out over three countries.  42 signatures required.  And, as fate would have it 21 missing shareholders.  Moved, not returning phone calls, no emails, etc.

The VC refused to close without the signatures and, to make a long (painful) story short, the company died for lack of funding.

Ouch. Rick suggests setting up a voting trust agreement as one way to avoid running into this issue. That’s definitely a good idea. Another would be to avoid, as much as possible, handing out shares to folks. Many entrepreneurs seem to think of their stock as an easy or cheap way to pay people. That’s only true if your company turns out to be worthless. If it doesn’t, then you can rest assured it won’t be as cheap as you thought.

Think of this way – every time you give someone shares, you are also giving them a little stake in your company and some ability to decide what your company does. So think of shares like bits of your body – before you give away your pinkie, or foot, think about what you are getting in return, and whether its really worth it. And keep very close track of it – before you know it, you might be missing a leg.

And I know this sounds a bit self-serving (at least for my profession) but please, please, please spend just a few minutes talking to a lawyer before you  ever give away shares, options to buy shares, or even promise anyone that you’ll give them shares. It may save you a world of trouble later on, as Rick’s story quite clearly illustrates….

Wikiality – Part III

Bit of an elaboration on a previous post on the use of Wikipedia in judgements. I cited part of a New York Times article, which had in turn quoted from a letter to the editor from Professor Kenneth Ryesky. The portion cited by the NYT article suggested that Ryesky was quite opposed to the idea, which wasn’t really the case. He was kind enough to exchange some thoughts via e-mail:

In his New York Times article of 29 January 2007, Noam Cohen quoted a sentence (the last sentence) from my Letter to the Editor published in the New York Law Journal on 18 January 2007. You obviously read Mr. Cohen’s article, but it is not clear whether you read the original Letter to the Editor from which the sentence was quoted.

Which exemplifies the point that Wikipedia, for all of its usefulness, is not a primary source of information, and therefore should be used with great care in the judicial process, just as Mr. Cohen’s article was not a primary source of information.

Contrary to the impression you may have gotten from Mr. Cohen’s New York Times article of 29 January, I am not per se against the use of Wikipedia. For the record, I myself have occasion to make use of it in my research (though I almost always go and find the primary sources to which Wikipedia directs me), and find it to be a valuable tool. But in research, as in any other activity, one must use the appropriate tool for the job; using a sledge hammer to tighten a little screw on the motherboard of my computer just won’t work.

Wikipedia and its equivalents present challenges to the legal system. I am quite confident that, after some trial and error, the legal system will acclimate itself to Wikipedia, just as it has to other text and information media innovations over the past quarter-century.

Needless to say, quite a different tone than the excerpt in the NYT article. Thanks for the clarification, Professor Ryesky.

Big Bad Law Firms

Ran across this at

More and more I hear that many people in business – and in IT in particular – find the behaviour of large law firms and other professional service providers to be alienating and unresponsive to their business problems. And they’re right – large firms are increasingly gearing themselves to focus only on high dollar value work and their culture and the billing philosophies do not lend themselves to a “roll up your sleeves and help me grow my business” attitude. It seems to be getting more and more difficult for businesses to find advisors who understand the client’s problems, and who genuinely want to help.

Ouch. Mr. Hyndman is certainly entitled to his views but being in a somewhat largish firm I would, with respect, not agree. At least not when it comes to the firm I work at. I also don’t think its very fair, to paint all large firms the same brush and imply that lawyers at such firms are only interested in money (and not much else), don’t care about their clients’ business, don’t understand their problems, and don’t want to help.

I think its rather unfortunate that these types of things are said between lawyers and law firms these days. And perhaps I’ll just leave it at that.

Wikiality – Part II

There was some traffic on the ULC E-Comm Listserv (on which I surreptitiously lurk – and if you don’t know what it is and are interested in e-commerce law, highly recommended) about courts citing Wikipedia with a couple of links to some other stuff, including an article on Slaw as well as an article in the New York Times about the concerns raised by some regarding court decisions citing Wikipedia. Some excerpts and notes to expand on my previous post:

From the con side:

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

This raises a good point that I didn’t mention in my previous post. I certainly think Wikipedia is fine to note certain things, but I really, definitely, positively, do not think that it should be cited as judicial authority. In my previous article I thought this was so self-evident I didn’t bother mentioning, but the quote above illustrates that it might not be all that clear. Court decisions, as most of you know, are written by judges who take into account the facts and apply the law to the facts of the case, along with other facts and information that may have a bearing on the case. The source of the law includes statutes and of course previously decided cases, which enunciate rules or principles that the court either applies, distinguishes based on the facts as being inapplicable, or, in some cases, overturns (for any number of reasons). Court decisions are not, of course, published on Wikipedia and are not subject to the collective editing process of Wikipedia, nor should they be. Rather, references to Wikipedia in court cases are to provide additional or ancillary context or facts to a case. They do not and should not derogate from principles of law that are set forth in court decisions. But, contrary to what Mr. Ryesky, Esq., indicates above, I don’t think referring to Wikipedia for context or facts will suddenly undermine the foundations of law, since the legal reasoning itself still will and must be based on sources of law, not facts and not context.

Hence the following end to the NTY article:

Stephen Gillers, a professor at New York University Law School, saw this as crucial: “The most critical fact is public acceptance, including the litigants,” he said. “A judge should not use Wikipedia when the public is not prepared to accept it as authority.”

For now, Professor Gillers said, Wikipedia is best used for “soft facts” that are not central to the reasoning of a decision. All of which leads to the question, if a fact isn’t central to a judge’s ruling, why include it?

“Because you want your opinion to be readable,” said Professor Gillers. “You want to apply context. Judges will try to set the stage. There are background facts. You don’t have to include them. They are not determinitive. But they help the reader appreciate the context.”

He added, “The higher the court the more you want to do it. Why do judges cite Shakespeare or Kafka?”



Interesting post on the Wellington Financial Blog about “Wikiality” – the practice of taking stuff in Wikipedia as the truth, or, to quote: ““a reality where, if enough people agree with a notion, it becomes the truth.”

JN notes that Wikipedia has been cited by the courts, and this is reason for concern. A snippet:

The practice poses two problems:

  1. The references may be inaccurate; and
  2. Even if accurate, the references are subject to change at any point in the future, making it difficult for any future decisions to refer back to the original or understand the context in which it was made.

Given recent reports of Microsoft offering to pay individuals to make changes to certain Wikipedia articles in which they have a vested interest, the credibility of the site as a definitive reference source again comes into question.

A few of my colleagues at the firm also expressed bemusement when a recent case in Ontario (don’t have the citation, sorry) also cited Wikipedia.

I am quite a big fan of Wikipedia. It is, I think a rather useful and handy tool to refer to from time to time. Do I take it as the gospel? No. Would I use it if I were trying to concoct an antidote for a poison that was about to kill me? Probably not. Would I cite it in a legal research paper? Possibly. In fact, quite likely.

Although Wikipedia is by no means without its weaknesses, it also has its strengths. Sure, there is a possibility of inaccuracy. But then again, isn’t something less likely to have inaccuracies if it is reviewed (and edited) by more eyes (and more minds)? Isn’t it more likely that if there is a dispute about what is and isn’t correct, it will come to light, just like the Microsoft incident?

And what source, can it be said, is free of inaccuracies? Certainly not The New York Times. Although the Gray Lady is quick to point out that it was “deceived” by an errant reporter, it is less quick to reflect on the fact that it published fabricated stories. That of course is the clearest example, but history is rife with examples of inaccurate or misleading stories in the press. Less clear, of course, is media bias. And one only needs to refer to Manufacturing Consent. I don’t necessarily agree with all that book has to offer, but it certainly provides some food for thought.

What about scientific publications? Hmmm. Well. Again, truth is quite often relative. The clearest examples, are, of course, outright fabrication. Nonetheless, Dr. Hwang Woo-suk’s paper on producting the first cloned stem cell line was considered the truth for several years, until he was discredited. And more generally speaking, is it not true that, in the world of science, what is considered to be the truth is what most scientists believe to be true? Is that not the system of peer review? A great read on this topic is The Structure of Scientific Revolutions (as an aside, its also the book that introduced the phrase “paradigm shift” into popular parlance). I won’t bore you with details, but suffice it to say that, at the end of the day, science, at least in concept, may not be that far from wikiality.

My point isn’t necessarily to skewer existing sources of “truth” but rather to point out that such sources aren’t necessarily more reliable or accurate, or less fallible, than something like Wikipedia.

And as for things changing? Make a copy.

Pretexting, Ethics and Clients

Still catching up a bit – very quick post on the HP “pretexting” thing. As you may recall, HP asserted that its practice of pretexting – i.e. pretending to be someone else to get confidential telephone records – was legal. They were investigated leaks to the press by one of their board members and had resorted to this practice to try and find the leak. I had commented elsewhere long ago when this story first broke that even if it were illegal, very few (if anyone) could consider such actions the least bit ethical.

As most of you know apparently there was some disagreement as to legality and a few folks at HP were charged. Then I read this recent story about how HP was ending its special ties to Larry Sonsini, of the California powerhouse firm of Wilson Sonsini:

Sonsini – famous for decades in these parts – gained national fame in September during HP’s spy scandal hearings in front of Congress. Emails between the lawyer, HP executives and former director Tom Perkins raised serious questions about how sound Sonsini’s advice was around the practice of pretexting. He seemed to indicate that phone record fraud sounded like fair game, after being nudged in that direction by HP’s internal lawyers.

My emphasis. Its unfortunate to hear of something like this. I don’t doubt that he took the time and effort to research the law to come to a reasonable opinion on the matter before advising his client – obviously it was a very grey area of the law. In those circumstances its unfortunate that he didn’t perhaps suggest, notwithstanding the black letter of the law, that it would be unwise do take the course of action they were contemplating. That as good corporate citizens with a significant public profile, that such a practice is not something they should even consider. But then again, maybe he did and they didn’t listen (and of course he would surely have the good sense never to say that in public and embarrass a major client) or maybe he thought that such comments were not for legal counsel to make. Who knows.

The situation is not unfamiliar to many lawyers – particularly when it comes to giving opinions – lawyers are sometimes subjected to pressure to deliver the opinion that a client wants to hear rather than the one they should probably be delivering. By this I’m certainly not suggesting lawyers are delivering bad or incorrect opinions. What I am saying is that there are often grey areas of the law (which tend to be the areas on which legal expertise are sought) and in respect of which opinions can go one of two or more ways. And sometimes, the client will want to hear a certain outcome – for example, in the case of HP, I’m sure they would have liked the comfort to hear from their external counsel that their actions were legal – it would serve as some evidence that they took some degree of diligence and could serve to mitigate consequences if it turned out governmental authorities differed. If he, on the other hand, refused, or proffered a legal opinion that it was fine but qualified with a recommendation not to take such actions, HP likely would have not been very happy with him. And everyone knows what happens when clients aren’t happy.

Its an unfortunate situation to be in. Particuarly in this case, where, at the end of the day, HP still, obviously, isn’t happy with him.