Home › Posts tagged practice

practice

a refreshing c&d letter

Posted on by — No Comments ↓

That’s “cease and desist” for you non-lawyer types out there. Not often that I use the words “cease and desist” and “refreshing” in the same sentence. But completely appropriate for this story that highlights a trademark infringement cease and desist letter sent out by Jack Daniel’s trademark lawyer that is actually civil and polite.

I think it’s a good illustration that lawyers don’t necessarily need to engage in overbearing, high-handed or brow-beating tactics all the time to protect the interests of their clients. Compare and contrast this, for example, to the approach taken by one Charles Carreon.

Congratulations Christy Susman – I think you’ve earned a lot of fans (and prospective clients). And deservedly so. And who knows, maybe I’ll pick up a bottle of Jack on the way home. It sounds a lot tastier.

More coverage in boingboing, Mashable and The Atlantic.

Tip o’ the fedora to Jeanette Lee.

 

 

 

 

work life balance is alive and well at 37signals

Posted on by — 2 Comments ↓

Read an interesting article on the 37 signals blog about “lifestyle businesses”, work ethic (or rather work hours) and reward. The nub:

It’s been a long time since there was a direct correlation with the number of hours you work and the success you enjoy. It’s an antiquated notion from the days of manual labour that has no bearing on the world today. When you’re building products or services, there’s a nonlinear connection between input and output. You can put in just a little and still get out a spectacular lot.

True, though I imagine this varies somewhat depending on the type of  business you’re in. For example, in law there is a certain emphasis placed on billable hours. Needless to say, that results in quite a direct correlation between hours works and success. Of course, it’s not the only factor, but it there is definitely a correlation. It would be interesting to see how the thinking in this article could be transposed into the practice of law. Or for that matter whether it could be.

We’re living proof that you can work much less than popular entrepreneur lore would have you believe and still run a very successful, multi-million dollar business. And still have time for taking flying lessons, learning to play the guitar, nurture your garden, go hiking, enjoy cooking, socialize with people outside your tech circle.

It’s your choice.

Hmm. Maybe it’s time to become an entrepreneur. 😉

via The lifestyle business bullshit – (37signals).

regrettable absence

Posted on by — 1 Comment ↓

Apologies to all ten of my loyal readers for the absence. It has been a very, very busy summer and, unfortunately, when it comes to relative priorities, getting work done for clients, playing with my 2 year old, sleeping and then blogging take priority, in that particular order. I’ve also been surprised so far by some of the informal comments I’ve received (not on the blog but in person), most of which have been negative or have negative implications. I must say that has also played a bit of a role in my absence. So who knows, this little blog may not be around much longer. Still giving it some thought.

In any event, a brief quote from one of my colleagues that you may find amusing: “The practice of law is very much like a pie-eating contest where the prize for winning is more pie.”

taking the fun out of blogging

Posted on by — No Comments ↓

As a lawyer, I understand the need for policies, procedures, practices, etc. when running a business, managing vendors, employees, etc. Of course. Sure. That’s part of work – both my work and the work of my clients. But when I see an article entitled “Blogging Policies and Best Practices for Lawyers and Law Firms” well, gotta say, my eyes start glazing over.

Not that there’s anything particularly bad or wrong about the article. In fact, it offers some good advice on avoiding “ethical minefields”, creating “powerful marketing tools” and ensuring you realize a good return on your “investment”.

Ugh. To be perfectly honest one of the primary reasons I blog is not to realize a return on investment, or to create a powerful marketing tool, but rather just to offer casual observations (or ruminations) on my work or things related to my work. In other words, its a bit of fun, as compared, for example, to writing a formal research paper, journal article, or a 100 page outsourcing contract. For those types of writing, there are many, many rules, requirements and policies to remember and adhere to, amongst other considerations. And relatively speaking, its not quite as much writing that stuff as it is posting what are ostensibly meandering ramblings about the next new thing. Don’t get me wrong, its certainly interesting and challenging work, but its not the type of thing one typically does to relax.

I guess what I’m getting at is along the same lines as the previous post about making blogging part of someone’s job. Its kind of like saying that its part of your job to chat up your friends at work on a regular basis. Its kind of like saying that there should be internal policies governing who you go to lunch with, and what you talk about over lunch. In other words, to me, it seems to take all the fun out of it. It makes it seem like work. It puts you in the mindset that it is work. And, to be perfectly honest, I think it makes it less interesting, because you’re too worried about the time being put into it. Too worried about whether you’re writing for your “target market”. Too worried about “visualizing and addressing your market”. Too worried on making your blog sound “informal and conversational”. Too worried about this, that and the other thing, none of which have much to do with the subject matter of what you’re writing about.

Of course, this is just my take on blogging and what I hope to achieve (or perhaps rather not to achieve) by doing it.

Wikiality – Part II

Posted on by — No Comments ↓

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?”

Exactly.

Wikiality

Posted on by — No Comments ↓

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

Posted on by — No Comments ↓

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.