Friday, March 30, 2007


Legal Blog Watch

Are Companies Really Firing Law Firms?

Law.com affiliate blogger Rees Morrison takes up the question Are In-House Counsel Really Dumping Law Firms Abruptly? (Legal Times, 3/27/07). His response: It's hard to tell. Morrison says that there are many reasons that companies part ways with counsel. Sometimes law firms and law departments grow apart, key partners develop different practices or in-house counsel take over the work. Of course, sometimes firms are fired for blunders, such as high cost, poor communication and incompetence. In one instance, a company stopped using a firm that would not complete a company's diversity survey.

The trouble with surveys that report on law firm firings is that "they have done a lousy job obtaining reliable numbers and percentages. " They don't show if a company actually fired a firm, or just thought about doing it. And surveys don't show if it's smaller firms that were let go, either because their billings were small or they were just brought in for a single transaction.

Morrison concludes:

It's no surprise that law departments decide, based on a single dramatic mistake or a series of avoidable missteps, to fire a firm. But despite the gaggle of surveys that have pronounced on this subject, the number of firms that a given law department fires each year is probably a small fraction of all of its law firm relationships. We need better surveys and clearer thinking for us to understand the actual incidence of abrupt terminations of law firms and the performance- or capability-related causes of those firings.

In my view, whether the surveys are right or wrong is irrelevant. The fact that companies do fire firms, even if it's a far smaller percentage than reported, or think about doing so shows that there's still dissatisfaction with how firms are performing. If I were a partner at a large firm, I wouldn't be spending my time analyzing these surveys; I'd be surveying my own clients and finding out what I could do to better serve them.

Posted by Carolyn Elefant on March 29, 2007 at 03:29 PM | Permalink | Comments (0)

RIAA Faces Some Pushback

For a while, it seemed that the RIAA's strategy of suing large numbers of people who'd allegedly downloaded music illegally was working. Rather than spend money to fight the suits, many found it more financially favorable to settle. But this week, RIAA has received some resistance in two matters. In one, it eventually decided to back down.

First, Al Nye the Lawyer Guy reports here that the University of Maine has told the RIAA to "take a hike" in response to the group's demand that the school turn over names of students who allegedly downloaded copyrighted materials.  And this post at Legal Pad tips us off to a powerful letter that a Visalia, Calif., solo "slung against the record-industry goliath," causing it to back down. The post includes choice excerpts from the letter, such as:

Your clients take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients claim used their AOL account to download pornographic-lyric gangsta rap tracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, ‘You've got to be kidding.’”

After receiving the letter, RIAA dismissed the lawsuit, though there's no word on whether the client will continue to pursue the attorneys' fees sought from RIAA in the letter.

Posted by Carolyn Elefant on March 29, 2007 at 03:27 PM | Permalink | Comments (0)

What a Difference a Day Makes...

We all know the saying "what a difference a day makes." As Eugene Volokh describes in this post, a day made a huge difference for a defendant convicted of statutory rape because the court adopted the statutory rule for computing the victim's birthday (i.e., the actual day) instead of the common law rule, i.e., the day before the actual birthday. In the case Volokh describes, a defendant engaged in nonconsensual sex with a victim the day before her 16th birthday. Under the common law rule, the victim would have been deemed to have turned 16 that day, thus enabling the defendant to defeat the statutory rape charges. Instead, the court held that Pennsylvania law, which provides that a person does not turn 16 until her birthday, would apply, which meant that the victim was under age on the date of the assault, thereby making him guilty of statutory sexual assault.

Volokh doesn't dispute the conclusion, per se, but rather the rhetoric that accompanies it. He writes:

But I don't quite see how all this rhetoric about "pervert[ing] justice," "maximum protection to children 16 and under," and "the greatest attainment of protection of society against child sexual predators" fits with the case in which the debate is about one day. Hooks would have not been punished under the indecent-assault-under-16 law if the incident had happened one day later; everyone agrees with that. The law would not have treated the 16-year-old as being in need of protection against consensual sex (nonconsensual sex is a different matter, but he was charged on that separately, and partly convicted and partly acquitted). How would there be any material loss of "protection of society against child sexual predators" if the court interpreted the law as allowing the 16-year-old-minus-1-day as being capable of consenting just as the 16-year-old is capable? Where would be the "perversion of justice" in such a holding? One could argue that there may be perversion of justice in changing a rule to a defendant's detriment, when the defendant could have reasonably relied on it (highly unlikely here, but possible in my hypothetical about the lovers who let out their sexual frustrations in doing legal research about when they can lawfully have sex). But -- again focusing on the statutory rape charge at the heart of the case, and not on the charges that required a showing of lack of consent -- it's hard to see perversion of justice in sticking with an old rule that would set the age of consent one day earlier than the majority thinks reasonable.

Mike Cernovich of Crime and Federalism also comments on the case. From Cernovich's perspective, the defendant was essentially convicted on a technicality. He writes:

This principle is illustrated nicely in a case from Pennsylvania. A man was convicted of statutory rape for having consensual sex with someone who, in just a few hours, was legally able to consent to sex. Convicted on a technicality. I certainly support statutory rape laws. Children should not have their youths misspent by adults. But convicting someone for conduct that, in just a few hours would be legal, is silly and unjust. Yet the court nonetheless affirms the conviction.

As for me, I continue to marvel at the unusual facts underlying this case. What are the chances of a defendant assaulting someone the day before she turns 16 (is it 1/365, all other things being equal)? Can you think of any other lawsuits that involves unusual or coincidental facts that you wouldn't otherwise expect?

Posted by Carolyn Elefant on March 29, 2007 at 03:12 PM | Permalink | Comments (0)

Should the Florida Bar Regulate Taste?

Chuck Newton, of Spare Room Tycoon, posts on the Florida Bar's latest effort to regulate taste by prohibiting divorce attorney Steve Miller from running a straight talking ad urging clients to contact his firm if they need help "getting rid of the vermin [you] call a spouse. Here's where Newton comes out on the issue:

The point of the matter for me is this. I do not like the spot. (I do not like it Sam I Am, I do not like when lawyers that act like hams). But, I do not like Judge Judy, Murry, or Jerry Springer (when it was on). I flip around the channels at lunch, and if I see one more trashy girl going ballistic over which one of the many men who might be the father of her child, awaiting the paternity test, (and, I am not just talking about Anna Nicole Smith), I think I might just off myself. It is not what motivates me. But it does to some people. Some people, like me, are turned off by this type of TV spot. Some people gravitate toward the hyperbole. Further, some people desperately need the services, at the price, this lawyer is offering. Nobody has demonstrated he is doing a bad job for his clients. Nobody is accusing him of not doing what he says he will do. No client is filing a grievance asking him to stop the ad. Only the Bar-tenders are not happy.

I also posted about Miller here, at my home site, MyShingle. I agree with Newton; I can't discern any consumer-protection reason for the bar's ban. Moreover, to the extent that the Florida Bar believes that consumers may be mislead by the ad, it can fight back YouTube, the same tool used to post Miller's site online. But the bar doesn't have to prohibit the ads entirely.

Posted by Carolyn Elefant on March 29, 2007 at 03:06 PM | Permalink | Comments (0)

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