Legal Blog Watch

Legal Blog Watch

Avvo Files Motion to Dismiss A few weeks ago, I participated in this discussion at Avvo, a new lawyer directory and ratings system. Mark Britton and Avvo didn't participate in the show, but now, their position was clarified with the filing of this 34-page, footnote-packed Motion to Dismiss.  From my brief read of the Motion, it seems that courts have previously addressed the legality of ratings systems and generally concluded that they are protected by the First Amendment. In this post at Avvo's Blog, a press release states that: "Americans have the constitutional right to rate everything from restaurants, beers, books, and movies to colleges, law schools, architecture, and airlines," said Bruce E.H. Johnson, partner, Davis Wright Tremaine LLP, and Avvo's counsel. "Lawyers routinely exercise their right to rate judges. It's a wonderment these particular lawyers seem to believe that Americans shouldn't rate them."  Noting cases involving the California Bar Association, Martindale Hubbell, Esquire Publishing and The El Paso Times in which opinions about attorneys constituted protected speech, Avvo's Motion to Dismiss cites extensive case law protecting media outlets' First Amendment rights and rebuts the allegations in the Class Action Complaint. That complaint, filed in U.S. District Court on June 14, was initiated by Seattle attorney John Henry Browne whose Avvo Rating exposed a recent disciplinary action he received from the Washington State Bar Association. Avvo isn't just fighting in the courtroom but on the PR front as well. As this post describes, Avvo has made some changes to its site that address some of the complaints raised in the lawsuit. After reading the Avvo Motion, it seems to me that if lawyers are going to continue to oppose Avvo, they're going to have to come up with better arguments than, "I just don't like my rating." And moreover, as a recent op-ed piece by Thomas Friedman points out (excepted in this post from the Moderate Voice), the Internet is forcing all of us to change not what we do but how we do it. With bloggers and self-publishers abounding, we all have to zealously guard our online reputations. Whether Avvo and its ratings system survive or not, there will always be information out on the Web about us, some of it positive, some not so much. That's a reality of today's Internet Age -- and one that I willingly accept in exchange for all of the benefits and possibilities. Do you? Posted by Carolyn Elefant on June 29, 2007 at 02:46 PM | Permalink | Comments (0) Supreme Court to Hear Detainee Case Next Term In a brief but highly unusual order issued this morning, the Supreme Court reversed course and agreed to hear the Guantanamo detainee case, concerning  the constitutionality of the administration's policy of detaining so-called enemy combatants without allowing them to challenge the legality of detention through use of a writ of habeaus corpus. The New York Times covers the story  here. According to the article, the reconsideration -- which required support from five justices -- "signaled that [they] had determined they needed to resolve a new politically and legally significant Guantanamo issue, after two earlier Supreme Court decisions that have been sweeping setbacks for the administration's detention policies."  Lyle Denniston offers additional insight on the Court's change in course: Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants." Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. (It is a fair assumption that Chief Justice John G. Roberts, Jr., was not in favor of rehearing; in an in-chambers order he issued on an earlier procedural matter in the detainees cases [applications 06A1001 and 06A1002] on April 26, Roberts opined that "possible court action" in the D.C. Circuit Court would not be enough to justify a grant of review in the face of the April 2 denial.) Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented." The new order did not state what changes had come about since the denial in April. The detainees' lawyers, in their rehearing petition, had said that the unfolding of the review process in the D.C. Circuit Court would soon provide them with an argument for rehearing, since the process would be shown to be inadequate. More recently, the detainees' lawyers had told the Court that information from inside the Pentagon detainee-review process confirmed their claim that the process was a "sham." And in a later post, SCOTUS Blog summarizes the questions presented in the detainee cases. The main questions from the lead case are: 1. Whether the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay. 2. Whether Petitioners? habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits. With only two years left in Bush's term in office, the Court could have easily avoided these issues and left the potential for change in policy to another administration. By stepping in now, the Court will clarify these issues not just for this administration but for those to come. Posted by Carolyn Elefant on June 29, 2007 at 02:44 PM | Permalink | Comments (0) New Marketing Idea: Become a Trial Groupie So what if your firm wasn't selected to represent a defendant in a big-time trial? You can still gain benefits by becoming a "trial groupie" -- hanging out at the courthouse, observing the trial (perhaps even live-blogging it at breaks) and getting yourself interviewed as an expert commentator on TV. That's a strategy that worked big time for one law firm, as described in this piece,  Perkins Coie Finds Marketing Opportunity in Conrad Black Trial Commentary, The National Law Journal (6/29/07). From the article: Chicago Perkins Coie partner Hugh Totten and one of the firm's public relations specialists, Lori Anger, hatched a plan at the beginning of the criminal fraud trial to see what kind of publicity they could drum up by making Totten available to comment on the case for the 400 registered U.S. and international press personnel covering it. Many of the law firms in town weren't able to comment publicly because they were representing one of the defendants or witnesses in the case.  So, Totten, a litigator specializing in complex civil cases and co-chair of the group's construction and design team, started sitting in on the trial at the federal courthouse, conveniently located across the street from the firm's Chicago office. It's the same kind of trial he typically works, just with a different burden of proof, he said. Mixing with reporters was natural for him given his journalism studies at Purdue University and his former editor position at the college's newspaper.  To say the plan was successful is an understatement. Totten, a former Kirkland & Ellis attorney who has little experience in criminal defense, got comments into newspapers and wire services all over the world, including the Chicago Tribune, the Financial Times of London, the Globe and Mail in Toronto and Bloomberg News. The goal of Perkins' plan was to help lure new lawyers to the firm's 3-year-old Chicago office. Currently, the office has 70 lawyers, but the firm expects to grow it as large as 200. Could this strategy work for your firm? Posted by Carolyn Elefant on June 29, 2007 at 02:40 PM | Permalink | Comments (0) Could Video Resumes Violate Employment Law? Ah, leave it to lawyers to put the kibbosh on what seems like a terrific way for law students and lawyers to stand out from the crowd when job hunting and marketing. As this blog post by Dave Lefkow of Director of Recruiting discusses, the legal profession's opinion of online video resumes hasn't been favorable. According to this article from The National Law Journal, legal employers are cautioned to stay away from video recruiting. From the article: If a video résumé comes across your computer, hit the delete button. That's the advice labor and employment attorneys are giving employers and human resources professionals about video résumés, the latest job-searching trend that has employers nationwide both intrigued — and scratching their heads. But lawyers are warning employers that video résumés can open a slew of discrimination claims. One lawyer quoted in the article had this to say: Cheryl Behymer, a partner at Atlanta's Fisher & Phillips, is advising employers to return video résumés with a request for a traditional résumé. "Just let them know, 'We don't use video,' " said Behymer, who strongly advises against opening up video résumés. "You're opening yourself up to a potential that someone could claim, 'Well, the reason I didn't get hired is because you could see my gray hair and you could see that I'm over 40.' " Lefkow anticipates that law firms' attitudes toward video resumes might have a slipperly slope effect. He wonders whether law firms will start relying exclusively on phone interviews to avoid the legal hassles of meeting someone in person. Moreover, even written resumes send signals of their own. Many employers scrutinize candidates' names to guess at race, year of graduation to determine age as well as clubs and activities (e.g., Hispanic Law Students Association or Lambda) to figure out race and sexual orientation. The point is that firms intent on discriminating will find a way to do it, whether based on a paper resume, a videotape or an in-person visit. So why cut off a potential recruiting mechanism that offers the positive benefits of viewing the person as a whole:  an individual with a gender, an age and a race but also an individual with personality and mannerisms that might make him or her a good fit for a firm? Posted by Carolyn Elefant on June 29, 2007 at 02:34 PM | Permalink | Comments (0)

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