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Thursday, August 23, 2007

Legal Blog Watch

Legal Blog Watch

Crashing the Wexis Gate

Long, long ago, in a land far, far away, access to the SEC's EDGAR database of corporate filings was available only by subscription through proprietary services such as Mead Data Central, the former owner of LexisNexis. Then came the seemingly quixotic Carl Malamud and his nonprofit Internet Multicasting Service, which in 1994 began offering the EDGAR database of corporate filings free via the Internet. A year later, as IMS's funding was about to expire, Malamud urged the SEC to continue where IMS would leave off. At first, the SEC hedged, but in August 1995, then Chairman Arthur Levitt agreed to take on the task of providing free Internet access to EDGAR. It was a turning point that paved the way for the future of government information on the Web (as I first noted a decade ago).

We've come a long way since then in achieving free and easy public access to government information online. But in the publication of federal and state court decisions, two private companies still control access and set the price of admission. And Malamud, once again, is leading the charge against the gate. Through the organization public.resource.org, Malamud has set out to create in the short term "an unencumbered full-text repository of the Federal Reporter, the Federal Supplement and the Federal Appendix" and, eventually, a full-text repository of all state and federal cases and codes. His intent, he wrote in a letter to West, is not to compete with commercial vendors.

"Rather, we wish to make this information available to a population that today does not have access to the decisions of our federal and state courts because they are not commercial subscribers to one of the handful of services such as your award-winning Westlaw tools. Codes and cases are the very operating system of our nation of laws, and this system only works if we can all openly read the primary sources."

Earlier this week, Malamud began to publish the first cases of his repository. It was sufficiently newsworthy to merit coverage from The New York Times and commentary by Tim O'Reilly.

Malamud's letter to West asks it to clarify the extent to which it claims copyright in published decisions. This has been an issue of dispute time and again. In a 1990 New York Times piece, Progress Spawns Question: Who Owns the Law?, Linda Greenhouse reported on the star-pagination lawsuit between West and Lexis that ended with a closely guarded settlement agreement rather than a definitive court decision. A 1990 suit between startup Web publisher Jurisline.com and LexisNexis similarly ended in a copyright by contract settlement agreement.

Although Malamud asks West to clarify its copyright, he also invites the company to take the high road and simply release the full text of federal cases. "You have already received rich rewards for the initial publication of these documents," he wrote, "and releasing this data back into the public domain would significantly grow your market and thus be an investment in your future." I doubt Wexis would throw open its gates that easily, but why not? The value of Westlaw and Lexis is less and less in the cases -- especially as courts post their own decisions directly and services such as FindLaw (which is owned by West) and Justia offer easy access -- and more and more in the secondary reference materials unavailable elsewhere online. For either West or Lexis, giving up old cases to the public domain would have the PR benefit of appearing to be a heroic gesture while having little negative impact on the long-term bottom line.

Besides, it is the right thing to do, just as it was when Malamud convinced the SEC to do it a dozen years ago.

Posted by Robert J. Ambrogi on August 23, 2007 at 02:04 PM | Permalink | Comments (0)

The Blogs the Judges Read

At his blog May it Please the Court, J. Craig Williams points to an article that answers the question, Which blogs do judges read? The article, from the spring/summer issue of the National Judicial College magazine Case in Point, looks at the blogs judges write and the ones they read -- and also examines the ethical and practical issues raised by judicial blogging. The article by writer Heather Singer includes a list of blogs mentioned by the people she interviewed for the article. The list offers a taste of the blogs judges favor -- and includes a few judges write:

As for the ethics of judges blogging, NJC President William F. Dressel said it all depends on what they write:

"As long as judges are using blogs to enhance public education and understanding of our justice system and not compromising the integrity of cases, then judicial blogs could serve and promote a greater understanding of the challenges and difficulties judges face in advancing justice."

Posted by Robert J. Ambrogi on August 23, 2007 at 01:59 PM | Permalink | Comments (0)

Biglaw Tight-Lipped on Offshoring

Bill Heinze at I/P Updates points to an article on legal outsourcing by Bloomberg reporters Cynthia Cotts and Liane Kufchock in which they describe how clients are pressuring large law firms to cut costs by sending work to India. It is a trend, they say, that will move some 50,000 U.S. legal jobs overseas by 2015. Robert Profusek, co-head of the M&A practice at Jones Day in New York, tells Bloomberg:

"The objective is to have only the most valuable people in London or New York, and the others in India, China or Columbus, Ohio. Lawyers are service providers. We are not gods."

While Jones Day and Kirkland & Ellis both say they send work overseas, many large firms are less forthcoming about offshoring. Cotts and Kufchock write that seven of the 10 highest-grossing U.S. firms declined to comment on outsourcing. Another, Chicago's Mayer, Brown, Rowe & Maw, said it does not send work offshore.

For the firms, a key issue is disclosure, the writers say:

"U.S. law firms are required under ethics rules to disclose markups on what they pay foreign attorneys who aren't licensed to practice law in the U.S. Such rules don't apply to legal work performed by lawyers admitted to practice in U.S. jurisdictions."

Nondisclosure allows firms more leeway to mark up bills, but New York University legal ethics professor Stephen Gillers tells Bloomberg that clients are savvy to that. "They want to negotiate the markup on these charges." As for those tight lips at large firms, the CEO of one offshoring company says it is not because the firms are ashamed of outsourcing but "because they view it as a competitive advantage."

Posted by Robert J. Ambrogi on August 23, 2007 at 01:57 PM | Permalink | Comments (0)

Decoding Legal Gobbledygook

Lingo_book Adam Freedman (aka The Party of the First Part) is a former litigator who now makes his living decoding policies and procedures into plain English for a major New York City investment bank. He also writes the "Legal Lingo" column for the New York Law Journal Magazine. Now, publisher Henry Holt and Co. is about to release his book, The Party of the First Part: The Curious World of Legalese, in which, according to Publishers Weekly, he "offers a cornucopia of hilarious, offbeat and downright bizarre examples of simple concepts contorted into words that defy understanding."

In an excerpt published on his Web site, Freedman offers a peek at the lunacy of legal language:

"Consider the fact that Congress once passed legislation declaring that 'September 16, 1940 means June 27, 1950.' In New Zealand, the law says that a 'day' means a period of 72 hours while an Australian statute defines 'citrus fruit' to include eggs. To American lawyers, a 20-year old document is 'ancient' while a 17-year old person is an 'infant.' At one time or another, the law has defined 'dead person' to include nuns, 'daughter' to include son, and 'cow' to include horse; it has even declared white to be black."

Perhaps if you buy a copy of the book, you might get Freedman to "execute" it for you. Even without buying the book, you can browse The Legalese Hall of Shame and read Freedman's tips on writing in plain English.

[Hat tip to Overlawyered.]

Posted by Robert J. Ambrogi on August 23, 2007 at 01:54 PM | Permalink | Comments (0)

Law Firm Asks Homeless Man for $1,000 Retainer

The headline above is that which appeared yesterday on a post at the blog Downtown Eastside Enquirer. The post says that the Vancouver, Canada, firm Lawson Lundell responded to the homeless man's request for legal representation in a libel action with an e-mail asking for the retainer and advising that he would be charged $400 an hour for the services of a senior lawyer. Alternatively, the e-mail said, the matter could be assigned to a junior lawyer at an hourly rate of $250 to $325, or the firm could provide a referral to a lower-cost lawyer.

It all sounds like a salacious story of lawyer greed until you realize that the author of the post is describing himself and that the only indication he had given the firm of his homelessness was a link to his Web site, which includes a reference to himself as a "moneyless home-free man" who "escapes impoverishment and opens pathways to emancipation and prosperity, for himself and others." In the end, the author of the post admits: "It is possible that [the firm] had not reviewed the websites and was not aware that he was homeless."

Posted by Robert J. Ambrogi on August 23, 2007 at 01:51 PM | Permalink | Comments (0)


 
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