Recent Articles in Law Firm Management & Legal Marketing from LexMonitor

Poll to teach at Solo Practice University

edpoll@lawbiz.com (Ed Poll) — Fri, 21 Nov 2008 20:03:45 GMT

Ed Poll will teach at a new school, an on line school that will teach law school members and lawyers ...

There is no organization so focused on the sole practitioner as is the Solo Practice University. I am thrilled to participate with Susan Cartier Liebel in implementing her concept and offer guidance to those who represent more than 70% of the legal profession.

Not only will we talk about the principles of successful law practice, we will offer coaching service to address specific challenges facing individual enrollees. Check it out and come join us.

A Somber Mukasey, Taking on Critics

Fri, 21 Nov 2008 18:49:25 GMT

Attorney General Michael Mukasey, consistently described as a “no-nonsense” man of integrity who brought a much-needed steady hand to a troubled Justice Department, last night delivered his most forceful statement yet on the administration’s legal policies in the War on...

What Happens to Your IOLTA Account If Your Bank Fails?

Fri, 21 Nov 2008 18:30:57 GMT

Right now there are plenty of lawyers across the nation who are jittery about their client trust funds. With the banking industry looking for another bail-out, and a couple of failures dotting the national landscape, my peers from other state bars are receiving the same steady trickle of queries I am regarding what is insured and what is not. It’s not as simple as it seems, though. A lot has to do with what account your client may have at the same financial institution, what the name on the account is, and what the balance on the account is. In addition, your record-keeping practices can have a positive or highly negative impact on whether all of your IOLTA funds are lumped together as one total, or whether the insurable total is applicable to each individual client’s funds.

Following is some information you may find handy to help you determine whether you need to take additional action, seek information from your clients, or just relax. One thing seems sure — you will probably need to change your intake procedures to ascertain whether clients with cash assets have any accounts at the same financial institution which houses your IOLTA account.

FDIC INSURANCE

For the purpose of FDIC insurance, IOLTA accounts are fiduciary accounts. As such, EACH CLIENT is insured as if the funds were deposited directly by the principal (the client), provided certain requirements are met. Generally, this means each client will be insured up to $100,000 if they have no other deposits held in the same name at that institution. This, obviously, makes a huge difference for the vast majority of IOLTA accounts and is important to point out to nervous attorneys. Visit the FDIC website, which specifically identifies IOLTA accounts for this treatment and provides the other (fairly straightforward) requirements to obtain the increased insurance levels.

BANK SAFETY

The fact that FDIC insurance applies to each client is good. However, there are still a large number of IOLTA accounts that contain individual client funds that exceed $100,000. When possible, the easiest way to increase FDIC insurance is to spread the funds across multiple banks. And in all cases, bank selection is key. A good resource available to determine the safety and soundness of any institution in the country is Veribanc, a bank rating company. Veribanc rates every institution in the US on a quarterly basis using proven metrics with a solid track record over 25 years.

CDARS

CDARS® is the Certificate of Deposit Account Registry Service®. And it’s the most convenient way to enjoy full FDIC insurance on deposits of up to $50 million. With CDARS, you sign one agreement with a participating local bank or other financial institution of your choice, earn one interest rate, and receive one regular statement. More information may be obtained at their web site. I’m not sure that a CDARS account can be an IOLTA account. But when you need to have a very large sum held in trust for one client, PA Rules indicate that you would not put that into IOLTA anyway — in that instance the client should earn the interest by having the money deposited into a separate interest-bearing trust account.

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Level of Advocacy

tim@lawyerhatton.com (Tim Hatton) — Fri, 21 Nov 2008 17:13:26 GMT

I was in court recently in a Tennessee city that will not be named and I happened to watch a couple of lawyers trying cases. I was struck by the approach that they took. Basically, each stepped to the podium to question witnesses with a printed paper. The paper must have contained a set of questions they were going to ask.

Their entire examination of the witness consisted of them asking a question and then making a mark next to that question on their list. They never looked up from the list. Never looked to see what the witness's demeanor was. Never looked at the judge to see how he was reacting.

And, worse, even when the witness said something that I thought might have made an impact on their case, they never deviated from their pre-printed questions to explore the witness's answer. They just moved on to the next question.

While I was watching, I happened to recall a case from a couple of years ago in an Ohio court. I was watching because I had a passing interest in the case, having formerly represented one of the parties in a related matter. The attorney questioning the witness asked something about the meaning of a document. The witness gave her answer, then made the statement "Of course, that is just my spin on it." The attorney then just moved on to his next question, as if he never heard her.

My reaction at the time, when the witness made the "spin" comment was "Now, you've got her." What I would have done was immediately repeat what she said, then remind her that we weren't there to put spin on things, but to tell the truth. Then I would have gone back and revisited every question asked and every answer she gave that wasn't favorable to my case and asked her "Was that answer the truth or was it simply spin?" Most likely, she would say it was the truth, but I would ask "How do we know?"

And I would have kept doing that until the judge made me stop or it began to become annoying (which is why it's important to watch the judge and jury while you are questioning witnesses).

What all of this is building up to is wondering about the level of advocacy in the system today. Are most lawyers now reduced to just reading questions and making checkmarks? Are they teaching that in trial practice in law school?

I hope not. I hope that the examples that I have seen are just a few isolated incidents.

~Tim

November Issue of Originate Focuses on How Economy Affects Law firms

larrybodine@comcast.net (Larry Bodine) — Fri, 21 Nov 2008 17:00:00 GMT

It's crunch time in both the legal business and the economy at large. In the newest issue of Originate! - the business development newsletter - we offer many basic, but powerful, ways to make a difference in your business development so you can stay ahead of the turmoil – from advice by general counsels to simple plans of action to knowing how to connect with a prospect. Sometimes it's the little things that count.

Lead Article: What General Counsels Like and Don’t Like About Their Lawyers…and Why You Should be Asking How You're Doing

Recent research, according to Martha Cusick Eddy, shows that only 25 percent of general counsel rated their relationships with their lawyers as an “A.” In eight key areas, as reported by Janet Ellen Raasch, Cusick Eddy explains what clients like and don’t like about their lawyers. Ultimately, though, it’s the disconnect between a client’s expectations and your delivery of service that causes the most trouble. That’s where a program of client interviews and surveys can help.

Quick Start Your Personal Business Development Plan

Even in difficult economic times, there are opportunities galore, according to Larry Bodine, Esq. But what’s your best plan of action? Here’s a quick start plan that can fill up several hundred hours of business development time over the next year. And it’s one grounded in client relationships, your existing networks, and face-to-face meetings.

The PR Multiplier: Five Ways to Keep a Good Flow through your Sales Pipeline

Second Stage of the 12 Step Pipeline: In his ongoing series about managing your sales pipeline, Andy Havens turns to the power of Public Relations to build awareness. Here are five good ways you can multiply the value you gain, mainly through knowing how the media work and improving relationships with them.

Why Thelen Failed – And How You Can Avoid the Same

Are you doomed to fail in the current economic climate? Barry Schneider looks at some underlying causes of the Thelen Reid collapse in the words of one insider, observing why these can be so damaging, and proposes what you can do individually and within your firm to avoid the worst.

To see the entire issue online visit http://www.pbdi.org/originate/.

A Quick Return to Sweet, Sweet Revenge

Fri, 21 Nov 2008 16:59:05 GMT

After dispensing advice for 10 years about how to gain psychological relief by exacting revenge on deadbeat clients, I retracted it as of yesterday. After some additional research, I can again offer up the same advice with a better explanation. If you have not read yesterday’s post entitled “Revenge Is Now a Lot Less Sweet” you may want to divert your attention to do so for a moment, so that today’s post on the same topic makes sense.

I am grateful to Chicago attorney Donna Hartl for being true to her word and following up on the subject with her ABA online taxation attorney discussion group. Donna informs me that the debate was long and heated on both sides as to whether a firm could file a form 1099-C (Cancellation of Indebtedness) on a voluntary basis, even though a law firm is not one of the types of entities narrowly defined as having a requirement to do so. Required entities include governmental agencies, financial institutions, and some others.

Ultimately an “Arizona gentleman” provided a copy of an IRS Significant Service Center Advice #1998-020 which deals specifically with whether an entity not required to file a 1099-C may do so voluntarily.

FACTS
The taxpayers are private businesses that extend credit to their customers. However, these businesses are not financial institutions. Occasionally, some of the customers will default on their credit obligations. Normally the creditor will write off the debt when it becomes uncollectible, and may issue a Form 1099-C to the defaulting customer.

DISCUSSION
While the requirement to report discharges of indebtedness applies only to the entities described above, there is no specific prohibition in the Internal Revenue Code or the Income Tax Regulations that forbids the reporting of discharges of indebtedness by entities not required to report. Such reporting may encourage voluntary tax compliance and proper gross income inclusions.

CONCLUSION
Individuals or entities not required by section 6050P to file Form 1099-C may nevertheless voluntarily file such forms in appropriate circumstances.

So there you have it folks. Unless something changes again, in which case I’m hoping we’ll hear further from our friendly and vigilant Chicago attorney, you can hang your hat on this, since there’s nothing to the contrary. When you’ve done everything right from intake through final billing and follow-up, and your client still does not pay . . . when you’ve given the client every opportunity to voice any complaints regarding the representation . . . when you’ve had an independent review of the file and concluded that you’re not about to sue for any number of valid reasons . . . and after the statute of limitations on filing a malpractice claim has passed . . . then and only then can you exact your revenge.

After the benchmarks above have been passed, wait until some time in late October to mid November to send a letter to the client. Tell them that if payment is not forthcoming within the next ten days you will have no alternative other than to write off the debt, and issue a 1099-C to them for the full amount of debt forgiven, including fees and costs. That will then give them reportable income hopefully too late in the year to make an anticipated tax payment, or offset it with additional expenses. In other words, you’re going to, at the least, throw a monkey wrench into their year-end tax planning.

Some people get so crazy about any potential red flag the IRS may use to trigger an audit, that they immediately pay to avoid the 1099-C. But most attorneys who get to this point don’t even care about the money any more — the revenge alone is sweet enough. Now you can do it without worrying when your accountant is not aware of the strategy. Hey, if the cream of the crop taxation attorneys in the U.S. had to debate it for hours until the answer was located, it’s no wonder so many non-tax attorneys and their CPAs have salivated at the idea, but refrained out of fear. Fear no more. Exact your revenge.

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Rakesh

Fri, 21 Nov 2008 16:57:56 GMT

Our creative and technology expertise are driven by the idea that simpler is better. Jargon is toxic and is purposely designed to create communications barriers. In fact, that’s the whole point of jargon. Here’s a good article from the ABA Journal (which I’m becoming a follower of) on litigating without jargon. An excerpt, “The difficulty with [...]

“The difficulty with legalisms is not just that they are strange and hard to follow. It is not just that they are often put together backward: “What next, if anything, did you do with respect to the operation and control of the motor vehicle in question?”

The problem is that they are hollow, empty words that —even when put together properly—don’t tell a story.”

The author’s suggestions for rectifying this are the same we start with in pretty much anything we do — what’s our story here? What has happened? What is the audience going to understand, what knowledge to they come in with and what biases do they have?

About Blogging More

Fri, 21 Nov 2008 16:53:25 GMT

I recently presented at the Maryland State Bar Solo & Small Firm Conference. As one attorney exited my session he stopped to compliment me on the seminar, and in departing he said, "Blog More!" Well, my apologies to all of my subscribers. You may notice a sudden rush of posts.

I recently presented at the Maryland State Bar Solo & Small Firm Conference. As one attorney exited my session he stopped to compliment me on the seminar, and in departing he said, “Blog More!” Well, my apologies to all of my subscribers. You may notice a sudden rush of posts. When I have time I often create as many as 4 - 6 different posts, and then publish them one by one at later dates. Unfortunately, I have been unable to “get in” to my blog for quite some time, and just today the problem was resolved. I am about to have the blog cut over to a new server, something I was told was done a month or two ago, but apparently didn’t happen. So I published everything in the queue just to make sure nothing got lost in the shuffle. It looks like there may be some clean-up required once I get to the new server. Some items were apparently published without my knowing, and there is now some duplication.

One thing I’ve learned over the years is that nothing goes totally smoothly where technology is concerned. I roll with the punches as much as possible.

Case in point: Today I brought a dead laptop back to life by tapping it on the desktop like a bottle of olives with a stuck cap. There had been some bad sounds coming from the hard drive last time I used it, and I figured the controller or drive was going. Sure enough, it has failed to start up dozens of times — unable to read the hard drive. I thought it was worth a chance at bouncing whatever thingamajig was out of whack back into alignment. Not something I recommend to clients, but on a laptop of this many years, I had nothing to lose. Ok, it’s back up and running for now. I just love that 17.5″ HighDef widescreen, and didn’t feel like throwing it away. I may just get another year out of it if I can leave it here where it will not be jostled about any more. If not, it owes me nothing after so many years of dedicated service.

Back on point, I’m back. I hope to post to the blog at least once or twice a week. Stay tuned. And feel free to recommend this blog to your peers. Thanks for the loyalty!

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Cargotecture

chuck@chucknewton.net (Chuck Newton) — Fri, 21 Nov 2008 16:21:59 GMT

I have posted about using cargo shipping containers before as either a home office alternative, or just to create a small law office somewhere that is affordable. This project in Gandino, Italy is particularly entertaining because it substitutes glass for the non-supporting walls of the cargo shipping container. It is not that many lawyers would want to live in a glass house, but a cheap cargo shipping container could be retrofitted as a back porch, or the entry way to an office, or something like a waiting or conference room to attach to other containers or a smaller building to...

I have posted about using cargo shipping containers before as either a home office alternative, or just to create a small law office somewhere that is affordable.

This project in Gandino, Italy is particularly entertaining because it substitutes glass for the non-supporting walls of the cargo shipping container. It is not that many lawyers would want to live in a glass house, but a cheap cargo shipping container could be retrofitted as a back porch, or the entry way to an office, or something like a waiting or conference room to attach to other containers or a smaller building to make the perfect office cheaply.

And, if it is sunlight you want, but not a loss of privacy, you can always use something like Kalwall instead of glass.

Anyway, check it out.

Modest proposal for the auto industry

esvenson@gmail.com (Ernest Svenson) — Fri, 21 Nov 2008 16:11:33 GMT

Seth Godin opines: "Not only should Congress encourage/facilitate the organized bankruptcy of the Big Three, but it should also make it easy for them to be replaced by 500 new car companies."

Lawyers attack prosecutor who had Cheney indicted

Fri, 21 Nov 2008 16:00:37 GMT

By CHRISTOPHER SHERMAN Associated Press Writer McALLEN, Texas (AP) _ Lawyers seeking to halt the indictments brought against Vice President Dick Cheney, former Attorney General Alberto Gonzales and others are accusing the prosecutor of trying to end his tenure with a bang and even scores with political enemies. Willacy County District Attorney Juan Angel Guerra noted that the [...]

By CHRISTOPHER SHERMAN
Associated Press Writer

McALLEN, Texas (AP) _ Lawyers seeking to halt the indictments brought against Vice President Dick Cheney, former Attorney General Alberto Gonzales and others are accusing the prosecutor of trying to end his tenure with a bang and even scores with political enemies.

Willacy County District Attorney Juan Angel Guerra noted that the decision to return the eight high-profile indictments earlier this week was a grand jury’s. He said backlash against him is in response to his persistent investigation of ties between politicians and the private companies that run federal detention centers.

Half of the indictments returned Monday are linked to privately run federal detention centers in the sparsely populated southern Texas county. The other half target judges and special prosecutors who played a role in an earlier investigation of Guerra.

Presiding Judge Manuel Banales was scheduled to hear arguments Friday on motions to dismiss or quash the indictments. Guerra, who missed a Wednesday court appearance, promised he would be there this time.

The vice president is the highest public official Guerra has pursued, but he made a nearly 20-year-career of passing over routine crimes in favor of public corruption before being defeated in the March Democratic primary election.

It was Guerra’s interest in the contracts to build and run a federal detention center that led to some of his biggest successes — three guilty pleas on bribery charges from former county commissioners in 2005. But he also believes it was the motivation for his own legal battles.

Guerra was arrested last year on theft charges that were later dropped. He responded by camping outside the courthouse with farm animals in protest. He continued working for more than a year while under indictment on charges of extorting money from a bail bond company and using his office for personal business until Banales dismissed the indictment last month.

Guerra ran his investigation into alleged prisoner abuse with a siege mentality. He worked it from his home, dubbed it “Operation Goliath” and kept it secret from his staff, he said. He gave all the witnesses biblical pseudonyms — his was “David” — and when necessary gave false reasons for witnesses’ appearances so as not to raise suspicion in a courthouse he believed to be filled with political enemies. A clerk and a judge who share the building were among those indicted Monday.

The grand jury indicted Cheney, Gonzales, state Sen. Eddie Lucio Jr. and The GEO Group Corp. on charges related to alleged abuse in a federal detention center and in Lucio’s case, of illegally profiting from prison consulting fees.

The GEO Group Corp. was indicted on a murder charge for the death of an inmate at a federal prison.

“The indictment is the product of prosecutorial vindictiveness and is void on its face,” defense attorney Tony Canales, who represents the private prison operator, wrote in a motion.

Another indictment alleges that Cheney’s personal investment in the Vanguard Group, which invests in private prison companies, gives him culpability in alleged prisoner abuse.

Other indictments charge two district judges, two special prosecutors and the Willacy County district clerk with abusing their powers in investigating Guerra’s office.

Banales set Friday’s hearing to allow defense attorneys to argue against the indictments. Guerra said he missed Wednesday’s initial hearing because the judge did not give the involved parties enough notice that they were to appear.

The defendants do not need to appear in person Friday.

Witness recalls last messages in MySpace hoax case

Fri, 21 Nov 2008 15:59:38 GMT

By GREG RISLING Associated Press Writer LOS ANGELES (AP) _ A Missouri woman knew her 13-year-old neighbor was depressed and suicidal when she sent cruel Internet messages to the teenager, her former assistant testified. The girl killed herself after being told the world would be better off without her. Ashley Grills, 20, told jurors Thursday she helped Lori [...]

By GREG RISLING
Associated Press Writer

LOS ANGELES (AP) _ A Missouri woman knew her 13-year-old neighbor was depressed and suicidal when she sent cruel Internet messages to the teenager, her former assistant testified. The girl killed herself after being told the world would be better off without her.

Ashley Grills, 20, told jurors Thursday she helped Lori Drew set up a fake MySpace profile of a 16-year-old boy to lure Megan Meier into an online relationship. Testifying for the prosecution under a grant of immunity, Grills also said she sent the last message from the fictitious “Josh Evans” to Megan in October 2006 on the day the girl hanged herself.

When she learned of Megan’s death, Grills said Drew told her, “‘We could have pushed her overboard because she was suicidal and depressed.’”

Testimony was to resume Friday in the case against Drew, who has pleaded not guilty to one count of conspiracy and three counts of accessing computers without authorization. Each count carries a potential sentence of five years in prison.

Prosecutors say Drew, 49, her then-13-year-old daughter, Sarah, and Grills created the MySpace alias in September 2006 to befriend Megan to find out if she was spreading rumors about Sarah.

The case is believed to be the nation’s first cyberbullying trial. Its results could set a legal precedent for dealing with the issue of online harassment.

Defense attorney Dean Steward told jurors that Drew did not violate the Computer Use and Fraud Act — used in the past to address computer hacking — and reminded them that she was not facing charges dealing with the suicide. Steward has repeatedly asked U.S. District Judge George Wu to exclude testimony about Megan’s suicide and twice sought a mistrial.

Grills, who helped Drew with her coupon magazine business, testified that she told Drew they might get in trouble for the scheme, but that Drew replied, “It was fine and people do it all the time.”

Grills said Drew thought the MySpace account was a funny idea and was present about half of the time when Grills and Sarah sent messages to Megan.

Grills said she remembered at least one time when Drew sat down and typed messages on the computer. She also testified that Drew wanted to print the conversations between “Josh” and Megan, lure the teen to a mall and reveal who the fake boy really was.

To finally end the hoax, Grills said she devised a scenario in which “Josh” would move away so Megan would lose interest in him. When Megan persisted, the tactics changed.

“We decided to be mean to her so she would leave him alone,” Grills said.

She testified that she sent the final message to Megan saying the world would be better off without her. Prosecutors did not ask if Drew was in the room when that message was sent, but Grills said she believed the message contributed to her death.

Grills said that a short time after finding out that Megan committed suicide, Drew and her husband ordered her to close the MySpace account.

The case is being prosecuted in Los Angeles because MySpace computer servers are based in the area.

Guards: Crowded Calif. prisons neglect ill inmates

Fri, 21 Nov 2008 15:56:06 GMT

By DON THOMPSON Associated Press Writer SAN FRANCISCO (AP) _ Inmates with open, bleeding wounds routinely use communal showers and suicidal prisoners are sometimes kept for hours inside small cages, witnesses testified in a lawsuit over state prison crowding. The four guards who testified before a three-judge panel Thursday supported earlier evidence suggesting that substandard medical and mental [...]

By DON THOMPSON
Associated Press Writer

SAN FRANCISCO (AP) _ Inmates with open, bleeding wounds routinely use communal showers and suicidal prisoners are sometimes kept for hours inside small cages, witnesses testified in a lawsuit over state prison crowding.

The four guards who testified before a three-judge panel Thursday supported earlier evidence suggesting that substandard medical and mental health care is a result of jam-packed prisons.

The state, which argues that prison conditions are improving, was scheduled to begin its defense Friday.

California’s 33 adult prisons are designed to hold about 100,000 inmates, but currently have more than 156,000.

Federal judges considering the class-action lawsuits already have ruled that medical and mental health care is so poor in California prisons that it violates constitutional standards, sometimes contributing to inmates’ deaths.

If the panel determines that overcrowding is the cause, it could order the early release of thousands of inmates, a move opposed by the Schwarzenegger administration. The three-judge panel began hearing the case this week and hopes to complete the entire process before Christmas.

Among those testifying Thursday was guard Gary Benson, who works in a medical triage unit at Folsom State Prison outside Sacramento. He said as many as 50 inmates at a time typically wait two to five hours inside a 12-foot by 20-foot holding area for medical or mental health treatment.

He said he also routinely sees inmates in communal showers with “bleeding, oozing” staph infections. Benson said he contracted an antibiotic-resistant staph infection in July 2006. Inmates with the infections are not segregated and such diseases often spread inside the prisons, he said.

Brenda Gibbons, a guard in a 128-bed mental health unit at Salinas Valley State Prison, said suicidal inmates were kept overnight in cages the size of telephone booths until crisis cells became available.

She also said some severely mentally ill inmates wait more than a year to be transferred to mental health facilities.

Nationwide Layoff Watch: Stealth Layoffs at Fried Frank

tips@abovethelaw.com (David Lat) — Fri, 21 Nov 2008 15:50:57 GMT

We've gotten credible information that Fried Frank has laid off at least 15 associates from their corporate department, including 6 in the real estate practice group. A tipster collects the information in a clear way:

They are veiled as performance-based reviews, but virtually everyone is getting a negative review (mostly, it seems, to justify in a paper-trail [a decision] to not give bonuses)....
There has been no formal review process announced, and no one knows what directive came from management last weekend at the partner retreat, but it seems that each group was told to make cuts. People were completely taken off guard when they started getting calls earlier in the week calling them in for their reviews, some of which dredged up years-old information to use as justification for lay-offs, and many of which lasted only 5 minutes or so. Most of the layoffs have been mid-level associates and up, but most junior associates have not yet been reviewed.

The axe is expected to fall on the litigation side of the firm today.

The firm has not responded to voice messages or emails left earlier today. The number of layoffs could be higher than what we are reporting, but right now the best number is 15.

We understand that a three-month severance package has been offered.

Every single tipster (and there are a lot of them) said that the laid-off attorneys were told that they were being let go for performance reasons.

But that's not all they were told. Read the rest, after the jump.

Blogger on Scene as Mukasey Collapses

Fri, 21 Nov 2008 15:20:54 GMT

At least one legal blogger was in the audience last night when Attorney General Michael Mukasey collapsed while delivering a speech at the annual dinner of the Federal Society in Washington, D.C. Laurie Lin, a contributor to the blog Above...

Study: Class Actions Not Such a Big Deal

Fri, 21 Nov 2008 15:17:12 GMT

A just-published Federal Judicial Center study of class actions in federal courts finds that there is less to them than might appear. Released yesterday, the report presents preliminary findings from the second phase of an ongoing study of the impact...

Jones Day Wins Round in Blockshopper Case

Fri, 21 Nov 2008 15:09:44 GMT

More news in the lawsuit by law firm Jones Day against the Web site BlockShopper.com. You may remember that as the case that Public Citizen lawyer Paul Alan Levy, in a post at the Consumer Law & Policy Blog, said...

Online Law Grad Sidesteps Accreditation Hurdle

Fri, 21 Nov 2008 15:06:27 GMT

For the first time in Massachusetts, and perhaps for the first time anywhere outside California, a graduate of an online, unaccredited law school will be permitted to take the state bar examination. Ross E. Mitchell, a graduate of the wholly...

Good writing isn't always what we imagine

esvenson@gmail.com (Ernest Svenson) — Fri, 21 Nov 2008 14:43:20 GMT

Bryan Garner, the famed legal writing guru, asked people at the ABA Franchise meeting in Austin last month if they were willing to try something for 6 months that would dramatically improve their writing. A chorus of grudging yays echoed forth. The reluctance stemmed from the assumption that he was about to suggest some sort of daily writing regimen.

"Subscribe to The Economist," was one of his suggestions. Fortunately, I'd already completed this assignment. Before I read The Economist I'd assumed that it was a highbrow financial magazine filled with dense prose and weighty proclamations. Once again, my fast assumptions proved to be flat wrong.

The Economist is one of the most interesting magazines I've ever come across. First, all of the articles are written anonymously. And yet they all have the same tone and style—that of a well informed person who isn't afraid to make (clever) off the cuff comments. But, of course, none of the comments are 'off the cuff.' All of the language is heavily edited.

And therein lies the rub. The writing style conveys a breezy manner, but the arguments are well-thought out. Oh, and that's another difference: the writers don't shy away from taking strong positions. They make arguments.

But, aside from the arguments, it's really the style of writing that deserves careful attention. The jaunty manner is evident in the recent article about Obama's victory and transition to power entitled 'Change.gov.' Read the whole article to get a sense of this, but here are examples of sentences that I doubt you'd ever see in a mainstream U.S. publication:

"There are also plenty of fissures in Obamaworld."

And in discussing the laborious process of confirming the 7,000 administration appointees, this sentence:

"Nominees endure an absurdly long nomination process, filling in 60 pages of forms and submitting themselves to extensive FBI vetting, during which plods from the bureau inquire about their taste for intoxicants and the legal status of their nannies."

Words like 'Obamaworld' and 'plods' are too colorful for journals like Time or Newsweek, which seem to believe that credibility is created through the illusion of neutrality. The Economist shows us that it's okay to argue points and to use everyday words. Well, it shows us that only if we read it.

So does Mr. Garner suggest that we look only to foreign publications for examples of good writing? No, he also suggests that we subscribe to the New Yorker.

Nationwide Layoff Watch: Public Defenders

tips@abovethelaw.com (David Lat) — Fri, 21 Nov 2008 14:35:39 GMT

ATL has been providing in-depth coverage of firm layoffs, but we haven't written much about public defenders suffering the same fate. With state budgets experiencing big squeezes, public defenders' offices across the country are getting downsized, while their caseloads are getting upsized.

We wrote about layoffs in Kentucky, Minnesota, Florida, and Georgia back in July. In at least seven states, "public defenders' offices are refusing to take on cases or have sued to limit them," says the New York Times in an editorial today. It suggests that the constitutional right to counsel in state criminal proceedings is "hanging by a tattered thread:"

In a disturbing example of legal triage, a Florida judge ruled in September that the public defenders' office in Miami-Dade County could refuse to represent many poor defendants arrested on lesser felony charges so that its lawyers could provide a better defense for other clients. Behind the ruling were some chastening statistics: Over the past three years, the average number of felony cases handled by each lawyer rose from 367 annually to nearly 500. Misdemeanor case loads rose from 1,380 to 2,225.
Public defenders' offices all over the country are reporting similar problems. The immediate result is that innocent defendants may feel pressure to plead guilty. There also is an increased risk of wrongful conviction, which means that the real offenders would go free.

The NYT recommends meeting the budget shortfall by increasing the state registration fees for lawyers and expanding pro bono representation by the private bar.

Another out-of-the-box solution would be to get rid of all those pesky drug laws.

Remember to send in all of your layoffs stories and worries to tips@abovethelaw.com.

Hard Times and the Right to Counsel [New York Times]

Earlier: D.C. AG Office Faces Lawsuit After Firing Attorneys (And News of Layoffs For Public Defenders in Other States)