Blawgging & Professionalism - Part IV

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.
2. I will conduct myself in court in a professional manner and demonstrate my respect for the Court and the law.
3. I will treat counsel, opposing parties, witnesses, the Court, and members of the Court staff with courtesy and civility and will not manifest by words or conduct bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation.
4. I will be punctual.

With Houston traffic, even the simple things can be a challenge.

5. I will not engage in any conduct which offends the dignity and decorum of proceedings.
6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.

Mischaracterizing a previous case does NOT look good, whether intentional or not.

7. I will respect the rulings of the Court.
8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.
9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

This can be difficult to appreciate unless you've had a chance to see for yourself just how much work is involved.

BTW - The theme for this year's SBOT Annual Meeting is (coincidentally) "Honoring the Judiciary."

See Part I, Part II, and Part III.

The Texas Bar Exam for Visual Thinkers

So much to study, so little time.

[UPDATE] v2 shows actual testing time v. time reserved for instructions/administration.

Blawgging & Professionalism - Part III

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

How frustrating is it to see someone get away with [insert offensive behavior here] ? This is very tough to deal with on a regular basis - and often times you won't have the luxury of being able to avoid it. How do you deal with it?

1. I will be courteous, civil, and prompt in oral and written communications.
2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.
3. I will identify for other counsel or parties all changes I have made in documents submitted for review.

If this includes using strikeouts in blog postings to point out corrections... I really need to get in that habit.

4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.
5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.
6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.
7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.
8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.
9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.

Is "antagonistic or obnoxious behavior" determined by a subjective or objective standard?

10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

This is such a challenge when you have strong personalities involved. How to deal with anonymous comments online?

11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed.
12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16. I will refrain from excessive and abusive discovery.
17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.

See Part I and Part II.

Blawgging & Professionalism - Part II

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1. I will advise my client of the contents of this Creed when undertaking representation.
2. I will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3. I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.
5. I will advise my client of proper and expected behavior.
6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
8. I will advise my client that we will not pursue tactics which are intended primarily for delay.
9. I will advise my client that we will not pursue any course of action which is without merit.
10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

See Part I.

Blawgging & Professionalism - Part I

I am honored to be the recipient of this year's State Bar of Texas Law Student Division Professionalism Award. I appreciate all the kind words from folks I've had the chance to meet and work with over the past year. It's flattering to be recognized by the State Bar for anything when you're just a student, but I do have a confession to make: I am not perfect. Sure, I (like many other students) passed the required Professional Responsibility course and the MPRE, so, technically, I've met the minimum requirements to get my license. That's not what professionalism is about, though. As the Texas Lawyer's Creed states:

Professionalism requires more than merely avoiding the violation of laws and rules

Professionalism sets a very high standard. One that, as imperfect as I am, I can only aspire to achieve.

So, what does this have to do with technology & law? I think the next generation of lawyers expects less privacy due to the prevalence of technology in so much of our daily lives. There is a generation gap between what stays private and what is visible to the public and because of these different levels of privacy expectations, there are also different expectations of what may be unacceptable or unprofessional behavior by future lawyers in their previously-considered-private lives.

This makes professionalism a challenge for students because what may have been acceptable behavior for many of their acquaintances is not acceptable behavior as a member of a profession. Although we all must go through additional ethics training after licensure, and even though many of us are tied up studying for the bar exam this summer, I think it's important to remember why we're working so hard to get past this last hurdle. In that vain, while I do not have time to comment or expand on all the items in the creed, I will post Part I (and more to follow) here as a reminder:

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1. I am passionately proud of my profession. Therefore, "My word is my bond."
2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.
3. I commit myself to an adequate and effective pro bono program.
4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.
5. I will always be conscious of my duty to the judicial system.

Who wins patent infringement cases?

You can find the answer to that question in the latest issue of the AIPLA Quarterly Journal (34 AIPLA Q. J. 1 (2006)). UHLC Prof Paul M. Janicke and 2005 alum LiLan Ren reviewed the decisions of the Federal Circuit Court of Appeals over a 3 year period (2002-04) to identify the most significant factors affecting the outcome of patent infringement cases. Is there really a home court advantage? Was the patent owner or infringer more likely to prevail or was it more important who their lawyers were? If it depends on the lawyer (or his/her firm), how much of a difference does his/her practice experience make? Did patent lawyers fare better or worse than general practitioners on appeal? Did it make a difference which judge wrote the final opinion?

This is a VERY interesting article with some surprising statistics (to me, anyway). You'll have to get a copy if you want to read it for yourself, but if you're curious about the referenced case database, Prof Janicke made it available here.

What vanity searches might tell you

Why should you run vanity searches on your name and your company or firm? Every once in a while you might find something is publicly accessible that shouldn't be. For example, I recently discovered a company (let's just call them "Ted's") posted what should have been internal vendor data on a publicly accessible page that was already cached by Google. "What, pray tell, could possibly be on those pages?" you might ask. Vendor names, key personnel information, application dates, DUNS info, revenue stats, and even their PASSWORDS. No encryption and no other security measures in place that would stop someone from following the Google link straight into their database access pages.

Not only was the data publicly visible, but anyone who happened to run across the site had the ability to approve and disapprove pending vendor applications and delete existing vendor records.

When your developers tell you your applications are secure, do you have someone else verify that's really the case? Maybe Ted's should.

To Type or Not to Type (the Texas bar exam)?

Many law students may already be familiar with ExamSoft's SofTest, which restricts laptop use to a controlled environment for secure test administration. What many may not know is that you can continue to use ExamSoft for essay portions of the Texas bar exam, also, but at a price.

Not only do you have to pay an additional $50 laptop fee to the BLE when you register, but you also need a separate license just for use on the bar exam (currently $78 - no, you cannot use the same copy of ExamSoft you used in school). Combine this with the limited availability of the laptop pilot program (only in Dallas for February, Arlington & Pasadena (near Houston) for July), and you might end up spending more time & $$ than you expected just to be able to type.

However, if you're not used to handwriting your exams, the idea of doing so for 3 days straight might seem too risky. I, for one, have spent several years avoiding handwriting to the point my hand just about starts to cramp after writing more than an hour at a time. That makes the handwriting look even worse and, as many profs warn, they will refuse to grade what they cannot read.

So, if you haven't been handwriting regularly for years, is it worth the extra $$ to type the bar exam? I'll let you know what I find out...

Are you LinkedIn?

It's been a couple years since I updated my LinkedIn profile and I see they've added quite a few features since then. I doubt I'll have as many connections as Andrew "Flip" Filipowski anytime soon (18,190 and counting!), but the enhanced colleague and classmate searches sure make things a lot easier. Should we be connected? Let me know.

Terrorists, Pornographers, and Mothers-to-be: Should (pregnant) women expect less privacy?

That's the working title for a paper I'm close to wrapping up in my Women & Health Law seminar this semester. Thanks to Profs Krause and Tovino at the UH Health Law & Policy Institute, I've had the chance to learn more about health privacy issues in general, HIPAA in-depth, and particular concerns about women's healthcare this semester.

So, what do mothers-to-be have in common with suspected terrorists and pornographers? You'll just have to wait until I'm done with the paper to find out the details. For now, I will drop a few hints by way of some valuable sources:

• Prof Daniel J. Solove @ GWU, the blawgger behind ConcurringOpinions, is also a prolific author on privacy issues. His book, The Digital Person, is a must-read.
• Prof Richard C. Turkington, who taught at Villanova for several years, left behind a wealth of information on the development of some of the privacy laws we see today, including this Privacy Primer.
• Prof Christopher Slobogin @ U of Florida recently wrote on Transaction Surveillance by the Government, 75 Miss. L. J. 139 (2005) , where he noted that:

despite a bewildering array of statutorily created authorization requirements, transaction surveillance is subject to far less regulation than either physical surveillance of activities inside the home or communications surveillance.

• ABC News just recently reported on the growing problem of Medical Identity Theft.
• And, of course, I couldn't help noticing Judge Ware's comment about possible disclosures resulting from the Google search subpoena:

while a user's search query reading "[user name] stanford glee club" may not raise serious privacy concerns, a user's search for "[user name] third trimester abortion san jose" may raise certain privacy issues as yet unaddressed . . .

---See Gonzales v. Google, Order Granting in Part and Denying in Part Motion to Compel Compliance with Subpoena Duces Tucem (Mar. 17, 2006)

Stay tuned.

More Professors Ban Laptops in Class

AP writer Kathy Matheson reports on how more professors, particularly in law schools, are resorting to outright bans on laptops in class. The instructors cite lack of attentiveness and a noticeable decrease in class performance, among other reasons. Geek that I am, I doubt I surprise anyone by taking issue with these blanket policies.

As I am in the midst of finals, I have to say that my typed notes have saved me A LOT of time in distilling the information I need for exams. Even during class, particularly in Payment Systems, Procedure, and Evidence, students can save a lot of time having access to soft copies of the UCC and other codes/statutes/rules so text searches are done more quickly. Our Contracts class didn't even use a traditional casebook - all the course materials were provided via website in pdf form. Not only did that save students $$, but it also allowed us to focus more on the material and less on transcribing important passages to our final notes.

The laptops also benefit students who are less auditory and more visual learners, like myself. I can't explain why, but I process text information MUCH better than verbal information, and that trait is apparently not uncommon amongst the I-TJ personality types that typically do well in law (and engineering) . For other students, the pace may simply be too slow to keep their interest. For those who have actually digested the readings ahead of time, the lecture may not add much to their understanding of the material. Not that I think playing poker or solitaire during class is a respectful way to alleviate boredom, but if your poker playing students are on law review, what does taking away a potential distraction actually accomplish? As the article suggests, will a ban on crossword puzzles and other non-technical distractions, e.g., doodling, be equally enforced?

The reality is that today's workers (not just lawyers) are expected to multitask in an increasingly technical environment. People work best at different times of the day and maybe even at different times of the year. The way traditional law school exams are administered, the real incentive to prepare is only for a relatively brief 3-4 hour test at the end of the semester. Some students already have the aptitude and self-discipline to do quite well on these exams regardless of the way the course is taught. Denying these students access to tools that can actually improve their overall learning and productivity doesn't address the real problem that other students simply lack the motivation or discipline to focus on what is being said during class.

I suspect some professors might be surprised to find out that some of their poker players are actually their top students and some of their "attentive" students are quite the opposite. Perhaps the professors need to reconsider what incentives exist for students to be prepared and attentive in the first place. Such incentives can be quite different for 1Ls v. 3Ls and may have a lot more to do with a professor's teaching style than the existence of laptops in the class.

Myths, Lies, and Downright Stupidity

I usually don't make book recommendations here, but this one looks too good to pass up:



Some worthwhile excerpts are available on the ABCNews site, including:

MYTH: Gas prices are going through the roof.
TRUTH: Gasoline is a bargain.
Not only are there instant inflation calculators on the Web, but the U.S. Department of Energy accounts for inflation in its annual report of gas prices. At the time I'm writing this, the average price of gasoline in the U.S. is $2.26 per gallon. Once you account for inflation, that means gas today is sixty-seven cents a gallon cheaper than it was in 1922, and sixty-nine cents cheaper than in 1981. True, after Hurricane Katrina the price did reach an average of $2.87 per gallon-but that still is lower than the record average set in March 1981 of $3.12 per gallon.

***

MYTH: We are running out of oil fast.
TRUTH: Not so fast!
If the price of a barrel of oil stays high, lots of entrepreneurs will scramble for ways to supply cheaper energy. They'll come up with alternative energy sources or better ways to suck oil out of the ground. At fifty dollars a barrel, it's even profitable to recover oil that's stuck in the tar sands in Alberta, Canada. Peter Huber and Mark Mills point out in their book The Bottomless Well that those tar sands alone contain enough oil to meet our needs for a hundred years.