March 2005 Archives

David Swanner, on his South Carolina Trial Law Blog, sums up why law practice management is important:

• Tremendously Talented Trial Attorney + Poorly Run Office = Miserable lawyer
• Moderately Competent Attorney + Well Run Office = Happy Lawyer

His post is here.

Tim Bray ponders switching away from Apple equipment. His major gripe is with Apple's secrecy policies, but he also weighs the technical pros and cons of Unswitching that he would be likely to encounter.

For now, I'm still planning to buy an Apple Powerbook for my next notebook computer, but Apple's secrecy and legal policies have caused some serious cognitive dissonance for me.

... is that everyone else has it really well covered.

Jeff Lewis has redesigned his SoCalLawBlog, and it looks good. He's set the page to a fixed width so that the center column doesn't scale relative to the browser windows, he's adjusted the color scheme, and he has a nifty new image in the upper left corner. Setting a fixed width keeps advertisements encroaching on the body text or distracting from it, without diminishing the ads in a way that would be unfair to his sponsors.

I commented on the old design a few weeks back in linking to one of the SoCalLawBlog posts. I think I phrased my comment too harshly, and I want to apologize to him for that. Jeff revealed in the comments that he had a sense of humor about the ads, but I wish I'd chosen a more constructive way of expressing my irritation with what I took to be blog ads that overwhelmed the content. Thanks for letting me know about the updates, Jeff, and I'm sorry I wasn't more helpful from the start.

Seth Godin, Richard Hall, and Al Nye the Lawyer Guy point to this object lesson in how clumsy, confrontational lawyers can compound (or even create) a dispute instead of resolving it.

The link points to a website by Hank Mishkoff, a fellow in Texas who built a website about a shopping mall he liked only to be sued by the mall owner and its attorneys because his domain name included the name of the mall (which is not a trademark violation all by itself, no matter how much the mall or its lawyers wanted it to be). This website (which is not the site about the mall itself) describes the dispute from start to finish and includes copies of the correspondence and papers in the case.

I can spot at least two ways that the mall owner's attorneys might have tempered the dispute early on: First, their initial demand letter might have been less formulaic and abrasive. (Think, "is this really how I want to introduce myself here?") Second, they might have taken Mr. Mishkoff's letters more seriously before going forward with the case.

The plaintiff's lawyers could have at least framed their letters so as to preserve some kind of relationship that would in turn have given them a better negotiating position. Instead, their hollow responses made it pretty clear to Mr. Mishkoff that they were blowing him off. They didn't care to address his questions and arguments about the merits of the putative case.

We'll never know whether blowing off Mr. Mishkoff's letters was a "strategic decision" or just an expression of habit. We'll also never know whether the plaintiff's lawyers told the plaintiff at the outset that the case might not be a sure win. I hope they did. I also can't help but wonder if they have been just as eager to sue if they had been forced to bring the case in Texas instead of Michigan. If only the pro se defendant had a chance of knowing that he'd need to bring the defense of lack of personal jurisdiction in his first responsive pleading. But what fraction of pro se federal defendants is going to know that?

But let's wander back to the topic of how one opens a conversation with an adverse party. I'll freely admit that some adverse parties (and counsel) are jerks, duplicitous, deceptive, or fraudulent. But sometimes they're decent people who really want a fair resolution, but differ with one's client about what counts as "fair." Sometimes — perhaps even often, depending on one's area of specialty — there's a possibility of a positive working relationship with an adverse party or counsel. There's no good reason to squander those kinds of opportunities, and good reason to seek them out.

Am I in the wrong field if I do not think that law practice is all about manipulating others? If I loathe the cases most polluted with manipulation by parties and attorneys? I've had some experiences in litigation that have caused me grave doubt, but I've also negotiated successful settlements that were good both for my client and for the adverse party. That and other work I've done tells me there's more to law than trying to clobber "the other guy."

[Edited to add: Check out Marty Schwimmer's post on "Between Lawyers": How to Lawyer When Everyone's Watching?]

We see all the time those blog posts where people apologize for not having written lately. I know I've done it. Frank Pape [here] decided to construct Google and Technorati searches to find out who hasn't been blogging lately.

A VC (that's the name of the blog) observes, "Apple survived the WinTel dominance in the PC business by becoming a "we" company. … But in the past couple months, Apple has made some very "they" company decisions." He outlines a few.

A commenter on that post responds,

As a long time Apple developer back in the early 80's, the common comment has always been, "Love the computers, hate the company" when it came to Apple. You might think that Apple switched from a "we" company to a "they" company, but those close to the company have always thought of it as a "they" company. … Apple's continued pursuit of the bloggers is a direct reflection of how Apple (Jobs) ISN'T in tune with their user base out in the real world. Apple has never understood the passion of it's users, though some employees over time have. (ie. Guy Kawasaki)

There's more. Have a look.

Meanwhile, Robert Scoble loathes the notion that Microsoft is a "they" company. His perception from inside the company is that they're not.

I've long felt that Microsoft was focused on itself and took an exploitative attitude toward its customers. But recently, I've encountered a remarkable counteragent to that perception in the form of the many bloggers at Microsoft. They help humanize this consumer's perception of an apparently monolithic corporation that wields great power over a great many consumers. I'm still skeptical of much of Microsoft's management and some of its tactics (I mean, come on — patenting storing word processor files in XML?), but it still helps to hear from developers about their genuine enthusiasm for putting tools in the hands of other developers and consumers.

Every time I cycle my RSS reader, very little changes. What do you mean, practically nobody blogs late on Saturday nights?

The Mercury News is running an editorial about (Cal.) Superior Court Judge James Kleinberg's ruling in Apple v. Does just over a week ago. [Via Donna Wentworth.]

Let's be careful with the extent to which we call this case a "precedent." It has no authoritative precedential force within the law, because it comes from a trial court. But there is a possibility that an important appellate court could agree with the reasoning, establishing more authoritative precedent. Or, other trial courts could simply find the reasoning persuasive in the absence of other more binding authority.

When should website operators who post information they receive about business activities be able to claim either:

• A privilege not to disclose the identity of their sources?
• An immunity from civil suit or criminal penalties for disclosing information?

I'll call the first of these a "journalistic privilege" and the second "journalistic immunity." In this post I'm just going to talk about privilege, but it helps to remember that we are talking about at least two kinds of protections. Still a different kind of privilege protects publishers from prior restraint in most cases.

Ernest Miller (The Importance Of....) has an idea for an answer to those questions above. It's pretty simple. But it may be too simple, and efforts to refine it tend to lead to some of the more complicated inquiries that I think he'd prefer to leave out of the test.

Mr. Miller argues in this post for a standard that would make it very easy to obtain legal protection for disseminating information one receives from business or government insiders. On Mr. Miller's view, we should not focus on the speaker, the content of the speech, or the medium of communication. See his post for a quite articulate summary of that part of the argument. (Mr. Miller cites Linda Berger, Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication, 39 Hous. L.R. 1371 (2003)). Mr. Miller and Prof. Berger argue for approaches where what counts is whether the speaker is "engaged in the process of journalism."

Miller and Berger argue for different standards. Prof. Berger provides a pragmatic (but still a bit fuzzy) outline of what sorts of behaviors and attributes characterize the "journalistic processes" that law should protect. Mr. Miller argues that Prof. Berger's standard should really be stripped down to just two or three elements. I'm going to focus on his argument below and leave Prof. Berger's aside, mainly because I haven't had time yet to give her article the closer reading it deserves.

Prof. Berger's article also provides a very handy historical summary of journalistic privilege (or its absence) under federal and state law. Note that she and Mr. Miller are arguing for reformulations of privilege law — that's really another way of saying "new law". I'm not "dissing" either's argument, which may be sound and valid from the perspectives of First Amendment values — specifically, the free flow of information — and jurisprudential efficacy. I'm just saying their arguments are not what the courts have been doing so far.

So how should we tell who is "engaged in the process of journalism?" Mr. Miller writes, "The 'press' and journalism boils down to two things: gather information and publish it publicly." So, he asks, "Isn't the only process we need to know about is that information was gathered and then it was publicly published (or there was intent to publicly publish)?"

If I'm reading Mr. Miller's post right, the elements of the journalistic privilege would go like this:

If

• Insider communicates information to Outsider; and
• Outsider
  • publicly publishes the information or
  • intends to publish it publicly;

• Outsider cannot be compelled by law to identify Insider.

It looks simple, but there are still some tricky parts.

For example, there's still some question what it would mean to "publish" information. Assume that any widely disseminated medium counts as publishing — including publicly accessible websites. That does away with the blogger/journalist issue. But the bigger problem word in this test is "publicly." Is it "publicly publishing" if Outsider only shares the secret information with his or her family? What if Outsider puts together a "publication" that consists of a for-profit newsletter distributed only to a trade group? Or only to certain competitors of Insider's employer? When does the further dissemination of the information become a "public" publishing?

Mr. Miller's test also has a subjective element, in that Outsider's subjective intent to publish would qualify Outsider for the privilege. Suppose we have an Outsider who has engaged in some of the more questionable practices described two paragraphs above. When Outsider gets a subpoena (because yet someone else leaked Outsider's newsletters or a copy of Outsider's private website), is it enough for Outsider to say, "I planned to release that information to the public at large next week"?

The hunt for a description of "public" smells to me like a search for the kinds of journalistic processes that we consider to be more for the benefit of the public at large than for select groups. If we go down that path, it dredges up the questions of disclosure, journalist track-records, and other scrutiny of Outsider that Mr. Miller's proposed test aimed to avoid in the first place.

Even if these questions show up difficulties in Mr. Miller's proposed test, he could quite aptly point out that it's often better to have one hard-to-apply word or element in a law than to have two, five, or ten, especially when that law is designed to protect the flow of information and public discourse. Maybe that's true, or maybe this topic is trickier than it looks so that we may have to put up with more complexity. Based on what I've read so far, I suspect Prof. Berger's approach admits of more of that complexity. On the other hand, her approach may be more difficult to apply, and she may overly favor "established media" outlets.

All that, and we haven't even reached the core policy issues, though I'm trying to illustrate some of them with the hypothetical questions I've asked in the last few paragraphs. You can find more detailed discussions elsewhere (Prof. Berger's article might be a good place to start).

Notice that Insider still gets no special protection. That's the same as in current law. If Insider's employer can identify Insider through other means, Insider is still in trouble unless some kind of "whistleblowing" law applies. Regardless of how we treat the journalist, I don't think the rules that apply to Insider should change. Except in extreme circumstances, no business should be compelled to employ someone who leaks private business information.

If you're interested in the topic and you haven't read Mr. Miller's post already, have a look at it and think about it for a while. If you're really interested in the legal background, also look at Prof. Berger's article.

Peter Burrows, BusinessWeek's Computer department editor, has a column describing why Apple's choice to sue fan-driven websites is a bad business call that "could tarnish the Apple brand." ("Memo to Apple: Lay Off Your Fans")

There's a certain irony to this. Remember the Orwell-inspired ad that ran during the 1984 Super Bowl, that one that depicted Apple as the free-thinking company breaking the Big Brother dogma of the computer industry? Through conscious marketing efforts, Apple has long stood for innovation and creativity, and has been embraced creative sorts like artists and writers -- not people who usually care for big corporations pursuing lawsuits against 19-year-olds. That may vastly oversimplify the nuanced legal issues Apple's lawyers are trying to address, but it could well be the overriding impression that results.

A large QuickTime .mov file of the 1984 advertisement is available here. There are smaller copies floating out around the internet.

I don't have any samples of my legal writing from the last two years. That's not good, because it means the most recent examples of my formal legal writing are about three years old, and come from law school instead of actual law practice. I have some of my research materials, but no memos or pleadings.

I'll have to make do with what I've got.

By now, everyone who reads law and technology related weblogs is aware that a California court has permitted Apple Computer, Inc. to issue subpoenas to weblog author-editors and ISPs. Apple aims to discover who leaked information about an Apple project called "Asteroid." The court order rejecting the webloggers' motion to quash the subpoenas is here [via EFF].

To comply with the subpoenas and order, the webloggers will have to disclose the sources underlying the articles they published. The webloggers are not currently defendants in the lawsuit — the defendants are the people from whom the webloggers received the information in the first place. Apple might, under the circumstances, be able to join the webloggers as defendants for disseminating trade secret information. But it currently seems that Apple's primary goal is to rout out its employees who leaked the information, firing them and maybe (or maybe not) maintaining its suit against them.

Here's a very non-exclusive list of what some people have had to say about this case in the legal and technical blogosphere since the court released its ruling:

• Denise Howell (Bag and Baggage): Links and information.
• SoCal Law Blog: Brief comment. (I would not normally endorse a weblog so drowned in advertisements that one can scarcely find the text. –tph)
• JMoore (JurisPundit): JMoore was hoping for some analysis on the role of blogger-as-journalist, an issue the judge sidestepped by holding that no journalistic privilege at all applied in the case.
• News release, Electronic Frontier Foundation. The EFF provided legal support to the webloggers.
• Donna Wentworth (Copyfight): Donna criticizes the judge's determination that no First Amendment journalistic privilege applied in the case, and links to—
• An exchange [one] [two] between Susan Crawford and Ernest Miller on the proper scope of First Amendment journalistic privilege.
• Dan Gillmor worries that if this ruling is upheld on appeal (assuming there's an appeal), business reporting will become too dangerous for reporters.
• The Mercury News's Mike Langberg asks Apple to reconsider its legal approach toward enthusiasts because it communicates arrogance and attacks people who love Apple and its products.

It seems to me that the main thing that really bothers Apple enthusiasts about these subpoenas (as well as some other claims Apple has been pursuing against enthusiasts who spread leaked information) is that they convey the impression that Apple wants to punish webloggers who are enthusiastic about its products. This impression relates to Langberg's argument in his editorial. As I've followed the news and commentary, I've been wondering about Apple's business decision to proceed with these lawsuits more than the nuances of the legal doctrines that apply (though the latter are important). I have to admit that my first impression of Apple's lawsuits was that they seemed eager to stifle the very kinds of enthusiasts who provide valuable word-of-mouth marketing for their products — the kind of marketing that you just can't buy.

Apple hasn't even tried to justify its strategy to the public, and if it tried to do so using one of those "we just have to protect our intellectual property in all cases" arguments, I'd be sorely disappointed. Still, I've tried to imagine why Apple might want to pursue these cases knowing that there is some risk that it might alienate some enthusiasts. What might the people in charge of this policy at Apple be thinking? My first impression is that Apple likes word-of-mouth and media hype for its products, but it really wants to be able to control that hype itself. Is that just the symptom of obsession for control, or can one justify the desire for control?

In some circumstances, Apple might want to conceal new product plans because it wants the maximum lead time in the market before competitors could develop a competing product. But this case doesn't look to me like a situation involving intense competition in a particular market space. The secret information at issue in Apple v. Does relates to an improvement to theGarageBand music sequencing software in the iLife software suite.

Maybe there was a major concern about competitive advantage for Apple in this case — I don't pretend to know all about the market for music sequencing software. But it looks to me like Apple is trying to enforce a blanket policy regardless of whether this particular leak is comparatively a "big deal."

Concerns about employee discipline provide one potential justification for pursuing "leakers" even if the leak didn't cause severe damage. Assuming that Apple has a blanket policy of secrecy — and it has had just such a policy since the 1970s — it probably wants to be very sure that it employs only people who can honor that policy, and it probably wants to fire those who don't honor it. It's probably wrong to label such firings "retaliation," since Apple has reasons other than spite for discharging people who break their agreements. For example, distributing certain information about forthcoming Apple products may in fact cause Apple harm if it tips off competitors. Also, leaking information about the company's projects may hurt morale, given that Apple has many employees who do act very cautiously to protect information about its development efforts. They probably don't want to feel that their own co-workers are disseminating the very information that they are trying to protect. I don't know how much of a problem that is because I don't know anyone who works at Apple.

I think Apple should have some right — probably a right with a lot of enforcement leverage — to demand confidentiality from its employees. I also think it should be able to use legal tools to do so. I'm just not sure where the line should be drawn as a policy matter. Maybe those tools should be limited, or maybe they should have a broad reach except in those cases that would classify as "whistleblowing."

I've seen a lot of discussion about whether the webloggers affected by subpoenas in Apple v. Does should be treated as journalists. Most people assumed the court's ruling would focus on that question. But the court concluded that regardless of webloggers' status, disclosures by Apple's employees about Apple's forthcoming products didn't implicate a journalistic First Amendment privilege at all.

That conclusion raises the question, When do communications to a journalist (however that word may be defined) about a company's business or research activities obtain a privilege such the journalist cannot be compelled to identify the source of the information? That question is probably more important than the journalist/weblogger question, and it's the core of a conversation that's started over the weekend (see, e.g., Crawford and Miller), and it's an important one.

I'm not sure where I stand on that issue, and if I have enough time this week I'll play around in this space with some possible arguments related to that question. I don't want a policy under which companies designate everything under the sun as "trade secrets" to prevent dissemination, but I also don't want a policy under which employees can feel free to share whatever company secrets they want as long as they're talking to a journalist.

In the meantime, I'll look forward to reading more arguments about the legal standards that apply and about Apple's policy in particular. I'll be especially curious to read any arguments people might test out in support of Apple's policy, since I didn't exactly work philosophical or rhetorical wonders in its favor earlier in this post. Before we can really evaluate the legal standards that apply, I think we need to try to understand why Apple might want to draw close the cloak of secrecy. If we don't give serious attention to that viewpoint, the perspective of the business that generates the information that it then seeks to protect, our discussion of the legal standards will be under-informed and imbalanced.

I recently bought on eBay a Hewlett-Packard Scanjet 6200c scanner. A consignment shop was selling it, but I knew who the owner was and trusted that the equipment would probably be in good shape. It was, when it finally arrived. I can't say much in favor of the consignment shop; they took five days to get the product out the door after I'd paid for it, and they didn't respond to e-mail inquiries. I also think they could have marketed the product better, though any weakness there worked out to my advantage.

The only problem is that Hewlett-Packard's driver and scanning software for the 6200c is horrid. So I'm going to hold it up as an example of bad design from installation through (a brief cycle of) operation to failure, focusing on human-computer interface and error reporting. I will also criticize HP's support website for the product. I only have limited experience in which it has actually worked, so that will be a very short discussion. I'll be focusing mostly on — you guessed it — failure conditions. (I'll note that the hardware itself appears, from what little I have been able to accomplish with it, to be quite decent.)

Installation

I downloaded the driver package from Hewlett-Packard's support website. It's a self-extracting ZIP file with the very descriptive filename "sj673en.exe." I double-clicked on the file. I got an error message.

Problem: The self-extracting ZIP file automatically tries to extract to C:\sj673en. I don't have a C: drive. (My system drive is M: and my data drive is D:. Don't ask why, because I don't remember.) Even if I did, what gives HP the right to decide where on my system the file should be extracted, especially when it doesn't delete the extracted files afterwards? (And I wouldn't want it to delete them if I had control over the extraction.) What HP should do: If you're going to distribute in the self-extracting ZIP format, don't bypass the dialog that lets the user decide where to extract the files. What I did: Temporarily mapped a shared folder to drive C:.

The self-extractor automatically ran the installation program for the drivers and "HP PrecisonScan Pro" software (a program that exhibits few if any "professional" attributes). This was a poorly-configured Wise installer. By default, the software installs to the SCANJET folder on the main system drive. Bad call. Since Win95 — that's more than 10 years ago, people — Microsoft has prescribed a standard filesystem layout in which applications should be installed in the "Program Files" tree. Why does HP think it's special and its program files should be installed on the system root? What I did, but shouldn't have had to do: Browsed to an alternate installation location in my Program Files folder.

Finally, the software installed.

Next, I connected the USB cable from the scanner to the computer and plugged in the scanner, which has no "on/off" switch of its own. Windows detected the new USB device, located the driver, and started to install it. After a few moments, I saw an error message: The driver installer needed the program hpsjrreg.exe. This program was not included anywhere in the downloaded ZIP from HP. I found it on a third-party repository of printer drivers. It made me a little uncomfortable having to get an EXE file from a third party.

The installer completed. I started the "HP PrecisionScan Pro" software and tested the scanner, and it worked.

Operation and Failure

It worked for about 5 minutes. After five minutes, I had a paper jam in the Automatic Document Feeder (ADF). Following instructions in the ADF manual, I extricated the paper and prepared to try scanning a different document in the ADF.

Problem: The "HP PrecisionScan Pro" software could no longer communicate with the scanner. I got the following error message: "Sorry, scanner could not be initialized. (Scanner not found.)"

Troubleshooting and a slog through a badly designed and poorly written technical support information database

I checked the USB connection by looking in the Device Manager. It was good. As far as Windows XP was concerned, the scanner was there.

I unplugged the scanner, let it rest for a few minutes to discharge capacitors, and plugged it back in. This did not alleviate the problem.

I checked the documentation for the scanner and ADF. There's no "troubleshooting" section.

I went searching on HP's support website. Here I found a difficult-to-navigate website for this particular model of scanner. The search function proved useless, so I browsed around and found a page offering help with error messages.

As you may have guessed from the error message I quoted earlier, the "HP PrecisionScan Pro" software does a lousy job explaining what's going on when it presents an error message. I've seen a few variants on the "could not initialize scanner" error message, and none of them have given me a clue about where things have gone wrong. Moreover, one can't tell the difference between them. They're the kind of error message that could only help the programmer, and those kinds of error messages infuriate end-users.

The website offered no fewer than six pages related to initialization:

1. "General Troubleshooting for Initialization Errors and/or the HP Scanjet Scanner Stops Working When Using SCSI or Parallel." Well, I'm using USB, so this one doesn't apply.
2. "'Cannot Initialize Scanner' Message Appears after the First Page Feeds Through the Automatic Document Feeder." You can't tell from the description, but this one also applies only to SCSI connections.
3. "An Error Message of 'Scanner Not Found' or 'Sorry Scanner Could Not be Initialized'." That looked promising, too, but this one only applies when you're trying to use a network connection to access a scanner that's attached to another computer.
4. "'Sorry, Scanner Not Found; Scanner Not Initialized'." Hey! This one looks almost exactly like the last article title, but it has different advice. This article suggests manually adding some keys to the Windows registry. I tried it. Nothing happened. Rebooting didn't help.
5. "Resolving 'Scanner Could Not Be Initialized, Scanner Read Error' Message." Amazing how all these documents with similar titles can have different advice. Like the first few, this article only applies when the scanner connects to the computer using SCSI.
6. "Resolving USB Scanner Initialization and Related Communication Error Messages." Aha! I connected the scanner using USB! Maybe this is a real solution!

I looked at the last article. What I found there was an absolutely atrocious un-install everything and start over procedure that required the user to edit the registry manually.

This kind of recommendation is not a real solution. It's giving up and starting over. It shows that somewhere in the software there is a bug so severe that giving up and starting over is the best hope. It's an admission: "Our program sucks." In the course of the years since the program was released (in 2002), no one has figured out what's wrong and tried to fix it. Instead, HP asks the user to take twenty to forty minutes, engage in risky computer management activities, and start over from scratch.

This should shock anyone selling or buying hardware and software. You ought to be appalled, and HP ought to be ashamed. It should never, ever get that bad. Especially not because of a paper jam.

In which I try to take HP's advice

I picked my jaw up off the floor and thought I'd give HP's advice a try.

1. Uninstall the software. The uninstaller didn't work. After I clicked on "OK" in the "are you really sure you want to remove this software" dialog box, the box disappeared and nothing further happened. I manually deleted the files from my Program Files folder.
2. Delete other files the uninstaller wouldn't have deleted anyway. Done.
3. Uninstall the scanner drivers in the Device Manager. Done.
4. Edit the registry. Done very carefully.
5. Reboot and repeat the installation process. Done.

After all of that, lo and behold, the scanner worked!

Operation and Failure (again)

The "HP PrecisionScan Pro" software works with the ADF, but it doesn't save Class F multipage TIFFs. It saves each page as a separate image. Useless. Its dialog boxes are obscure and its settings obscurer.

This morning, I was using the computer when the power failed. I wasn't operating the scanner, but when later I tried to scan a letter I'd received from a friend, I got an error message:

"Sorry, scanner could not be initialized. (Scanner not found.)"

Unbelievable. Truly unbelievable.

Since then, I've tried the uninstall-reinstall process again and it didn't work. I may try it once more later today.

Things to Appreciate and Lessons Learnt

What do I take away from all this?

I'm glad the previous owner took good care of her equipment. If she ever got this error, though, it'd be a wonder if she ever got to use the scanner. I hope the software behaved better for her.

I will think twice before buying again from the consignment shop the seller used. There's no excuse for a five-day shipping lead time or for failing to respond to polite e-mail inquiries.

I probably will never again buy a Hewlett-Packard product.

I will take solace in the fact that the Macintosh software for the scanner is produced by someone other than HP. Their website could be better organized, but when I get a PowerBook I'll give that software a test drive. It'd be hard for it to be any worse.

In the meantime, I've read that the open-source SANE Project (Scanner Access Now Easy) supports the Scanjet 6200 on USB. I'll boot into Linux, load it up and try out some SANE-enabled applications to see if it works over there. It would be a pain to have to use Linux for all of my scanning, but if it works that'll probably be the lowest stress solution until I get the Mac.

I still think I got a really good deal on a scanner. I just have to get it working, and I'm glad I still have a few options through which I can try to achieve that end. But I'm truly appalled at HP's bad software and disorganized web-based support.

There's a cold front coming our way. It's been really windy all week, and today is no exception. Looking at the national weather maps, I see it's very windy all across the southern U.S., with red flag warnings stretching from Texas to North Carolina.

Our electricity has gone out twice this morning. That's unusual — our power system is usually pretty wind resistant. Steady 60 mph winds in the middle of winter have seldom resulted in blackouts, and the National Weather Service station nearby is only reporting gusts in the 40 mph range. After today's outages, the power has usually been restored within two minutes, which suggests to me that the problem is at a substation and not in the local distribution network. Either way, the failure gets routed around pretty darn quickly. The substation for this area sits out by the highway in an area where the wind comes shooting over a hill, so it wouldn't surprise me if that's where the problem lies.

It's still annoying.

It's also a good example of the variety in Colorado weather at this time of year. Right now the temperature is 65F, but winds are steady at 28 mph gusting to about 40 mph. Tonight it's supposed to be 24F and we're due for 2 to 4 inches of snow. Tomorrow the high temperatures will be in the 30s F.

It has been unseasonably warm, I suppose. Next week will be more normal, ranging from the 30s to the 50s. We sure could use the precipitation.

Have you seen this great advertising strategy 3M's using to promote its Security Glass?

(via Rick Bruner's Executive Summary)

That marketing approach is, of course, a little more difficult for lawyers, who can't publicize their confidential work.

Over at The Volokh Conspiracy, Orin Kerr has some observations that reflect the expectations that many of today's new associates have about law firms, especially large law firms:

Most of my knowledge of law firm life is second-hand, so my own take on this is sheer speculation. But I wonder if the article is missing a better explanation for the shift: law school graduates today understand that law firms — particularly large firms — are businesses. Law firms hire associates to make money, not for the esprit de corps. Big firm partners want to maximize their profits, and hiring lots of associates and having them bill lots of hours with little hope of making partner is a way to do that. Partners who have created this sort of environment are in an odd position to complain that today's young associates lack loyalty and don't volunteer for committee work. …

Prof. Kerr's notes that his observations (like most of mine) are based on hearsay. There are also comments to his post and elsewhere that suggest that the National Law Journal article that started this conversation just reflects a few voices in practice and not a general trend.

This is still a worthwhile discussion even if the trend is an illusion, if only to drive home a few key points.

• First, firms that do not treat their associates as long term investments should not expect much emotional commitment from those associates. (If a firm's business model depends on overstocking associates, it can make a rational business decision to keep on doing so. But it's probably a less ideal place to work.)
• Second, the first principle applies regardless of how much money the firm offers to associates. You can call this the "can't buy me love" principle. Paying high (excessive?) salaries only goes so far. As Reed Smith fifth-year associate Alicia Powell said, "After you make so much money, it's enough." I suspect more good attorneys will choose firms with somewhat lower salaries if they offer better opportunities for professional development and a personal life outside of the office. There are economic terms for this sort of tradeoff, but I'll leave those to the experts.
• Third, the impact of the first principle is even greater if a firm has abusive supervisors or otherwise engages in corporate hazing. Firms with bad supervisory techniques ought to expect broad decreases in morale and that similarly-situated employees will sympathize with each other more than with management. In many respects, this is an entirely different problem, but still it creates a great decrease in an employee's commitment to the firm.

You may have noticed that bad supervision techniques and law firm morale are pet issues of mine. They are, and that's the case no matter the size of the firm. I've seen small firms that have had great potential but completely missed the boat on retaining good associates because someone with supervisory authority couldn't contain a foul temper. That causes turnover and all of the costs that come with it. Other attorneys and staff suffer from the pain of transition, and the clients suffer because they lose the benefit of associates familiar with the issues in their cases and projects. If I read too much into the comment of the managing partner that Leigh Jones included in her NLJ article, it's because I think that issue is important and too often overlooked.

During a post on The Care and Feeding of Laterals, Bruce MacEwen notes, "The answer to associate churn is a smart, heads-up, formal (meaning partners get billable-hourly "waivers" for participating) professional development program."

Well, that seems an excellent idea. Law firms: Do you have such a program? What does it involve? And shouldn't associates get billable-hourly "waivers," too? (Maybe he meant that.)

This would be a good topic for a later post. Maybe someone more experienced in management and training than I am should take it up. Anyone?

A current National Law Journal article by Leigh Jones reports on rumblings that the newest "Generation Y" associate attorneys are lazy, or at least have priorities of which some law firm partners are less than fond.

I could comment on a number of aspects of the article. But what I found most astonishing was the following quote from an unnamed "managing partner at a national firm."

[Newer associates] have a very strong connection with each other as opposed to the institution. If someone is treated badly, they all react to it.

My first thought on reading this was along the lines of, "Holy crap! How can you not expect treating an employee badly to impair morale among other employees!?"

Does the speaker mean to say that these young associates aren't willing to stab each other in the back and watch each other rot in hopes of rising above the rest? Because that's a good thing!

Morale is real

The management implications of this quote stunned me. At least the way the author presented the quote, it sounds like the unnamed managing partner is surprised that treating someone badly has a collateral impact on that person's peers. It almost reads as if the manager is aching to be able to go out and treat someone badly but is dejected because he now feels constrained.

Any manager should expect that if one subordinate employee is treated poorly, morale will decline among the employee's peers. No, treating people uniformly badly will not remedy the problem. Anyone who thinks it's a fine idea to go around treating subordinates "badly" should be shuffled as far as possible from supervisory roles. Management must take morale seriously. (The black hole of turnover costs can be a topic for some other post.)

I'm not saying management ought to roll over on important issues. It is also a morale-killer to fail to deal with an associate who does bad work or displays questionable ethical standards. I'm saying only that 'management by temper-tantrum' and 'motivation through degradation' come from a rotten breed of supervision techniques, they still exist, and firms should make it a management mission to expunge those 'techniques' and their ilk.

Loyalty among co-workers is an opportunity

Loyalty among co-workers is a good seed trait. It seems to me that firms should aim to grow something better and further-reaching out of it. The hard part is to find ways to build and reinforce that loyalty so that it grows upward and outward to encompass the company as a whole.

Find out what makes associates cynical about management, and then get creative in finding ways to disarm that cynicism. This might mean adjusting some practices you had taken for granted. Don't forget to humanize employees. If your associates feel like you only see them as little revenue generators to be rewarded periodically with trinkets, you've lost already. As Bruce MacEwen noted in his review of the recent Hildebrandt report:

It cannot be said too often: Your associates are your future, and your partners are your current, revenue stream. It is literally an act of insanity (in the sense of being divorced from reality) to be inattentive to these indispensable, core assets.

More importantly, leadership skills are not taught in law school, but today's complicated, globalized firms demand both strong and nuanced leadership ability. Leadership is difficult to develop, but that's all the more reason to devote focused attention to it. ("Reed Smith University" being a prime, laudable, example.)

His use of economic terms comes across as a little dehumanizing, but his point doesn't. Leadership counts. Other human traits count. Traits above and beyond one's hours billed.

Loyalty counts too. There have got to be ways to benefit from loyalty among workers and expand that loyalty to the benefit of the firm. Focus on team-building, knowing that team-building and treating people badly are generally incompatible. Loyalty provides an incentive for cooperation and consequent increased productivity among people working together. De-incentivize each and every manner in which associates might undermine each other.

This is a brainstorm and is likely to include at least some nonsense

Now, understand I'm just brainstorming here, trying to come up with even a germ of an idea that could help firms bridge gaps between management and the subordinate employees and create productive offices that are good places to work. I'm not a management consultant. And I'm not afraid of hard work myself — in fact, I've had employers tell me I needed to slow down. I'm just excited about this topic because I think there's a lot of opportunity in employees who have a strong loyalty trait, if managers can cut through whatever makes the employees cynical about management.

Tales of cutthroat intra-firm competition promote cynicism

Trying to drive wedges between employees would be the worst approach to take. Stories abound, in fiction and real life, of law firms where the associates spent what little spare mental time they have scoping out opportunities to step over (and on) each other and prove each other to be dead wood, in hopes of beating out the others for the coveted partnership. Increasingly often, these stories seem to be historical rather than current. I envision the quoted managing partner as wishing his firm [still?] drew in those kinds of associates.

I suspect that the continued circulation of those stories substantially contributes to associate cynicism. Young, inexperienced associates might assume that they've gone to work for people like that. Some of them probably assume they have. I don't make assumptions like that, but you can tell those stories have affected this blog post.

I wouldn't want to work with other associates like the ones in those stories. I wouldn't want to have employees like that, either. I want to trust the people I work with, I want to trust the people I work for, and I want to trust the people who work for me. If I don't trust and respect my co-workers now, how can I trust and respect them when we are eventually partners? And if we don't have some baseline amount of trust and mutual respect as partners, how can we run a firm well?

But what do I know? I'm just an associate.

I'm not particularly cynical, myself. (Maybe that's because I missed "Generation Y" by a year, according to the article.) But I do hope that management where I work next is at least aware that treating one employee badly is likely to be bad for morale throughout the office.

Here's a quick electronic research tip that I implemented in my own work a while back. If you obtain material from Westlaw, Lexis, or some other electronic research service, set your delivery options to download and save the material. Organize the downloads in some coherent way in your computer files, or if you have case management software that can organize and store your electronic research, use it. You'll save your clients and your firm money when you avoid pulling the same cases and statutes over and over again. I prefer PDFs over any word-processor format, since it's harder to change a PDF by mistake and it prints out looking the same each time.

Don't try to keep only paper copies of your research. That'll make it harder for others who works on the file to find the fruits of your research. I worked on a case once that had three different primary researchers over the course of the project. I was the last one to come to the project. The other two attorneys printed copies of each case they pulled from Westlaw and filed them in "Research" folders.

That wasn't inherently bad. It's good to hang on to copies of cases that have your notes and observations penned in the margins. But the files were difficult to wade through, and they contained many duplicates (and triplicates) of some sources. The firm passed its Westlaw costs on to clients on a transaction basis, so the clients had paid separately for retrieval of each copy of those documents, even if they'd come from a database that was part of the firm's subscription plan. Saving copies is even more critical if you decide to step outside the scope of your subscription.

If you've saved copies of your research, you can check to see if you've got a copy already before you casually ring up another charge for your client. An associate who writes a memorandum can make a note that all of the supporting materials are available in a particular online folder that anyone in the firm who finds the memo can access. Depending on what version of Acrobat you have, different people working on the file can make electronic comments on the PDF source material that everyone else can see. In the end, the client and the firm save time and money.

Reid Trautz recently posted ("Files That Talk") on the power that the cleanliness and clutteredness of one's desk, office, and files can have on a client's impressions. I think clutter also makes a difference in the effectiveness of one's work and one's comfort in one's workspace. I say this based on my experience transitioning from having cluttered desks, to organized desks that still had lots of paper on them, to clean desks.

I confess that in the not-so-distant past I had a rather cluttered desk and office. The files themselves, the folders in which I kept original paper documents, were carefully maintained. But they filled my office in untidy ways. At work, I blamed it on the fact that the documents in my cases had far exceeded the volume of storage space available in my office and on the firm's shelves. (At least my desk was far from being the most cluttered desk at the firm.) Numerous file-boxes lived in my office. At home, I blamed it on having too much work to sort through the clutter at home. Yes, in both places, the piles were organized. I really could find what I needed in there — but they were still piles.

Piles are problems. Even "organized" clutter can disorient. As a packrat, I often kept paper close at hand for quick reference even though all of the paper documents had been scanned into the computer. When someone walks into your office with a question, it's nice to be able to have the key documents within arm's reach. But I still always felt best when I took some time on a Friday afternoon or weekend to send most of the encroaching paper to the nearest shred-and-recycle bin. Having stacks of paper around means that you have paper right in front of you that you have to track and index in your head constantly. That's a waste of brainpower that could be focused on real problem-solving. It may not be a huge waste — I'll allow that many people are very good at keeping track of things in their heads, and I often like to think that I'm one of them — but it adds a layer of stress and increases the amount of thinking that you have to do to find anything.

I've implemented a system more recently that helps keep paper from accumulating. I really like it. Right now my desk at home — which is for the moment my only desk — has the following pieces of paper on it:

• Two 8.5 x 11 inch ruled notepads, stacked
• Two 5 x 8 inch ruled notepads, stacked
• A file folder with notes and documents related to an upcoming interview

That's all. The notepads don't have any notes accumulating in them — those go immediately into nearby files for current projects. The shelves supported by the desk contain CDs, a few books, a photo or two, and even some open space, and the rest of the desk surface area contains only the computer monitor, a lamp, and those office tools that I use every day. Several expandable folders nearby contain files for my current projects and temporary storage of material I need for upcoming tasks.

I plan to keep it that way. It won't always be easy, because reducing entropy requires some investment of work. I may "fall off the wagon" occasionally. It's definitely not a perfect system (please let me know if you find one!) But I think it'll be a lot easier once the stage is set and some kind of structure is already laid in place, and having the space clear makes everything else easier.

The same principles apply to your computer. If you have a cluttered computer desktop with icons you never use spilling all over the place, or your personal documents (or worse, a shared filing system) are poorly organized, you will have great difficulty finding anything. What's worse, a bad filing system, whether electronic or paper, can gain traction among a group of users when they become adequately accustomed to it that they know where to find certain key documents in it, even though it's lousy as a general document-finding system. That makes it even harder to do what really needs to be done.

Like Reid said, not a sermon, just a thought.

When I rebuilt my desktop computer about a year ago, I bought a new power supply to feed the upgraded central processor. I avoided spending much money on the power supply, though. After about a year, I think the fan bearings aren't quite as smooth as they used to be, or something else there has become less-than-perfect. Increasingly often, I hear a faint sound:

wrrn wrrn wrrn wrrn wrrn

A vibrating sound, about 150 beats per minute, like the fan is just slightly out of balance.

Except for a few days a week, I'm in front of this computer or in the same room for most of the day. Wrrn wrrn wrrn wrrn is starting to drive me nuts.

I'm hoping that soon I'll be using this computer a lot less, partly because I won't be here during the day and partly because I'll be able to use a new notebook computer when I am here. And then eventually I'll replace the case and power supply on this computer.

Until one of those things happens...

wrrn wrrn wrrn wrrn wrrn wrrn wrrn wrrn....

I've decided I need to try to gain back the muscle weight I had before I left law school — or better yet, before I went to law school. I've never been a large or especially muscular person, nor have I ever been very athletic (I like skiing but don't get to do that nearly often enough). Recently I've been feeling too much like a stick figure, since I no longer walk almost everywhere I go every day. When I noticed that my encounter with pneumonia in January had taken another five pounds off of me, I decided I'd better do something about it sooner rather than later.

Of course, it still took me a while to get started, but Monday afternoon I embarked on a pretty good workout that was a little heavy on the strength and toning exercises. I emphasized lower-body exercises just because I have no weights. It didn't feel like too much at the time. In fact, it felt pretty good. I made an effort to cool down and stretch afterward, too.

Apparently, I overdid the exercises or I didn't cool down and stretch very well. Over the course of yesterday and even today, I've been very, very sore. Today was even worse than yesterday, though now it seems to be getting better slowly. Even so, I stand up and my quads, hamstrings, and lower abdominal muscles laugh at me. Harshly.

Next time I need to take it a little more easily.