March 2006 Archives

Occasionally it's amusing to check the website statistics to see what search keyphrases lead people here from search engines like Google.

sorry scanner could not be initialized

No kidding. The scanner I bought from Denise on eBay didn't get along with my computer. It lives in the basement now.

gorsuch kirgis

Yeah, not any more.

verizon wireless legal department

I dealt with its subpoena response group once when I was trying to get some phone records, but I didn't write about it here. Maybe I wrote about those John Doe subpoena cases a few years ago. I did write about how Verizon Wireless tests its network coverage.

highest paid professional

That would be someone else — and I'm not complaining.

a poem about math class

Good luck with that.

I'm amused that people got to this blog using that search phrase not just once, but four times.

Here's one I found, but I can't say it does much for me.

math 3.14

"What was that number supposed to be again? I can remember part of the number, but I can't remember what they called it. It sounded like some kind of food?"

tph-lex

It's dot com.

treating employees with respect

A good idea. I've worked places where it wasn't done. Then I stopped.

any creative commons license

You wanted the Creative Commons website. Anything I may once have written on the CC licenses is way out of date.

Stephanie West Allen has started a weblog called IDEALAWG. I've seen Stephanie's name connected with various CLE-type programs in the Denver area, but I haven't met her yet.

[via Gerry Riskin's Amazing Firms, Amazing Practices.]

On Between Lawyers, Denise Howell compliments Holland & Hart for venturing into weblogging despite some doubts.

For those of you who don't know, Denise is a litigator at Reed Smith. She's also the one who coined the term "blawg" a few years back. She's been writing at Bag and Baggage since 2001.

There was a joke in law school that ambitious college students decide to go to law school when they realize they lack the mathematics or science required to get into med school. Playing on this, my constitutional law professor joked that these people say to themselves, "I know! I'll go to law school! Law school is math class for poets!"

I don't know if the med-student-turned-law-student phenomenon actually exists, but for some reason my professor's turn of phrase stuck in my mind. A few years later, I was looking for a weblog title, and I remembered that phrase.

So there you have it.

In a post vividly titled Lawyers and blogging go together like witches and stoning, Kevin Heller quoted a Wall Street Journal article about weblogging lawyers on Friday:

According to a survey conducted by blogads.com, lawyers ranked fourth among both readers and posters to blogs. Many of the best- known blogs, such as instapundit.com, are run by lawyers. It's easy to understand why blogging attracts the J.D. set: Few professions combine as much creative talent with so much mind-numbing work.

Well, that's a little uncharitable toward lawyers' work. Sure, I have tedious days, but there are countless jobs out there that are tedious every day, so I consider myself fortunate to have them only from time to time.

Even so, what we do tends to be craft rather than art, and those who have a more artistic or expressive bent naturally look for ways to develop and apply it that they don't find in their work. (I have to admit that sometimes I long for the day when I'll be able to draw on my fondness for design and typography to draft an agreement that looks like a high-quality printed product rather than something that came out of a glorified typewriter, but I don't think that's likely to happen anytime soon!)

The Denver Post article I interviewed for ran today. It's available online here. I'm quoted near the end.

I was a little surprised at first that the article tended to focus on the difficulties and resistance some lawyers have encountered because of their weblogs. I'm not surprised at the resistance itself, though. Law firms generally tend to be conservative, especially when it comes to the ways they present themselves to the world.

Knowing that, many young attorneys write anonymously. I explained this to the reporter, Greg Griffin, and it was on this point that he quoted me: It was on this point that Griffin quoted me: "I think I share with a lot of associates a general anxiety about saying something that someone with control over my future might think is unprofessional." I probably have less to worry about because I generally don't write about my practice, and I avoid ever writing about my firm. (Suffice it to say I think it's a great firm that does high-quality work and I enjoy working there. When I comment here on issues that seem to afflict the profession or certain segments of it, I hope you will not think that my firm is similarly afflicted.)

Fortunately, the article turned more optimistic after its initial paragraphs. For those who would think about writing as part of their law practice, consider this statement about Greg Piche's blog: "The blog also brings in business, in part, he admits, because it shows off his expertise. Piche said about a third of his clients found him through the site."

Apparently once Holland & Hart got over its initial anxiety about Piche's weblog, it saw fit to launch two more firm-sponsored weblogs, and I doubt they'll stop there. As the Post article explains:

For many lawyers, blogs are a natural way to stay abreast of an ever-changing legal landscape - and to set themselves apart as experts in their domain. Increasingly, law firms see blogs as a key marketing tool that's far more dynamic than the traditional website and newsletter.

I suspect that law firm marketing will, in the long run, head in the general direction that weblogs represent. I've got a feeling that regional firms and specialty boutiques stand to benefit the most from weblogs as marketing devices. But for now, I'm quite content to keep my writing here separate from my work.

When I returned from my hearing today, my secretary greeted me and said, "You had a weird phone call — it's in your voicemail. Someone from the Denver Post called wanting to ask about blogs." The intonation of the second sentence trailed upward as though it were a question, specifically, "Why does a reporter want to ask you about that?"

Greg Griffin of the Denver Post wanted to ask me about this weblog and legal weblogs in general. I hesitantly called him back — hesitantly, because the only interview I ever gave, with a college paper, ended up in some selective quoting that left me a little unhappy.

Our conversation left me wondering what I'm trying to accomplish here. He remarked that my weblog seemed a little more "eclectic" than some of the other ones written by lawyers. "Eclectic?" I wondered. "No," I thought, "Haphazard" would be a better word.

This blog has always been an experimental testing ground, and it has yet to expand into anything more. Back in 2002, curious about the emerging world of weblogs and curious how I might participate in its conversations, I downloaded a copy of Movable Type and started tinkering. I had some time on my hands, because back then I was waiting for my bar exam results and looking for full-time work.

I've put the weblog down and picked it up again from time to time, but I have yet to find a consistent voice. Greg asked me where I think I'm going with this weblog, and I had to say I had no idea. Sometimes something draws my attention and I write, but far more ideas fall through the cracks than actually find their way onto this page.

I've been writing more often recently in yet another effort to find a voice for this space. But I find myself encumbered by a peculiar kind of writer's block, one that I mentioned to Greg. Not only do I have the hesitation that comes from being a relatively quiet, private person, but I feel constrained by my professional role as an attorney (and a relatively young one at that). I have to admit that to some extent I brought that on myself by adopting an analytical tone early on. The "about" column on the right even identifies me as a lawyer. I'm proud of the profession, of course, but it's not the defining feature of my personality — in fact, it's not a personality trait at all, though it can shape them.

I commented to Greg that I've got the impression that a lot of lawyers in the early stages of their careers seem to prefer to write anonymously. I was going to elaborate on this topic here until I realized I wrote about it a year ago, here and here.

I still tend toward caution, and that caution (overcaution?) tends most often to express itself in silence. Some of the webloggers I admire most are those who, like Ernest Svenson, manage compelling forays into the personal alongside posts about the law, or politics, or music, or whatever else may interest the writer. Another favorite blog of mine is Scheherazade Fowler's, which chronicles, among other things, a journey that took her away from the law to something very different.

I don't know if I have the extraversion and sense of personal comfort to produce quite that kind of writing for a public audience. Still, I'm going to try to write here a little more often to see what develops this time around, and I'm going to try to shake some of the stiffness out of the style.

I'm preparing a pro bono matter for hearing and I don't have much time to post my own commentary on the work-life balance aspects of the New York Times article that ran today titled "Why do so few women reach the top of big law firms?" (NYT registration required, I'm sure.)

Instead, I'll just point to David Giacalone's comments on the article, which appear here. The conclusion I found most incisive was this:

Life will not get more balanced for associates, male or female or male, if the regime of billable hour quotas is discarded, unless it becomes perfectly acceptable for the young lawyer to generate less income without it affecting future partner status. Indeed, if not, and the firm management still expects each lawyer to produce the same amount of billed income, it might get even more stressful -- the associate won't know how to keep score; won't know if he or she is keeping pace for the year. That might be especially true if fee contracts with clients are based on some post-completion assessment of the "value" or the performance to the client.

In other words: It's not about billable hours. It's about money, the tradeoffs people are willing to make for it, and the social and economic contexts in which those tradeoffs happen.

By highlighting the question of partnership eligibility, David identifies an important factor at play. It's not enough that there are many associates (and some partners) who would be willing to trade off lower salaries for lower billing requirements and, thereby, more time to spend on other aspects of their lives. There have to be workplaces that can and will accommodate that trade over the long term.

Many associates actually want to work less and would be willing to make less; yes, they keep asking for salary increases, but in many cases that's because it's considered much more acceptable within the firms to ask for salary increases than it is to ask for free time.

An associate attorney making $115,000 might be happier making $100,000 and cutting her or his workload by a proportionate amount, but if no employers offer such an opportunity, the associate's desire to make the tradeoff doesn't matter. The associate may not even bother asking for the opportunity if she or he thinks it will lead to being branded an unprofessional slacker. (Make what you will of the salary figures I chose as illustrations. Young associates in large national firms tend to make much more than that, while associates starting off in smaller, more local firms make less — sometimes much less.)

These issues have many facets, but I can't pretend to be informed enough to discuss them all, and for now I don't have time — I have to get back to preparing for that hearing.

On Law.com, via Languagehat: yet another example of automatic spell checking gone awry.

An appropriate instruction limiting the judge's criminal liability in such a prosecution must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction.

The author meant "sua sponte" — on its own motion, without anyone asking for it first.

David Bernstein has a Volokh Conspiracy post remarking on the apparent decision by homebuilder Brookfield Homes to collect expectation damages rather than liquidated damages from prospective buyers who walk away from home purchase contracts.

Translated into English: Instead of just taking the earnest money deposit, Brookfield apparently intends to sue buyers in default for the difference between their contract price and the price for which the home actually sells. Is this true? Well, it looks that way from the quote of a certain Mr. Hughes, in a WSJ article I can't access (I don't subscribe), quoted in a post here at The Housing Bubble Blog. But without seeing the actual contract provisions, I can't tell how much leeway Brookfield has given itself.

It wouldn't surprise me to see some changes in homebuilders' marketing and legal strategies as markets fluctuate. But as David Bernstein and the commenters on his post suggest, the market will probably weigh against decisions like Brookfield's, especially if the market softens further and puts even greater competitive pressure on builders.

I haven't yet heard of builders demanding damages greater than the earnest money deposit here in Colorado. Builders may want to respond to softening markets by increasing their earnest money requirements in an effort to encourage buyers to financially commit themselves more strongly to their contracts, but at the same time fewer prospective buyers will be willing to put up larger deposits and assume greater risks. Requiring a big deposit can scare customers away.

Supplement: Bernstein wonders why the builders don't protect themselves against defectors and market price fluctuation by waiting until the house is almost done before finding a buyer. The answer is that a house is worth more to a buyer who can select customized "upgrade" packages for the house, and it's too late for that once construction has gotten far along. For example, if a buyer wants a nine-foot basement instead of an eight-foot basement, the builder needs to know before excavation is done.