In a very real sense, you don’t force the U.S. military to do anything it doesn’t want to do, contrary to what David Coombs said in a TV interview with NBC’s “Today” Show: “If Fort Leavenworth does not [provide hormone therapy for Chelsea Manning],” Coombs said, “I’m going to do everything in my power to make sure that they are forced to do so.”
Coombs is a former U.S. Army Judge Advocate, now in private practice representing military service members. Coombs defended Manning against charges of espionage and aiding the enemy after Manning, an intelligence analyst in the U.S. Army, was accused of leaking classified information on the wars of Iraq and Afghanistan. Manning, formerly known as Bradley Manning, came out after sentencing that she wanted to live her life as a female.
So what if the Army won’t be forced into allowing Manning to live her life as a female — even if Manning pays for hormone therapy out of her own pocket? In a report by the Associated Press, Coombs said he is ready to sue to get Manning what she needs.
Despite the repeal of the military’s “Don’t Ask, Don’t Tell” policy in 2011, transgender soldiers can still get the boot. “[I]f the military finds out,” wrote Colin Daileda for the Atlantic last year, “you’re gone.”Gender dysphoria
Ed Fitzpatrick, a columnist with the Providence Journal who recently interviewed Coombs, was kind enough to allow me insight into Coombs’s work on this case. (I attempted to reach Coombs directly, but he is, at the moment, a busy man.) Fitzpatrick relayed to me that Coombs is trumpeting the APA’s guidelines on standard treatment for gender dysphoria, a condition defined as a state of feeling unwell or unhappy with the sex assigned at birth. The treatment for gender dysphoria is counseling, then hormone therapy.
The APA’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) previously condemned psychological distress associated with gender as a disorder. The DSM has gone through major revisions in its lifetime since its original publication in 1952, and each revision recognizes new psychological disorders and maladies, and modifies or removes existing conditions. DSM-5, the latest version, was published this year.
Note that a revision (a process that takes years) generally mirrors the politics of the time period in which the current version is being revised; in this way, homosexuality as a disorder was completely removed from DSM-3 in 1986, with the exception of a psychological diagnosis for “persistent and marked distress about one’s sexual orientation.” (See the UC Davis publication Facts About Homosexuality and Mental Health.)
Similarly, DSM-5 no longer includes “gender identity disorder,” which was replaced with gender dysphoria. Gender dysphoria can be characterized as persistent and marked distress about one’s gender identity, much like the distress that may occur in someone who is grappling with his or her sexual orientation.
The bottom line is that being transgender, like being gay or bisexual, is not a disorder. It’s not mental illness at all. Rather, significant anxiety about being transgender may be what gives rise to a psychological diagnosis, and that’s exactly where Manning finds herself.Outdated conceptions in the military
A letter from Sigmund Freud to the mother of a son apparently suffering from anxiety regarding his sexual orientation (again, see the UC Davis publication Facts About Homosexuality and Mental Health) illustrates Manning’s quandary:
If [your son] is unhappy, neurotic, torn by conflicts, inhibited in his social life, analysis may bring him harmony, peace of mind, full efficiency whether he remains a homosexual or gets changed …
As progressive and influential as Freud was in his time, the last several words in that quote (“whether he remains a homosexual or gets changed”) are indicative of the prevailing attitude of the time. But that attitude continues, at least in the U.S. military.
The Army, for example, has so far stubbornly refused to refer to Manning’s condition as gender dysphoria, which is significant. In a public letter denying Manning hormone therapy, the Army stated:
All inmates are considered soldiers and are treated as such with access to mental health professionals, including a psychiatrist, psychologist, social workers and behavioral science noncommissioned officers […] The Army does not provide hormone therapy or sex-reassignment surgery for gender identity disorder.
Reading between the lines, this trotting out of various mental health professionals while in the same breath refusing hormone therapy and referring to Manning’s condition as a disorder implies that Manning’s transgender status can “get changed,” as Freud seemed to believe was possible for homosexuality. In other words, Manning the soldier should learn to accept herself as a man under her given name of Bradley Manning.
Despite the ample historical record concerning the fight for equal rights for LGBT individuals, including the complete removal of homosexuality as a disorder from DSM-3 in 1986 to the repeal of “Don’t Ask, Don’t Tell” in 2011, the fact remains: in denying Manning hormone therapy on the grounds that a person’s struggle with his or her gender identity is a mental disorder, the Army seems to believe that its transgender soldiers (as opposed to its gay and bisexual soldiers) are mentally ill.Will Manning get the therapy she needs?
Yet another fact remains: Manning was convicted of leaking classified information related to the wars of Iraq and Afghanistan. It was the largest such leak in U.S. history. Alternately praised as a heroic whistleblower and despised as a traitor at trial, a military judge ultimately sentenced Manning to 35 years at Fort Leavenworth, after entering a conviction on charges of espionage, among others.
Discharged transgender soldiers, as civilians, are presumably free to pursue hormone therapy. This isn’t the case for Manning. Gender dysphoria diagnosis or not, Manning must remain in prison until she becomes eligible for parole.
“[Hormone therapy] changes their outlook, makes them feel whole as a person, makes them feel comfortable in their skin.”
So the question becomes: Does Manning deserve hormone therapy?
This is what Coombs said, according to Fitzpatrick: “I am helping Chelsea get the type of treatment she deserves.” According to the APA’s fact sheet, “Gender dysphoria is manifested in a variety of ways, including strong desires to be treated as the other gender or to be rid of one’s sex characteristics, or a strong conviction that one has feelings and reactions typical of the other gender.” Even by removing Manning’s subjective claim on the female gender, it seems pretty clear that she suffers from a manifestation of gender dysphoria as described in DSM-5.
Manning announced her rejection of the name Bradley one day after sentencing and requested that the media use female pronouns. This in itself generated conflict. One has a choice: to use either Bradley or Chelsea, he or she. The choice has consequences in the debate over the rights of transgender people, because as much as Manning may feel like a woman, hers is a subjective claim, subject to prevailing thought among psychiatrists who publish the DSM, as well as military leaders. Manning’s detractors have the (arguably stronger) objective claim, the irrefutable sex organ — the fact that Manning has a penis rather than a vagina.
If the Army gets its way, that’s how it will remain throughout Manning’s confinement at Fort Leavenworth. (It should be noted here that we’re talking about hormone therapy, which is the start of the male-to-female transition process, and may be an end in itself. Manning is not asking the Army for sex reassignment surgery.)
Yet: “If [Manning] were to sue for the right to treatment for her gender dysphoria, she might just win,” wrote Margaret Talbot for the New Yorker. Putting aside for the moment how Talbot’s statement — that Manning “might just win” — seems grounded in raw hope more than anything else, at least when it comes to military policy, the fact that Manning is at once confined and suffering from untreated gender dysphoria makes the filing of a lawsuit, as Coombs suggested he’ll do, only more crucial, should the Army decide against treatment.
For now, Fitzpatrick’s impression on strategy is that Coombs plans to work with prison officials to get Manning the therapy she needs. The Army will perform a psychological global assessment of Manning (despite the fact that this rating system is apparently no longer part of the DSM-5), to determine how well Manning is adjusting to life as a transgender individual confined in Fort Leavenworth, and Coombs has expressed confidence that the Army will diagnose Manning with gender dysphoria and treat accordingly.
(As an aside, I originally assumed that “global assessment” meant a broader attempt to gauge whether or not the sky would fall if the military began to treat transgender service members the same way it was forced to with the repeal of “Don’t Ask, Don’t Tell” regarding its treatment of gay service members — that is, with dignity.)
According to Fitzpatrick, Coombs said: “[Hormone therapy] changes their outlook, makes them feel whole as a person, makes them feel comfortable in their skin.” If hormone therapy is standard treatment for gender dysphoria, if it would provide some measure of dignity for Manning, the Army should be held accountable to providing that standard of care, regardless of its comfort level with Manning’s transgender status. The Army’s denial is nothing more than “an antiquated view of how you would treat this,” as Coombs has said.
Perhaps antiquity is Coombs’s strongest argument, second even to the constitutional argument that the Army’s denial of hormone therapy is cruel and unusual punishment. If “Don’t Ask, Don’t Tell” was the antiquated view of how you would treat gay or bisexual service members, the same bell rings true, if in a slightly different key, for those service members who identify as being transsexual or transgender.
Certainly it rings true for a soldier in confinement, suffering from a treatable condition, no matter the sins that led there.
How David Coombs Plans to Force the Army to Pay for Chelsea Manning’s Sex Change is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
“Working the room” is the one business development tactic that strikes the most fear in lawyers. Most lawyers hate finding themselves at a reception at some conference or benefit, where they hope to meet a few new people in a crowd of hundreds. Even when the drinks are free, most lawyers would prefer going to the dentist.
Many lawyers feel awkward and uncomfortable chatting with strangers, in large part because they view small talk as a complete waste of time. Being lawyers, they want some evidence to support the value of chitchat. Well, last month The Wall Street Journal (paywall) ran an article entitled, “The Hidden Benefits of Chitchat.” The article confirmed everything I’ve always thought to be true about small talk. Plus, it contained some helpful hints.Why is small talk important?
The WSJ article sums it up nicely:
Experts say casual conversation is essential social grease – a ritual that helps us connect with friends, colleagues and people we’ve just met. We can use small talk to signal our friendly intent and to get people to like us. It can lead to more significant conversations that spark friendships and clinch deals.What are some helpful hints?
To get a conversation going, talk about something you are both observing or experiencing. What brings you to this conference? What did you think of that speaker? Sure taking a long time to get a drink here. An even better tip is to compliment the other person. Nice tie. I like your watch. Tell me about it.
Avoid talking about your favorite topic. People who do that tend to talk too much and dominate the conversation.
Ask questions. People love to talk about themselves or allowed to feel like an expert.
Don’t worry about silence. An occasional lag in the conversation is normal and to be expected.
Alcohol doesn’t make you a better conversationalist (remember those free drinks?). It just makes you think you are.How do I exit gracefully?
When I’m engaged in small talk, I always find that the toughest part is figuring out how to end the conversation and move on to someone else. No tactic seems to be perfect. The suggestions offered in the article are good, but don’t strike me as perfect, either. They include:
“As much as I’ve enjoyed our conversation, I’ll let you continue with your evening.”
“Nice chatting with you; let’s stay in touch. Here’s my business card.”
There is no perfect way to end small talk. Good, however, is usually good enough.Focus on the other person
The most important tip, in both the article and in my opinion, is to focus not on you but on the other person. Remember this short-but-sweet guidance and your chitchat will always be on the mark. “If you talk to the other person about them, they’ll be much more responsive and interested than if you talk about you.”
In honor of Constitution Day this year, the Library of Congress, Congressional Research Service and and the Government Printing Office released an iOS app (Android is on the way) that is the full text of the 2,860-page The Constitution Annotated. In the past, if you wanted to own it, you paid $290 and lugged around 10 pounds of book. So what’s the big deal about having a digital version besides the weight factor? A couple really huge things, actually:
First, it takes the price of the content way down — to nothing, to be exact. It also allows users to jump to exactly the section that they need without sifting through the whole book.
It also makes the volume much easier to update. Researchers worked for a year to hand-index all the information in the book into fully searchable, shareable format. With that groundwork laid, the document can be updated much more quickly and more frequently.
Lawyers might sneer at the old-style interface of all this – more on that later – but driving the cost down to zero and making it available on your phone or tablet makes it a document that anyone can read, lawyer or no, and that’s exactly what we should hope for in terms of creating a civic-minded populace.
I’m not familiar with how the print version is organized, but I assume the app provides a browsing structure that I assume is akin to the order of the printed version. There’s an unannotated version of the Constitution that is followed by a largely-unannotated version of the Amendments. There are footnotes in that section, but they refer solely to how and when each Amendment was ratified. There’s a very brief section on proposed Amendments that were never ratified, and then there’s the meat of the document – a 2,200 page essential treatise on Constitutional law organized to correspond with the structure of the Constitution. I picked an Amendment not entirely at random – the Fifteenth – and read the section on federal remediation legislation designed to address infringement upon voting rights. The annotation provided a relatively comprehensive overview of the history of the 1965 Voting Rights Act and is current enough to include this past summer’s Shelby County v. Holder decision. Unsurprisingly, as a product of Congress and the GPO, the annotation is steadfastly neutral even while discussing explosive cases like Holder. It refers to that decision, delicately, as a “significant retrenchment of the application of the Voting Rights Act.”
Is this the document you’d go to if you were already an expert or longtime practitioner in a particular Constitutional field? Not at all, but you might turn to it to get a 50,000-foot overview of something you’ve begun to tackle. A non-lawyer might find the text a little dense (and a lot dry) but the organization makes it fairly intuitive even for a non-lawyer even if it won’t become this year’s hot summer beach reading.
Lawyers might be more interested in the both the search feature and the hyperlinks, which both make maneuvering around 2800 pages a good deal easier than a print edition. There’s a master table of contents that contains the major sections, so you could use that TOC to jump to the unannotated version of the Constitution or directly to, say, the annotated 21st Amendment section. Within each section of the annotation, you have a table of contents that will jump you to each section of the annotation on that particular section. This part isn’t perfect, navigation wise. For one thing, if you use the TOC hyperlinks to jump to a particular section, it doesn’t appear you can easily back out. If you try to hit the “back” button, you don’t hop back to the most recent subpart’s TOC – you go all the way back to the beginning. It is at heart a giant PDF, so some things are relatively easy – you can underline, highlight, write handwritten annotations, draw boxes to your heart’s content – and some things are clunky. You can copy a chunk of the text and paste it elsewhere, but it will look awful and not take the corresponding footnotes with it – you’d have to copy/paste that separately.
There’s also a full-text search feature that is speedy if not terribly robust. I did a couple arbitrary searches – Terry v. Ohio and DOMA – just to see what I’d find. Terry turned up any number of references to the case throughout the annotation, which is to be expected. The search had a bit more trouble with DOMA and kept kept returning hits for eminent domain cases, and I can’t see a way to make the rudimentary search not do that.
Regardless of its limitations, it is well worth having on your iPad. It exists for the iPhone but I wouldn’t recommend it, as the print is small already on the iPad. As a legal tool, it may be of limited use, but as a way to use technology to democratize crucial knowledge about America and the law, it is invaluable.
An Evening With The New iOS Annotated Constitution App is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
I have been using Freshbooks for timekeeping and billing since March 2008, when I quickly realized it is a better solution than anything I had used before (Time Matters, Timeslips, ProLaw, and Amicus). I’ve used it ever since, and it is getting better as my practice grows. [Edit: I'm still using and loving Freshbooks in September 2013!]
Freshbooks has become one of my “gold standard” applications* — it is the standard by which I judge all other timekeeping and billing software.
(FYI, Freshbooks is not QuickBooks. They do different things.)Easy Timekeeping and Billing
Freshbooks makes timekeeping simple and easy to use. You can set up clients, then set up one or more projects for each client. You can bill based on the timekeeper’s default rate, a project rate, or different rates for different tasks. You can also track expenses and assign them to clients and/or projects. There is a pop-up timer, if you like to bill that way, or you can just enter your time manually.
If you want to, you can allow clients to log into Freshbooks to see the progress on their file. They get their own login information and you can control what they can see.
Billing is easy with Freshbooks, too. The easiest way to do it is to simply send your invoices by email. Freshbooks sends an email with a link to the invoice, and your client can just click to see it (no login necessary). This keeps the contents of your invoice confidential, instead of dumping it in your client’s email inbox by default. You can also connect your Freshbooks account to a PayPal or credit card merchant account so your clients can pay their bills by credit card just by clicking on a link.
If you prefer sending bills by mail, you can download and print them to send yourself, or you can have Freshbooks send them for you. I love having the option to just click a button and have Freshbooks send a paper invoice so I don’t have to lick the envelope myself.Freshbooks Plays Well with Others
Since I frequently work with independent contractors and co-counsel, the software I use must be easy for them to interface with, too. Freshbooks has two important features that make this possible: (1) a free account for up to 3 clients; and (2) easy contractor integration. The first means it is easy to ask contractors to use Freshbooks to track their time on my projects. The second means I can receive their invoices in Freshbooks, then convert them to an expense or add their time to an invoice.
I am not aware of any other timekeeping and billing software with such easy contractor integration, and it has become one of the most useful features for my practice.
Freshbooks is also easy to use as your practice grows. Your staff can easily access Freshbooks through their own login from any web browser. You can assign them projects, set their billing rates, and so on. Since it is web-based, you don’t have to muck around with setting up servers, either. Just get them a computer with a web browser, and they are good to go.Mobile Options
If you like tracking time from an iPhone, Freshbooks has got you covered with apps for iOS and Android. Both work great for timekeeping, recording expenses (you can snap photos of receipts to attach, too), and even sending bills.Customer Service
Freshbooks has the best customer service I have ever used, although I have only used it twice. The first time, I wasn’t seeing what I wanted in the default Freshbooks pricing plans, so I called. To my surprise, an actual human — Levi — answered the phone and helped me construct a custom plan (1 staff and up to 150 active clients for $19/month).
The second time, I needed to figure out how to use a particular setting. Levi answered and got me straightened out quickly and pleasantly.
In short, I love Freshbooks. I have been a loyal customer for over two years, and I think it’s the best timekeeping and billing software available. Best of all, you can even start using Freshbooks for free.Summary
Freshbooks is the gold standard for timekeeping and billing. It’s easy to use, mobile-friendly, and comes with world-class customer service.
Score: 5 (out of 5)
Freshbooks, originally reviewed on July 6, 2010, and updated on Sam Glover on September 26, 2013.
*My other “gold standard” applications include Gmail, Google Calendar, Basecamp, and Remember the Milk.
Freshbooks: the Gold Standard for Timekeeping and Billing is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
I am horrible at taking notes. Not just my handwriting, which is admirably atrocious. But the act of taking notes itself. I tend to keep it all in my head, which is silly because I also have a lackluster memory. On more than one occasion, my receptionist has rung through and said they have someone on the phone. I regularly answer with “Who? I’ve never heard of that person,” before Ruby tells me the person is a current client. But lately I’ve gotten much better at this. And I’ve gotten to the bottom of my note-taking weakness.The Quick Assessment
Many lawyers can identify their weaknesses. A bad memory, poor handwriting, nervousness in court, or some other apparent weakness can plague anyone. It’s easy to identify these weaknesses and come up with a quick solution to solve them. Bad memory? Try writing everything down. Poor handwriting? Just type instead. Nervous in court? Join Toastmasters. But that doesn’t address the “why,” which I’ve found to be helpful in eliminating weaknesses over the long term, and becoming a better lawyer/friend/spouse/person.
For example, I am somewhat messy. When I come home from work I tend to just discard items on chairs, tables, etc. When I moved in with my girlfriend I vowed I would simply stop doing this. Easy, right? Wrong. I didn’t get to the root of the problem, and until I did, the habit recurred in cycles.Sitting Down with Yourself
If you look at the causes of these weaknesses, it may reveal character traits you didn’t know you had. For example, if you can get to the bottom of not just whether or not you have bad handwriting, but why your handwriting is so bad, and what it says about you, you can turn that weakness into a strength. But more on that in a bit.
I’ll use my example of being messy. I leave things lying around, and put things down in random locations. OK. The easy fix here is to say I’m not going to do it anymore. But if I look at why I do it, I can learn more about myself. I think I do this because I’m impatient and get sidetracked easily. I throw my coat on the dining room chair because I see there is mail that needs to be opened. Or I carry my mug downstairs and put it in the sink because I get distracted by a cat, then forget to put the mug in the dishwasher.
My conclusion is that I’m somewhat impatient and I get distracted. So what? Now that I’m cognizant of this character trait, or potential weakness, I can keep an eye out for it. It becomes a strength. I know that I am impatient, so I take significant steps to notice when I’m acting on my impulses and put a stop to it.Using the Knowledge
As lawyers, it is our job to see the opponent’s weaknesses. Whether they are counsel’s weaknesses, the holes in the case, the impeachability of the opponent, or any other number of issues, our job is to spot them. Then our job is to exploit them, as necessary, to our client’s advantage.
Now that we have turned the looking glass inward, we can similarly exploit our own weaknesses. According to Ralph Waldo Emerson, “Our strength grows out of our weaknesses.” There are, in my opinion, two ways to do this. You can either become hyper-vigilant about your weaknesses and thus make that your strength, or look at the flip side of your weakness as a strength in and of itself.
In my example above, I became hyper-vigilant about my weakness. I keep an eye out for it and try to squash it at the first sign of emergence. But others believe that within every weakness there lies a strength.
Dave Kerpen, author of Likeable Social Media: How to Delight Your Customers, Create an Irresistible BRand, and Be Generally Amazing on Facebook and Other Social Networks wrote about those associations. According to Kerpen, drawing from David Rendall’s The Freak Factor: Discovering Uniqueness by Flaunting Weakness, there are direct correlations between various traits. He provides a list of apparent weaknesses and coinciding strengths:
1) Disorganized —> Creative
2) Inflexible —> Organized
3) Stubborn —> Dedicated
4) Inconsistent —> Flexible
5) Obnoxious —> Enthusiastic
6) Emotionless —> Calm
7) Shy —> Reflective
8) Irresponsible —> Adventurous
9) Boring —> Responsible
10) Unrealistic —> Positive
11) Negative —> Realistic
12) Intimidating —> Assertive
13) Weak —> Humble
14) Arrogant —> Self-Confident
15) Indecisive —> Patient
16) Impatient —> Passionate
I think some, such as arrogance and self-confidence, are an easy way out. It’s easy to be arrogant and potentially rude to people, then justify it to yourself by saying it’s just your self confidence. Similarly, lawyers need to understand the difference between stubbornness and dedication. The former can keep a deal from closing, while the other can make you a terrific attorney.
The first key is knowledge. With the knowledge of our own traits we can do whatever we want. But to remain blind to our own weaknesses serves nobody.
Ethics bloggers and journalists spend a lot of time writing about new technology and how it impacts the world of legal ethics. All this writing has spawned a new vocabulary.
It can get very wordy to describe something that does not have a name, particularly if you are writing a whole article on it. When new terms are coined to solve this problem, a whole new vocabulary may be born. For lawyers following the ever-changing landscape of ethics rules in the wake of new technology and social media, the new words can really be quite fun.Astroturfing
We have all set foot on a field of green and wondered, “Is it real? Or is it astroturf?” Sometimes it’s obvious, and sometimes the astroturf is so good that we actually wonder whether it’s real grass.
So too have we all read an online review that just seemed too positive to be true. We have likely also read some that were just good enough to fool us.
Hence the term for soliciting and paying for fake online reviews – astroturfing.
When the New York Attorney General’s Office decided to funnel resources into combatting fake online reviews, it dubbed the project “Operation Clean Turf.” Earlier this week it issued a press release detailing the results of the operation, including an agreement by 19 companies to cease writing fake reviews.ESM
Ethics regulators in every jurisdiction grapple with rule making pertaining to the use of social media. As a shorthand reference to avoid repeating the full term over and over in their discussions, many have taken to using simply ESM for “electronic social media.”“I Love Hot Moms” Case
Forget referring to “spoliation of electronic or social media evidence.” The now infamous Matthew Murray advised his client, who was a plaintiff in a wrongful death action regarding his wife’s death, to take down a Facebook post in which he was seen wearing a t-shirt that said “I Love Hot Moms.” This advice cost the lawyer and client dearly, as he was actually advising the client to destroy evidence before producing copies of his Facebook profile to the other side. The client saw his damages award reduced by half (and that means by $5 million) and was sanctioned $180,000, the attorney was ordered to pay sanctions of $542,000, and in the attorney’s disciplinary proceedings he agreed to a five-year suspension. I think we will all remember the “I Love Hot Moms” Case when a discovery request for a client’s Facebook profile comes across our desks. See the order on sanctions in Lester v Allied Concrete 090111.Social Media Remorse
Social Media Remorse, that terrible sinking feeling one gets after posting something on social media (mostly Facebook) and then realizing that it will likely haunt them. This is not a law-specific problem, but Findlaw recently issued its survey results on social media remorse, so it seems perfectly reasonable to include the term in this discussion. Findlaw found that 29% of social media users between the ages of 18 and 34 have posted something on social media that they now fear an employer may use to either deny them a position or fire them from one they already had. The survey also found 21% of users in this age bracket have removed a post for the same reasons. Some ethics opinions have allowed attorneys to undo their errant social media behavior, much like removing an offensive piece of attorney advertising, so perhaps “social media remorse” will be used in an upcoming ethics decision.Technethics
Perhaps the best new word to come of the evolution of ethics and technology is the simple yet effective “technethics.” Google the term and you will find Facebook pages, seminars, articles, and service providers using it to describe some facet of the complexities of legal ethics in the digital age. So really, this is a short list of the new vocabulary of technethics.
Astroturfing to Technethics, the New Vocabulary of Ethics is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
By 2017, if Moore’s Law continues to hold, computers will have the processing power of a human mind. This is not science fiction. It will happen, and it means that sometime during this century, computers will be able to at least simulate human thought, if not think independently. Will that mean computers will be able to replace lawyers?
Let’s back up.
Full disclosure: Clio was so eager to have me at its conference that it paid for my flight and hotel, then plied me with fancy cocktails at Zed451, a trendy Chicago bar with a Canadian name (although everyone from so-charmingly-Canadian-it-hurts-eh Clio acted really surprised when I brought this up).
So what are the computers that are supposed to eventually replace lawyers’ jobs? Are they more like Deep Thought or Watson? Ed suggested they are on the Deep Thought end of the spectrum. I think they more like this:
But eventually — this seems inevitable — legal computers will reach something like the level of Deep Blue relative to Kasparov, or Watson relative to Ken Jennings. It may happen in ten years or thirty, but it will happen, and it will probably happen in this century.
Don’t worry too much about your job, though. Computers smarter than humans will quickly produce computers smarter than they are, and so on, probably faster than we can predict. When this happens, the technological development curve goes close to vertical, and we can no more predict what happens on the other side of that vertical line than ants could have predicted the Industrial Revolution.
It’s quite possible that the Singularity — that vertical line — will signify the end of lawyers. It’s just as likely that we will all turn into human batteries or that computers will become our benevolent caretakers and lawyers won’t be necessary in our post-scarcity society.
The best news may be that the Singularity marks the moment legal futurists are officially — as Watson might have put it until he was censored — full of shit. All bets are off.
Ed Walters, to bring this around to the point, is not a legal futurist. He runs Fastcase, and his job is to think his way around the manpower Wexis can bring to bear on legal research. Ed is sitting on a pile of “big data” — a pretty-comprehensive body of cases, statutes, and other authorities — and imagining awesome things to do with it.
For example, the Bad Law Bot flags cases with negative citation history, generally as good or better than human editors. Talking with Ed makes my head spin with all the amazing possibilities for that data and Fastcase’s computing power. Wouldn’t it be awesome to just upload your opponent’s brief and get an annotated research profile, including the key cases and the most-relevant cases he didn’t cite? Or, like what Lex Machina is actually already doing for IP cases, build a profile of how a judge is likely to decide an issue based on their previous decisions:
As cool as these things are, they are Deep Thought–level problems. Watson-level problems, like arguing a motion or making an opening statement, are still a ways off. But maybe not that far off. There were eight years between Kasparov’s rout of Deep Thought and his victory over Deep Blue. But a year later, Deep Blue took the lead and never gave it back.
Two years before a computer becomes capable of defeating a lawyer in court, or of conducting a trial as well as a judge, it may look as inept as Deep Blue at its first match against Kasparov. Two years later, it will do your job better than you.
It looks like you’ve got at least 4 or 5 years to find another job, but probably not much more than 15 or 20.
Will Computers Become Better Lawyers Than Humans? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Permitting non-lawyer ownership of law firms is a global trend. It is not really about access to justice, as I previously supposed. It’s about changing the law firm business model in a way that works for lawyers and clients.
At least, that is how Riverview Law’s North American VP, Andy Daws, sold the concept at the Clio Cloud Conference. Riverview Law is an alternative business service (ABS), a law firm incorporated under the UK’s Legal Services Act, which, essentially, allows non-lawyers to own and manage law firms, and apparently to perform some legal services. So he’s obviously invested in the idea.
Full disclosure: Clio wanted me to come to its conference so badly that it bought me a coach-class ticket to Chicago, put me up in a hotel room with a scenic view of two parking ramps, and made me sit through two days of Prezi presentations.Is non-lawyer ownership working in Europe and elsewhere?
There are some early indicators that firms with non-lawyer ownership can be a good thing for consumers. In Australia, where the trend got going, incorporated legal practices (ILPs) (pdf) generated 65% fewer ethics complaints than traditional firms. That’s impressive, if you think ethics complaints are a good way to measure quality of service. There are now over a thousand ILPs in Australia, though, so it’s definitely working for someone.
As Daws points out, though, there is a global trend, only accelerated by market pressures. 30 of the top 200 UK law firms are in serious financial trouble. 1,200 UK law firms of all sizes are on a “watch list” for the same reason. Investment is seen as a way to bring some stability to the market. Recall that US law firms may be in a similar boat:
According to Noam Scheiber,writing for New Republic BigLaw is somewhere between 150 and 250 law firms, and “Within the next decade or so, according to one common hypothesis, there will be at most 20 to 25 firms … The other 200 firms will have to reinvent themselves or disappear.”
The trend towards non-lawyer ownership does seem to stop in the US, though. Last year, the ABA — apparently bolstered by 80% of its membership — decided not to pursue the issue. So for now, at least, the issue is not on the table for American lawyers.
Still, Daws sees evidence of “cracks” that may lead to non-lawyer ownership in the US, too. Law firms like Axiom and Clearspire are using similar practices even if they can’t officially get non-lawyer investment. And they are apparently succeeding at it. Daws also thinks that, when the CFPB decided it could regulate lawyers who collect debts, it was the beginning of federal regulation, which could be a step away from protectionists self-regulation. (I’m not sure that’s a good indicator, since debt-collection lawyers have long been regulated by various federal laws like the Fair Debt Collection Practices Act.) He also points to the New York courts’ plan (pdf) to use non-lawyers to help deliver legal services to low-income individuals. Finally, he thinks that if international corporations prefer the legal services they get abroad, they will probably want similar representation in the United States, which might finally sway the ABA.
On the other hand, maybe it’s too early to determine whether the model works. Most of the firms Daws held up as examples have been operating under this legal framework for less than a decade. That probably isn’t long enough for major problems to be revealed.Why non-lawyer ownership?
So what are the advantages? I’m not super clear on this part, actually. I think the idea is that traditional law firms cannot adapt to a changing market, to the detriment of clients, so that a top-down change in business model is needed. Enter the non-lawyers, who can apply more efficient and effective business and pricing practices.
Here’s Riverview Law’s ad, which hints at the pitch:
So fixed fees, I guess, and a firm business model designed to support them. There’s got to be more to it than that, though. Law firms don’t need non-lawyer investment or management to offer fixed fees. Many already do.
Riverview Law is not the only model, however. Non-legal companies like retail stores and shipping companies are offering legal services as a value-added service to their customers. Imagine consumers buying wills at Wal-Mart, or companies getting employment contracts and advice from their temp agency.
Here is Daws giving a similar (albeit condensed) talk at ReInvent Law in May:
Underneath the shiny-new-business-model rhetoric seems to be a simple idea: cheaper legal services, probably delivered by less-well-compensated lawyers, primarily to the benefit of non-lawyer CEOs and shareholders (on both sides of the transaction, when it comes to corporations representing other corporations). I could be way off base, there, but that’s what I’m reading between the lines.
I see the benefit to clients: cheaper legal services. Maybe that even explains the drop in ethics complaints seen in Australia. I don’t see the advantage to law firms, unless something about law firms makes them incapable of changing their business models without non-lawyer investment and control. That’s a scary concept without a strong justification. I did not get a strong-enough justification from Daws’s talk. [Edit: In fairness to Daws, this was not really the focus of his talk.]Horizontal regulation
One of the perhaps-more-subtle changes non-lawyer ownership could bring about is to lump lawyers into the same category as other professionals. Daws said that, in the UK, at least, there is a movement to put lawyers in the same regulatory “bucket” as other professionals, subject to the same standards. He calls this “horizontal regulation.”
Will it work? There is no way to tell, but it seems obvious that it would have to involve a re-balancing of professional obligations. Not all professionals have the same high professional obligations as lawyers. Will all professionals have to come up, or will lawyers’ obligations be lessened? Either way, it seems fraught with problems.Preparing for non-lawyer ownership
To wrap up, here is Daws’s checklist of things lawyers should know and be doing to prepare for the “liberalized” future of law practice (with my editorial comments):
Do what you can with that.
Is it Time for Non-Lawyer Ownership? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
The interwebs have been around forever, but many lawyers and law firms are still fearful or resistant to cloud-based technology.
Estate Map, a cloud-based tool for estate planning attorneys and consumers, provides an easy way to store and share information about one’s estate plan and related information.
Full disclosure: Sam, who pays me to write for Lawyerist, also works for Estate Map through the end of this month.What I like about Estate Map
Estate Map is essentially digital hub for estate planning attorneys and their clients—information about clients estate plans, bank accounts, valuables, health care directives, etc. You can also leave notes regarding location of valuables, how to get a creaky door to shut, etc. From what I can tell, it’s intended to be a giant repository for anything and everything a loved one would need.
When you sign up, you get two welcome e-mails. One of them walks you through how to get started as an attorney and the other one walks you through what a client sees on their end. Overall, I found the walkthroughs to be quick and generally helpful.
After signing up, I was immediately impressed at the security protocols. You login with your e-mail address. You are then asked one of three security questions. Then you have to input your password, and confirm the displayed image matches your previously selected image. I wouldn’t consider it watertight security, but given the amount of personal financial information you are encouraged to share, it’s nice to see some extra precautions.
The interface is simple, clean, and relatively easy to navigate to what/where you want. Some of the graphics and animations are a little janky, but I’m assuming that’s something that will get cleaned up over time. For a client, however, I believe the simple and generally self-explanatory interface would be very appealing.
There are two features that should be particularly appealing to attorneys/law firms. One, you can input a variety of information (including your firm’s logo) so that your firm is branded on your client’s Estate Map interface. In other words, it should appear the Estate Map is a program associated with your firm, rather than the opposite.
Estate Map also provides a one-click backup/download option of client data. The client’s information (broken down into every category) is then downloaded into a relatively clean PDF. It’s not just a data dump, but a presentable document that has all of the information they provided.
The interface should appeal to clients, because it is relatively simple and nearly entirely self-explanatory. When a client first signs up there is a brief questionnaire asking for all of the information needed to create their estate plan.
When you use Estate Map, it’s apparent that the company spent a lot of time making a consumer-friendly interface. Frankly, without a friendly interface, I think this concept is a non-starter. It literally walks you through every component that requires your input, from bank accounts, to ex-spouses, etc.
Again, it’s difficult for me to fully evaluate this, because I do not practice estate planning. But it would appear that the designers have thought of everything (or darn close).
It’s my understanding that Estate Map is going to make a number of changes in the near future. The major change is that there will be three options: a free consumer option, a premium consumer option, and an attorney plug in feature.
Because of those changes, I’m refraining from a lengthy discussion of the current pricing plan. Suffice to say, I don’t think the current option is particularly good, which is why I’m assuming it is being changed.What I don’t like about Estate Map
Overall, the design and interface is simple and easy to understand. However, as noted above, some of the icons look janky and the animations could use some polish. In addition, some of the features are not easy to find as they should be. For example, I had to search for the download option in the client interface. It’s a great feature, but it would benefit from being easier to find.
I appreciate the simplicity of the opening questionnaire (are you married, kids, etc.), but it also feels somewhat impersonal. I’m not sure how to fix that, although if an attorney is directing clients to Estate Map, perhaps an introductory video (or something similar) would be helpful. It just seems abrupt to get asked all of that information without an explanation.
Another issue that is not clear to me is what happens when a client updates their information—is the attorney notified of the change? Is the attorney only notified when certain changes are made? I’ve been told that only major changes affect an estate plan. That said, I assume that some attorneys (and their clients) would like to be automatically notified when a client updates information.
As noted above, you can download a “hard backup” of the information with click of a button, which is great. However, while the current downloadable PDF is certainly serviceable, it’s not great. It’s better than a straight text data dump, but it could use some polish. In addition, given the importance of using redundant backups, it would be nice to have an additional backup feature.Who should use Estate Map
As noted, I don’t handle estate planning matters, so my understanding of knowledge of that practice area is fairly limited. That said, it sure looks Estate Map could be a nice component of part of an estate planning practice. One, it appears to help your clients understand and obtain all the relevant information. Two, it allows them to access it and share it (if they desire).
Given that the company is planning on rolling out free/premium/and professional options in the next few months, I think there is certainly an appeal for consumers. It’s a neat product with a fairly intuitive interface. Even if you don’t handle estate planning cases, it’s worth checking out for your own personal use.Score Estate Map
Reviewed by Randall Ryder on September 24, 2013.
Summary: Estate Map is a neat program that needs a bit more polish, but holds considerable appeal to both estate planning attorneys and consumers in general.
Overall score: 4 (out of 5)
One of the tidbits I picked up at the Clio Cloud Conference is that terms of service for cloud software are not necessarily take-it-or-leave-it. The UNC School of Law’s IT director, Doug Edmunds, talked about negotiating the terms of service for his school’s Clio account. That’s a big account, so maybe that is not surprising. But small-firm lawyer, Chad Burton, convinced Box to add specific terms regarding who at Box could access his firm’s information.
Full disclosure: Clio wanted me to come to its conference so badly that it flew me to Chicago, put me up at a swanky hotel, and gave me an umbrella and a pair of gloves that work with my iPhone (although in fairness, everyone got the umbrella and gloves in their conference swag bag).
Sooner or later, anyone who tries to do business with lawyers eventually finds out that the legal “vertical” is actually a large bundle of really small verticals. Family lawyers don’t have the same needs as criminal defense lawyers, who don’t have the same needs as small business lawyers, and so on. Size, geography, years in practice, and more characteristics than probably ought to matter, all factor in. Different states’ ethics boards require different things. Different kinds of clients require different assurances (if I were a criminal defense lawyer, for example, I would want to make extra-sure that my software provider would tell me about any government “requests” for my clients’ data) that need to be reflected in the terms.
Plus, many many lawyers want special treatment, and that may be reflected in the terms they want, too.
That means it is really hard to draft a single, universal agreement that will work for every law firm, from international BigLaw firms to solos. It is impossible, in fact. There is no point trying.
Apparently only 41% of lawyers even claim to read terms of service, but if you happen to be one of those who do, and if you don’t like what you read, call up a sales representative and ask for a change.
(Confidential to cloud software providers: Offering cloud software to lawyers under terms of service is best viewed as a sort of crowd-sourced contract drafting exercise.)
Terms of Service for Cloud Software Are Negotiable is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
All 17 of the states that have issued advisory opinions on cloud computing agree that lawyers must do their due diligence on the cloud services they want to use. They use different words, and some include more requirements (Massachusetts lawyers have to get clients to sign off on their software choices, for example), but the thread is clear.
You need only be reasonable, not paranoid.
So what do you need to know about the services you use? At the Clio Cloud Conference, Bob Ambrogi presented a 10-step checklist. It is not comprehensive, but it is a good start
Full disclosure: Clio wanted me to come to its conference so badly that it flew me to Chicago, put me up in a nice hotel with a tin of popcorn and a bottle of wine, and invited me to a Cubs game.
Here is what Bob thinks you need to know about your cloud software providers:1. Do your due diligence on the company
Why do you think this company is trustworthy, when it comes to your clients’ information? Why do you think it will be around five or ten years from now?
You cannot ethically — and should not, anyway — hand over your clients’ information to a company you know nothing about. This should be obvious. Sure, you won’t find many cloud software providers who have been around for five years, much less fifteen, but you must learn what you can. If you can at least articulate a non-laughable reason why you are willing to use a certain provider, that’s a good start.
Reading the terms seems like it should be obvious, but apparently it’s not:
Only 41% of firms who use cloud computing have read the Terms of Service. Really? #cliocloud9
— Pegeen Turner (@pegeenturner) September 23, 2013
That is from the ABA Technology Survey, and it should probably read “claim to have read,” since I assume respondents were on their honor.2. Ensure you will have unrestricted access to your data
In other words, can you get to your data when you need to? If the main server goes down or is compromised, is there a backup to keep the system up? What if something goes wrong at the service provider’s end?
Clio’s Data Escrow service is one solution worth mentioning. If you sign up for it, Clio will push all your information to an Amazon S3 bucket that you — not Clio — control. It’s all in csv or ics format so you can access it as a spreadsheet or calendar, even if Clio disappears. (Of course, you’ll want to do a bit of due diligence on Amazon S3 before you set this up.)3. What happens when the relationship is terminated?
Let’s say the company declares bankruptcy, or you stop paying. What happens to your data and your access to it? Companies employ a variety of approaches, here, from a downloadable export to read-only access to no access at all.
Here’s my bottom line: you need to be able to get your data out of the service in a format you can use. It doesn’t have to be pretty, but it does have to be usable, by you, without special software. That usually means CSV (comma-separated values) and ICS (iCalendar) files, but some software may offer to let you download less-useful but more-readable PDFs.4. Password protection
At a minimum, the service had better be protected by a password. Multi-factor authentication (your password plus a text message sent to your phone) is becoming standard.
Some services offer the ability to automatically log you out after a given time, and some will even monitor for suspicious activity. These are nice options to have.5. Protecting your data’s confidentiality
Will the company actively protect the confidentiality of your information? Will it inform you if it is served with process that targets your information? How can you enforce this obligation?
This is a big one for lawyers, especially now that we know government agencies are actively and passively gathering information, and not just about illegal activities. You should at least know what to expect from your provider, so you can make an informed decision about what to store in the cloud under its care.6. Encryption
You need to understand encryption. When and how is your data encrypted? On your computer? In transit? SSL/TLS, or is the data itself scrambled? In the cloud? Who has access to the encryption keys for your data?7. Data backups
How often is your data backed up? To multiple locations (it better be)? How do you get access to the backups?8. Network security
How does the provider protect its own network, and the network on which your data will be stored? This means both network and physical security.
Security information should not be hard to find. If it is, you can probably assume the security is not good enough.9. Physical security at data centers
Amazon has a 48-page white paper (pdf) on its security features, including a description of the physical security at its data centers:
AWS data centers are housed in nondescript facilities. Physical access is strictly controlled both at the perimeter and at building ingress points by professional security staff utilizing video surveillance, intrusion detection systems, and other electronic means. Authorized staff must pass two?factor authentication a minimum of two times to access data center floors. All visitors and contractors are required to presentidentification and are signed in and continually escorted by authorized staff.
In other words, Amazon isn’t screwing around. Neither should any company you do business with (hint: most are probably using Amazon for their service).
As a shortcut, you can look for an SSAE 16 (or SAS 70, type II) certification, which means the American Institute of CPAs says the service is good enough for them.10. Get extra security
Encrypt your hard drive. Your email, too, if you can. Use better passwords. Turn on multi-factor authentication everywhere you can. No matter what service you use, it cannot save you from yourself.
Is this enough? Well, it’s a start. Your duty of competence includes knowing when it might not enough. But in the end, Bob says, “You need only be reasonable, not paranoid.” This is a reasonably-good start on due diligence.
P.S., Bob has posted his slides on his blog:
How To Do Cloud Computing Due Diligence, from Bob Ambrogi is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
I’m at the Clio Cloud Conference today and tomorrow, where Clio kicked things off by announcing a brand-new (and long-overdue, to be honest) iPhone app.
Clio’s new iPhone app is beautiful, with clean, uncluttered design, and sharp typography. Seriously, I wish Clio looked this good in my browser, and I really hope Clio plans to carry over the app’s design language to the web app  (good news: that is the plan, it sounds like). Design-wise, the Clio app is right up there with the best iPhone apps, period. It feels like the team agonized over the details in a similar way to design geeks like John Gruber and his Vesper co-developers. [Edit] I don’t know how to give the app higher praise than that. It’s beautiful, and one of the best-designed iOS apps I have seen.
The new app also does just about everything you would want it to. It syncs up all the information about your matters and clients, and lets you track time, see your to-do lists, and access documents. You will still have to use the web app for some things, like sending bills and balancing your accounts, but those are probably not tasks you’d want to do from your phone, anyway.
The only big thing that seems to be missing is Clio Connect, Clio’s document-sharing portal. That’s a shame (so is the lack of a secure communication portal in Clio in the first place), because managing and sharing documents is exactly the sort of thing I would like to do with a mobile app. If you’ve plugged Clio into Dropbox, Google Drive, or Box, you can probably do without it, but it’s still a pain.
Within the app, interaction with documents is actually limited to viewing. You can only add documents or share them from the web app. Maybe that is because there is no easy way to move a PDF around in iOS (other practice management software apps have the same limitation), but the ability to manage documents is something I would love to see.
Some minor features also feel like they are missing, too. Or maybe just overlooked in the first release. For example, you can add a contact to a matter and specify a relationship, but you cannot edit it. So if you misspell “Cheating husband” or “Opposing counsel,” you have to make a note to fix it when you are back at your computer. It’s a small thing, but it will irritate you if you often find yourself trying to manage your practice from your phone (which, after all, is the point of having a mobile app).
Related to that, Jack Newton, Clio’s CEO, says that Clio developed the app in-house. That means there are 6 full-time developers whose job description includes working on the app. The advantage to that may not be obvious, but it means Clio can keep the updates coming. In talking with the developer, it sounds like there’s a lot of stuff on the road map. Clio users can expect the app to keep getting better and better.
[Edit] More information on that road map. Clio believes that more and more lawyers are going to want to manage their practice from phones and tablets, so the goal is to make the mobile app as powerful as the web app. You should soon be able to do everything you need to do in Clio on your phone or your tablet.
So, now all of the Big Three (or Four, depending on which ones you count) cloud-based practice management software packages has an iPhone app. They are not all quite equal, though. First, if things besides your iPhone are important to you, other apps offer greater flexibility. The apps for MyCase and Total Attorneys are also built for iPad, and Rocket Matter is alone in having an Android app. Clio stands out as the clear winner on design, but the apps from MyCase and Total Attorneys are not short on features. However, the apps from Total Attorneys and Rocket Matter are in need of updates.
Clio’s iPhone app shows that great legal software can be great-looking, too. If you are a Clio user, get it now, and start keeping track of your practice from your phone.
Still wondering why your legal website or blog is losing traffic? Here’s yet another possibility: Duplicate Content.
In one recent example, Conrad Saam identified a law firm website that had content that was duplicated across as many as 58 other sites.
How does this happen?
Duplicate content can occur in a variety of ways. At one end of the spectrum, it can be created because of a technical “glitch” on your site. For example, perhaps you have WordPress or a plugin configured in a way that creates duplicate page titles each time you publish a new page. It can also happen as a result of configuration mistakes with post categories and tags.
It can also be the result of content scrapers. In a nutshell, spammers scrape content from your site and publish elsewhere.
Often times, it’s the result of purchasing canned content for your website. In other words, you pay someone to build you a website (or multiple websites) and add content and the web designer/developer uses the same page content across many other sites. This appears to be the culprit in Conrad’s example.
What’s the problem with duplicate content?
Aside from appearing cheap and potentially creating an ethics issue (in the case you mislead readers to believe the content is written by you, a lawyer), duplicate content can crush your pages’ visibility in search results.
As Google notes in their Webmaster Tools Help:
Google tries hard to index and show pages with distinct information. This filtering means, for instance, that if your site has a “regular” and “printer” version of each article, and neither of these is blocked with a noindex meta tag, we’ll choose one of them to list. In the rare cases in which Google perceives that duplicate content may be shown with intent to manipulate our rankings and deceive our users, we’ll also make appropriate adjustments in the indexing and ranking of the sites involved. As a result, the ranking of the site may suffer, or the site might be removed entirely from the Google index, in which case it will no longer appear in search results.
There has been some recent confusion about whether duplicate content can actually hurt your site. First, there isn’t a duplicate content penalty, at least not as a “penalty” is typically understood.
It’s important to distinguish duplicated sections of content, like disclaimers, from wholesale page duplication across several sites. In a nutshell, you don’t need to stress about minor duplication that servers a valid purpose. On the other hand, if you’re the target of a scraper or you’ve purchased page content that’s being used all over the place, you’ll probably want to take some corrective action.
What can be done?
The first step is to check whether you have a duplicate content problem. As Conrad recommends, you can simply search for a potentially duplicated paragraph in Google and see if other pages contain the same content. You can also check for duplicate content problems in Google Webmaster Tools.
If the duplication is accidental (i.e. configured misstep), you simply need to identify the offending setting(s)/plugin(s). You can learn more about fixing duplicate content issues like these, here.
In the event that the duplication is more insidious, you’ll probably have a bit of leg-work to do.
If you paid someone to write web content that has been duplicated, you need to check whether the terms of your agreement required that it be unique. If so, get your money back and revise (or kill) the duplicated pages.
If you’re thinking about hiring someone to write content for your site, make sure that they guarantee uniqueness. Of course, you should also maintain exclusive editorial control of everything posted to your site. Outsourcing web content can be fraught with ethical obstacles.
No Disguise for that Double Vision is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Even though I’ve been a defender of Microsoft Word for years (even when faced by diehard WordPerfect users), even I have to admit that some of its features simply make no sense. Unfortunately, a lot of those user-hostile features are the ones most likely to be used in a law office. Here are my nominations for the most hair-pullingly frustrating, user-hostile Microsoft Word features.TOA
If you ever have to do appellate briefs that require a Table of Authorities, you have my sincerest sympathies. Like many of the features on this list, this isn’t something I can show somebody one time and expect that they’ll pick up the ball and run with it. Inevitably, no matter how carefully someone marks their citations, something goes wonky with the Table of Authorities: the indentations aren’t right, there’s not enough space between the entries, the font doesn’t match the text of brief … the list of what can go wrong is nearly endless. If it’s a simple enough brief, the temptation is to do it all manually. I can’t say that I blame anyone for that.
If you do TOAs a lot, you can buy software that can step between you and Word and provide an easier experience. But it’ll cost you.Bullets & Numbering
Frankly, I can understand why a Table of Authorities is a difficult thing to automate. There are a lot of pieces that have to fit together just so. But what is so freaking complicated about having auto-numbered paragraphs that are indented (or not) correctly? The whole thing becomes a tangled mess of field codes, Styles, and paragraph formatting, and if your numbering ever gets off-track, heaven help you.
Yes, there’s help to be had here too, but again, it’ll cost you. At the very least, you’ll want to turn off the feature that lets Word AutoFormat anything that looks like it ought to be a bullet or paragraph number. Then, you can always do things manually until you choose not to.Track Changes
I’d be hard-pressed to name a single legal practice specialty that doesn’t need this feature. And truthfully, just turning it on and letting it mark the text as you type is actually quite simple. It’s trying to deal with the text later that’s complicated. Do you want to print the changes, or do you want to print the document as if all the changes have been accepted, or do you want to print the document as it was originally? Well, you can do all that, but first you have to figure out the difference between Final Show Markup, Final, Original Show Markup, and Original. It’s not nearly as intuitive as it sounds. And if you got balloons but you don’t want balloons, or vice versa, good luck finding the place where you suppress or add them.
You might be better off simply using the Compare feature to look at the differences between two distinct drafts.
From client intake to going to trial (or whatever your practice’s endgame is), forms could be a huge timesaver. And although Microsoft Word has a pretty impressive database of templates, they’re really not geared to law offices.
If there were world enough and time, you could assemble your own set of forms. But between hiding the Bookmark and Cross-Reference feature on the Insert tab and squirreling away the Controls feature on the hidden by default Developer tab, it’s almost as if Microsoft is telling you, “don’t bother.” Even Adobe does a better job of this sort of thing that Microsoft.
If you’re a Microsoft Word user determined to streamline your document production process with forms, you can get help here, too, and a lot cheaper than you think. You can check out a simplified version of TheFormTool for free, or you can pay a small fee for a premium version that does really cool things like convert $123.45 to its text equivalent of “One Hundred Twenty-Three and 45/100ths Dollars” plus calculate amounts and dates. With that and a little elbow grease, you can save yourself the frustration of learning the Cross References feature and leave the Developer tab for the propeller heads.Pasting
Want to paste text from one document to another? Sure, you can do that, and the safe bet is you’ll somehow screw up the formatting in your destination document in the process. That’s because Word tries to figure out whether you wanted to paste just the text or some (or all) of the formatting.
As if that’s not complicated enough, there are settings embedded deep in the Options area that control the defaults for pasting text within the same document, between Word documents, and from another program into Word. After all, getting text from one place to another isn’t all that simple (but it should be).Your Nominees?
Of course, these are just my pet peeves. Every Word user has their own “it’s got a be simpler than this” feature. What’s yours?
The 5 Most User-Hostile Microsoft Word Features is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Arguably the biggest legal news of the week for non-lawyer types happened on Tuesday when a federal judge tossed out the 2011 convictions of five New Orleans Police Department officers who were found to have shot and killed citizens in the aftermath of Hurricane Katrina and then engaged in a far-reaching coverup to hide that fact. The new trials were ordered because federal prosecutors in both New Orleans and Washington D.C. made anonymous blog comments about the trial on a newspaper website. There’s an incredibly tangled story here, and one that nola.com, the online home for the New Orleans Times-Picayune, has truly done yeoman’s work in untangling. Nola.com also served as the platform for the comments that ultimately dismantled this case. In brief, during the course of the officers’ trials, both the Number 2 and Number 3 lawyers in the New Orleans United States Attorney’s Office repeatedly posted comments on nola.com (under anonymous handles, of course) that were critical of the NOPD, including statements that the NOPD was corrupt and that a defense witness was racist and delusional.
I’m burying the lede a bit here, but you know where I’m going. Veteran high-up prosecutors thought it was a good idea to post anonymously (and critically of the defendants) about an active, incredibly high-profile – arguably the highest-profile ever – case that their office was handling. What went wrong here that this seemed like a good idea? Is it law culture? Internet culture? An unholy intersection of both? I might have been tempted to speculate it was the overpowering allure of power and the sense of immunity that years in a prosecutor’s office might have created until Sam Glover reminded me of a somewhat similar incident he wrote about earlier this year. There, a criminal defense attorney wrote “[l]et the blood flow through the streets. Let the blood run in the police stations” on his blog.
As jarring as that example sounds, it is less problematic and less ultimately offensive to our sense of justice than what happened in New Orleans. As Sam discussed in his post, the call for blood was a moment of letting off steam. Is it a smart way to let off steam? No. Is it something that will likely bring you to the attention of the police when you see them the next day? Probably. Is it an exceedingly ill-advised way to use social media if you’re a lawyer? Definitely. Does it represent a concerted effort to sway public opinion or change the outcome of a trial? Not really.
The defense attorney blogged under his own name and took full responsibility for his statement which, offensive though it was, was clearly hyperbolic. The AUSAs in this instance used the shield of anonymity to get out their message: the police department was corrupt and therefore the police officers were guilty.
There’s a small bit of comfort to be taken in the fact that at least these AUSAs were not people who were directly working on the case…until, of course, it was someone directly working on the case:
[Washington D.C. DOJ trial attorney] Dobinski wasn’t just any federal prosecutor. She was the “taint team leader,” a veteran member of the Civil Rights division tapped to ensure the rights of a police officer — in this case, Bowen — were not violated during the course of the federal investigation. This was a special situation since the officer had provided certain information to a state grand jury that was off-limits in the federal case.[...]
Dobinski’s role was to help federal prosecutors determine what they could permissibly use, and the judge noted he relied on her testimony to allow in certain evidence against Bowen.
So, someone charged with ensuring fairness and transparency in a trial chose to use an anonymous platform to urge a favorable trial outcome. She specifically got involved with partisan trial watchers and used the comment section to ask that they keep posting pro-prosecution comments on nola.com.
The judge’s order in the case can charitably be described as “blistering” and it makes clear that the decision to order a new trial turned entirely on the internet comments. The court raised the questions of whether the conduct broke any professional responsibility rules and whether the prosecutors were permitted to do in cyberspace what they could clearly not do in the “real world.” And – lest you think the comments in question were few in number, or non-explicit, the order will disabuse you of that notion with pages upon pages of the comments. The court also noted that Dobinksi’s conduct – publicly urging other nola.com posters who were calling for convictions to keep posting – may have been the final straw that led to the order for a new trial.
Other posts I’ve done on social media have been a sideways nudge and a wink, a gentle mocking of our profession’s seeming inability to understand that the internet isn’t a magic box where things are invisible and you can do whatever you want. This situation doesn’t really lend itself to gentle mockery. Here, some toxic combination of hubris and ignorance led to real consequences for the families of the shooting victims and for the defendants that didn’t get the fair trial they deserved. As a profession, we owe it to ourselves to create an environment where we remain informed about both technological progress and the implications of the use of those technologies. At this stage in the existence of the internet, there’s simply no reason for any attorney to believe that something that would be impermissible in the “real world” will somehow be acceptable on the internet. There’s also no reason to believe that internet speech is somehow utterly without real-world consequences. Regardless of whether the police officers are convicted in a new trial, this case will serve as the saddest teaching moment imaginable.
Intemperate Internet Commenting By New Orleans Prosecutors Has Far-Reaching And Terrible Consequences is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Every so often an ethics case comes along that has the potential for far-reaching ramifications. Hunter v. Virginia State Bar is one. It could mean lawyers can wilfully disseminate client information for their own gain without violating client confidentiality rules, but also that lawyers cannot blog about their practices and their successes without disclaimers. The legal ethics world is abuzz with what Hunter will mean across the country.Who Is Mr. Hunter?
Horace Hunter is a trial lawyer and active blogger. His blog includes posts about the cases he has won, and some of these posts divulge details about his clients. The details have also been disclosed in publicly-available court records, though the court records are far less accessible than Mr. Hunter’s blog. At the time the Virginia State Bar took issue with Mr. Hunter’s blog, it bore no disclaimers applicable to attorney advertising in Virginia.Virginia’s Case Against Mr. Hunter
The Virginia State Bar investigated Mr. Hunter because of his blog. It found that he had violated both client confidentiality rules and attorney advertising rules. (For those of you following the individual rules, Virginia’s ethics rules mirror the Model Rules, and Mr. Hunter was found to have violated Rules 1.6, 7.1 and 7.2.)
Mr. Hunter fought the Virginia Bar’s charges up to the Virginia Supreme Court. The clearly contentious case split the Court. As to divulging client confidences, the majority of the Court held that the First Amendment protects an attorney who disseminates information about a client, even where as here Mr. Hunter identified the clients by name, when the information has already been divulged publicly, including in court proceedings. The Court held that the attorney is just as protected as a member of the public or media would be in repeating information revealed in court. It makes no difference if that information is embarrassing or detrimental to the client.
As to attorney advertising, the Court held that the blog is mixed commercial and political speech not entitled to First Amendment protection, and that because case-related blog posts were inherently misleading, Mr. Hunter must post disclaimers which comply with Virginia’s advertising rules on each of the case-related posts.Attorneys Can Actually Embarrass Clients By Name And Be Protected
Perhaps the most shocking part of the Hunter case is the Virginia Supreme Court’s holding that attorneys can embarrass clients – and by name! – and be protected by the First Amendment. Without arguing the Constitutional side of the issue, from an ethics perspective it seems completely inconsistent with attorneys’ duties of loyalty and confidence. An attorney cannot take a position inconsistent to a client’s position without violating his duty of loyalty, but he can go online and embarrass his client so long as the information has previously been divulged?
I am not alone in finding this holding incongruous with the profession and our duties to clients. Discussions of Hunter have included posing the question of whether the case could be logically extrapolated to doctors, allowing them to divulge a patient’s sensitive medical information so long as that information had been disclosed in court proceedings of some kind, such as in personal injury litigation. Legal Ethics Forum set out one answer, which was “yes” from Furman University President Rodney Smolla. The potential for far-reaching implications is exactly why this case is so critical. If this holding is widely accepted, what does it do to confidence in the profession?
(One limitation in the Virginia ruling is that the Court points out that the cases about which Mr. Hunter blogs are completed matters. At least they are not ongoing, but I think he would lose any client he was actively work with upon the posting of the blog. Still, it seems like it would be very bad for business to be known as the lawyer who is likely to divulge information about clients online.)Disclaimers Actually Matter
In an earlier post, I questioned whether our disclaimers in email signatures, blogs and websites, are actually effective or just mindless verbiage. Virginia answered this question to a certain extent in its Hunter holding, where it stated that without a disclaimer, Mr. Hunter’s case-related blog posts are inherently misleading. The Court actually remanded the case to have an order issued imposing disclaimers that specifically complied with Virginia’s advertising rules; so yes, to answer the earlier post’s somewhat rhetorical question, disclaimers do matter.
In an interesting twist to the case, in the negotiations with the Virginia State Bar to resolve its issues with the blog, Mr. Hunter offered to post a disclaimer. Negotiations apparently stalled and he did not post it at that time. My question is, why not? Perhaps Mr. Hunter was concerned that posting the disclaimer before settlement of the matter would be viewed as an admission that the disclaimer was necessary and thus had been lacking. Or, perhaps he felt that the disclaimer would reduce the effectiveness of the blog. Either way, it again shows that disclaimers do indeed matter.Virginia As Leader Or Anomaly?
Time will tell whether Hunter will be followed in other states or stand on its own as an outlier. The blog-as-advertising issue is most likely to come up in other states, with the proliferation of attorney blogging. The client confidentiality issue is the one most scholars will be most interested to follow, though it will take another lawyer like Mr. Hunter actually discussing client information to trigger a similar case in another state.
Can You Disseminate Embarrassing Client Information Online And Get Away With It? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
Today’s original post was about iOS7. I was going to tell you how cool it is and how the security features will be really nice for lawyers. But then I stumbled on a flipbook full of quotes from eighteen business leaders. The quotes are more like small nuggets of advice. I found myself jotting down one quote after another to put on my desktop or pin to my wall. I also started to notice a trend in the things these people had said. They seemed to all be repeating the same things, especially when it came to relationships, success, and failure.On Relationships
It’s been said that you can judge a person by who she associates with. And we all do it, don’t we? But the theme I found emerging from these quotes is the importance of making sure the people around you are better than you are. Some have said it literally. Like Warren Buffett, who said:
It’s better to hang out with people better than you. Pick out associates whose behavior is better than yours and you’ll drift in that direction.
This holds true both professionally and personally. We emulate and draw inspiration from those around us. If we surround ourselves with better people, then we have a chance of becoming better. Of course, your definition of “better” will dictate who you surround yourself with.
To Michael Dell, the founder of Dell, Inc., the key is intelligence:
Try never to be the smartest person in the room. And if you are, I suggest you invite smarter people…or find a different room. In professional circles it’s called networking. In organizations it’s called team building. And in life it’s called family, friends, and community. We are all gifts to each other, and my own growth as a leader has shown me again and again that the most rewarding experiences come from my relationships.
Luckily, both my partner and our new associate are smarter than me. This makes it very easy for me. But maybe you’re the smartest lawyer in your office. That means it’s time to go out and make some friends outside your office. Or start hanging out with non-lawyers.
To Oprah, the best people to surround yourself with are those who will be there for you through thick or thin. It’s easy to be the guy everyone wants to hang out with because of overwhelming success. When you’re successful, people want you to be their smarter person that they can be around. And sometimes they want you to be the person whose coat tails they can ride. But as Oprah explains, those aren’t the people you should keep around:
Lots of people want to ride with you in the limo, but what you want is someone who will take the bus with you when the limo breaks down.On Success and Failure
We all know that success is fun. We like winning trials, getting the client, and making money. But that doesn’t happen every day. In fact, it may not happen very often at all. And interspersed between our moments of success are our moments of failure. According to Henry Ford, “failure is the only opportunity to begin again more intelligently.” But that’s tough to swallow. We are all afraid, to some extent, of failure.
But there is no need to be afraid of failure, as Dell explains:
Don’t be afraid to fail. Get out there and experiment and learn and fail and get a rate based on the experiences that you have. Go for it and when you go for it you’ll learn what you’re capable of, what the potential is, where the opportunities are, but you can’t be afraid to fail because that’s when you learn.
It’s something that everyone does at one time or another, yet we all try to avoid it. Failing is a part of living, according to J.K. Rowling:
It is impossible to live without failing at something, unless you live so cautiously that you might as well have not lived at all, in which case you have failed by default.
And Oprah agrees:
Do the one thing you think you cannot do. Fail at it. Try again. The only people who never tumble are those who never mount the high wire. This is your moment. Own it.
Sometimes it feels like we will never succeed. Like we will never get that big client, or never find that case we need, or never be able to do what we love. But that’s why we never give up. As Thomas Edison said:
Many of life’s failures are people who did not realize how close they were to success when they gave up.
If you want to look at the flipbook and all of the quotes for yourself, check out the article on Enterpreneur.com.
(image: Businessman with quote symbol via SHUTTERSTOCK)
Whether you are calling another member of your firm, or another attorney that you know, reaching out for help can be easier said than done.
Regardless of who you ask, be respectful of the other attorneys time and advice.Don’t ask for advice and then blatantly ignore or disregard it
I’m a niche guy for a multitude of reasons. I understand that there are other attorneys who work in a couple of niches, for a variety of reasons.
What I don’t understand is attorneys that take any and every case that comes into their door. I think that’s bad business and it can be unethical. What I really don’t like is when another attorney that I have never met leaves a voicemail wanting to run a “quick question” by me about a debt collection issue that turns into a half-day seminar.
Too many of those calls turn into a lengthy explanation of what the Fair Debt Collection Practices Act is, how it works, and why they don’t have a case or have done something horribly wrong in their case. Not only do I waste my time explaining an area of law, my advice is frequently ignored. For example:
Me: “It has to be a consumer debt, and that’s a business debt, so your client doesn’t have standing.”
Them: “What? Oh, whatever. I’m just going to file it and see what happens.”
There’s a difference between disagreeing over an interpretation of the law/facts and just straight up ignoring solid advice or common sense. The former is ok, the latter is usually a pretty bad idea. One, it’s probably to going to blow up in your face eventually. Two, if there was any doubt that you were wasting someone’s time with your question, that doubt is now erased.
If you disrespect another attorney to their face, you can call them again for help, but I wouldn’t sit by the phone waiting for a response.A quick question (or questions) is ok
Assuming you don’t need to learn an entire area of law in one phone call, a quick question (or questions) is completely appropriate.
For example: running a scenario and asking if there is a potential claim. Or a better example: calling someone within your own practice area and asking their thoughts on Defendant X, or cause of action Y. That’s helpful for both participants of the phone call.
A quick question is entirely distinct from “Clueless Joe,” because it comes across as needing some more information on part of the puzzle, instead of trying to understand how the puzzle works.
If you don’t even understand the basic elements of a claim in the practice area, or don’t even understand the practice area, you should probably go to a CLE. Or buy an attorney a really nice lunch (or two) and pick their brain.Consider co-counseling or referring the client
I get it, times are tough and everyone needs to make a living. However, you are doing everyone a disservice if you take on a case that you should not handle.
There is actually another (worse) step beyond asking for advice and ignoring it. That would be repeatedly calling another attorney and essentially have them ride shotgun on the case.
If it’s someone you know then ask them to co-counsel. If you are new to game, then you have a bit more leeway as a new attorney. But for the love of pete, if you think you can handle a case by continually calling around to get strategy tips, stop. Instead of wasting the other attorneys time, send the client to them.
The attorney will appreciate it. The client will appreciate it. You will appreciate it, because you won’t tear your hair out and lose sleep over a case that you don’t understand. Heck, the ethics board and your malpractice carrier will probably appreciate it too.
How to Ask Another Attorney for Help is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
At least some people use Yelp, and other rating sites, in their searches to find a lawyer. Good and bad client reviews on Yelp can have an impact on people’s perceptions of you. And they appear prominently in SERPs. So, it makes sense for lawyers to concern themselves with what’s being said about them there.
I’ll leave it to the civil justice system to sort out the details. However, the suit serves as a blueprint for what not to do online.Don’t Have Your Employees Pretend to be Clients and Review Your Own Law Firm
In the Complaint (.pdf), Yelp accuses McMillan Law Group employees of pretending to be clients and reviewing their own employer.
Remember that, with respect to a nonlawyer employed or retained by or associated with a lawyer… who knows their employees, associates, vendors, etc, are breaking the rules, the lawyer is still on the hook.
Pro Tip: Don’t tell your employees to pretend to be clients and leave reviews on Yelp.
Even if you don’t get sued by Yelp, this will probably get you into hot water with your state bar. And if your state bar is out to lunch, you might even get smacked by the FTC or your state’s AG.Don’t Swap Reviews with a Circle of Local Lawyers
Quid pro quo endorsements among lawyers is rampant (See LinkedIn Endorsements). Go to any of the major review sites and you’ll quickly recognize patterns of “review me and I’ll review you back.”
While perhaps not as sinister as pretending to be clients, if proven, this still breaks the rules.
If you know lawyers you think are good, by all means, let the world know. If they feel the same about you, perhaps they’ll even say something nice about you back.
The issue here is not saying something positive about lawyers you respect. It’s about the motivation for saying it.Don’t Pay Someone to Leave Fake Reviews Online
This one should be a no-brainer. Alas, it’s very common.
Sometimes, it’s because of ignorance. More times, the lawyers know exactly for what they are paying.
Ignorance is no defense. If you’re going to hire someone to “do stuff” on your behalf online, make sure you know, review and approve everything they propose to do.Sidebar: A Word on Yelp Specialties
Yelp listings have a “Specialties” section, which is a no-no in many states. Check with your state bar. If you can’t use words like specialist, specialties, etc, just leave that section blank.
Many of the rules governing what attorneys can and can’t do are vague, confusing and unduly restrictive. But this one’s pretty reasonable and clear:
Don’t mislead potential clients with false testimonials, endorsements, reviews, etc.
If you do good work, have happy clients that want to sing your praises and it’s permissible to do so in your state, encourage clients to share a kind word about you online.
But don’t fake it.
Your reputation and your license just aren’t worth it.
Yelp v. McMillan: Law Firm Astroturfing? is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
As lawyers, we can sometimes get a bit insular with our feedback loops, especially regarding writing. (Looking at you, Bryan Garner cultists). I think it is always worthwhile to step outside of our legal comfort zone every so often and figure out how good writing – in whatever form – can make our writing better.
Every year, I have my writing students do an exercise that they always view with great suspicion. First, I make them read Frank Deford’s gorgeously sad article, ‘The Rise and Fall of Kirby Puckett.” (Apologies in advance, longtime Minnesota Twins fans). As a sportswriter, I don’t think that Deford has ever written a word that was deliberately, unnecessarily cynical. His story about Puckett – baseball’s good guy that turned out to have feet of clay – is a story of deep sadness, of wishing for what might have been, of trying so hard to crawl inside the head of someone else to figure out where it all went wrong. Isn’t the last what we lawyers often have to do?
One of the reasons I use the Deford piece is that I know nothing about baseball nor sportsball of any particular variety really. Were I – the unconnected, the not-caring – to write this piece, it would be nothing but a takedown, a Kirby Puckett hit piece. From Deford, though, it is an elegy for Puckett, the boy who loved baseball but got lost on the way somehow. I use this piece to get at the Aristotelian concepts of persuasion – ethos, logos, pathos – and how Deford could bring ethos and pathos to a piece like this and I could not. He speaks with an authority I do not possess, as I don’t have any particular background or understanding of baseball or Puckett. More importantly, though, he speaks with an appeal to emotion that I could never possess, as I did not love the sport, I did not once love and admire Puckett. I might have been able to make a logical appeal, but that would be so…cold, so distant, so non-resonant with my potential audience. I often thing as lawyers we get awfully caught up in the logos, perhaps at the expense of the other two pieces of the rhetorical triangle.
After the Deford article, I have each student tell me (they know ahead of time they will do this – it’s not a surprise) who one of their favorite authors are and why that author is persuasive, keeping in mind those Aristotelian concepts. I warn them that I do not believe that their favorite author is a Supreme Court justice or that they read cases in their spare time. I’m (obviously) trying to draw out some reading they’re passionate about and how that can influence their legal writing.
Every year I get a wide variety of authors – some I’ve heard of, some I haven’t. Sometimes people are sheepish or suspicious because they want their author to live up to some imaginary standard of intellectual worthiness. The point of the exercise, however, is that we can draw value – meaningful value that can help us be better writers – from reading things we love. My first year doing this, a student said Matt Taibbi was his favorite, and explained his Hunter S. Thompson-esque appeal. I raced out and bought The Great Derangement and have read everything Taibbi has written since. He’s a positively pugilistic writer, but he backs up his hostility with a complete overload of research. While I am not planning on developing an inherently combative writing stance, reading him teaches me that the more I want to lead with my chin when writing an argument, the more I should pile on the facts when I do so.
Last year for the first time, a student picked a blogger rather than a traditional author, and the blogger he picked was a fairly prominent men’s fashion blogger. He talked about how the writing helped shape his opinion of fashion and helped shift his thinking on various fashion choices. He also explained that reading the blog routinely introduced him to new designers and concepts. What could be better than that, persuasion-wise? It introduced him to new ideas and changed his mind about existing ideas.
Thinking about authors in this way can help us get out of our technical writing fixations. That’s not to say that the technical things don’t matter, or that your next brief should read like a John Grisham novel. However, thinking about the writing you love and why you love it can help you bring your own persuasive skills, your own pathos and ethos, to your work, rather than your work being an attempt at pure logic. Your audience – be that the court or a client or a CLE audience or anything else you can think of – should look to you as someone they can relate to, as someone they trust. Moreover, reading things we love reminds us of the power of words, of the joy at finding the right way to express ourselves, and we need that in our writing – even in legal writing.
In case you’re wondering – I tell my students about one of my favorite books, Nabokov’s Pale Fire. Nabokov’s writing shows a man wildly in love with the English language, and this book creates a literary world so elaborate that it holds up even after you’re in on the conceit that powers the whole book. Reading it always reminds me that finding the right word, the right way to express myself, can be a labor of love and not just a tortured technical exercise. I’d like to say it makes me a better writer, but that’s probably not for me to judge.
Your Favorite Author And The Power of Persuasion is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.