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Blawg Review #308

Today is a red letter day…for science.

Nearly 60 years ago, James D. Watson and Francis Crick introduced the modern concept of the double helix formation of deoxyribonucleic acid (DNA). On this very same day, the Human Genome Project was completed in 2003, which identified and mapped the approximately 20,000–25,000 genes of the human genome. As such, April 25th is recognized as National DNA Day.

The push for exploration and understanding the world in which we live has been a driving force of science for ages. From Pythagoras scratching out theorems in the dirt to Issac Newton’s Principia to the mapping of the human genome, the pursuit of knowledge and truth has driven natural philosophers and scientists to push through boundaries in an attempt to better understand life, the universe, and everything.

But discovery and new frontiers bring about radical, and sometimes violent, change. New knowledge and practices can upset established ways and means. By many accounts Pythagoras was burned alive in one of his sect’s temples. Newton’s ideas about optics routinely drew criticism and scorn. The Human Genome project continues to face ethical and legal criticism in its wake of attempting to understand the building blocks of human life. Yet, science forges ahead, albeit haphazardly at times, and slowly the world changes.

Of course, new frontiers are not limited to the ivory tower and the laboratory. The 20th and 21st century have wrought dramatic change to nearly every field and trade. In particular, computers and the Internet have brought about great change in the legal profession. 20 years ago law students still routinely learned how to Shepherdize and cite check case law in books at the library. Do they even bother anymore with the advent of Westlaw, Lexisnexis, Fastcase and the like?

Leaving behind the tomes and treatises in the law library is merely the tip of the iceberg of change that is being wrought on the legal profession. Technology is pushing lawyers and firms  in new and different ways in which to work and interact – some good and some bad.

New Lawyers in the Internet Age

The leading example of this type of change from the past week was from an e-mail listserv. A young lawyer posed a question about developing his practice. What once would have been asked at a local bar event, or to a more seasoned practitioner in the young lawyer’s town, was instead shot around the globe to more than 4,000 other lawyers. But his question was framed in a way that seemed to trivialize criminal practice and focus more on the acquisition of clients through technology (traffic lists, SEO) rather than the service of clients. Brian Tannebaum immediately took him to task:

I think that any lawyer that didn’t sharply and publicly reject this lawyer’s tactic of gaining experience on the backs of criminal defendants for the sole purpose of building a civil practice, should be disbarred.

Cheerleading is fine, when there’s a game going on.

I was convinced today that solosez is nothing more than a marketing chorus, with little concern for the quality of lawyering that exists in America.

An explosion of comments and discussion ensued, with the young lawyer himself chiming in. It presents an interesting juxtaposition to the Joseph Rakofsky scandal a few weeks ago. Go read, and join, the discussion. Very much worth your time.

Along those lines, Jason Wilson believes that content marketing will kill the law:

You see, until recently lawyers used to write weighty tomes. Firms, like Littler Mendelson, who produce a substantial body of analytical material are a dying breed. Now, thanks to the Internet, lawyers spend their time writing SEO pieces. Lawyers are no longer scholars organizing and explaining the law, but brand developers and managers. Writing about the law—what used to be an educational and somewhat prideful endeavor—is now merely a part of lead generation. The people that understand such things (“those people”) call this “content marketing,” and from where I sit, it’s going to kill the law.

Speaking of killing things, over at Above the Law and other websites, some postulated that Twitter, etc. has killed the business card…which has to be one of the most ridiculous things I’ve read in some time. Know anyone over 40? Live in fly-over country? 10-to-1 odds they don’t have a Twitter account. Start talking about exchanging Twitter accounts to a potential older client and they are going to look at you like you’re a jackass.

Yet social media is here to stay and grow. Even the Curmudgeon himself is now singing its praises.

But not every aspect of the internet and social media is all it’s cracked up to be. Dion Algeri explains why SEO is Snake Oil.

Judge’s Thoughts on Lawyers

A study published by Judge Posner Law professor Albert Yoon in regards to the low opinions judges have of lawyers has been generating some discussion this past week (*ahem* despite me writing about it last November). Scott Greenfield dissects its discussion of private criminal practitioners:

The article is replete with issues that merit discussion, not the least of which is the institutional bias of judges who clearly and overwhelmingly favor prosecutors, and secondarily public defenders, to private criminal defense lawyers. I hope that others will carry the water and write about this, but the many varied and monumental issues presented by this article far exceed the scope of a blawg post.

Although a commenter to my post on the topic shared this two days ago:

The survey does not appear to meet the very basic requirements of a public opinion survey as taught in a lowly statistics course at a community college (to put it in the snob world’s view). What is being passed off as science by use of statistics is only as good as the questions asked. And it appears those questions called upon people to vent their bias and unsubstantiated beliefs. Judges are no better at taking a survey about lawyers than lawyers are at taking a survey about judges. And we all know what judges think of bar polls.

In the matter of Paper v. Screen…

Discovery, as a purely legal term, used to mean swapping paper documents back and forth – now it may involve forensic analysis of a computer hard drive and the interception of electronic data. The most infamous breach (and leak) of such data has to be that of Wikileaks and Joseph Manning. Glenn Greenwald provides an analysis of Manning’s subsequent treatment and what it means when the Commander-in-Chief (not to mention lawyer and Constitutional Law professor) has already decreed his guilt before ever having a trial.

On the topic of swapping papers around, as the dead-tree format slowly eases its way out and motion, briefs, etc are filed electronically, there is a growing concern as to how text appears on the screen as opposed to the page. See examples at the Appellate Record.

Speaking of writing for the screen, I’m sure everyone heard about the HuffingtonPost bloggers class action lawsuit? Max Kennerly provides an explanation why it isn’t going anywhere.

Miscellaneous Digital Bits

One area of practice that itself must stay current with the breaking of new ground in science is intellectual property and patent law. Securing Innovation discussed the two in conjunction with Earth Day.

Copyright and domain control continues to be a topic breaking new ground in litigation with notorious copyright company Righthaven juking and jiving its way through the courts. The EFF has a breakdown.

There was a discussion here at Associate’s Mind and around the blawgosphere a couple of weeks ago in regards to the role of Wikipedia in legal briefs. Constitutional Daily makes an argument for using Wikipedia as an affordable (free) launching pad for research.

And perhaps young lawyers will have a new avenue for being placed with law firms if Adam Smith, Esq. has its way about it. They launched a new program this past week called JDMatch which hopes to better connect law firms to law students.

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Despite being entrenched in tradition, the legal profession continues to be pulled into new areas and frontiers.  But the practice of law will continue to grow and evolve with the times – that is why it is called “a practice.” The law is not some pre-defined concept to forever be set in stone, but instead a living, breathing entity that adapts and changes with the world it inhabits. Those of us who engage in it’s practice must prepare and brace ourselves for this change, while holding tight to our heritage and precedents to ensure that it is wise and worthy one.

On a final note, perhaps the young lawyer mentioned at the beginning of the review should not have looked forwards but to the past for advice on criminal practice? Seen over at r/law, Pro Ruscio Amerino provides a gripping account of one of the most famous murder trials in history. You can watch a re-enactment (albeit with some dramatic flourishes and embellishments) below:

Blawg Review has information about next week’s host and instructions how to get your blawg posts reviewed in upcoming issues.

*BREAKING* Web 2.0/Social Media/iToy Update:

Since Mr. Scott “I can fill an entire Blawg Review with only a week’s worth of my own posts” Greenfield called me out for putting up an abbreviated review, I offer this supplement:

Digital Tracks and Cloud Computing

The New York Law Journal put up an interesting look at the process of e-discovery and text messages:

This new mode of communication highlights the need for practitioners to keep abreast of emerging areas where discoverable evidence may be found. Discovery should not be limited to only traditional avenues such as paper documents and e-mails, but, where appropriate, should be viewed expansively to include new avenues of communication, including text messages, social media, Twitter, instant messaging, and the like. For example, according to the American Academy of Matrimonial Lawyers, 81 percent of its members have either used, or have been confronted with evidence from Facebook, MySpace, Twitter and the like in the last five years.

There are other problems with new technology as well. Cloud storage and computing might be all the rage, but it can also present serious problems:

Last week Amazon’s popular AWS cloud computing service suffered an unprecedented multi-day outage. The outage brought down thousands of websites, including popular websites such as Quora, Reddit and FourSquare, and generated coverage from mainstream publications such as the New York Times and the Wall Street Journal.

While many are quick to point to the outage as a sign that cloud computing is unreliable and not ready for mission-critical applications, the outage has simply brought a reality of both on-premise and cloud computing to light: systems fail, and mission critical applications need to be designed to expect failure.

And attorney rating service Avvo has had a couple of updates recently. They have begun to offer a question and answer service a la Quora and have begun to integrate the service with social media. I’m indifferent to the social media integration but am leery of the Q&A service. Do lawyers really want to be answering legal questions from strangers on the internet?

And while we’re on the intersection of law and technology, I’ll go ahead and link to this post I wrote last week on the U.S. government’s new “National Strategy for Trusted Identities in Cyberspace.”

Young Lawyers, Redux

Lawprof Ann Althouse discusses law schools and employment figures:

But last month, in the wake of criticisms that these figures were literally incredible, USNWR revised its employment statistics in an effort to combat some of the legerdemain law schools engaged in, such as excluding from their calculations graduates who described themselves as unemployed but not seeking work.

Amusingly, that’s the way the government keeps unemployment statistics down and mostly gets away with it. What’s the unemployment percentage if you throw the people who have given up back in?

But for all those law students and new lawyers, Seattle attorney Karen Koehler offers up a bit of advice: humility.

For the those among us who are looking to improve their writing, Georgia attorney Scott Key says we should read Steven Pressfield’s new book if you want to write better briefs:

Mr. Pressfield advises that you take a legal pad (the old school legal pad with the long pages) and divide the story (in our case, the brief) into three acts. You’ll soon find that you can’t write act three if you don’t know what your theme is. And your theme is nothing more than a one-sentence description of what your case is about. Your theme is what you’d tell a non-lawyer at a barbecue in your back yard if he asked you about the caes you’re working on right now.

Trust me when I say that taking the time to work out your case on a sheet of foolscap will make you feel immediately better about your case and give you some direction.

The Ethics of Judges…and a Lawyer

Erwin Chemerinsky and James Sample have a piece in the NYT today lamenting the election of judges titled “You Get the Judges You Pay For:”

LEGAL elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.

An ugly, expensive campaign for a seat on the Wisconsin Supreme Court is but the latest example of what is now common in judicial elections: millions of dollars in misleading television ads, subsidized by lobbies that have cases before the bench.

Finally, in what is generating a lot of commentary around the web, Paul Clement resigned from King & Spalding  (PDF link to letter) after the firm changes course and withdraws from defending the Defense of Marriage Act. Many have criticized him for taking the case in the first place. And many are criticizing him for leaving the firm and continuing to defend DOMA; that he should have let them go.

But that would have been the coward’s way out. Regardless of the moral or legal position of the client, once Clement took them on he has an obligation to see it through.

The Legal Ethics Forum has more and a discussion is on going in the comments.

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About Keith Lee

I'm the founder and editor of Associate's Mind. I like to write, talk, and think about law, professional development, technology, and whatever else floats my boat. I practice law in Birmingham, AL.

7 comments

  1. What a delightful start. When will you be posting the rest of your Blawg Review?

    • Yes, it is short, and yes I will supplement later. Network is gone to crap at office and real work calling.

      NOTICE: To all Review readers, supplement to follow.

  2. Pay no attention to Greenfield, who takes no time to accentuate the positive.

    Myself, I am in love with the tone of blue on the masthead of your blog. Very pretty.

  3. What do we have an editor of Blawg Review for if not to note that the link in this sentence above:

    “As such, April 25th is recognized as National DNA Day.”

    points to the website of the National Human Genome Research Institute that informs us:

    “National DNA Day is a unique day when students, teachers and the public can learn more about genetics and genomics! The day commemorates the completion of the Human Genome Project in April 2003, and the discovery of DNA’s double helix. This year, NHGRI was celebrated National DNA Day on April 15.”

    • Indeed. The official holiday is the 25th, but it was celebrated on the 15th this year for some reason. I couldn’t figure out why. But the 25th is the official holiday date so I stuck with it.

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