I hope in these days we have heard the last of conformity and consistency. Let the words be gazetted and ridiculous henceforward. Instead of the gong for dinner, let us hear a whistle from the Spartan fife. Let us bow and apologize never more. A great man is coming to eat at my house. I do not wish to please him: I wish that he should wish to please me. I will stand here for humanity, and though I would make it kind, I would make it true. Let us affront and reprimand the smooth mediocrity and squalid contentment of the times, and hurl in the face of custom and trade and office, the fact which is the upshot of all history, that there is a great responsible Thinker and Actor moving wherever moves a man; that a true man belongs to no other time or place, but is the centre of things. Where he is, there is nature. He measures you and all men and all events. You are constrained to accept his standard.

Ordinarily, every body in society reminds us of somewhat else, or of some other person. Character, reality, reminds you of nothing else; it takes place of the whole creation. The man must be so much that he must make all circumstances indifferent—put all means into the shade. This all great men are and do. Every true man is a cause, a country, and an age; requires infinite spaces and numbers and time fully to accomplish his thought;—and posterity seem to follow his steps as a procession.

A man Cæsar is born, and for ages after we have a Roman Empire. Christ is born, and millions of minds so grow and cleave to his genius that he is confounded with virtue and the possible of man. An institution is the lengthened shadow of one man; as, the Reformation, of Luther; Quakerism, of Fox; Methodism, of Wesley; Abolition, of Clarkson. Scipio, Milton called “the height of Rome;” and all history resolves itself very easily into the biography of a few stout and earnest persons.

- From Ralph Waldo Emerson’s “Self-Reliance”

Emerson says it perfectly, there is nothing to add.

When I was an uchi-deshi, there were special classes reserved for senior students called kenshu (“sword sharpening”).

During these classes, I would sit in seiza (“proper sitting”) for 30 minutes or so, listening to the instructor lecture on a multitude of topics. History, art, subtle points of techniques, themes, etc. If you haven’t come from a culture where sitting in seiza for extended periods of time is the norm, it’s very uncomfortable. LIke tough to stand up afterwards, I can barely walk, uncomfortable.

After the lecture there would be an hour or so breakdown on one technique, perhaps one movement. A pivot or a shift of hips or moving into position against your partner. A single movement could be repeated hundreds of times. Occasionally I would be told the movement was correct. Mostly I would be told that the movement was wrong.

It was aggravating. It was boring. It was difficult. Deliberate, long, tiresome, and trying. After the tenth repetition of a movement I would grow bored. At the thirtieth, my mind started to wonder. At the sixtieth I was barely concentrating. At the hundredth, my mind had become still and there was only the movement.

As the uchi deshi, I was also the dedicated partner of the instructor (IE – all demonstrations by the instructor were done on me, I was the “training dummy.”) Instructor need to explain fine point of a throw a dozen times? I took a dozen falls. Student needs to see it from a different angle? A half dozen more falls. Moving among the students as they begin to practice? I trailed behind the instructor, waiting to be used thrown again and again. Somewhere around the fortieth time you’ve been thrown to the ground in under half an hour, you sort of become numb to it all.

When the class was done, I would be bruised mentally and physically. Tired of training, tired of sitting, tired of thinking. Often times I felt broken (sometimes literally) after class, laying on the slim tatami that served as my bed. Beaten down and stripped away.

But that’s the point. To bring an edge to a blade, to make is capable of cutting and piercing, it must be ground and filed. The metal on the blade must be removed – broken away -  again and again before the edge is revealed. The edge is never “created” – it always exists innate in the metal. The potential to cut always lies in the blade. In sharpening a blade the excess is stripped away, revealing the inherent edge in the metal.

It’s been ten years since I was an uchi deshi (and seven years since I’ve trained in Aikido regularly) and I can explain, in exacting detail, the intricacies of a technique. I can explain why dogi are worn left over right. I can discourse on fuboku no oshie from memory. I can take a fall on concrete and pop right back up. All of this is possible because I was broken down again and again. Instruction, examples, and demonstrations were plentiful. Praise was slim. I look back on it with fondness.

So when you are looking for guidance, when you are looking for help in developing who you are as a professional, as a person – don’t seek out those who only praise you. Seek out those that will grind you down and reveal the edge inside of you.

As iron sharpens iron, so one man sharpens another.

- Proverbs 27:17

“If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.”

November 2008, Lord Chief Justice of Great Britain, Sir Igor Judge.

So begins an article in the Texas Bar Journal entitled “The Millennial Juror.” (PDF) It continues with a broad overview of Gen Y and how they function (or don’t) as jurors. Dr. Mary Noffsinger, a litigation psychologist with Courtroom Sciences, Inc.:

Verbally presented messages should be accompanied by demonstrative exhibits (e.g., photos, videos, illustrations), which foster improved attention, reduced boredom, enhanced memory, increased credibility, and entertainment value.

Speaking in “sound bites” and utilizing technology is more important than ever with Gen Y jurors, given their tendency to process information visually and rapidly and the likelihood that elaborate explanations and protracted arguments will make them bored and impatient. Adopting an interactive style helps to empower these digital natives as listeners and learners.

The article goes on to survey a number of Gen Y law students (a tainted survey pool, but there it is) and concludes that:

In short, the majority of these Gen Y representatives clearly favored the use of technology in the courtroom and indicated that they would be in a much better position to absorb information that was presented visually as well as verbally.

Yes, theoretically, a courtroom is a place of oral tradition. Arguments are made, evidence is presented, etc. But to suggest that a courtroom is a hallowed hall of pure discourse is a fabrication. Visuals have always mattered. The way you dress, how you hold yourself. Glasses or no (the “Nerd Defense“)? A courtroom is theater. There are costumes and props and actors.

The big problem is that no one goes to the theater anymore. It’s dead. Dying. Limping along. Entertainment is video. Pictures and movies. Facebook, Twitter, and Angry Birds. Not some static display to be consumed. Entertainment is now a multi-faceted, multi-media onslaught of interactive digital media in which the the line between consumer and producer has become blurred.

Droning on about the facts in front of a jury composed of mostly Millennials isn’t going to cut it. In an ideal world it would. Jurors would still still and be attentive, carefully weighing the arguments and evidence as it is presented. When you find such a place, call and let me know.

In the meantime, Millenials will be sitting in the jury box, twitching, unable to check the smart phones lest the judge catch and reprimand them. They probably resent being there. They’re looking for something to engage them and hold their interest. Something to make them forget where they are and capture their attention.

You have to provide them their panem et circenses whether you like it or not.

via Legal Skills Prof Blog

A couple weeks ago, the Alabama Supreme Court adopted changes to the Rules of Civil Procedure and the Rules of Professional Conduct permitting “limited scope representation” (LSR) or “unbundled” legal services.

There have also been a number of modifications to the Alabama Rules of Civil Procedure new rules, but I wanted to break out Rule 11(b) in particular:

An attorney may draft or help to draft a pleading, motion, or other paper filed by an otherwise self-represented person. The attorney need not sign that pleading, motion, or other paper but shall include a notation at the end stating: “This document was prepared with the assistance of a licensed Alabama lawyer pursuant to Rules 1.2(c), Alabama Rules of Professional Conduct.” In providing such drafting assistance, the attorney may rely on the otherwise self-represented person’s representation of the facts, unless the attorney has reason to believe that such representation is false or materially insufficient.

Along with the this previous opinion regarding cloud computing and document retention, it would seem that Alabama has now joined the many other states in which an attorney could operate an unbundled virtual law practice (though I’m checking with the State Bar just to be sure).

I’ve been curious about the operations of virtual law practices for some time, so I thought this was as good an excuse as any to look into how they operate.

Serendipitously, the ABA Law Practice Management Section just published “Virtual Law Practice: How to Deliver Legal Services Online” by Stephanie Kimbro. I’m familiar with Kimbro by Greenfield’s praise for her integrity and ethics in her approach to a virtual practice – so I purchased the book.

The Basics

Right from the start, this book focuses heavily on “the basics.” Not just of virtual practice, but computers, the internet, websites, etc. If you have any familiarity with computers, much of the book isn’t going to do much for you. (IE – you already have a “blawg” or are under 30) But that’s par for the course with this type of book, especially one published by the ABA. The book is laid out in such a way that even someone unfamiliar with computers and the internet can come away with learning about a virtual practice.

Much of the beginning of the book is spent on explaining how to develop a website, blog, social media presence, marketing, etc. If you were completely unfamiliar with websites, it would provide a good introduction – but no more so than spending time online learning about it for free. The only difference would be that Kimbro specifically relates the information to lawyers.

Kimbro also details the types of technology required to maintaining client security (VPN, SSL certificates, encryption) while providing client services. Again, this is presented in a rather broad fashion.

The other heavy emphasis of the book is on ethics. Again and again throughout the book, Kimbro makes ethics an integral part of running a virtual practice. Kimbro spends dozens of pages on avoiding unauthorized practice of law issues, malpractice, maintaining client security, etc. In fact, I’d say the overriding theme of the book is a focus on maintaining a high level of ethical conduct while providing virtual legal services.

Another highlight is the sample Terms & Conditions for a virtual law practice included in the book’s appendix. But you could also find this on Kimbro’s own website without having to purchase the book.

But the book is lacking on the technical details of actually creating a client portal for handling client intake/communications – likely because it is far outside the scope of this type of book. Also because it is probably unrealistic to expect a solo/small firm to hire a developer to create a custom online portal for their clients. A firm would be better off using a service such as Totalatttorneys*,  Clio, etc. and just have the service integrated into the firm’s already existing website.

But To Purchase?

If a lawyer was completely unfamiliar with computers, internet technology, websites, etc (unlikely since you’re reading this), then I would recommend this book to them as a solid introduction to, not just virtual practices, but the crossroads of technology and law as well.

But if you’re technically savvy, it becomes cloudy. Much of the book probably won’t do anything for you. Instead, the highlights of the book will be the ethical considerations Kimbro lays out. But if you’re looking for details on how to actually implement a client portal – this book doesn’t provide that. You’re probably best served with conducting trials of practice management software on your own and choosing the one that suits you best.

Overall, a solid introduction to virtual practice, but it will leave the tech savvy lawyer wanting more.

I recently got around to reading a whopper of an old law review article that I had been wanting to read for awhile entitled, “Inside the Judicial Mind.” From the introduction:

…we conducted an empirical study to determine whether five common cognitive illusions would influence decision making of a sample of 167 federal magistrate judges. These five illusions are:

• anchoring (making estimates based on irrelevant starting points);
• framing effects (treating economically equivalent gains and losses differently);
• hindsight bias (perceiving past events to have been more predictable than they actually were);
• representativeness (ignoring important background statistical information in favor of individuating information);
• and egocentric biases (overestimating one’s own abilities).

We found that each of these cognitive illusions influenced the decision-making processes of the judges in our study…In short, our study provides empirical support for [the] assertion that when all is said and done, we must face the fact that judges are human.

Essentially, the study looked what common heuristics Judges might be caring over onto the bench. Theoretically, Judges would approach each case in a state of tabula rasa – but we all know this isn’t the case.

Of particular note is that judges do actually score better than other experts and laypeople in two of the cognitive tests.

Judges scored better in Framing Effects and Representative Heuristics than average people – but faired the same in Anchoring Effects, Hindsight Bias, and Egocentric Bias.

Why Does This Matter?

Heuristic methods are short cuts. They are used subconsciously by our brains in order to speed up the decision making process. They are the basis of Gladwell’s Blink: The Power of Thinking Without Thinking. Useful in setting where you need to make a authenticity regarding a statute – but not so useful when weighing the authenticity of evidence. As the study notes,

Judges obviously can use the resources they have to obtain better research and background information to inform their decisions, but their time and resources are not infinite.

And by all accounts, judges are being asked to do more and more with less time and a smaller budget. Just last year in Alabama, the courts in the largest city in the state were almost completely shut down due to budget concerns:

Recent budget cuts have affected courts in nearly two-thirds of the states, but the impact may end up being most severe in Jefferson County, officials said.

Layoffs of security personnel due to recent state and county budget cuts has led Jefferson County court officials to say they will close public access to two, and possibly three, of the county’s five courthouses…until adequate protection can be provided at them.

At some point, you’re cutting budgets to the bone and there is nothing left except overwhelmed courts. In this environment, think it is more likely that judges are going to approach each case tabula rasa or fall back on heuristics when they look at the overflowing docket?

And the problem isn’t limited to Alabama. Type “your state” + “budget cuts affecting courts” and look at the number of articles since the Great Recession hit noting the effect of budget cuts on state court systems. At some point, the judicial system is going to be overwhelmed. We can’t keep asking more and more of the courts while giving them less and less.

What To Do?

Outside of properly funding the court system and ensuring that there are enough judges to properly handle all the cases coming into the system, lawyers would be wise to familiarize themselves with the three heuristics that judges fair no better on than laypeople. They can have a massive impact on the decision making process. For example, the study’s anchoring example found the following:

Suppose that you are presiding over a personal injury lawsuit that is in federal court based on diversity jurisdiction. The defendant is a major company in the package delivery business. The plaintiff was badly injured after being struck by one of the defendant’s trucks when its brakes failed at a traffic light. Subsequent investigations revealed that the braking system on the truck was faulty, and that the truck had not been properly maintained by the defendant. The plaintiff was hospitalized for several months, and has been in a wheelchair ever since, unable to use his legs. He had been earning a good living as a free-lance electrician and had built up a steady base of loyal customers. The plaintiff has requested damages for lost wages, hospitalization, and pain and suffering, but has not specified an amount. Both parties have waived their rights to a jury trial.

We randomly assigned the judges to either a “No Anchor” condition or an “Anchor” condition. We provided judges in the No Anchor group with the paragraph above and asked them, “how much would you award the plaintiff in compensatory damages?” We provided the judges in the Anchor group with the same information. In addition, we informed them that “[t]he defendant has moved for dismissal of the case, arguing that it does not meet the jurisdictional minimum for a diversity case of $75,000. We asked these judges to rule on the motion, and then asked them “[i]f you deny the motion, how much would you award the plaintiff in compensatory damages?” Because the plaintiff clearly had incurred damages greater than $75,000, the motion was meritless.

The results showed that ruling on the motion had a large effect on damage awards. The 66 judges in the No Anchor condition indicated that they would award plaintiff an average of $1.25 million while the 50 judges in the Anchor condition awarded an average of $882,000.

A simple, completely meritless Motion To Dismiss resulted in a nearly half million dollar difference in award from the judges. All because the $75,000 jurisdictional minimum for a diversity had been introduced which “anchored” the judge to a lower valuation.

The other examples from the study are just as pronounced, I’d suggest you take the time to read them.

Regardless, lawyers who are going to be presenting matters before judges need to take the time to properly frame any written or oral material they intend to be read or heard by a judge in order to minimize the judge’s reliance on heuristics and help the judge focus on the matter at hand as a unique situation that requires full consideration and examination.

___

As bandwidth has increased, so has internet users consumption of video. So over the past month, I’ve been cranking out videos about legal issues as a bit of an experiment. It took awhile for me to work it out and they’re still a bit rough – but they are steadily getting better (I hope).

The big problem was working out what type of videos I wanted to do. I initially looked around at videos produced by other lawyers – only to discover they are almost universally horrible. Lots of single shot videos of a lawyer in a generic looking office droning on about a legal issue in the most monotone way possible. Either that or over-the-top bombastic claims about fighting for your rights, etc. So that was right out.

Instead, I decided to explore putting together more “newsreel” style clips with a voiceover. The only problem – where to find high quality video clips that were in either the public domain or royalty free. I thought I would be able to find video like this fairly easily, but there doesn’t seem to be a central resource for such video online, so it actually took a good bit longer than I had initially planned.

Just in case anyone else out there wanted to produced videos of their own, here’s a listing of the site I’ve been using for Public Domain, Royalty Free, and Creative Commons video:

• Internet Archive: Moving Images -  Archive’s Moving Images library of free movies, films, and videos. This library contains thousands of digital movies uploaded by Archive users which range from classic full-length films, to daily alternative news broadcasts, to cartoons and concerts. Many of these videos are available for free download. Check the license for status of video rights.
• Open Video Project - The purpose of the Open Video Project is to collect and make available a repository of digitized video content for the digital video, multimedia retrieval, digital library, and other research communities. No copyright clearance has been obtained for audio or video elements in these productions. We encourage researchers to use the data under fair use for research purposes.
• US National Park Service B-Roll Video - Downloadable, QuickTime H.264 movie clips are available as zipped files that can be decompressed for use in video editing applications, web sites and other projects. All video clips are public domain.
• Custom Flickr Search for HD/CC Licensed Video
• Vimeo Channel for Public Domain Video
• Stock Footage For Free - Around 100 clips of royalty free stock footage.
• Video Blocks - Charges monthly access fee to download royalty free clips. 7 day free trial, 20 downloads a day. So you can pull 140 clips for free, which is what I did.
• Bottled Video -Best for last. Not all HD, but over 10,000 free clips to use. Best source for free stock footage I have been able to find.

As for actually producing the videos – I have a Mac, so naturally I’m using Final Cut Pro for editing. For text video production, I’m using Motion. I taught myself to use both of them over the course of a couple weekends – it’s not really that difficult if you sit down and commit to it.

I was initially using a crappy microphone, but the audio sounded so bad I decided to research microphones. I ended up settling on the Blue Snowball Microphone. It picks up great audio and is easy and straight forward to use. I’m using it for straight audio recording, but it also has an omni-directional mode so it would work well in a round-table/interview setting as well. Although, I have to say it was larger and more intimidating than I had expected! For audio recording I’m just using the podcast setting in Garageband. I’m sure there are better programs, but it’s free and easy to use. I’ve been going with KISS throughout learning video production.

All in all, it’s been a fun experiment. One thing I did not expect was the time commitment involved in producing videos in this style. I’d say there’s probably a 30ish minute to 1 minute ratio of production time to final video. So expect a 5 minute video to take you around 3 hours to produce once you’ve gotten the hang of it.

I initially committed to producing one video a week for a month to force myself to learn how to do it. Now that I’ve done it – I’m only going to produce a video when I have a really solid concept for one – it just takes too much time. Far easier to crank out a few hundred words for a blog post!

Show Notes:

National Strategy for Trusted Identities in Cyberspace

The US Government’s plans for your anonymity and identity online.

I’ll leave you with this video presentation of the NSTIC (which oddly feels as though it was prepared by Aperture Laboratories):

Only boring people get bored.

Show Notes:

• https://www.eff.org/sites/default/files/filenode/scotusjones.pdf – US v. Jones Holding
• Tom Goldstein, Reactions to Jones v. United States: The government fared much better than everyone realizes, SCOTUSblog (Jan. 23, 2012, 4:07 PM), http://www.scotusblog.com/2012/01/reactions-to-jones-v-united-states-the-government-fared-much-better-than-everyone-realizes/
• http://en.wikipedia.org/wiki/Katz_v._United_States – No right to privacy in public
• http://en.wikipedia.org/wiki/Florida_v._Riley – no right to to privacy from police observation from public airspace
• http://www.faa.gov/about/initiatives/uas/ -Relaxing drone use restrictions.
• http://www.stanfordlawreview.org/online/drone-privacy-catalyst – US privacy laws

Sir Winston Leonard Spencer-Churchill, famed British Prime Minister during World War II, was not only a noted statesman, but also a gifted student of oration and history. Churchill wrote numerous pieces on history, the English language, and how to develop the skills necessary to develop a mastery of rhetoric. So gifted was Churchill that he was awarded the Nobel Prize for Literature in 1953:

“…for his mastery of historical and biographical description as well as for brilliant oratory in defending exalted human values.”

Churchill was a life long student of the study of rhetoric and the art of public speaking. He was so talented that phrases and imagery that he used last to this day. Churchill’s speech, “The Sinews of Peace,” in which he invokes the imagery of “an Iron Curtain” to describe the descent of Communism that was dividing Europe in the aftermath of World War II, is perhaps the most notable example of his mastery of rhetoric and effective communication.

But long before Churchill was Prime Minister, before politics and war, Churchill wrote out what he believed the 5 principle elements of effective persuasive speaking in an unpublished essay entitled: “The Scaffolding of Rhetoric” in 1897. Churchill pulled these elements from a study of classical Greek works to Shakespeare and Lincoln (who was himself a masterful student of rhetoric). These elements remain as true and as effective as ever.

I. Correctness of Diction

There is no more important element in the technique of rhetoric than the continual employment of the best possible word. Whatever part of speech it is it must in each case absolutely express the full meaning of the speaker. It will leave no room for alternatives…

The unreflecting often imagine that the effects of oratory are produced by the use of long words. The error of this idea will appear from what has been written…All the speeches of great English rhetoricians–except when addressing highly cultured audiences–display an uniform preference for short, homely words of common usage–so long as such words can fully express their thoughts and feelings….

Selection of language is of paramount importance. When speaking, or writing, make sure each word carefully selected to convey your exact meaning. Churchill notes too that flowery and verbose language actually detracts from attempts to directs communicate and persuade. The focus of communication should be what you are trying to convey – don’t detract from that by muddling the message with complicated prose.

II. Rhythm

The great influence of sound on the human brain is well known. The sentences of the orator when he appeals to his art become long, rolling and sonorous. The peculiar balance of the phrases produces a cadence which resembles blank verse rather than prose.  It would be easy to multiply examples since nearly every famous peroration in the English language might be quoted.

As Churchill notes, any famous text or quote that you know by heart likely flows along its own unique rhythm. Lyricism in language is a lost art in most of the modern world. But mastery of the establishment of rhythm in your speech and writing will lead to easier digestion by its audience.

III. Accumulation of Argument

The climax of oratory is reached by a rapid succession of waves of sound and vivid pictures. The audience is delighted by the changing scenes presented to their imagination. Their ear is tickled by the rhythm of the language. The enthusiasm rises. A series of facts is brought forward all pointing in a common direction. The end appears in view before it is reached. The crowd anticipate the conclusion and the last words fall amid a thunder of assent.

You have to be headed somewhere – and your audience should pick up on it. Effective communication builds like a crescendo in music. Constantly growing and building upon itself, working its way to a a grand finale. By the time the finale is reached it should be palpable to the audience. They know it is coming and are eager for the experience.

IV. Analogy

The ambition of human beings to extend their knowledge favours the belief that the unknown is only an extension of the known: that the abstract and the concrete are ruled by similar principles: that the finite and the infinite are homogeneous. An apt analogy connects or appears to connect these distant spheres. It appeals to the everyday knowledge of the hearer and invites him to decide the problems that have baffled his powers of reason by the standard of the nursery and the heart.

A well developed analogy – “an Iron Curtain” – can be more powerful than thousands of words. The most effective communicators are masters of analogy. A good analogy makes the foreign, familiar and the clouded, clear. A well tuned analogy may win over a more technically sound argument because while theoretically Logos (logic) should prevail, most people are more prone to be swayed by Pathos (emotional) appeal.

V. Wild Extravagance

A tendency to wild extravagance of language–to extravagance so wild that reason recoils is evident in most perorations. The emotions of the speaker and the listeners are alike aroused and some expression must be found that will represent all they are feeling. This usually embodies in an extreme form the principles they are supporting. Thus Mr. Pitt wishing to eulogise the freedom possessed by Englishmen:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake: the wind may blow through it; the storms may enter, the rain may enter–but the King of England cannot enter! All his forces dare not cross the threshold of the ruined tenement.”

 …The effect of such extravagances on a political struggle is tremendous. They become the watchwords of parties and the creeds of nationalities. But upon the audience the effect is to reduce pressure as when a safety valve is opened. Their feelings are more than adequately expressed. Their enthusiasm has boiled over…