Monthly Archives: July 2010

Scalia Says He Wouldn’t Be Confirmed Today, Like That Would Be Bad.

U.S. Supreme Court Justice Anonin Scalia gave a speech in Bozeman, Montana on Wednesday, in which he stated that if the vote were held today, he doubts that he would get the 60 votes needed for confirmation.

Strangely, he seemed to be implying that would have been a bad result.


He blames the politicized nature of today’s confirmation process on some judges’ reliance on the “living Constitution” doctrine. Justice Scalia interprets the Constitution with the aid of an 1848 Noah Webster dictionary. Because apparently, none of the changes in the last 150 years are relevant to interpreting the document.

Scalia stopped the speech twice. First to kick out a crying baby who was unable to maintain the proper Clarence Thomas- like silence, and then again to stop the clicking coming from the cameras of the reporters in the front row.

You know what’s funny? A searchable version of the1828 (no searchable version of the 1848 one) Noah Webster dictionary is available for free on the internet. It defines “jackass” as “the male of the ass.” No wonder Justice Scalia likes the old dictionaries, since my modern ditionary also includes “[a] foolish or stupid person; blockhead”.

Why Blog?

In the past I have written about why a law blog may not be for everyone.

Here is a great blog post examining four highly successful law blogs. Some tidbits from the article (found through Above the Law):
Blogging takes time. Four the four blogs profiled, the weekly time estimates are 2-3 hours, 5 hours, 5 hours, 3-10 hours.

It takes time (estimated as 52 posts or 1-2 years) before a blog will generate business, but when it does, it pays off.

Commitment and continuity are two required elements for a sucessful blog.

Any blog’s success depends on the comittment and creativity of the author.

Keep in mind these are blogs authored by lawyers as an enhancement/marketing effort for existing law practices. I look at blogs differently when they themselves are the primary point of the endeavor or are a profit-making entity in their own right. For example, Above the Law or Overlawyered. I’m not sure where I would put SCOTUSblog, since it started out as marketing and blew up into the foremost media authority on the Supreme Court. Clearly, the time commitment to blogs like these is well outside the 2-10 hours a week for a typical law practice blog.

I have never tried to quantify the effect of this blog in terms of business generation. First, I am not certain there is a direct relationship between the two. Second, that isn’t really why I do it anyway. I like to write. I hope that this blog contributes to the profession by sharing ideas, trial techniques, and new law, and that it provides a resource for the public by showing what is really involved in personal injury litigation.

Basically, blog because you like it and you want to. As with most things with that foundation, sucess will follow.

Apparently, Nothing Is Obscene in Washington, D.C.

The obscenity trial I wrote about here is over. The trial judge dismissed the prosecution’s case before it ever reached the jury. Some reports say that the jury would not have voted to convict anyway.

Today’s Sign of the Apocalypse


Judge Judy is pulling down $15 million a year for a show that lasts 22 minutes a day, exclusive of commericals.

I hate Judge Judy. People see her show and think it bears a resemblance to real court cases and real lawsuits, which it does not. And her behavior is flat-out unaceptable for a real judge.

More Press Release Follies

It is generally a good thing when a law firm issues a press release and as a result gets mentioned in the newspaper. I mean, that’s the idea right? A press release is designed to garner attention. But it’s not nearly as good if the attention consists of the reporter making fun of the content of the release and the law firm’s motive for issuing the release in the first place.

Here, the Baltimore Sun’s Jay Hancock takes aim at a local law firm with a blog post titled “Bowie & Jensen: Look at us! We’re suing Ne-Yo!”

Hancock’s primary target is a paragraph in the release listing all of the various awards and accomplishments of the defendant in the suit, whom I gather is a pretty well-known R&B singer. Here’s what Hancock thinks: “Bowie & Jensen has put out a news release that’s less about the merits of the case and a lot more about the fact that they’re suing a famous musician and want you to know it.”

Hancock plays it fair by contacting the author of the release for comment. But before revealing the author’s explanation, Hancock comes off the top rope with a foreign object: “Karen McGagh, who wrote the press release for Bowie & Jensen, disavows any and all intention to draw cheap attention to the firm by seeming to go googy-eyed over a rap-star legal opponent.”

At this point, I think it’s fair to say this release has not had the intended effect, unless you are of the school of thought that any publicity is good publicity.

As I discussed here, law firms need to be very careful when issuing any kind of press release. The key idea is that it needs to always be about the client and the case. After reading the whole news release, I think that is what they were going for. The error was in the execution. I’m not a big fan of pre-trial press releases. Win the case. Then issue a press release. But if you do one of these pre-trial, its not a bad idea to make it about your client, rather than how famous the guy you are suing is.

When a law firm’s news release results in the need to deny trying “to draw cheap attention to the firm,” maybe it is better to refrain from commenting until a favorable result is achieved.

On the other hand, this news release seems to have also resulted in much more favorable treatment from the Maryland Daily Record. There, Rachel Pryzgoda turns in a pretty even-handed news item about the case with quotes from counsel for both sides, without making fun of either. I guess no two reporters are alike.

Is Anything Obscene in Washington, D.C.?

Is anything obscene in Washington, D.C.? I guess we will find out.
No, this is not a politics post. Apparently, jury selection is underway in the first obscenity trial I have ever heard of in the Maryland/DC area.

An “adult video” producer has been charged with obscenity in the U.S. District Court for Washington, D.C. The charge is based upon some (really, really disgusting) adult movies that were produced and sold over the internet. If you have a “prurient interest” in exactly what the content was, you can go to the linked article (work safe from Law.com) and find out. I’m not summarizing it here because doing so would prove to Ron Miller that letting me write unedited was the bad idea some people predicted it would be.

There are a few things about this that grabbed my interest, beyond my shock that there is still such a thing as an obscenity prosecution.
First, this is a leftover case from the Bush administration. There was a much bigger focus on obscenity cases under the Bush administration than under Clinton. Yeah, I know. Insert joke here. Seriously, the article points out that under Bush 360 people were charged with obscenity, as opposed to half as many under Clinton.
The other odd thing is that this case is being prosecuted in D.C. at all. Think about it. You are a U.S. attorney. You would like to charge a dirty movie man with obscenity. Your potential defendant is selling these (really, really) dirty movies on the internet. The thing about the internet is that it goes everywhere. So naturally, you have an FBI agent in Washington, D.C. order the movies, and then you prosecute. Well, that seems to be what they did here, anyway. Being a plaintiff’s lawyer, maybe forum shopping is just in my blood. Because if I were that U.S. attorney, I would have had those dirty movies purchased by an FBI agent located as deep in the Bible Belt as possible, and then prosecuted the case there, instead of in Sodom on the Potomac.

Why prosecute this case in liberal D.C. when it looks like venue would have been obtainable wherever the movies were purchased and shipped? Maybe there is a good explanation for this. If so, tell me. Because unless I am missing something, the venue selection here looks like a colossally dumb move.

In any event, I think the whole prosecution is a waste of all of our tax dollars. If this material is truly obscene and offensive to community standards, it is a self-correcting problem because if that were true nobody would buy it. Essentially, my position is that the First Amendment guarantees the right to produce and sell whatever immoral, offensive tripe people wish to buy and view, as long as it does not depict conduct which is itself illegal and as long as nobody is being hurt. Conversely, (and perhaps inconsistently) I believe it does not guarantee the right for religious whackjobs to use speech to disrupt soldiers’ funerals and add to the misfortune of grieving families.

My prediction: The jury will say “Hey, this stuff isn’t my bag, but I don’t care what other people watch in the privacy of their homes.”

More “Tort Reform” Propaganda from the U.S. Chamber of Commerce

Hot of the presses is a new “study” on “Tort Liability Costs for Small Business” from the U.S. Chamber of Commerce’s tort reform propaganda ministry, the dubiously named “Institute for Legal Reform.”
I found this through the efforts of Walter Olson at Overlawyered. I’m ambivalent about reading, and linking to, Walter’s site. It’s not that his site is no good. In fact, just the opposite. The site is outstanding, and is a fantastic resource for news about the legal system. Its just that Overlawyered is a wholly owned subsidiary of The Man, Inc. And you know how I feel about The Man. Nonetheless, I will continue giving credit where it is due.

The report itself is more of what I have come to expect from this source. It wears the sheep’s clothing of objectivity, but an examination of the sources and methods it uses reveals the wolf beneath. Consider this:
“In a separate survey of small business executives in Maryland, 91% indicated that lawsuits filed against corporations are hurting Maryland’s business climate. Nearly six in 10 respondents to that survey said they have increased their costs, reduced services, or changed products they offer. Fourteen percent said they even considered closing their business as a result of a lawsuit.”

The source? A survey commissioned by Maryland Citizens Against Lawsuit Abuse and the National Federation of Independent Businesses.
Seriously? That is as credible as citing a survey of cows to support the conclusion that steak is a threat. A biased report from the U.S. Chamber trying to appear objective by citing “independent” sources like a poll by MDCALA. Luckily for the Chamber, in an era defined by the 30-second sound bite most consumers will never read the footnotes or ask if the sources used are credible.

I haven’t gotten through the whole “report” yet. I am sure I will have more comments.

I try to be pretty upfront about the fact that I obviously have my own biases that I bring to the table on these isssues. Otherwise, nothing I say about it could be taken credibly. That is a big part of the problem I have with “studies” like this. There is never any acknowledgment of the inherent bias presented by the source.

So if you haven’t been following me closely, I am not surprised that a report sponsored by the largest business group in the United States concludes that lawsuits against businesses are bad. Considering the source, no other conclusion was possible.