There’s harm being done here, and that’s why it’s necessary to point this out.  The lawyer who has tried ten cases is being “mentored” by the twitter lawyer who has never tried a case.  The lawyer who has tried 100 cases, but poorly, is a twitter rock star.  The twitter lawyer isn’t a lawyer at all, but someone “passionate” about something he knows nothing about.  You have no clue who you’re twitting with, and your twitter support group becomes the ultimate measure of the virtual “risky shift” phenomenon.  With support, the worst ideas begin to sound reasonable.

Mentoring is crucial for lawyers, particularly the young and new ones who tend to look to the internet for comfort.  It’s not about camaraderie, or support, or high-fives or even getting your tummy rubbed.  It’s about being told when you’re wrong, before you do something foolish and damaging. It’s about a deeper understanding of what we do than appears in 140 characters. It’s about real people talking about real things with other real people, who we know and trust.  It’s about having a better reason to seek the advice of someone than the expectation that they will tell you how wonderful you are and give you a balloon.

Social media can be a fun way to kill some time, and twitter can be a wonderful substitute for real friends for those who feel isolated and alone.  It’s not without its virtues.  But mentoring is not one of them, and blind validation is the antithesis of mentoring.  If you’re seeking a pat on the back, knock yourself out on twitter. If you want to “improve your craft,” don’t delude yourself by thinking that your twitter pals are the answer.

But there can be some sort of relationship developed with other, more senior lawyers online. When young lawyers engage with more seasoned practitioners via Twitter, blogging, email, etc. a sort of guiding relationship can be established. To me, it mostly resembles the Japanese relationship between senpai (先輩) and kōhai (後輩) (at least with my experience with the terms in the context of a Japanese dojo).

Senior and Junior

While senpai and kohai are often translated as mentor and protege, it’s not really how the relationship works. It implies too much force or strength in the bond. The relationship is much better understood if translated as senior and junior. Within the context of a dojo, the mentor is the sensei (“person who comes before”), the instructor. The sensei will provide direct guidance to each of the students and help them develop their skills. But there are generally too many students for the sensei to provide each of them significant individual instruction. As such, senior students who have been around for a long time are expected to serve as sort of role models to junior or new students. Give a helping hand here and there, a correction to behavior, a stern look at foolishness – but generally serve as examples of how one should conduct themselves within the role as student within the dojo.

In the West, and depending on the family, it might be seen as similar to that of an older and younger sibling. Say a 12 year old girl and 6 year old boy. The sister is not the brother’s mentor/instructor/parent in any fashion. But the sister will serve as an example to the brother of how to behave and perhaps help out in some small ways with directing his behavior.

Of course, having an effective senpai/kohai relationship is dependent on the sensei developing such an atmosphere within the dojo, and making sure each student understands how it works. The sensei can step in and make direct correction to any incorrect instructions from a senpai and rebuke a senpai who abuses their seniority. A parent can do the same with a misbehaving older sibling.

But there is not overarching Grand Poobah of lawyers on the internet to make sure everything works out okay. As Greenfield notes, some young lawyers are going to stumble online and foolishly take some people at their word without bothering to find out who these people really are.  What these young lawyers think are effective “mentors” or “seniors” could just as easily be a dog.

Salon électroniques

But young lawyers are going to turn online seeking guidance and support – it’s just how this new generation functions. It’s why a thriving and adversarial “blawgoshpere” is important – to provide a forum for junior lawyers to observe how senior lawyers behave. Not in the  superficial “rah rah” world of the Slackoisie happysphere but an antagonistic place for argument and discussion - salon électroniques. A forum where it is okay to disagree with people. Where it is okay to call people out on their lies, damned lies, and statistics. Where it is okay to be brutally honest about life as a lawyer and not paint the practice as a land of rainbows and ponies. Beyond being “okay” this activity is to be encouraged. It shakes out the pretenders and wannabes.

A patient young lawyer with their head on straight can observe and “learn” in such an environment. Not by developing some sort of ridiculous e-mentoring relationship. But by watching how senior lawyers conduct themselves. What they talk about. How they deal with others. Who they regularly interact with online. It’s not a mentoring relationship, but a young lawyer can learn from senior lawyer’s behavior and experience.

The trick is knowing who to trust.

Normally I take my son to his early school in the suburbs during the week. But he’s been sick this weekend with a fever so I took him downtown to my wife’s hospital this morning to stay in their on-site ill child care. The traffic was incredibly light and there were not many cars driving in the city for 7 a.m. Then it struck me that it is Martin Luther King Day.

After I dropped him off, I kept driving further into the city. Traffic became even more sparse. I kept driving, all the way to the 16th St and 6th Ave. While the Birmingham Civil Rights Institute is larger and fills an entire block, the 16th St. Baptist Church sitting right next to it still dominates the square.

I park my car and stroll through Kelly Ingram Park. You know it by this photo:

Nearly 50 Years Ago

The only people in the park are the homeless, TV crews, and food trucks setting up for the day. And the homeless are making themselves scarce as more TV crews descend on the edges of the park. It feels quiet and alone.

Instead of being a place for idle time or relaxation like most parks, Kelly Ingram is filled with a sort of dread sense of history – reinforced by the statues and monuments to Civil Rights Era protests. It’s not the sort of place one comes to have fun.

This Morning

But it shouldn’t be. It stands in remembrance to the sacrifices made by those who believed in liberty for all men and women. That bigotry and narrow-minded zeal could not stand the scrutiny of the righteous. It is a reminder to me that I couldn’t have married my wife a scant 40 years ago.

The park stands for freedom from persecution and that “Oppressed people cannot remain oppressed forever. ” A reminder that we must remain vigilant to the dark currents that exist among us. A monument to people who will fight for what they know is right and:

“that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

Compare:

• I’ll be arriving at John F Kennedy airport on Friday evening; please meet the British Airways Concorde flight.
• Arr JFK Fri pm, pls mt BA Cncrd flt

At first blush, I imagine many will lament the latter as a denigration of speech by young people immersed in text messages and Twitter. It certainly resembles such communication – truncated and stripped of the niceties of language. And although the latter message is abrupt, it also fully conveys the same information as the former. They are essentially the same message. But one has been optimized, compressed for transmission in an economical form, trusting that the receiver of the message will be able to re-assemble the full meaning. Rather a bit like using compression software to make a file smaller before emailing. The sender of the file presumes that the recipient will be able to re-assemble the file into it’s functioning state.

So the above messages? Not thumb’d by a distracted teenager, but written by Richard Dawkins in an article for the Skeptic in 1998, titled The Information Challenge (the mention of the Concorde should have at least clued you in that the message was a bit dated). The article discusses information theory and its application to the question of whether information content of genomes increases in evolution. Leaving the evolutionary question aside, here is the excerpt on information theory.

The technical definition of “information” was introduced by the American engineer Claude Shannon in 1948 (Note: See A Mathematical Theory of Communication Warning: PDF & contains math). An employee of the Bell Telephone Company, Shannon was concerned to measure information as an economic commodity. It is costly to send messages along a telephone line. Much of what passes in a message is not information: it is redundant. You could save money by recoding the message to remove the redundancy. Redundancy was a second technical term introduced by Shannon, as the inverse of information. Both definitions were mathematical, but we can convey Shannon’s intuitive meaning in words.

Redundancy is any part of a message that is not informative, either because the recipient already knows it (is not surprised by it) or because it duplicates other parts of the message.

…

Shannon wanted to find a mathematical way to capture the idea that any message could be broken into the information (which is worth paying for), the redundancy (which can, with economic advantage, be deleted from the message because, in effect, it can be reconstructed by the recipient) and the noise (which is just random rubbish).

“It rained in Oxford every day this week” carries relatively little information, because the receiver is not surprised by it. On the other hand, “It rained in the Sahara desert every day this week” would be a message with high information content, well worth paying extra to send. Shannon wanted to capture this sense of information content as “surprise value”. It is related to the other sense — “that which is not duplicated in other parts of the message” — because repetitions lose their power to surprise. Note that Shannon’s definition of the quantity of information is independent of whether it is true. The measure he came up with was ingenious and intuitively satisfying. Let’s estimate, he suggested, the receiver’s ignorance or uncertainty before receiving the message, and then compare it with the receiver’s remaining ignorance after receiving the message. The quantity of ignorance-reduction is the information content.

(Note: Emphasis added)

So then information that is surprising or reduces ignorance is of high value, while redundant information is of little to no value. For people and companies that produce content (information to be consumed) – whether it be blogs, video, magazines – it is worth deconstructing the content in a surprise-value/ignorance-reduction context. To do so, merely ask two questions:

• Is the content surprising (novel, not scintillating)?
• Will the content reduce ignorance?

If the answer to both questions is “no,” then the content is likely redundant and not very interesting to anyone; i.e. – it is not valuable information.

Gaming Google

Unfortunately, content that would not answer in the affirmative to either of the above questions litters the internet. SEO gurus and Social Media Marketers flitter about generating low value content in bulk, in hopes to overcome Google with volume, competing for PageRank and that elusive “first page” status in Google search results. This is a universal problem that Google and other search engines combat daily – how to cull the wheat from the chaff.

They do a remarkably good job of it really. But the web is immense, and Google and other sites must rely on bots to scour the Internet to present information its users. The bots are not asking the the above questions when they scan content, but rather:

• Is the information on this page relevant to the search phrase entered by the user?

This is where people try and “game” the system. Marketing gurus/lifestyle entrepreneurs/hucksters construct networks of blogs, social media accounts, podcasts, and videos that all point back to a central landing/lead-capture page. The lead-capture page will either be lined with ads or affiliate links, or directed sales copy that is an extension of the search phrase. The goal of these pages is to not to convey information, but to convert searches into sales.

While deceptive and distasteful, it’s really not that big of a problem if all you are doing is selling Empty White Boxes.

Click For Larger Image

But if you look at the top paying search phrases for Google AdSense, you’ll notice that many of them are legal related (See right). That is, advertisers pay extremely highly when someone clicks on an ad related to that search phrase. The underlying idea is that these people have been potentially wronged in some way, are under legal duress, and in search of a lawyer. They could potentially have a valuable case. Some law firms are willing to pay quite highly for these search phrases. As such, marketing companies vie for these search phrases. But really, they are just middle men. It is the lawyers and law firms themselves that are vying for the potential clients behind these search phrases.

So marketers, and law firms themselves, create elaborate multi-layered marketing strategies to target users searching for these phrases. Lawyers without the deep pockets to pay for Google Ads and marketing firms (or aiming for disintermediation),  turn to low cost methods of targeting these search phrases. The easiest and often most effective is blogging.

Blawging & Flawging

Blogs have come to be seen as trustworthy sources of information by many consumers. The general look, feel, and informal tone are perceived by many as somehow more “authentic” traditional forms of broadcasting information. Lawyers have taken to blogging in droves. Some for the purpose of attracting clients, others to display expertise, while others see it as a means to discourse amongst their peers and provide a public forum for the education of citizens regarding the law.

Philadelphia attorney Max Kennerly broke legal blogs into three categories:

• The mainstream are blogs with several in-depth, substantive posts every week. These blogs are typically written and edited by multiple people and aim for a journalistic style, sometimes in the form of third-person-omniscient, apparently-neutral-reporting or in the form of a typical newspaper opinion/editorial. Like newspaper websites, they tend not to engage in discussion with other bloggers, though they will engage with major media and academics.
• The personalities are the single lawyer or handful of lawyers who write when they’re inspired, and they’re written with a distinctive voice. These blogs can range from analysis of case law to personal observations about law to a mixture of both. When someone mentions the “blawgosphere,” they’re usually talking about those blogs [...]
• The marketers are blogs written first and foremost for potential clients. They rarely link out and rarely go into substantive discussion about the law. Huge numbers of them are insulting and unreadable, but they don’t have to be that way.

But “Mainstream” blogs hardly qualify as blogs any longer. Sites like SCOTUSBlog have ceased to be blogs and have become full-on news destinations. The personalities and marketers are perhaps better classified as blawgers and flawgers.

At some point, someone thought it would be cute to use the term “blawg” to define those blogs which focus on substantive legal content, generally written by lawyers or law students in order to separate them from blogs written by those without a legal background. These blawgs seek to answer the surprise-value/ignorance-reduction questions in the affirmative. They provide detailed analysis of case law and current events in the legal world. Blawgs like Simple Justice, Technology & Marketing Law Blog, Kennerly’s aforementioned Litigation & Trial, and many others all seek to offer new information and reduce ignorance with their content.

On the flip side are flawgs. Coined by Canadian lawyer Antonin Pribetic, flawgs are “legal blog(s) without any substantive legal content that is created, monetized and promoted exclusively for profit.” These flawgs attempt to be relevant to the search phrase entered by a user of Google, not provide information or reduce ignorance. While nominally an advertisement for a marketing firm, the below video perfectly illustrates what flawgs are and why they are looked upon as insulting and unethical (video via My Law License):

Flawgs similar to those in the above video define redundancy. They do not transmit new information and they certainly do not reduce ignorance. They are meant for one thing only: conversion. It is a sales page in the trappings of expertise, duplicitous in nature, and meant to take advantage of those seeking assistance in a time of crisis.

They exist in defiance of the oaths lawyers take when they swear “with all good fidelity, as well to the court as to the client; [...][to] use no falsehood or delay any person’s cause for lucre or malice.”

So a message to all the other lawyers out there looking out at the Internet as a means of business development. To the lawyers who hear the marketer’s assurances of success while looking at dwindling case lists. To the lawyers who feel behind the curve and who wish to try and shortcut the learning and development process by hiring a social media consultant. To the lawyers considering seminars by SEO gurus:

You’re better than this. Conduct yourself with dignity. Honor the profession. Respect your peers.

Remember your oaths.

An old year falls, a new one rises.

People will dedicate to change. They will tell themselves that this year will be different. They will commit to change their appearance, their friends, their family, their job. Goals will be set. Plans will be made. Motivation will be high. Intentions strong and good.

Time will pass. Relationships will turn sour. Work will become pressing. The economy more dire. New habits will waver. The diet will slowly fade. The new running shoes will sit in the closet, dry dirt cracked on the floor. Paper piled high on the desk, no order to be seen. Falling into old routines, the same argument comes up again with your spouse. You respond in the same, usual way – so do they.

People use a new year as an opportunity for new beginnings in their relationships with other people and things. Yet a number on a calendar is an arbitrary thing, without meaning or purpose other than that which we give it. In the end, it’s just another day, a notch on the wall. But people take it as a chance to devote themselves to their daily struggles.

Pushing against their boss, other employees, the work. Fights with their spouse, the family, their friends. The way they eat. Struggling against the siren’s call of the couch and television.

Sometimes a change is made, new habits are created, but the struggle remains. Committed to running, you begin to run with other people and friends. Secretly you want to run faster than the other people. A new diet is adhered too – but it’s not enough, you want to be skinnier than her. You get a promotion at work, but you want his office.

Others will struggle against you as well. They will resist your change. Come drink beers with us. Eat more than a salad. We’ve always done things this way. We don’t really need to do that do we? Let’s just walk. I’m already comfortable doing it the old way. I’m too busy. Can you believe she is wearing that?

All these things – the struggle between you and your spouse, you and your job, you and other people, you and anything and everything else – are all illusions.

The only struggle that exists is that between you and yourself.

“Masakatsu Agatsu”  – True Victory is Victory Over the Self

Your old habits, routines, and ruts; the same food, the same conversations, the same work; laziness, indifference, reluctance – are all aspects of your old self. The old you who adheres to comfort and the mundane. Change involves effort, devotion, commitment, and sacrifice. This older version of yourself manifests itself in the things you eat, the people you spend time with, the way you work, the job you have. It comes in the form of your hobbies, where you spend your time, how you conduct yourself.

They’re all only aspects of yourself. The old you. The one who doesn’t want to change.

If you truly want change, growth, achievement, passion, happiness, victory – then you will have to struggle with your old self every day. Beat him into submission. Strangle the life out of him and leave him dead in your wake.

But like a zombie, he will rise again and again, clawing at your feet and attempting to pull you down. And day after day, you will need to turn back and cut him down. True victory requires constant vigilance, to be on guard against the old routine. Avoiding the well trod paths of the way things used to be. A battle against comfort and convenience.

Are you up to it? Can you avoid the illusion of conflict with other people? Can you commit to defeating yourself?

A final word from Dajian Hiu-neng  (大鑒惠能), the Sixth and Last Patriarch of Chán Buddhism:

The wind was flapping a temple flag, and two monks started an argument.  One said the flag moved, the other said the wind moved; they argued back and forth but could not reach a conclusion.

Coming upon them, Hui-neng, said, “It is not the wind that moves, it is not the flag that moves;

it is your mind that moves.”

• Don’t say nice things about everyone.
• Don’t re-tweet that someone re-tweeted you.
• Don’t thank people for following.
• Don’t automatically follow people back.
• When someone follows you and they are obviously a hack – tell them to go away.
• Tell people to get off your website.
• Don’t be inviting.
• Point out hypocrisy and foolishness.
• Intimidate others.
• Stand up and speak loudly on divisive topics.
• Hold unpopular opinions and are upfront with them.
• Curse.
• Regular usage of sarcasm and wit.
• Ignore all social media strategies.
• Don’t use “Top Ten Ways to…” or reduce your writing to soundbites.

Essentially don’t act in a manner in which you are curating an idealized personification of yourself and instead are acting like a real person.

Anyone who conducts their online activities in the manner above is easily ten times more interesting and relevant than anyone else you’re interacting with online right now.

Follow them immediately.

It’s probably old hat to most people who spend any amount of time online at this point, but in case you weren’t aware, Congress is in the process of considering the PROTECT IP Act / Stop Online Piracy Act (SOPA). Like most bills in Congress, the name of the bill makes it sound like the sort of thing anyone would support, but the underlying purpose of the bill is something quite different (*cough* PATRIOT Act *cough).

So What Would SOPA Do?

Via: Business Insurance Blog

All in all, it’s a ridiculous and overreaching bill.

So Why Push SOPA Through Congress?

The American Entertainment Complex—Hollywood, the networks, the stations, cable,  the record labels—has placed before Congress a simple request: Give us a law to punish Google, PayPal, the Web ad industry, and anybody else doing business on the Internet who may play some intermediary role in connecting foreign “pirates” to consumers seeking illegal access to copyrighted content.

…

The only way to stop piracy, the entertainment complex would have you believe, is to give its and the government’s warships the power to stop, inspect, and track any packet sent on the great sea of the Internet, and impound the ones it doesn’t like.

The American Entertainment Complex are behind the push for SOPA. The music industry got blasted out of the water by Napster and the like and the other industry groups have been scrambling ever since. Flailing about in reaction to the deaths of their business models – they have reacted in suing people and attempting to pass more and more draconian legislation. It’s taken companies like Apple to drag them kicking and screaming into the future with iTunes, simple pricing and easy-to-use interfaces.

The thing is, the American Entertainment Complex didn’t like it then, and they still don’t like it now. They yearn lustily for the days of $19.99 CDs. $19.99! And this was in the 1990s! It’s the same thing with TV and movies, they want to continue to maintain their inflated prices. Now, why are they inflated? Let’s digress to some basic economics.

Take The Red Pill

 The economic problem, sometimes called the basic, central or fundamental economic problem, is one of the fundamental economic theories in the operation of any economy. It asserts that there is scarcity, or that the finite resources available are insufficient to satisfy all human wants and needs. The problem then becomes how to determine what is to be produced and how the factors of production (such as capital and labor) are to be allocated. Economics revolves around methods and possibilities of solving the economic problem.

Put simply: “How do we satisfy unlimited wants with limited resources?“

In the days of physical goods, this was easy. Captial was diverted to proudce the goods the market demanded. As demand and supply waxed and waned, so did prices. Music, TV, movies, books were all physical, tangible goods – IE finite. They were limited. If there became too many of any one item, then supply was shortened or stopped in order to maintain prices.

Then along came computers and the Internet.

What had once been tape or disc or paper or film was now merely 1s and 0s. Anything that could be stored digitally – essentially any information could be instantly and identically re-produced. Any bit of digital information has essentially n+1 copies of itself available. There is no scarcity. Outside of basic storage capacity on the total sum of all computers that currently exist on the planet, there is no theoretical limit as to the number of copies of a piece of digital information. So what is something that is nearly infinite worth? How much would you pay for a grain of sand? Beyond that, to buy that grain of sand what if you had to jump through a bunch of hoops, were limited to purchase it in only certain stores, and could only buy it after it had been available for sale in the US for 3 months – while there were also piles of sand right next to you available for free.

But sand is worth something. It can be molded and shaped into glass. It can put into a sandbox. Used to make concrete. People buy sand all the time because when they are buying sand what they are actually buying is the service that brought them that sand. Or the skill that was used to craft the sand and make it unique. This is where the value is added.

Instead, the American Entertainment Complex is obsessed limiting access to the sand – attempting to create artificial scarcity. But it isn’t working out.  From AACS to DeCSS – almost every attempt to create artificial scarcity hasn’t worked out. Since these efforts keep failing, the label holders have decided to try and make everything even vaguely related to sharing information online illegal. Hence, SOPA and its ilk. But they’re going about it all wrong. The solution isn’t to create artificial scarcity, obtuse usage restrictions, time-delayed releases, and draconian digital rights management.

The solution? Stay tuned for the next post and find out who said the following:

In general, we think there is a fundamental misconception about piracy. Piracy is almost always a service problem and not a pricing problem. For example, if a pirate offers a product anywhere in the world, 24 x 7, purchasable from the convenience of your personal computer, and the legal provider says the product is region-locked, will come to your country 3 months after the US release, and can only be purchased at a brick and mortar store, then the pirate’s service is more valuable. Most DRM solutions diminish the value of the product by either directly restricting a customers use or by creating uncertainty.

Our goal is to create greater service value than pirates, and this has been successful enough for us that piracy is basically a non-issue for our company. For example, prior to entering the Russian market, we were told that Russia was a waste of time because everyone would pirate our products. Russia is now about to become our largest market in Europe.

I came across a new law blog recently, entitled Circuit Splits, focused on splits in appellate courts sitting in different federal circuits. It’s a new blog, but it shows promise. In a recent post, they put up something I had been looking for in the past in and thought I would share: different ways to research circuit splits in various legal database platforms.

Westlaw

In an article published in the Stanford Law Review entitled “Measuring the Effects of Specialization with Circuit Split Resolution,” Eric Hansford describes how he identifies circuit splits using Westlaw’s SCT database:

To find the circuit splits, I used the SCT database on Westlaw. After much trial and error, I settled on the search: <(division divide! conflict! split inconsis- tent differ! disagree! uncertain!) /p (“courts of appeals” circuits lower)>. The search reflects every formulation I could find that the Court uses to announce a resolution of a circuit split. I did not, however, read every page of the United States Reports; the search probably omitted some resolutions.

There are also search instructions for LexisNexis and Google Scholar. Westlaw and the like are powerful and useful, but it’s also fairly ridiculous that you have to use the above search string to actually find what you’re looking for. It’s one of the reason’s I’m glad competition is heating up in the legal search area with the likes of Fastcase, Bloomberg, Google scholar, etc. Hopefully the competition will lead to improved search tools for case law.

While researching something completely unrelated, I came upon a brief article by Justice Maria Rivera (First District Court of Appeal, Div. 4, CA) regarding writing briefs for appeals entitled: The Ten Commandments of Brief Writing. Before delving into the “Ten Commandments”, Justice Rivera leads off with the following quote from Mortimer Levitan from the article, “Confidential Chat on the Craft of Briefing.” Journal of Appellate Practice and Process, Vol. 4, No. 1 (Spring 2002):

The secret ambition of every brief should be to spare the judge the necessity of engaging in any work, mental or physical.

My gut reaction is: why should that be the secret ambition? I presume that to be the overriding goal of effective persuasive communication. Writing something so compelling and convincing that it alleviates the reader from any doubt or questions they might have. We should all count ourselves lucky to be able to craft such a brief.

I’ve stripped the commentary away and list the Ten Commandments below (For Justice Rivera’s commentary, read the whole thing):

1. This is the first, and the greatest commandment: Be scrupulously honest in describing both the law and the facts.
2. Know your judge(s). (Ed.: Know your audience)
3. Never use ridicule or sarcasm.
4. Avoid attempts at humor.
5. Be a good storyteller.
6. Use two kinds of arguments: those that persuade and those that support.
7. Base your persuasive arguments in the facts.
8. Embrace—do not duck—the weaknesses in your case.
9. Write from an outline.
10. Take the time to read good writing.

A few comments:

I’m always rather flabbergasted when I read an appellate brief wherein its apparent that counsel is playing fast and loose with the case. FYI – the judges and their law clerks have seen it all before and are likely smarter than you and more experienced. Not being totally on the up and up is just going to tick them off.

I disagree regarding humor. I think a good writer can use humor sparingly and have it be effective. The trick: most people aren’t good writers.

Absolutely embrace weakness. Take the most vulnerable and fragile aspects of your case and expose and justify them in your writing – opposing counsel is certainly going to do so. This ties into Commandment number 1. Judges will recognize it and appreciate your forthrightness.

Good storytelling goes along with reading good writing. If all you ever read is legal memorandum then you’re probably not going to produce good writing. Read substantial novels and publications like the Economist. Expose yourself to different methods of “everyday” writing. Your writing will be better for it.

If you’re looking for more nuts n’ bolts improvements see my recent post, 11 Writing Blogs I Follow or other posts in my Writing category.

Maybe others were aware of this, but I was not. Starting in 2007, the Law Library of Congress began archiving blawgs:

The collection has grown to more than one hundred items covering a broad cross section of legal topics.  Blawgs can also be retrieved by keywords or browsed by subject, name, or title.

I went in expecting to find only things like the Harvard International Law Journal (which I did), but I was also pleasantly surprised to find regular blogs, such as China Law Blog, Simple Justice, The Trademark Blog, and others included. There are even a couple Canadian blogs included as well. It’s a nice resource when/if some legal bloggers decided to hang up their hats.

H/T Legal Skills Prof Blog

There is something compulsive about a telephone. The gadget-ridden man of our age loves it, loathes it, and is afraid of it. But he always treats it with respect, even when he is drunk. The telephone is a fetish.

-Raymond Chandler, The Long Goodbye (1953)

Now more than ever, telephones are black holes of information. Smartphones (iOS, Android, etc) store gigabytes of data about, not just their owners, but their friends, family, customers, and clients as well. Email, documents, pictures, video, etc. all move back and forth from phones to the users computer, or increasingly more likely, “the Cloud.” Convenient? Yes. Secure? It depends. Privileged and confidential? Perhaps.

This is a serious issue for lawyers and clients. Lawyers have an ethical duty to keep client/attorney communications privileged and confidential. Lawyers are often given access to the most private and intimate details of their client’s lives or business. If a lawyer uses a cloud based service, client data is going to be zipping around the internet. But it’s secure! Password protected and encrypted! While this might be true, cloud services are not a closed loop.

Curiosity, Cats, etc

Lieberman Software recently released their 2011 Password Security Survey, taking a look at the “state of password security in large enterprises, and the lack of oversight for this critical security issue amongst senior IT management.” Some highlights:

Nearly 50% of respondents said their systems have been breached. But, this is really out of the lawyers control. Is a computer setup in your back office, really more secure than data storage provided by Microsoft or Google? I’d be willing to bet that most cloud-based services provide better security, updates, and support than 99% of law offices. Hackers can attack any machine hooked up to the Net. It doesn’t matter where it is. More pertinent was that following statistic:

1 in 4 of the most gadget-ridden men of our age, IT professionals, can’t help themselves when it comes to other people’s data. Sure your password is secure, the data encrypted – but these people have über-passwords. Theoretically, these people should not abuse their positions and only access data for work related reasons. Yet, it’s all at their fingertips. Accounting, payroll, emails, documents. It’s just too tempting. There’s a thread on /. right now discussing the report with dozens and dozens of IT pros all saying the same thing: “Oh yeah, I’ve done that, 26% seems a bit low.”

Outsource Your _________, Outsource Your Ethics

New York lawyer Eric Turkewitz coined the phrase, “Outsource your marketing, Outsource Your Ethics.” When a lawyer relinquishes control of their marketing, they are also releasing ethical control of said marketing.A marketer is more than likely not going to appreciate the nuances of an attorney’s ethical duty regarding marketing. See this follow up post by Turkewitz for more details.

If you store client data on the cloud, it is explicitly moving out of your control. While it is likely more technologically secure than on a computer in your office, it will never, ever be as ethically secure as it is in your office. If you outsource your storage and IT, you also outsource your ethics.

It’s not that it can’t be done. Just as there are marketing firms that cater to law firms with an explicit understanding of the ethical concerns of lawyers, there are likely to be cloud based system providers that understand the ethical duties of lawyers.

But due diligence needs to be done. Convenience, functionality, gee-whiz techno cool, all take a distant back seat to ethics.