Monday, February 06, 2006

Blawg Review #43

Brush up on your Shakespeare at Blawg Review #43Welcome, ladies and gentlemen, to Blawg Review #43, the weekly review of legal blogging hosted each week at a different law blog.

PROLOGUE.

From this day to the ending of the world,
But we in it shall be remember'd,
We few, we happy few, we band of [bloggers].
Henry V IV.iii


One of the first challenges I discovered as host of Blawg Review was how best to set the stage. Should I go with a theme? If so, literary? Or lyrical? How should the posts be arranged? Alphabetically? By topic? Or try something else entirely? Should I attempt something boldly imaginative? Or take a straightforward, no-nonsense approach? As the date drew closer, the pressure built.

I initially thought of the obvious--a sports theme in honor of that most sacred of American observances, Super Bowl Sunday. (Congratulations, by the way, to Pittsburgh Steelers fans.) But that’s ground already covered in a Major League way by the inimitable Common Scold.

I knew I had to strive for originality. As Shakespeare said,

If there be nothing new, but that which is
Hath been before, how are our brains beguil’d,
Which laboring for invention bear amiss
The second burthen of a former child!

Then it hit me.

Why not Shakespeare?

Shakespeare and the law alike embody the power of language--the poetry and nuance of the written and spoken word. Both stand as enduring institutions, yet are fluid enough to lend themselves to reinterpretation. Shakespeare and law are theatre--captivating audiences with tales of comedy, tragedy, crime, justice, betrayal, ambition, villainy, and love. Both exert profound influence, igniting public passion and imagination.

Moreover, law and justice emerge often as themes and metaphors throughout Shakespeare’s work. (For further reading, visit The Legally Annotated Hamlet.) Some have even argued that Shakespeare may perhaps have had some legal training or education. As I mulled this idea over, it suddenly dawned on me that we law bloggers even have our very own Bard (true, David Giacalone pens haiku, not Elizabethan sonnets, but, hey, allow me some poetic license here).

That clinched it for me (especially the serendipitous discovery that David had been a mediator like I am).

Therefore, I welcome you to the Shakespearean edition of Blawg Review.

To orient you to this edition of Blawg Review, each section or “act” will begin with a line or two from Shakespeare’s work which, I hope, captures the topic that section will focus on.

So, without further ado, in the best spirit of the Bard and of blogging, I invite us all to

...do as adversaries do in law,
Strive mightily, but eat and drink as friends.
Taming of the Shrew I.ii

And now, let the play begin.

ACT I: The Business and Practice of Law

Why, then the world's mine oyster,
Which I with sword will open.
The Merry Wives of Windsor II.ii

Patrick Lamb of In Search of Perfect Client Service has written "Speed: The Essential Ingredient," a reminder to lawyers not to keep clients waiting when it comes to returning phone calls and email. As Patrick says, "Think minutes, not hours and certainly not days."

Bruce MacEwen, the creator and host of Adam Smith, Esq., has some strong advice for law firms looking to expand in "New Market Entry & The Cognitive Bias Minefield". Bruce doesn’t pull his punches: "In my opinion, the most frequently-overlooked aspect of entering a new market is failing to anticipate what existing and potential competitors will do; the world is not a static place."

Jim Calloway over at the Law Practice Tips Blog initiates attorneys into "The Mysteries (and Magic) of Metadata". Jim explores the ethical concerns metadata raises, offers links to plenty of useful material, including a downloadable metadata removal tool from Microsoft which works with certain versions of Word, Excel, and PowerPoint.

Law as a profession is constantly evolving, as many law bloggers know. This week Arnie Herz at Legal Sanity took time to write about one of the latest innovations in the practice of law, "Co-mentoring: the new wave for law firms in the 21st century".

Jonathan Wilson (he of the eponymous blog) asks, "Do in-house lawyers give better legal advice than outside counsel?" Jonathan takes a look at the benefits each offers, raises the question of conflict of interest, and offers a recommendation.

What value do people place on legal advice? That’s the question Mike Cernovich at Crime & Federalism contemplates. Spending a little money on legal fees in advance can save you big money later on--but sadly not everyone sees it that way.

ACT II: Courts and Judges

Let Hercules himself do what he may,
The cat will mew and dog will have his day.
Hamlet V.i

Speaking of Shakespearean drama, Margaret Marks at Transblawg in "Playing to the jury" reports on the theatrical talents of the prosecutor in the "dominatrix trial", one of the most bizarre cases ever tried here in Massachusetts (and believe me, that's saying something).

Article III Groupie at Underneath Their Robes reports on the latest delectable judicial gossip in "Apology from A3G, and Her Excuse: Forget War; Moving Is Hell!"

In "Another look at Oregon", Legal Redux takes a comprehensive look at a recent Supreme Court decision, Gonzales v. Oregon, which upheld Oregon’s Death with Dignity Act against efforts by the Attorney General to use federal law to override it.

Meanwhile, in "Can Doctors Be Required to Tell the Government About Teen Sex?", Daniel Solove at Concurring Opinions provides a detailed analysis of the constitutional law issues at stake in a federal case from Kansas in which medical privacy rights of minors are pitted against the ability of state officials to investigate allegations of child sexual abuse. This case has unsurprisingly drawn the attention of health care professionals, reproductive rights activists, social conservatives, and others.

Ambivalent Imbroglio gives readers an update on the latest buzz in the crimlaw blawgosphere with thoughts on public defenders and the shortcomings of the criminal justice system.

Now that Samuel Alito has been sworn in the latest member of the Supreme Court, Sandra Day O’Connor, the Court’s first woman justice, has at last stepped down after almost a quarter century on the bench. Ann Bartow at Feminist Law Professors fondly bids adieu in "Farewell, Justice O’Connor".

I would add the Bard’s own words:

Hearing you prais’d, I say, "'Tis so, 'tis true..."
Sonnet 85

ACT III: Legal Education

...when I am forgotten, as I shall be,
...say, I taught thee...
Henry VIII III.ii

Becoming a lawyer is a very expensive proposition these days. In "Law School: Doing the Number$", Christine Hurt at Conglomerate comments on a Law.com article on the skyrocketing costs of law school tuition.

Bob Ambrogi at LawSites tells readers that the law library at Boston College Law School has launched a new blog, Reference Question of the Week, providing information and ideas to address legal research challenges.

(On the lookout for more legal research tips? Visit the Law Dawg Blawg published by the Southern Illinois University School of Law librarians.)

By the way, be sure to tune in to Weekly Law School Round-Up #6 - The TV Edition over at Evan Schaeffer's Legal Underground. (My favorite entry: "What Captain Kirk Can Teach Us About the Law".)

ACT IV: Lawyers Behaving Badly


Faith, I have been a truant in the law,
And never yet could frame my will to it;
And therefore frame the law unto my will…
1 Henry VI II.iv

In "Capoccia gets 15 years for swindling clients", law blog poet laureate David Giacalone of f/k/a covers the sentencing of ex-attorney Andrew J. Capoccia for stealing millions of dollars from thousands of clients, as well as the failure of the New York State bar grievance system to put a halt to Capoccia’s deeds in the late 1990’s.

ACT V: Government

Brabantio: Thou art a villain.
Iago: You are--a senator.
Othello I.i

When I read "Customs Seizures a Protection for Small Business," an article from Small Business Trends which sings the praises of a federal agency, I had to look out my window to see if pigs were flying. In an age of bureaucracy and incompetence at all levels of government, it’s rare you ever hear anyone say something nice about any local, state or federal authority. This article lauds the key role U.S. Customs plays in protecting small businesses from counterfeit goods. What can we expect next? A blogger’s praise for FEMA?

ACT VI: Intellectual Property and Patents

...as imagination bodies forth
The forms of things unknown, the poet's pen
Turns them to shape, and gives to airy nothing
A local habitation and a name.
Midsummer Night’s Dream V.1

Leave it to the inventive Patent Baristas to provide clarification of a complex subject matter in "Demystifying HR2795: The Patent Act of 2005", providing some reassuring news for inventors.

Meanwhile, last week’s Blawg Review host, Cyberlaw Central, takes a look at Hub Group, Inc. v. Clancy, a case providing a review of the standards necessary to obtain a preliminary injunction in trade secrets cases.

ACT VII: Wills and Trusts

A man can die but once...
2 Henry IV III.ii

Joel Schoenmeyer at Death and Taxes (who has promised us one of these days a review of the Charles Dickens classic Bleak House, currently airing on PBS) has some thoughts on estate planning and literature, with an example of a pet trust, Dickens-style.

J. Craig Williams at May It Please the Court discusses a twist on estate planning in "Incentivizing Trust Babies To Work For Their Inheritance".

ACT VIII: The Workplace

We are but warriors for the working-day.
Henry V IV.iii

Apart from issues like abortion and gay marriage, nothing apparently gets Americans on all sides of the issue more riled up than the subject of gun control. In this past week's post, "Controversy Over Guns At Work Continues to Rage," George Lenard at George’s Employment Blawg invites readers to drop by and join in the discussion at a post that continues to draw fire (sorry, inexcusably bad pun) four months after it was first published.

ACT IX: Alternative dispute resolution

A peace is of the nature of a conquest;
For then both parties nobly are subdued,
And neither party loser.
2 Henry IV IV.ii

Since I am, after all, a mediator, it’s only reasonable that I should want to turn my attention now to the field that is nearest and dearest to my heart.

Scene 1: Mediation

Words before blows…
Not that we love words better, as you do.
Good words are better than bad strokes, Octavius.
Julius Caesar V.i

They say that the devil’s in the details. This is certainly true when it comes time to memorialize agreements reached at the end of a long, grueling mediation session. In "The Check Is in the Mail!", Florida Mediator Perry Itkin reminds attorneys and mediators alike to pay attention to details when it comes to drafting settlement agreements.

Ever wonder what goes on inside a mediator’s mind? What lies behind that blandly inscrutable exterior? Pay a visit to Geoff Sharp’s Mediator...blah...blah. Geoff, a barrister and commercial mediator from New Zealand, shows you what goes on behind the scenes. (Although right now it looks as if Geoff could use some help from Denise Howell in coining a term for mediators who blog.)

Scene 2: Negotiation

Let every eye negotiate for itself...
Much Ado About Nothing II.i

Josh Weiss of the Harvard Program on Negotiation publishes Negotiating Tip of the Week, an audioblog featuring weekly negotiation strategies and advice. This week’s podcast addresses "Effective Use of BATNA". For those of you who may not be familiar with mediator jargon, BATNA stands for “Best Alternative to a Negotiated Agreement”. Successful negotiation requires thorough planning before you come to the table--knowing in advance what your best alternatives are if you don’t reach settlement can strengthen your hand and provide you with protection.

Successful negotiation also requires a certain level of self-confidence and assertiveness. Tammy Lenski over at Strategic Conversations offers some advice on assertiveness straight from the, er, shi tzu’s mouth in "Luigi’s Recipe for Assertiveness Success".

ACT X: Blogs and Blogging

O brave new world,
That has such people in’t!
The Tempest V.i

Overlawyered.com has an intriguing proposal for readers: readers are invited to suggest a legal case or news story that belongs on the site. (Some have already responded--one example includes the case of a Danish man housebound with cerebral palsy who is suing the Danish government to require it to subsidize visits to his home by prostitutes.)

Stephen Nipper at The Invent Blog offers up "Five things I would do differently if I started blogging today", great advice that anyone who is thinking about starting a blog would do well to follow. (In fact, I myself would do well to heed his advice on portability. With the outages at Blogger this weekend, I wasn't sure whether the curtain was going to go up on this edition of Blawg Review.)

(For more words of wisdom on blogging, be sure to check out Blawg Review #38, when Evan Schaeffer's Legal Underground provided readers with "Ten New Year’s Resolutions for Bloggers")

Carolyn Elefant, author of MyShingle.com, ponders an important question for associates working at large law firms: "Why Would You Blog At Biglaw?"--especially when you don't get credit for the blog posts you author. Carolyn reminds us entrepreneurs of one of the benefits of solo blogging: "Yes, I may be a lowly solo in the eyes of biglaw, but at least I can say that not only is my name on the door of my firm, it's on my web posts as well, every one of them." Indeed.

In "Great blog for legal tech tips (and for admiralty law)", Ernie the Attorney, like Diogenes with his lamp, lights the way, not to honest men, but to some honest blogs worth noting. One of these is "I [Heart] Tech", created by Adriana Linares, which provides "Technology Tips and Advice for a Lawyer’s Life and Business (and other people too)". The other is Proctor in Admiralty, focusing on "Maritime Law and Commerce in the 21st Century".

It looks like some bloggers may be in need of a mediator. The latest controversy these days in law blogging concerns the brouhaha over USALAW.com and the dissemination of blog content. To find out what it's all about, see Nick Carroll at USALAW.com respond here to Kevin O’Keefe’s post that "USALaw.com blog network uses leading law blog feeds without permission", as well as Dennis Kennedy’s own post, "Did You Want to Clarify that You Are NOT Part of the USALAW.com Blog Network?" (These all seem like nice guys, and I hope they can work it out.)

ACT XI: Habits of Highly Effective Lawyers and Mediators

If it were done when 'tis done, then 'twere well
It were done quickly.
Macbeth I.7

If you’re a procrastinator, don’t postpone reading David Maister's "Done at Last! Thoughts on Procrastination", co-authored with Wendy Leibowitz. This article offers great advice on how to beat the tendency to put off until tomorrow what you could do today.

ACT XII: Defying Categorization

There are more things in heaven and earth, Horatio,
Than are dreamt of in your philosophy.
Hamlet I.v

Scene 1: Breastfeeding

I have given suck, and know
How tender 'tis to love the babe that milks me...
Macbeth I.vii

(This is what I love about Shakespeare--he's got a quote for every occasion.)

In "Breastfeeding Legislative Updates", the Mommy Blawg provides a round-up of the latest news on legislative "lactivism". (Mommy Blawger includes a link to a news report on "the Victoria Secret" incident in which Victoria’s Secret employees stopped a nursing mother from using her breasts for the purpose for which they were intended.)

Scene 2: Thoughts on Clinton’s Return to the Practice of Law

My conscience hath a thousand several tongues
And every tongue brings in a several tale
And every tale condemns me for a villain...
Richard III, V.iii

Dan Hull, author of What About Clients?, has posted this want ad to hire a "natural marketer" with top-level federal branch experience. Seems he wants to fill that position with someone who’s dazzlingly charismatic—now that the word is out on the street that Bill Clinton may be looking to return to the practice of law. In a follow-up to the ad, Dan also asks, "What's in Your Name?", with his thoughts on law firm branding.

ACT XIII: Shakespeare and Lawyers

"The first thing we do, let's kill all the lawyers."
2 Henry VI IV.2

No discussion of Shakespeare and the law would be complete without a reference to this most controversial of Shakespeare's lines on lawyers.

The problem is, no one is really certain what Shakespeare meant by it. Some legal scholars, including Supreme Court Justice John Paul Stevens, who famously cited this line in a footnote to his dissent in Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985), insist that this statement

was spoken by a rebel, not a friend of liberty...As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.
Id. at 371.

Plenty of others beg to differ. For the perspective of our own Blawg Bard (sorry, David, I know how you feel about the word "blawg", but I'm afraid I couldn't resist the alliteration), which includes historical context and links to other materials, please see David Giacalone’s post, Shakespeare and Lawyers.

EPILOGUE.

...parting is such sweet sorrow...
Romeo & Juliet II.2

To blog or not to blog, that is the question Next week’s Blawg Review will be hosted by Bob Coffield at Health Care Law Blog, which offers "Analysis, Comments and Thoughts on Health Care Legal, Regulatory and Compliance Issues, HIPAA Privacy & Security, Stark & Fraud, Technology and Other Legal Odds and Ends". This week Bob gives readers an "Interesting Perspective on Electronic Health Record Storage"--about the importance of ensuring that confidential information stays that way.

Thanks to everyone for their submissions, to Ed., Blawg Review editor extraordinaire, for the warm introduction to Blawg Review’s readers, and to all of you for kindly stopping by. Thanks also to everyone who helped me compile quotes for this post, as well as special thanks to Edward J. Bander, Professor Emeritus at Suffolk University Law School, who wrote the excellent The Breath of an Unfee'd Lawyer, a collection of Shakespeare's obversations on law and lawyers.

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