f/k/a archives . . . real opinions & real haiku

October 11, 2003

exitedEsq: going dormant (gonna miss ya)

Filed under: pre-06-2006,Uncategorized — David Giacalone @ 7:19 pm

napper gray sm turn, turn, turn . . . .

This is the last posting for my ethicalEsq web journal.   So, I’m going to get sentimental and reflective.

[NOTE: we couldn’t stay away from weblogging and returned on December 13, 2003; click on our About page to read more about our convoluted history — which continued until March 1, 2009, when we stopped production and “archivized” f/k/a]

It’s hard to believe it was only 19 weeks ago, when I made my first news post, “P/I Lawyers v. Common Good” and went public with ethicalEsq. (I mean, Denise is still pregnant with the same Baby!)  Nevertheless, it’s time to follow my own advice to other lawyers:

Don’t take on a client or a project if your services won’t be “diligent (attentive, prompt) and competent (thorough, knowledgeable, well-prepared).”

In the Ethics Nanny business, you know it’s time to stop tilting at windmills and hang up your lance, when you can’t find the energy to write with relish about this story (“State [Ethics] attorney fined for writing on job”). For the past two months, it’s been rather difficult to keep a sharp eye or brain  focused on developments in the world of legal ethics.   My body keeps wanting naps, and my brain-ego keeps wanting to chase down just one more source and link.  It seems that the need to feel productive is a curse for Type A’s who happen to contract Chronic Fatigue Syndrome (CFS), and finding the right pace can be nearly impossible — at least for me, since becoming addicted to editing my weblog.


Yes, Lauren Hillenbrand was able to write Seabiscuit, despite having CFS, and her personal story is inspiring, but:

[H]er success came at a price. “The day after I turned in my manuscript, my health collapsed,” says Hillenbrand. “You want so much to defy this illness and live on your own terms. I hoped I could get away with it, but I couldn’t.” Debilitating symptoms of chronic fatigue, and the devastating vertigo that accompanied them, had returned with a vengeance. (from “Betting on Seabisquit,” Smithsonian Magazine, by Larry Katzenstein, Dec. ’02)

Not to make excuses for myself, but writing a bestseller like Seabiscuit is just one discrete project (although a big one).  On the other hand, riding ethical herd on the legal profession is an endless, thankless, almost infinite, and — let’s be honest — rather futile job.  Don Corleone could certainly do the job a lot better than Don Quixote, but he’d need a very big gang of enforcers.

  • A consigliere’s last bit of advice for the Godfather:  Make sure the consumer of legal services gets lots more information, competition, and options.   Then, maybe give the legal profession and its Watchdogs an offer or two they can’t refuse.  (Unbundle This!)
  • The need for a voice/conscience like ethicalEsq? within the legal profession obviously still exists.  And this web log has demonstrated that there is an audience for its message.   Where are the legal ethics professors, law students, bar counsel, or bar leaders who care deeply about client-oriented reforms? The web-log-osphere awaits them.
  • Meanwhile, readers who want updated information about reforms in the provision of legal services, should check out the newly-revised homepage of HALT for its Breaking News and Press Releases.  Like ethicalEsq?, HALT is “dedicated to helping all Americans handle their legal affairs simply, affordably and equitably.”

I know that some of the new friends I’ve made out there in Web Log Land are a little worried about me and my health, but they shouldn’t be.  I’m not seeking sympathy by telling personal details in this public place.   I’ve learned some very important lessons while dealing with a serious health condition over the past decade, and I’m glad to have learned them and lived them.   Besides discovering my own inner strength, I found out that there are things far more valuable to me than the typical American symbols of “success” — power, influence, recognition, wealth.  Being able to remove myself from ethicalEsq?‘s heady loop of positive feedback is a very good sign that I’m not forgetting those lessons.

Doing ethicalEsq has been a very rewarding experience, whether the correspondents agreed with me or not.  Until I started a web journal, I thought the internet (mostly e-mail) could be used to sustain established friendships and relationships, but couldn’t possibly create new ones of any significant value.  Well, I was wrong!

Comments and e-correspondence sparked by this website have put me in touch with some very good human beings (who can scarcely be blamed for being lawyers).   Although they are a lot busier than I, I hope to continue to connect with them across cyberspace.

  • At the end of this posting, I have listed (alphabetically) a number of the web-log related folks who have become more than just pixelated names to me, due to the quality and/or quantity of their communications, insights, inspiration, or assistance.

For now, ethicalEsq will be right here, with a rather large amount of content, and a pretty good set of links to other resources relating to legal ethics.  This whole weblog experience-experiment has been far too positive for me to forsake web-journaling altogether.

Although I could never be as cultured as George’s Fool, nor as interesting as storyteller Sherry Fowler, I certainly have opinions and observations, and some day soon hope to start a personal web diary/scratch pad.  It will deal with topics that require neither monitoring nor research.   Until then, I’ll be dropping comments here and there, and making a general nuisance of myself.   Do you think I can write an entire paragraph without a hyperlink?
Be well, do well (but have some fun).

David’s ethicalEsq Honor Roll:*
Anonymously Curmudgeonly Clerk
Carolyn Elefant
Scheherazade Fowler
B. Janell Granier
Denise Howell & Child
Madeleine Begun Kane
Ken Lammers
Jerry Lawson
Stuart Levine
Tim Mighell
Steve Minor

Jim Moore

Marcia Oddi
Walter Olson
Lucian Pera
Laurie Hyde Smith
Genie Tyburski
George Wallace
Dave Winer
Tom Workman
*If I’ve forgotten anyone, please blame it on the CFS “brain fog.”
If you had websites, you’d be here, too, Mom, Ana, Deborah Sirotkin Butler, and twinsie Arthur.
P.S. The LAST TWO CENTS from Jack Cliente (Oct. 15, 2003):  There’s no hard feelings from me and Jackie about not being mentioned in all those nice ethicalEsq? eulogies.  We’re sort of used to Mr. Editor taking all the credit.   For what it’s worth, here are some farewell thoughts, as expressed to Ernie this morning:

Now that Mr. Editor has stopped posting, I’m unemployed and have time to leave Comments. So, you get my Two Cents for free, Ernie:

Don’t send e-flowers to honor ethicalEsq?, but actively work for the consumer of legal services both out in the real world, and through the power of weblogs:

(1) help make bar associations at the local and state level client-oriented, instead of guild-oriented (e.g., improving the Discipline System would be a great place to start);
(2) harness the power of the web to make the self-help-law revolution a reality, and
(3) with or without new laws or ethical rules, get more information to consumers about their rights and options — with enough information, consumers can create their own powerful competitive forces for innovation, improved services, lower prices.

For ideas, see the Editor’s article Counselors Oughtta Counsel (Not Conceal), and the ethicalEsq? resources on Informing Consumers, Access and Affordability , Discipline System , and — don’t forget — Fees.

October 8, 2003

Making the World Safe for Curmudgeons

Filed under: pre-06-2006 — David Giacalone @ 6:25 pm

        I don’t usually see or read AARP Magazine, but Lauren Hutton’s on the cover of the current edition, and got my attention — until I noticed the tease for an article inside that tells us why America needs curmudgeons more than ever.  A Few Good Grumps, by Jon Winokur (Nov.-Dec. 2003) is enjoyable reading, and can be found online by clicking here (after finishing this posting, please).
        You’ll even find a quiz to discover whether you are a crank. The Results section of the quiz is classic:

If you refused to take this quiz because it’s a damn fool waste of time—and then wrote a lengthy, self-righteous letter explaining precisely why it was a damn fool waste of time—congratulations: You are officially a curmudgeon.

     Winokur has literally written the book on the topic, and here are a few of his insights about curmudgeons:

  1. They refuse to see life through the filter of wishful thinking and are outspoken in their devotion to the harsh realities of life.
  2. [T]hese are tough times for curmudgeons. In an age of fast-food intellect, when crudity is mistaken for cleverness, the articulate, witty curmudgeon seems out of place.
  3. Slowly, almost imperceptibly, our nation is becoming curmudgeon intolerant. It’s as though our American ears, like our American bellies, have gone soft. Look around and you’ll see the triumph of the mindless happy.
  4. Curmudgeons aren’t just funny or just mean. Part of what makes a curmudgeon is an almost allergic reaction to injustice.  
  5. “Curmudgeons are idealists at heart,” insists 60 Minutes commentator Andy Rooney.
  6. Curmudgeons thrive at both ends of the political spectrum.  [from Gore Vidal to Ann Coulter]
  7. Political correctness—denying or softening obvious truths in the interest of good will and harmony—is an elephant-size target for any good curmudgeon.
     It seems to this cranky idealist, that the legal profession (like any good bar) needs a lot more curmudgeons.  Now, go read the rest of that article, if you know what’s good for you!

First Thing . . . Let’s Quell All the Liars

Filed under: pre-06-2006 — David Giacalone @ 10:43 am

Lawyers, Liars, Bah!” That’s what my immigrant, blue-collar Grandpa said, when I told him thirty years ago I’d be joining my twin brother as a student at Harvard Law School. Three words, and he never brought up the subject again.

Distrust of lawyers is ancient and widespread, and based on much more than class envy or the sour grapes of a dissatisfied client. From Sir Thomas More’s “Utopia“, to Walter Olson’s Overlawyered.com, and from Shakespeare to Shark Mugs (and t-shirts), lawyers have been universally disrespected, even by (and sometimes especially by) those who know them the best and need them the most.

Why? Put simply, human beings find it difficult to trust or respect liars — especially the dissembler who promises protection, disguises motives or parses words. Like it or not, to the average person, lawyers seem to be in the business of lying, their degree being a license to lie — and steal. [You’ll find some all-too-representative quotations and jokes in Poetic Justice (edited by Jonathan and Andrew Roth, Nolo Press, 1994) and by clicking on a few results from a “lawyer joke” Google search.] The causes go far beyond the central role lawyers play in our “adversarial” legal system, although that doesn’t help (“You see, my dear, both sides present slanted stories and the judge nevertheless figures out what the truth is and renders justice.”)
Before the existence of the modern media, the public learned about their local lawyers at the public market, through neighborly gossip, and eventually from newspaper accounts. There were relatively few attorneys in most communities, and the personal reputation of each lawyer could stand on its own. Now, Americans and other members of the westernized world mostly see lawyers at work on their television screens, and the picture isn’t pretty. It’s not hard to understand the public’s disrespect for the profession, when its main images are:

  • criminal defense lawyers spouting sound bites on courthouse steps, the content of which often strains credulity, blames victims, and has very little to do with the important role of making the government prove its case;
  • ceaseless tidal waves of personal injury ads, with lawyers promising to be your best friend and to fight selflessly to get you every penny you deserve — when, in fact, they will not lift a finger for you unless you sign over a third or 40% of your claim, no matter how little work or risk is involved for their firm;
  • heroine and hero lawyers in popular tv shows and movies who have very little problem using deception and ignoring ethical obligations

Except for real estate closings, the most likely significant personal contact with a lawyer for the average American often comes in the context of a divorce or custody fight — either their own or that of a close friend. In that setting, lawyers consistently make claims about the opposing client that are willful distortions of the truth, used for posturing or leverage. In pleadings and during negotiations, for example, baseless or trumped-up charges of parental unfitness and spousal cruelty are routinely made, and frequently considered to be skillful lawyering. The resulting scars and resentment of lawyers tend to last a lifetime.


A major study released last year for the ABA Section of Litigation on “Public Perceptions of Lawyers (June 2002) merely confirmed the public’s lack of confidence in the profession. Instead of getting to the root of the problem, the organized bar combats millennia of ill will and bad press with canned speeches and a barrel of “mugs, magnets, t-shirts, hats, mousepads, buttons, stickers & more” straight from the Law Day Store. The profession acts as if it only has an image problem and not a fundamental crisis.

Therefore, whenever bar leaders are published on the op/ed pages of the media, or quoted on the news pages, we only hear that the profession holds itself to “the highest ethical standards,” and is working hard to improve its civility and protect its clients (when, in fact, it is usually protecting clients — and therefore lawyers — from competition and choice). Their detractors are painted as opportunists with political or economic agendas. And, lawyer jokes are depicted as the cause rather than the result of the public’s distrust.

  • My message to the legal profession: You do need more PR, but it must be Professional Responsibility, not Public Relations. Image crafting only sounds like more deception to the average (and above-average) American. Like more lies. Lost trust has to be earned the hard way — client by client, case by case, with the focus on competence, diligence, and loyalty toward the client; on responsibility toward society rather than toward guild and gelt; on vigorous overseeing rather than overlooking of ethical rules; and on service rather than self-importance.
  • Legal consumers can’t merely be told that the client comes first. They have to see it and feel it. Until then, the equation “lawyer = liar” will remain a truism in the mind of the common man, not just a humorous pun.

Doing Right by Shakespeare: Before I sign off, please allow me to sound-off about a particularly dastardly example of lawyer disinformation — the party line propaganda used to combat the ubiquitous quotation from Shakespeare, which I paraphrased in the headline above, and set forth here:

First thing we do, let’s kill all the lawyers.
–Shakespeare, King Henry VI, Part II, IV, ii

The classiest response by the Bar to those nine little words by the Bard, would be to ignore them and merely smile at all the notepads, t-shirts, bumper stickers, and baseball caps upon which they appear. Another dignified option would be making a professional, non-defensive response; something like: “Hey, it’s just one line from a 400-year-old play. No one can say whether a particular character is echoing an author’s beliefs. Even though Shakespeare often uses his comedic characters to make barbs at society’s ills and injustices, we can’t know if that was his purpose here. Shakespeare was an entertainer and many of the rabble in the audience almost certainly enjoyed hearing such populist sentiments.”

However, instead of taking such a reasonable approach, the Bar has decided to put down its lawyers license and engage in artistic license and fiction writing. In the name of setting the record straight, they have decided to misinform the public about the meaning and context of Shakespeare’s famous line. The party line is, therefore, that the sentence demonstrates Shakespeare’s unshakable recognition of the important role lawyers play in maintaining the rule of law and the fruits of civilization. The phrase is [the lawyers insist] a tribute to lawyers. See, for example the assertions here, here, and here.

As attorney and mediator Linda C. Fritz, Esq., declares, quoting an ABA President:

The truth about “Let’s kill all the lawyers”!

“Service to others is a worthy goal for an aspiring professional and the best response all lawyers can make to our critics. We might also urge the bashers to read their Shakespeare more carefully.

The words, ‘Let’s kill all the lawyers,’ were not spoken by a disgruntled litigant (or even by Henry VI’s press secretary). They were uttered by the conspirators in Cade’s Rebellion, who planned to overthrow the English government, destroy the ancient rights of English men and women, [as such “rights” were available to women at that time], and establish a virtual dictatorship.

Through the rebels’ threat, Shakespeare reminds the groundlings that lawyers, as protectors of that system of ordered liberty, are as much an obstacle to a rebellion that would curtail liberty as any garrisoned castle. Thus, Cade’s path to oppression leads inevitably over their bodies…”. — John J. Curtin, Jr., Esq., President, American Bar Association, published in the ABA Journal, September, 1990.

No less a luminary that the venerable Dean David T. Link makes the same argument:

In fact, the famous quote from Shakespeare is not a criticism of lawyers, but actually is the greatest possible compliment. The scene from “Henry VI” (Part II) concerns the planning of an evil revolution–a takeover of power by Cades and his companion, Dick the Butcher, for their own greedy purposes. Dick the Butcher, recognizing the one group of people that might save the citizenries’ property and rights, says: “The first thing we do, let’s kill all the lawyers.” The lawyers, in other words, were the potential enemies of the despots.

This propaganda has been repeated so often that even an astute observer and skeptic like St. Petersburg Times columnist Howard Troxler, has accepted it (“Don’t kill the lawyers, just the frivolous lawsuits,” July 10 2002):

Lastly, for the record, so lawyers will quit accusing me of being ignorant, I am perfectly aware of the context of the original “kill the lawyers” quote. It comes from Shakespeare (2 Henry VI, Act IV, Scene 2), in which there is a conspiracy to establish a dictatorship.

The plotters are boasting about how they will make everybody bow down to them. That is when one of the conspirators chimes in, “The first thing we do, let’s kill all the lawyers.” His goal was to destroy the law, so that the citizens would have no legal protection. I admit this freely. You will notice, however, that Shakespeare was silent on the question of a less drastic reform.

There’s one problem, neither the play itself nor English history support the legal profession’s interpretation of Shakespeare. First, the conversation between Jack Cade and Dick the Butcher is not a discussion on how to plot to win a rebellion against lawful government. Quite the opposite, Cade is proclaiming what he will do “when I am king, — as king I will be.” When Butcher yells out that the first thing he wants done is to kill all the lawyers, Cade responds, “Nay, that I mean to do,” and laments “I was never mine own man” since signing a contract [“scribbled” on parchment by a lawyer and sealed with bee’s wax]. The full conversation that contains the line can be read here.

This rings true, from a historical perspective, as a proposal to kill all lawyers was a central feature of the earlier rebellion led by Wat Tyler in 1381, and Shakespeare (never a strict historian) appears to meld the Tyler and Cade uprisings together. As one source has explained, lawyers were targeted in Tyler’s Peasants Revolt, because they “enabled landlords to force many labourers to return to the old conditions by finding faults in deeds of manumission ” [That is, peasants who had been freed from servitude or serfdom by their masters were returned to bondage, when lawyers found loopholes in the documents that had purportedly freed them.]

The English do not view Cade and Tyler as mere riff-raff in revolt against a benign government, as the lawyer propagandists insist. Here’s a description of the Cade Rebellion on the bbc website:

Jack Cade’s rebellion

Henry VI was an unpopular king, who imposed crippling taxes resulting in poverty for the people, whilst being accused of extravagant living and corruption in his own court. John Mortimer, an Irishman living in Kent and calling himself Jack Cade, led a rebellion to protest about laws, taxes and extortion of food and goods which kept them poor. The rebels wanted justice and claimed that the King was not keeping to the solemn oaths he had sworn to abide by. One demand was that Richard Plantagenet, the Duke of York, (whom Cade claimed as a Mortimer cousin) should be recalled from exile in Ireland and made King instead. Unusually, Cade’s followers were not only peasants but also landowners and gentry.

Similarly, here is the History of the Peasants’ Revolt found at Britannia.com (written by Jeff Hobbs):

The targets that the peasants attacked, plus the demands that they made to the King, show the pressures they faced at the time. The immediate cause of the revolt was the unprecedented amount of taxation the peasantry faced from the Government. The poll tax of 1380 was three times higher than that of the previous year and, unlike its predecessor, taxed rich and poor at the same rate. Hence, it was very unpopular with the peasantry.

However, the main call of the peasant rebels was for the abolition of serfdom. This was because, since the middle of the century, their lords had prevented them from making the most of the changing economic conditions. Visitations of the plague since 1348/9 had reduced the population by between a third and a half. As a result, labour became more scarce, wages rose and the economy began to suit the peasant more than it suited the landowner. However, the landowners of Parliament legislated to keep wages low and to restrict the free movement of serfs.

[For additional discussion of Cade’s Rebellion, click here and here.]

That’s the unlawyered version of the story. In this historic context, lawyers were seen as protecting the privileged and corrupt establishment, as part of the resistance to needed social change and justice. Whatever William Shakespeare actually felt about the legal profession, a good part of his audience would have enjoyed hearing Dick the Butcher’s idea for improving society once their rebellion was successful. The royal “we” here at ethicalEsq? are not advocating slaughtering all the lawyers — just stifling all the liars.

ethicalEsq – ethicalEsq

Thanks: to Dennis Kennedy for pointing over to this posting and adding his own reflections at his weblog, as did our D&E Man, George Wallace, under the guise of A Fool in the Forest. Und, vielen dank to Ernie for directing his throng over here (and pointing that loaded gun in another direction), to Harvey Morrell at UBalt.LawLibraryBlog, our friends at the Stark County Library Blawg, and the tres vague proprietor of makeoutcity.com, too. Also, many thanks to The Noble Pundit for including this posting in Carnival of the Capitalists #3 (October 26, 2003).

update (Oct. 30, 2004): As mentioned here, the swarm of lawyers around the 2004 Presidential Election will almost surely reduce the profession’s popularity even more. Is the Bar prepared to tell the public why/if/when the election role is appropriate?

update (Nov. 7, 2004): A thoughtful “middle” position on just what Shakespeare meant is offered by Kory Swanson, Vice President, John Locke Foundation, and discussed in Let’s Kill All the Lawyers” and Other Insights from the Bard: Shakespeare’s multi-layered commentary on the law, by Teresa Nichols (Carolina Journal Online, July 31, 2003). According to Nichols, Swanson concludes “Shakespeare truly intended the phrase to be a portrayal of corrupt lawyers and the laws they pervert as the true enemies to sound government, justice, and freedom.” Also, see our post on Nov. 7, 2004, describing a rather sorry “defense of Shakespeare” and an indy film from 1992 called Let’s Kill All the Lawyers.

ABA Unbundling Handbook Looks Like a Winner

Filed under: pre-06-2006 — David Giacalone @ 12:53 am

The Modest Means Task Force of the ABA’s Section of Litigation has just released its Handbook on Limited Scope Legal Assistance.   The 155-page document appears to live up to its billing as a “soup-to-nuts” guide for the practitioner.  There’s too much for me to review or digest quickly, but the Forward by Committee Chair Scott J. Atlas gives a taste of the purpose, scope and utility of the document:

The Handbook is a practical guide to providing legal services in a way that permits clients, who otherwise could not afford or would not choose to hire a lawyer, to obtain critical legal representation for discrete and important tasks in the course of resolving disputes.  The Handbook discusses all aspects of limited-scope representation, including the formation and termination of the relationship, the performance of discrete tasks, and the ethical issues and procedural rules involved in this service method.  It also provides valuable anecdotal experiences of limited-services practitioners.  An extensive Appendix contains sample forms, pleadings,  and proposed court rules.  It is a “soup-to-nuts” guide for the practitioner. The Section is proud to provide this Handbook to lawyers, judges, court administrators, and bar associations.  It will be an invaluable tool to bench and bar in our efforts to build a better justice system.

In addition to the pdf version linked above, a text version is available here.

  • In other unbundling news, as noted by Carolyn Elefant last week, the New York Bar Association appears to be readying its recommendations for ethical rule changes and statutes that would permit unbundling to flourish in the State.  According to the New York Law Journal article, “N.Y. Bar Readies Bid to ‘Unbundle’ Lawyers’ Services, by John Caher, (09-30-2003), the NYSBA Delegates is expected to act on the topic in November.  ethicalEsq? supports unbundling, and is pleased to see progress in this area, which holds benefits for clients and lawyers.  

October 7, 2003

The Link Between Antitrust, Monopolization and Our Microsoft Security Woes

Filed under: pre-06-2006 — David Giacalone @ 7:56 pm

Steve Minor at the SWVa LawBlog suggested yesterday that the federal government should have brought a product liability suit against Microsoft, rather than its monopolization case.  I have no idea whether the product liability approach (as described in a ZDNet article cited by Steve) will succeed legally or provide Microsoft users with much relief or security.  But, I am virtually certain that vibrant competition in the marketplace for operating systems and web browsers would have produced higher quality systems, with far superior security protection, than we have now.  


Antitrust law exists to deter and punish conduct that prevents meaningful competition and all its benefits.  As the Supreme Court said in its Professional Engineers Case, 435 U.s. 679, 695 (1978):

The Sherman Act reflects a legislative judgment that ultimately competition will produce not only lower prices, but also better goods and services. “The heart of our national economic policy long has been faith in the value of competition.” Standard Oil Co. v. FTC, 340 U.S. 231, 248 .  The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain – quality, service, safety, and durability – and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers.    

Complex antitrust suits against powerful, misbehaving monopolists may take too long, be too difficult to explain in tiny sound bites, and offer imperfect remedies, but a government that failed to bring such cases would be sending a terrible message to every firm that hopes to succeed by offering more value than the predominant firm.  The message would have been particularly irresponsible and devastating when the largest corporation on the planet is abusing its market power in a product market that affects virtually every consumer and is at the core of our economy.  

  • Competition and its benefits do not happen automatically — especially in a marketplace where technology favors the creation of predominant firms. 
  • Antitrust law is not self-enforcing. 
  • Consumers cannot reap the benefits of healthy competition if antitrust police are dissed and disarmed.

If Microsoft had faced vigorous competition, it would have been forced to improve its products — or to lose business to competitors offering customers more desirable options (including better security, platform stability, user-interfacing, or price).  Even when the average computer purchaser was more than satisfied with the Windows experience and all the “free” features, meaningful competition for the business of better-informed or more discriminating customers would have increased the quality across the board.  


Product liability suits might help solve some security problems, but competition would have prevented a lot of the quality problems that only a self-satisfied monopolist can ignore, perpetuate and perpetrate.   

  • If you came to this website today to read about legal ethics, and you missed my post in June saluting the Sherman Act and its meaning for lawyers and consumers of legal services, click here for “Happy Birthday, Sherman Act” 


October 6, 2003

Tracking Down the Source of Wacky Debtor Legalisms

Filed under: pre-06-2006 — David Giacalone @ 6:52 am

Don’t you hate it when a writer complains about all the dangerous stuff out there on the internet, but doesn’t provide even one link to substantiate the claim?  Well, I do, and I was too wound up for sleeping at about 4 AM today, when I encountered the ABA Journal articleSay What? Web’s Loopy Lingo: Debtors Hop on the Internet for Bogus Legalisms and Wacky Wording (by Margaret Graham Tebo, Oct. 6, 2003).  So, I did some of reporter Tebo’s homework through the sophisticated research technique of sticking her “whacky” phrases into my Google task bar window, in the hope of finding the sources of alleged UPL.


It looks like I found a few places for bar counsel and other deputies in the unauthorized practice police to start foraging.  Indeed, I might have scrounged up some work for the Texas UPL posse, which embarrassed itself by going after self-help software in Nolo v. Texas [check out our Unauthorized Practice Resources page]


According to the Journal article, lawyers for creditors, including Austin attorney Manuel H. Newburger, have been facing a myriad of strange new defenses.

  • Debtors were responding to collection attempts with letters—crammed with legalese—claiming that under UCC Art. 1, the debtors were their own creditors, and the debts were therefore invalid.
  • “Other debtors claimed they had copyrighted their names and refused permission for the creditor to use the names on court filings, collection letters or other documents.”
  • Still other debtors — dubbed the “comma people” — claimed that documents were invalid if a comma was placed after their name, while many used similar out-of context legal phrases, like “notice to the principal is notice to the agent,” or “implied contract by waiver of tort.”
  • Another subset of debtors claimed that they owed no debt because the original loan was not made in gold or silver, the only legitimate legal tender; and
  • Probably the most aggravating group, retaliated by placing commercial liens on the lawyers and employees of the creditors (including the IRS)

Attorney Newburger advocates taking a hardline.   According to the Journal, he says creditor attorneys should demand to know where the debtor got the forms and pseudo-legal language:

“Someone’s out there committing the unauthorized practice of law, and the way to stop this nonsense is to pursue the perpetrators.”

For me, it seems a bit incongruous that lawyers for creditors are complaining about documents “crammed with legalese.”   Nonetheless, frivolous claims are just as unacceptable when brought by pro-se consumers as when brought by corporate counsel or tort lawyers.   Furthermore, if the debtors are in fact acting in good faith after being coached or instructed by non-lawyers, UPL investigations may indeed be in order.

With that in mind, I suggest bar counsel or association “consumer protection” committees take a look at:

1) The Verified Actual and Constructive Notice of one “Jon Carl; Munson II,” and his Affidavit for Post Judgment Relief, filed in Montgomery County, Maryland, which contain frequent use of the phrase “Notice to the Principal is Notice to the Agent (citing Exodus 20:15, 16), and claim that the original loan is invalid because not made in gold.

2) A constitutional challenge  to the legality of child support, in California, by Charles Lindsay; Cheney Jr., SuiJuris-At Law. 

3) The article SLAVES, WHINERS, EVADERS, REDNECKS, MEN & WOMEN, by Don Smith, which gives advice about dealing with debt collectors of all types, including the IRS.  Its introduction states that “Don Smith is editor of AntiShyster [and] is a legal practitioner who sometimes uses a letterhead which states ‘Unauthorized Practice of Law’.”

4) AntiShyster Magazine, and its policy statement on Legal Advice:

The ONLY legal advice that Suspicions and/or AntiShyster news magazines and web sites offer is this:

Any attempt to learn to cope with our modern judicial system must be tempered with the sure and certain knowledge that modern “law” is always a crapshoot. That is, nothing – not even brown paper bags filled with hundred dollar bills and handed to the judge – will absolutely guarantee your victory in a judicial trial or administrative hearing. The most you can ever hope for is to improve the probability that you may win.

Therefore, do not depend on the articles, links or advertisements within Suspicions or  AntiShyster news magazines or web sites to illustrate anything more than the opinions or experiences of others trying to escape, survive, improve, attack, or even make sense of “the best judicial system in the world”.  

But don’t be discouraged; there’s not another precisely accurate publication on law in the entire U.S.A. – except the Bible.

5) The article Commercial Liens: A Most Potent Weapon, edited by Terra Libra staff.

Some of these legal theories may be familiar to the followers of our esteemed Instapundit, who might be able to point the UPL authorities to a few other likely suspects (even if it means revealing a source). 

P.S. to Mom:  I wanted to show off my new expertise on the Rules of Pig Scrambles, but it just never came up for this posting.  Please don’t worry about my having another sleepless night weblogging.  I would have been awake anyway, and maybe those UPL zealots will go check out the debtor wackos, and leave the serious self-help and alternative legal services providers alone.  I regret that I have but one night to give for my consumers. 

And Throw Away the Key?

Filed under: pre-06-2006 — David Giacalone @ 1:00 am

My cyber colleague Carolyn Elefant over at MyShingle reported Sunday morning about a Louisiana judge who issued a bench warrant for an attorney who failed to appear at a hearing.  The lawyer spent an hour in lockup and had to post a $20,000 bond.   The story is described in the Lafeyette Daily Advertiser (Oct. 4, 2003).


Said attorney — surprise!! — blames it on miscommunication and scheduling confusion.   Carolyn wonders if the judge was just having a bad day or “is there more to this story that would justify what appears to be an overly harsh response to a missed court appearance?”


I’m gonna give the attorney the benefit of the doubt (knowing neither the facts nor the reputation of the characters involved).  However, there better be, and almost always is, “more to the story” when a judge dishes out this kind of treatment to a distinguished member of the bar. 


One does not have to spend much time around criminal or family courts to know there are a number of attorneys in every community who chronically fail to appear at court due to “scheduling difficulties”, “communication breakdowns”, and unreliable underlings.  These attorneys cause great disruption and added expense for the courts, the litigants, and opposing counsel.  If more judges would motivate more attorneys to get their acts together, everyone would be much obliged.  The real question is why there aren’t a lot more attorneys enjoying the accommodations at the county jail.

October 5, 2003

Vespertine Weblog update

Filed under: pre-06-2006 — David Giacalone @ 12:10 pm

It’s a good thing I captured the content of the vespertine weblog last night.  As of this morning, if you click on the hyperlink, you will receive the following message:

Editors Only

This site can be accessed by editors only.

More evidence of blogosphere conspiracy?  As we say in the lawyer biz:  Hmmmmm.

Sunday Supplement: This Google cache preserves vespertine in all its one-post glory (including pix and bio of “Alice” that were not available at the Harvard website yesterday).

October 4, 2003

Does the Blogosphere Exist? [expanded version]

Filed under: pre-06-2006 — David Giacalone @ 10:11 pm

Afterthought — Phantom Page Hits? (Nov. 25, 2003): Here are excerpts from an e-mail sent by the Editor to several eminent webloggers on Nov. 24, 2003:

You may recall that I wondered aloud back in October whether the blogosphere existed, or at least whether its extent is quite as large as some proponents and experts claim.  There have been further reasons for my skepticism, related to the phenomenon of Phantom Page Hits.  Let me explain:

Although I hate to reveal such paltry numbers, ethicalEsq? is the only weblog for which I have any figures, so here they are, rounded for convenience (figures taken from the Harvard Weblog Topsites Page) :

  • for the five weeks from 8/24 through 10/1/2003: 21,000 page hits (probably my best weeks ever)
  • for the five weeks from 10/19 through 11/23/2003: 18,000 page hits (more than a week after my Final Post, after the Sympathy-Eulogy hits slowed down, and with no headlines on Detod, plus removal from DailyWhirl).

Only a 14% drop after closing down the shop.  What does this mean?  How are my Dormancy Period page hits being generated?  My Mom’s been without a computer since October 1st, so it can’t be her, and my twin never has time to check up on me.  Are these just robots and spiders, and echoes of pings?  Are Howard’s 3 million hits a bit overinflated, too?

Naturally, I’m being a little bit frivolous, but I would love to hear any explanations or theories.  Are we all just talking to eachother, with very few actual, human “visitors” who are not also webloggers (webjournalistes)?  Is this why there are so few Comments from people we don’t already know? 


Just wonderin’, with too much time on my idled hands and addled mind. [See Scheherazade Fowler’s thoughtful response with comments at Stay of Execution.]



One week ago, Dave Sifry announced that Technorati is monitoring one million weblogs.  I hate to sound skeptical, but I’ve been wondering for some time now if the blogosphere really exists — and, if so, whether its population of actual human beings is greater than the dozen persons who I’ve been able to verify as writing, editing, operating or otherwise keeping a journal-style web site.   Are all those stats and links and page hits just a big hoax?


Frankly, obtaining a satisfactory answer to these questions is more than a little difficult for a non-techie, baby-boomer living in Upstate New York.  However, I had hoped to attend BloggerCon2003 this weekend to see for myself if anyone showed up besides Dave Winer and Jim Moore (both of whom I’m almost certain exist, as does the famous Ernest the Internist, and Denise of the Baggy Wardrobe, and unFoolish George).   Circumstances beyond my control have upset those plans, leaving me here at home with the same nagging doubts.  [I mean they did call it BloggerCon.]


Well, my concerns increased considerably just a few minutes ago.   I went to the purported Sites We’re Hosting page for Weblogs at Harvard Law, and noticed that a new-to-me weblog called vespertine was in the top ten sites for page hits today.  I clicked on the link to see just what had attracted over 300 page hits before 6 P.M.


What I found is profoundly worrisome, as this is the entire content of the weblog called vespertine:

Does the Blogosphere Exist?

Filed under: pre-06-2006 — David Giacalone @ 7:18 pm

(see posting immediately after this one, which — according to the physics of the blogosphere — is located immediately above this one)

October 3, 2003

Consumers Deserve Better Lawyer Referral Services

Filed under: pre-06-2006 — David Giacalone @ 9:40 am

Lawyer Referral Services have been on my mind the past couple of days, thanks to a little blurb by Dennis Kennedy at elawyerblog, Tom Mighells minimalist pointer at Inter-alia, and a substantive posting from the solo perspective by MyShingle‘s Carolyn Elefant.  They each referred to the Business Week article, “Online Lawyers: Starting to Click” (by Ted Popper, Sept. 30, 2003).   The article looks at the way potential clients get paired with lawyers — focusing on the use of internet technology at LegalMatch.com and on the reaction to such computer-based competition by bar groups that run traditional lawyer referral service (LRS) programs.    


While many bar associations are alarmed by the concept of for-profit referral services, the Business Week article notes that the Utah Bar is considering switching to LegalMatch for the provision of referral services to Utah consumers, thus prompting Carolyn to ask whether bar associations should outsource programs to entities like LegalMatch.


At the ABA’s 2000 National Lawyer Referral Workshop, President-elect Robert A. Hirshon noted that bar-related lawyer referral programs receive approximately seven million telephone inquiries annually.  He stated that the volume of calls reflects the public’s need for high quality service and valuable information about legal issues, and underscores the role of lawyer referral services in “helping people to make that first, most important decision about whether or not to contact an attorney.”   In summarzing Hirshon’s presentation, John Busch, Chair of the LRIS Standing Committee, wrote (emphases added):

Hirshon sees “a tectonic shift … so dramatic that it threatens to overwhelm [lawyer referral programs] … or even render them irrelevant.”  Hirshon was speaking of Internet services and new technologies, and he advised, “Rather than curse these new technologies, we must embrace them, capture them for our own purposes. . . . As the public learns over time to access information and services more quickly and efficiently through electronic sources, it is only natural that the same public will turn to these sources for legal advice…We are proud of seven million telephone calls, but who will respond to the 20 to 25 million Web site hits?” he asked.

Hirshon noted concern among LRIS entities about online providers who are more interested in the bottom line than public service. He warned, “The organized bar and your referral programs simply cannot cede the field to for-profit competitors.”

This process is underway, and is highlighted by the [ABA] Standing Committee on Lawyer Referral’s initiative to collaborate with iLawyer.com to establish a national lawyer referral network on the Internet.”  Hirshon described this as the first step in a long-term process.

According to Hirshon, “The goal must be the total integration of LRIS with the emerging technologies. This electronic information should be interactive, giving individuals an opportunity to obtain personalized responses … with a single visit.”   Significantly, the ABA President-elect also urged that the process be made more user friendly, by providing the consumer with:

  1. information about a referral lawyer’s “age, location, hours of operation, language skills, special access needs for the handicapped, educational background, experience or special training.”  And,

  2. information on mediation programs and alternative dispute resolution.

Three years later, the iLawyer.com venture envisioned by Hirshon and Busch is available in all or part of only 5 states (California, Colorado, Connecticut, New York, Washington).   For most consumers, the traditional bar-run LRS is still the primary resource when looking for a formal referral to a lawyer:   Under such programs, the consumer phones his or her local bar association referral service.   A staff member asks a few questions, and then gives the consumer the name, address and phone number of a lawyer from the appropriate subject panel.  The choice of the referral lawyer is made on a rotational basis — the next lawyer on the appropriate panel gets the referral. 


From the consumer’s point of view there are several major problems with the traditional LRS model, the cumulative effective of which is to make the service only slightly better in most instances than using the Lawyers by Practice section of the Yellow Pages:

  1. For the most part, so long as they are members in good standing of the bar, lawyers self-select for inclusion on the panel under a legal practice area or specialty.  (E.g., Utah application merely contains the statement, “I hereby swear that I am competent to handle and will accept referrals made in the following matters,” which are checked off in boxes.   Similarly, the Boston Bar requires a demonstration of experience only in the fields of bankruptcy, employment and tort law.   The City of New York Bar, on the other hand, requires that the applicant list three matters handles and a writing sample in each major subject panel requested by the lawyer.)   An LRS operating under the ABA’s Model LRS Rules Governing Lawyer Referral and Information Services is expected to establish experience criteria for each subject panel.   The ABA Lawyer Referral Directory has links to LRS programs in each state, and indicates whether the program is operating under the Model Rules.  The savvy consumer should go to the bar association’s website and find the requirements for lawyers wishing to join the LRS panel.
  2. Only one name is given for any single legal problem — the name that pops up next on the rotation, not the lawyer who would otherwise be most appropriate. 
  3. No relevant information about the lawyer is given, merely the lawyer’s name, address and phone number is given.

Under this regime, the consumer basically has to go through a blind interview with the referral attorney, and either choose on the basis of that one interview or entail significant transaction costs to compare lawyers.   As the bar groups surely know, the dynamic would be very different, if the referral program gave the consumer background information on several lawyers (e.g., experience level, educational background, hourly fee rates, special office hours or language skills, etc.), who are experienced in the relevant practice area .   For one thing, the lawyers would know that they are actually (dare we say it) competing with eachother for the client’s business.  For another, the client would understand that all lawyers are not equal — not interchangeable, depending on the luck of the rotational draw.  


The situation would also be far more consumer-friendly, if each bar referral service complied with the advice quoted above from the ABA’s Hirshon (to give callers information about mediation and other alternative forms of dispute resolution) and with the analogous requirement in Rule II of the Model LRS Rules that:

A qualified service shall be operated in the public interest for the purpose of referring prospective clients to lawyers, pro bono and public service legal programs, and government, consumer or other agencies who can provide the assistance the clients need in light of their financial circumstances, spoken language, any disability, geographical convenience, and the nature and complexity of their problems.

While I would be happy to hear of exceptions, I believe that few, if any, bar assocation referral services would send a middle class caller to services other than private attorneys, unless there is a statute or court rule mandating that mediation be first attempted.   (For example, the Utah State Bar declares — right in plain view — that the immediate objective of its LRS is “to assist the general public, by providing a way in which any person who can afford to pay a reasonable fee for legal services be referred to a member of the Bar.”)

Another drawback of the traditional LRS system, which appears to continue in some of the iLawyer.com programs, are the referral fees.   There is, of course, the upfront fee paid by the client to the LRS program ($25 to $35) for the initial consultation with the attorney.   However, in some programs there is a fee paid by the lawyer to the program that is both significant and hidden from the client.   For example, the Boston City Bar takes a “remittance fee” of 15% of all fees earned by the lawyer from the referral over $500.   Similarly, the Association of the Bar of the City of New York charges an “additional referral fee” that is 5% of the first $10,000, plus 10% of the next $40,000, plus 15% of the amount over $50,000.

The NYC bar agreement states that “Each Panel Member agrees not to charge any additional fees or to increase his or her fee for the purpose of compensating for the amount due the Service under the percentage formula outlined above.”  And, ABA Model LRS Rule V also forbids charging a referred client combined fees and expenses that exceed the total charges which the client would have incurred had no referral service been involved.  Call me suspicious, but I don’t know how such a prohibition could or would ever be enforced.  It’s just too easy to capture some of the referral fee by “working a little more” for the referred client.

  • Given the fact that the NYC bar program is part of iLawyer.com, I’m a bit surprised to see the following item in iLawyer’s FAQ:   Q: Do the lawyers pay you to get cases?  No. We do not enter into any fee arrangement with the lawyer. Nor do we accept any money from the attorneys for the appointment we schedule for you.  

A program like LegalMatch seems to offer a number of advantages to consumers, besides the convenience of 24-hour availability online.   For example, it is clearly a benefit that “qualified, pre-screened attorneys compete for your business” and the consumer “can review each attorney’s LegalMatch Profile, describing the attorney’s education, experience, specializations, representative clients, and much more,” before deciding who to contact.  This assumes, of course, that (1) LegalMatch lives up to its claim that it enforces “demanding qualification standards for member attorneys” (see LegalMatch’s “Services Page“), and (2) that the service attracts a sufficient number of qualified lawyers. 

A program like LegalMatch seems to make a lot of sense from the attorney’s perspective, too, unless the attorney is afraid to compete head to head for specific clients.   If properly run, such a service can give lawyers, in LegalMatch’s words, “a solution that quickly and efficiently filters cases to them that fit in their schedules and expertise.”   The attorney gets to decide when he or she wants to make a client an offer of service, rather than seeing who happens to turn up at the end of a phoneline as an LRS rotation selection. 

  • I like the fact that the very first section of the LegalMatch consumer application form asks whether he or she has a preference as to the level of attorney experience — and notes that more experience is likely to mean higher fees.  On the other hand, I was a little put off to see that LegalMatch tells attorneys:  “We encourage quality competition, not price – in fact member attorneys are often advised to raise their rates to better reflect their expertise.”   That policy needs a re-write.

Carolyn at MyShingle worries that a service like LegalMatch will charge a fee that is too high for a beginning solo to pay.   If a bar association is shifting its entire program to an entity like LegalMatch, the sheer numbers involved should produce both Bar negotiating power and economies of scale that would reduce the subscription fee considerably.   Also, some bar groups appear to charge more than a “nominal” fee to join traditional LRS programs.  For example, Utah charges $250 a year, the Boston Bar requires a $400 membership in their association, plus $95 to join the panel, and the New York City Bar charges a base fee of $200.   In addition, as pointed out above, some bars are receiving hefty referral fees from the lawyers, and LegalMatch does not charge such fees.   [If a neophyte solo is so inexperienced, unsuccessful, or unable to budget, to afford joining a program like LegalMatch, perhaps subsidizing said solo is not such a great idea.]   

As for the iLawyer.com program, it offers some promise as an improvement over traditional LRS programs (including online 24/7 convenience), but also has some of the old drawbacks.   The iLawyer website FAQ states:

 “Based on your description of the legal problem, Bar Association staff determines the appropriate area of law and considers their list of attorneys experienced in that area of law.   From that list, the Bar Association contacts attorneys until they find an experienced attorney who can help.” 

Contacting the attorney in advance to help assure a good fit and good timing is a plus.  However, it appears that iLawyer neither offers the consumer additional information about the lawyer in advance nor offers more than one lawyer to choose from in deciding who to first consult.

Consumers deserve better referral programs than currently available through the vast majority of bar associations.   Even if bar associations fail to embrace new options like LegalMatch, I’m glad to see that LegalMatch is out their giving consumers more choice and prodding bar groups to improve their programs.   The fact that an online referral system is for-profit is not a particular problem for me —  just about everything bar associations do is primarily for the profit of their members, despite any non-profit pretensions. 

UPDATE (10-27-03): See Declarations & Exclusions Blog  Should Clients Bear the Risk When Attorneys Risk Going Bare? for a discussion on informing the client when an LRIS lawyer drops his malpractice insurance.


Missouri Lawyers Came Late to the Party, Still Get an $111 Million Slice of the Tobacco Fee Pie

Filed under: pre-06-2006 — David Giacalone @ 3:47 am

A five-year battle to reduce fees received by lawyers representing Missouri against Big Tobacco ended this week.  The Missouri high court refused to hear an appeal awarding $111 million to private attorneys hired just 5 months before a settlement was reached in the multi-state case against the tobacco industry.  (AP/Jefferson City News TribuneCourt turns down appeal of tobacco attorney fees,” 10-02-03, via Law.com Daily News WireOct. 3, 2003)  The five politically-connected latecomers, originally wanted $480 million for their tagalong suit.  


The lower court had rejected claims that the attorneys should not have been paid more than state assistant attorneys general ($99,000 a year max.), holding that they were “special assistant attorneys general.”  According to the News Tribune article, Missouri Attorney General Jay Nixon, who had hired the outside firms, stated that “The decision by the Supreme Court not to take the case is neither surprising nor noteworthy in our view.” 

Overlawyered.com has been closely following this case for the past few years.  Click here for coverage dated June 5, 2001, which includes this commentary:

When it came to the role it played in the multistate tobacco litigation, Missouri “didn’t need red-hot lawyers. Our lawsuit was what’s called a tagalong suit.  We were the 27th state to sue the tobacco companies. A national settlement was already in the works. … Five months after Team Missouri was assembled, [it] was reached.”  But that didn’t stop the lawyers who represented the state — some of whom “were distinguished more for their political connections than their legal track records”– from asking for a cool $480 million in fees, though they later declared themselves willing to settle for $100 million

Click here for Overlawyered’s Sept. 21, 2000 posting (unfortunately, many of the linked articles are no longer available), and here for the Oct. 5, 2003 update.

Comment [3] to Rule 1.5(a) of the Missouri Rules of Professional Conduct, concerning the requirement that a legal fee be reasonable, states that “When there is doubt whether a contingent fee is consistent with the client’s best interest, the lawyer should offer the client alternative bases for the fee and explain their implications.”   I would have loved to hear that conversation between lawyer and client.

October 1, 2003

Does Blog Jargon Turn Off Outsiders?

Filed under: pre-06-2006 — David Giacalone @ 1:32 pm

Hoping to provoke some discussion at BloggerCon2003, I posted an Essay there yesterday called Jargon Builds Walls Not Bridges.  The process is working, as Denise Howell has already replied with a thoughtful dissent

Your thoughts are hereby requested either at this site, at the BloggerCon thread, or at Bag and Baggage,   Denise has asked her myriad fans the question: “Do you think terms like ‘blog’ and ‘blawg’ are cliquish and off-putting?”   I’m not an expert on poll-taking, but asking the initiated insiders whether their lingo is cliquish might not make for a very scientific response.  Nonetheless, I hope you’ll reflect on your own initial reaction to the language of the blogosphere, on your friends’ response when you first used the term “blog,” and how you believe outsiders in general respond to the jargon of any group of insiders.

As you might expect, I wrote at length in my the BloggerCon Essay.  Here are my main points:

It’s the pervasive use of jargon, acronyms, buzzwords and insider references by the blogger community that keeps the vast majority of Americans (or voters, or even online computer users) from learning about or caring about web log sites, much less becoming frequent visitors.   We are turning them off, instead of helping them become part of a community forged by weblog technology and camaraderie.  

When insiders want people outside their community to join or understand their undertaking, they need to use language common to the invitee.   You don’t drown the outsiders in jargon and idiomatic language, which are far more likely to alienate and turnoff them off, than to impress them with the wonders of the enterprise, the benefits of joining, or the superior wisdom of the insiders. 

Very few adults are looking for a clique, new religion, or (r)evolutionary movement to join.  . . . Instead, if they are going to turn to sites that use the weblog format, it will be because gathering or disseminating information that is important to them is especially easy and rewarding on such sites.

[T]he four-letter word “blog” is ugly to the ear and eye.  Far more important, it denotes and connotes nothing to the average American — including some very intelligent friends of mine, who have been part of the computer age for quite a while. 

I’m hoping that the “outsiders” at BloggerCon will help illuminate this topic.  Please add you invaluable two cents.

Afterthought (10-10-03):   Even in the afterglow of BloggerCon2003, we don’t know how the weblogging phenomenon will affect our global society.   There is one thing for certain, though:  the (r)evolutions in internet and digital communication, technology and uses will continue.   And those who participate will be either actively or passively creating and passing on a Language Legacy, as names are assigned to new and unfolding concepts, constructs, and wrinkles.  (Indeed, the entire — non-French — world tends to accept the web terminology that is most often born here in America.)  Shouldn’t there be, along with that legacy, An Ethics and Aesthetics of Language Creation?  

The split between serious and trivial web-logging, that is demonstrated in the Perseus White PaperThe Blogging Iceberg (by Jeffrey Henning, Perseus COO), suggests a solution for my pet peeve against the dirty little word b-l-o–g, and a broader  principle to apply when naming (and accepting the names) of things technical:  We have an obligation to craft a nomenclature that makes sense within the context of our langage and that — as much as possible — is aesthetically pleasing (easy on the ears and eyes).  

Of course, language must and should evolve, but new words and terminology should be built upon root forms that have some meaning within the history of our language.  “Automobile” made sense (a vehicle that moves by itself — no horses needed, with the root words being the Greek for self and the Latin for move).  “Telephone” has its roots in the Greek words for distant and voice.   Even a techie term like “kluge” has real roots in an actual language, as explained here.  (It’s the German word for clever and is used when one has found a clever, even if homely, way to solve a problem with the tools on hand.)     In contrast, “blog” has no linguistic, historical, or cultural frame of reference.

Perhaps, most teens (or even aging geeks) don’t care whether the jargon they create has lasting linguistic appeal — indeed, they often want to use terminology that is edgy, offensive or cliquish.   But language-lovers and serious users of words should care — as should those who want the new concepts and tools of technology to be readily accessible to a broad public. 


There is no good reason to leave a language legacy such as the four-letter word “blog”.   Here’s some history of the terminology:  

  • The term “blog” was coined by Peter Merholz, at peterme.com.  Here’s Peter’s explanation for it (emphasis added):

    [In April or May of 1999] I posted, in the sidebar of my homepage: “For What It’s Worth I’ve decided to pronounce the word “weblog” as wee’- blog.  Or “blog” for short.”

    I didn’t think much of it. I was just being silly, shifting the syllabic break one letter to the left.  I started using the word in my posts, and some folks, when emailing me, would use it, too. I enjoyed it’s crudeness, it’s dissonance

    I like that it’s roughly onomatopoeic of vomiting. These sites (mine included!) tend to be a kind of information upchucking.

    ‘Blog’ would have likely died a forgotten death had it not been for one thing: In August of 1999, Pyra Labs released Blogger. And with that, the use of “blog” grew with the tool’s success.

  • Not long thereafter, Brad L. Graham of Bradlands‘ wrote: “It’s Peter Fault.  A year ago, “weblog” was hardly a common word . .. Then the supremely urbane Peter Merholz decided it would be fun to pronounce “weblog” as “wee’blog” and I thought that was kind of cute. Then folks started truncating that to merely “blog” and — ugh! — it’s stuck!  . . . So, now then. Where are we headed?  . . . Is blog- (or -blog) poised to become the prefix/suffix of the next century? Will we soon suffer from (and tire of) blogorreah?  Despite its whimsical provenance, it’s an awkward, homely little word.

    • More recently, Jerry Lawson of fedlawyers.org opined (10-06-03):  “blog” sounds like something from a science fiction movie “The Blog That Ate Cleveland.” Further, . . . the word “blog” makes this powerful new form of Internet communication seem trivial

  • Nurturers and caretakers of language do not have to accept the mindless process that begat the word “blog” and its progeny, even though it may be too late to keep teenyboppers, the hipster insiders, and the trivial users of web log technology from chronically belching “blog” and “blogging.”   We can still choose meaningful nomenclature — terminology that best suits the actual format of our web sites and that actually communicates a meaning.   “Blog” is the equivalent of slang: yes it belongs in the dictionary, but it should not crowd other (and better) terminology for the same concept.

    When Jorn Barger begat the word “weblog,” in 1997, he might have envisioned the format as being limited to short “log” entries with links.  By now, however, it’s clear that the “web log” format comes in many shapes, styles (e.g., commentary, essays, journaling, articles, poetry, pointer blurbs, etc.) and schedules .   Each web site creator should choose terminology that is both accurate for the site in question and meaningful to others.   

     For exampleethicalEsq? may be a frequently-updated, reverse-chronological website format, but I refuse to continue calling it a blog or a blawg.   To me, it is a web journal on legal ethics (which, like a more static site, also has a collection of annotated listings and links for relevant resources).   When the day comes that society expects most or all forms of intelligent written discourse to be available on the internet, I will jettison the adjective “web.”

    Once you want to be more precise than saying “web site,” there really isn’t any good reason to have only one term to describe a site that happens to have its last entry at the top of the home page.    Trying to cram all variations of the “web log” into the rubric of one tiny word makes no more sense than referring to every product of a printing press as “‘p-paper” and expecting your audience to have a good idea of the nature of your particular printed matter.  

    As new formats and technologies are created, let’s remember that we are also creating and sharing a verbal legacy.   If the goal is better communication that leads to better understanding and wider use of the new inventions, jargon and lingo and four-letter neologisms just won’t do.


    Thanks to George Wallace, the wise Fool in the Forest, for dubbing his website a “web journal” (Nov. 2, 2003) and eschewing that ugly little word.

    American Lawyer 2003 Associates Survey: “Don’t Stop, That Hurts So Good”

    Filed under: pre-06-2006 — David Giacalone @ 1:29 am

    The American Lawyer 2003 Associates Survey was published online last night (dated 10-01-03).  With the boom days gone, “midlevel associates are getting serious about their firms, their experience, and their long-term visions for the rest of their legal careers.”  According to the section entitled The New Lifers   (by Laura Pearlman 10-01-03), many midlevel associates are no longer quibbling over quality of life Instead, they want to build careers “and they’re willing to work long and hard to do so.”  


    The report surveyed thousands of mid-level associates from the top 158 firms in the nation.  The article  found that midlevel associates are getting serious about their firms, their experience, and their long-term visions for the rest of their legal careers.  Survey findings include:


  • In the current cold economy, many midlevels have given up on looking for a new job or a fatter paycheck. Instead, they focus on getting senior-level responsibility and client contact.
  • Many firms that finished toward the top in our survey offer formal and continuous training and mentoring programs. Many, too, have full-time staffers in charge of professional development to help associates get the training they need   Firms with lots of interesting work to spread down to the midlevel associated are among the highest ranked.
  • But despite the less exciting work and overall lack of responsibility that midlevels report, they seem more willing to grin and bear it than they have in years. Not in recent memory have our survey results depicted a more flexible — or tolerant — bunch.    They are more willing to put up with the treatment received from partners and to stay despite prospects of higher salary elsewhere.\
  • Meanwhile, associates seem to have tempered their expectations for big money, with the current median total annual compensation just over $150,000. 

    Frequent readers of this web log may want to contrast these findings with the observations and opinions given by Prof. Patrick Schiltz, in an article summarized over the weekend in this post.

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