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

December 30, 2008

a sparklingly Savage year

Filed under: Haiga or Haibun,lawyer news or ethics,viewpoint — David Giacalone @ 11:46 am

.. It’s not even close: Wendy Savage was by far the most popular subject in 2008 at our modest little weblog — attracting thousands of extra visitors a day for many weeks.  See posts such as “Boston’s ‘Beautiful Lawyers Calendar’ is launched” (October 2, 2008) “Wendy Savage Wendy Savage” (Oct. 23, 2008), “lots more Wendy Savage, Esq.” (November 18, 2008).  Wendy graced the f/k/a Gang with a pair of blawg Comments, a few additional photographs, and a series of personal email communications, which allowed this Editor get to know her beyond the fashion-model aura.

The death last week of Eartha Kitt — a woman known originally for her sexiness but respected and treasured worldwide for her talent, allure and spunk — reminded me that I wanted to come back to an issue that our coverage of Wendy raised with some of my most valued friends.  One intelligent and sensitive Baby Boomer female friend chastised me, saying:

“The world does not need more posting of women with low cut dresses calling attention to themselves. Sorry, but that’s just the way I see it.  We get to be human beings , too—women these days are way too sexually objectified constantly.”

.. the calendar photo that started it all . .

My reply at the time was something like: “To me, one of the glories of the human race is that we produce people who can be good, intelligent, talented human beings AND beautiful, and even sexy.”

One of the best things about our current age is that it is possible for a woman to be fully respected — among people with even average levels of EQ — as a human being, and a professional, while being beautiful and sexy.   For over a quarter century, I’ve seen smart, sexy women in important positions, as bosses, managers, colleagues, and partners within the legal professsion (beginning in the late 1970’s at the Federal Trade Commission).  When such a talented professional woman chooses to have a tasteful-but-sexy photo of herself used for a good cause in a fund-raising calendar, I believe it helps the cause of cross-gender appreciation — even if some juvenile males (who shall always be among us) act like jerks when viewing and discussing the photo, or some thin-skinned females choose to be offended or to act catty.  [Note: On a related topic, we opined about neo-puritanism within the legal profession back in 2006, during the flap over a Jiwani ad in Massachusetts Lawyers Weekly. And see our post on the Fetman Firm Billboard.]

When I raised this topic with Wendy Savage back in November, she replied: “I do think that modern, educated men are able to appreciate that a woman can be smart and beautiful, and they want both in a partner. “

Furthering this discussion (a little), Boston Magazine has opened its new publication year with an article that focuses on Wendy Savage, titled “Counsel Requests the Right to Appeal: Smokin’-hot lawyer Wendy Savage defends her buzzy turn as a pinup” (Boston Magazine, by Alyssa Giacobbe, January 2009).  After noting that Wendy was “by far the most come-hither among the calendar’s 12 male and female models, and thus the only one who’d attract significant attention,” the BM article states:

.. Photograph at Boston Magazine by Jackson Stakeman ..  ..

“Since Beautiful Lawyers was released in October, Savage—2006 graduate of BU School of Law, corporate lawyer, and sometime model—has inspired both a following of oglers and a torrent of criticism on legal blogs for what some consider a risky move for any attorney aiming to be taken seriously, especially a female one. Beneath a post on Above the Law, which shows a picture of Savage in a plunging neckline and calls her “Boston’s version of Joe the Plumber,” the responses go something like this: Wendy Savage can work on my pipe anytime she wants. Or: Her? She’s not that hot. And then, a multipost, Porky’s-esque debate over whether her breasts are real. (Savage declined to comment on such speculation, calling it ‘gutless objectification.’)”

In actuality, Wendy did submit a longer written response to Boston Magazine writer Gioccobe about the authenticity speculation, but they chose not to print it.  According to an email Wendy sent us this morning, she wrote:

2) I am conflicted about responding to the gossip on the blogs. The fact that my “peers” are taking time out of their days to offer such asinine commentary (all anonymously I will note) speaks volumes about their character (or lack thereof, to put it more accurately). I have done my best to avoid those who are driven to such pathetic, gutless objectification – I don’t intend to start engaging them now.

It seems to me to reflect the “dumbing down” effect of the Tucker Max culture.

I have learned firsthand what ad agencies and countless women before me have known for ages — all it takes is a little cleavage to turn some men into driveling babies.

The BM article does get a bit more substantive, stating:

“Coming off an election season that saw an intellectual woman flogged for her appearance and an attractive woman attacked for her lack of depth, Savage is acutely aware of the double standard that female professionals face—and how to maneuver around it. ‘I wouldn’t say my looks have been a big positive in my career, but people tend to underestimate you if you look a certain way,’ she says. ‘I think I’m smarter than I appear. That’s worked to my advantage’.”

Wendy also told Boston Magazine: ‘When I was younger, I cared a lot about what people thought about me, people that I didn’t even know,’ she says. ‘But I’m 28 and feeling like I’m starting to grow up. Doing the calendar was my choice, and I’m proud of it.’

We clearly are not going to resolve the issue of the effects on professional and personal reputation from the publication of sexy (but not trashy nor pornographic) photographs of lawyers and other women (or men).  When I’ve thought about this and similar topics over the years, I’ve tried to figure out how or why sexiness is any different from all the other attributes that we use to judge/treat/value other human beings, many of which are simply genetic accidents (e.g., intelligence, height, wealth, power, fame, charisma).  I’ve also wondered how and whether to distinguish situations where the individual freely chooses to be judged by or to utilize a particular attribute.   It is tricky stuff.  I know that many disagree with my current sentiments, and I am open to further discussion, while hoping that dissenters or skeptics are also willing to reconsider any blanket condemnation of publishing lovely women in skimpy black dresses.

Enjoying beauty is very natural for human beings of all genders, ages and cultures. If you come here often, you know that the f/k/a Gang also appreciates and greatly enjoys beautiful scenes in nature.  Here’s a (non-retouched) photo that I took from the end of my block yesterday afternoon.   That’s my favorite bench in Riverside Park, and Wendy Savage is welcome to join me there any time to enhance the scene and the sublimity of the experience:

– Riverside Park, Schenectady, NY, along the Mohawk River; Dec. 29, 2008; photo by David Giacalone –

sua sponte
madame justice
catches me staring

. . . by dagosan

Of course, we have long agreed with this sentiment by Jesse Winchester in his song “Isnt’ That So?” [YouTube video here]

Isn’t That So

Didn’t He know what He was doin
Putting eyes into my head?
If He didn’t want me watching women
He’d a-left my eyeballs dead

©1972 Jesse Winchester – From the LP “Third Down, 110 To Go

Now, please let us know what you think, with thoughtful and polite comments (both IQ and EQ will be graded by Prof. Yabut).

Leap Day –
an old friend
takes off her glasses

.. by Yu Chang – photo haiga orig. posted at Magnapoets JF (March 2, 2008)

p.s. Speaking of brains, beauty, and talent, here’s a haibun (short prose plus a haiku or senyru) by Roberta Beary, Esq.:


pity the daughters of beautiful mothers the years spent waiting to
grow into a beauty that never comes the sympathetic looks finally
understood at the moment when childhood ends

mother’s visit
side by side we outline
our lips

– by roberta beary, Modern Haiku Vol. 37:1 (Spring 2006) –

December 11, 2008

lawyers per capita: NY numbers

Filed under: lawyer news or ethics,Procrastination Punditry,Schenectady Synecdoche — David Giacalone @ 12:28 pm

It has often been suggested there are too many lawyers here in New York State.  There is, in fact, 1 lawyer for every 390 people in NYS, as compared to 1 lawyer for every 2272 residents of North Dakota.  It’s hard to say whether it should make us feel any better to know, on the other hand, that Washington, D.C. has 13.5 times as many lawyers per capita as New York State — with one lawyer for every 36 residents of D.C.. (See the Avery Index of Lawyers per Capita by State.)

We learned this morning, via Simple Justice, that

The New York Lawyer has provided a chart to show the distribution of lawyers throughout the various counties of the State of New York.  The chart shows the ratio of lawyers to human beings.

Scott Greenfield says “It explains a lot” and — comparing it to Manhattan — extolls the virtues of living in Queens (where you’ll find an empty diner seat whenever you want one).

The f/k/a Gang has to head out to see our primary medical provider, so you can decide for yourself (and let us know) what these numbers mean:

Lawyers per capita in Capital Region Counties of NYS:


Albany County        4317               69/1
Columbia                 220               283/1
Montgomery              85               573/1
Saratoga                   594              363/1
Schenectady             456              331/1
Schoharie                  59               543/1
Warren                     252              262/1
Washington                71              884/1

Most lawyers per capita in New York State by County:

New York            77,952               21/1
Albany County       4317               69/1
Westchester          9,890               96/1
Nassau                13,259               99/1

Fewest lawyers per capita in NYS by County

Allegheny                   46            1,079/1
Lewis                          22            1,203/1
Orleans                       29            1,461/1

Counties with the most lawyers:

New York                    77,952
Nassau                        13,259
Westchester                    9890
Suffolk                            6684
Kings [Brooklyn]              6050
Queens                           5534
Erie  [Buffalo]                 4809
Albany County                4317
Monroe [Rochester]         3320
Bronx                              2461
Onondaga [Syracuse]       2374

Counties with the fewest lawyers:

Hamilton                     14
Schuyler                      21
Lewis                           22
Orleans                        29

p.s. Rural Japan has a shortage of lawyers, with many towns with 100,000 residents still totally lawyer-less.  Depending on who you count as being the equivalent of a lawyer, Japan has either one-third or one-twentieth the number of lawyers that we have in the USA.

December 10, 2008

the hourly-billing procrastinator . . . and other contrary thoughts

Filed under: lawyer news or ethics,q.s. quickies — David Giacalone @ 1:02 pm

. . a quartet of contrarian quickies from Prof. Yabut . .

naughty child–
instead of his chores
a snow Buddha

….. by Kobayashi Issa
translated by David G. Lanoue

.. In Praise of the Hourly-Billing Procrastinator: A quick stop at Idealawg yesterday somehow led me to yet another piece that wants to cure procrastinators of their supposedly dangerous and faulty ways.  In the Scientific American article “Procrastinating Again? How to Kick the Habit” (November 26, 2008), Trisha Gura describes a 2007 study by University of Calgary economist Piers Steel, and tells us that:

  • “a worrisome 15 to 20 percent of adults, the ‘mañana procrastinators,’ routinely put off activities that would be better accomplished ASAP.”
  • Procrastinators do not merely prioritize by putting off less-urgent matters ’til later; according to Piers, they voluntarily delay an intended course of action despite expecting to be worse off for the delay.
  • Procrastination carries a financial penalty, endangers health, harms relationships and ends careers.

Gura insists that “Succumbing to [procrastination] can be costly. Experts estimate that 40 percent of people have experienced a financial loss because of procrastination, in some cases severe.”  She also starts her article with this sentence:

“Raymond, a high-powered attorney, habitually put off returning important business calls and penning legal briefs, behaviors that seriously threatened his career.”

I want to disagree on behalf of clients of hourly-billing lawyers.  If a firm bills by the hour, the lawyer’s waiting until the last moment can often result in significantly smaller fees. As I said in a comment last August:

Don’t forget, however, that procrastination is the greatest labor-saving device ever. Lawyers who do things right away, for example, later find out that something has made the task unnecessary (the case settles, the opponent stops the annoying behavior, the judge cancels a hearing).

Waiting until the last moment also focuses the mind and increases the likelihood that tasks will be prioritized and efficiently performed. Some of the very best lawyers I know are chronic, ardent procrastinators and their work-product is excellent.

Of course, older lawyers are not as capable of doing all-nighters as we were in our early days in the profession.  That means that “the last minute” comes a little sooner.

Naturally, if paying a fixed fee (especially upfront), a client might want to do some pointed and persistent nudging to keep a procrastinating lawyer on task.

..Twitter/Fritter the Day Away:   While we had our own personal birthday yesterday (Dec. 9, 2008), our weblogging friend Carolyn Elefant was celebrating the 6th birthday of her much-honored weblog, My Shingle, which focuses (with cheerleader-like energy and loyalty) on the needs and achievements of solos practitioners and lawyers in small firms. Congratulations, Carolyn, and thanks for all your blawgy inspiration and inter-action all these years.

To celebrate, Carolyn is sponsoring two contests.  The first has a computer for first prize, and asks SmallLaw-yers to write a weblog post or essay on “Why I Matter” or “How Technology Helps Me Serve Clients or Make A Difference.”  That seems like an excellent idea. However, the second “light-hearted” contest has my tummy all-atwitter with agita.

You see, Carolyn wants participating solo and small firm lawyers — in order to capture “data on the minutia of our experience” — to:

“pick a day between now and December 20 to Twitter the day away.  Try to pick a day that’s typical for you as a solo or small firm lawyer, that shows how you balance your life, your cases and your clients.”

I’m sorry, and it should come as no surprise, but this seems like a terrible idea from the perspective of the client, employer or partner of such lawyers.  Constant interruption of your work-flow and flow of thought in order to tweak about every detail of your day for prosperity can only mean less efficient lawyering (not to mention parenting, and even puttering).

Virtually every solo practitioner I know (and I spent my last decade in practice in a tiny firm, or being a solo, or advising them), fits into either of two categories: 1) the ones who are woefully under-employed (and often somnolent); and 2) the ones who are chronically over-employed (and often frantic).  I can’t see how constant Twittering can possibly help either group of lawyers serve their clients (or families) well.  If I got a bill that includes work done on my lawyer’s My Shingle Twitter Day, I’d ask a lot of questions about the hours that were supposedly worked.

.. Hey, did I promise four topics at the start of this post?  Well, this old procrastinator hasn’t had lunch (nor breakfast) yet, so I’m gonna finish later; maybe much later.

breakfast rice
stuck in his whiskers…
lover cat in a rush

… by by Kobayashi Issa
translated by David G. Lanoue

If you really need another diversion right now, I suggest viewing this great little video (lesss than two minutes long), recorded on December 6, 2008, by Curtis Dunlap, of Roberta Beary reciting a haibun (a short prose piece with a linked haiku). We dare writers who are penning prose-less pieces purporting to be haibun to try to recite them (and keep an audience).

Evening Session:  We’re back, but can we talk?  I can’t for the (long) life of me remember what the 3rd and 4th blurbs were going to be about.  But, a promise is a promise, so here are two substitutes, the first a minor quibble, the second more weighty. (And, please no teasing about my oft-evident Boomer Memory Syndrome.)

Short-Attention-Span Journalism:  Your editor has been away from antitrust prosecution for a couple decades.  But, things could not have changed this much. In The American Lawyer this morning (see “In Once-Every-Fifty-Years Case, Whole Foods Sues FTC“, Dec. 10, 2008), reporter Zach Lowe tells us (emphasis added):

“The $565 million merger struck between Whole Foods Market and Wild Oats Marketplace in mid-2007 is becoming one of those legal battles that’s so protracted it’s hard to keep up with.”

A year and a half is a “protracted” lawsuit at the FTC?  Our memories and memory banks are over-taxed by a case that made it to an appellate court and back to the Commission for further activity?  Maybe Zach needs a break from the antitrust beat.  Spelling Bees and pie-baking contests might better fit his attention span.

on the face
that last night called me names
morning sunbeam

I forget my side
of the argument

George Swede from Almost Unseen

.. In Praise of Productive and Playful Teasing: On Sunday, Dacher Keltner had a long piece in the New York Times that struck a resonant chord with me — “In Defense of Teasing” (Dec. 7, 2008). The UC-Berkeley psychology professor worries about a phenomenon that has long concerned the f/k/a Gang: A generational Teasing Gap in our society, due in large part to a “zero tolerance” toward teasing now found in American schools these days, and the creation of “tease-free zones” in many American offices.  Dr. Keltner notes:

“The reason teasing is viewed as inherently damaging is that it is too often confused with bullying. But bullying is something different; it’s aggression, pure and simple. Bullies steal, punch, kick, harass and humiliate. Sexual harassers grope, leer and make crude, often threatening passes. They’re pretty ineffectual flirts. By contrast, teasing is a mode of play, no doubt with a sharp edge, in which we provoke to negotiate life’s ambiguities and conflicts. And it is essential to making us fully human.”

He rightly asserts that: “In seeking to protect our children from bullying and aggression, we risk depriving them of a most remarkable form of social exchange.”  That’s because:

“In teasing, we learn to use our voices, bodies and faces, and to read those of others — the raw materials of emotional intelligence and the moral imagination. We learn the wisdom of laughing at ourselves, and not taking the self too seriously. We learn boundaries between danger and safety, right and wrong, friend and foe, male and female, what is serious and what is not. We transform the many conflicts of social living into entertaining dramas. No kidding.”

The lengthy article is worth reading in full.  You’ll re-discover the benefits of Romantic Teasing — “a battle plan for what Shakespeare called ‘the merry war’.”  And find guidance to help distinguish productive teasing from the scarring, humiliating variety, and hostile teasing from the playful kind.  Don’t forget:

“[S]ocial context means a lot. Where teasing provides an arena to safely explore conflict, it can join people in a common cause. Especially when they’re allowed to tease back.”

April rain
my grandson practices
his infield chatter

.. by Ed Markowski – The Old BallGame (April 2006); “American Sports . . . American Haiku” (June 2008)

their laughter
is not about me
but would sound
just like that
if it was

…… by John StevensonQuiet Enough (2004)

mocking the farmer
plowing, the strutting

even the scarecrow
turns his back to it…
my home

… by Kobayashi Issa – translated by David G. Lanoue

December 3, 2008

Value Pricing by lawyers raises many ethical red flags

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 9:25 am

This posting was originally entitled “some Value Billing issues for today’s ABA Ethics Teleconference” —

At noon Eastern Standard Time today, a 90-minute ABA ethics teleconference and audio webcast will take place, titled “Billing Pitfalls & Pratfalls: Avoiding the Ethical Issues that Snag Attorneys.”  It’s sponsored by the ABA Family Law Section and Professional Responsibility Center.   The description of the session includes this sentence:

“Our expert faculty will discuss hot topic issues relating to  . . .  billing based on ‘value pricing’.”

I’m hoping that the faculty, Mark Chinn (of Jackson, MS, Moderator),  Lori Nelson (of Salt Lake City, UT ), and Chaim Steinberger (of New York, NY), will spend considerable time on the topic of the fiduciary and ethical obligations of lawyers using value billing — especially on standards for avoiding unreasonably high fees.  The issues are most pertinent with regard to the kind of “average” or “Main Street” clients seen by family and divorce lawyers and mediators — clients who are not sophisticated in dealing with lawyers or purchasing legal services.

As used here, “value billing” or “value pricing” is a pricing method in which fees are set in advance of the provision of legal services, based on the client’s perception (guess) of the “value” of those future services, rather than on the lawyer’s time expended, other efforts, costs or risks. [see A. Shields]. Value Billing is distinguished from the more common alternative pricing practice of using a “fixed fee” that attempts to mirror the expected or average cost to the law firm for providing a particular discrete service.

We’ve been raising questions about some of the principles and tactics of value billing for almost five years, and have garnered virtually no analysis of the issues by legal ethics experts or other commentators beyond those with a financial stake in the concept of value billing (a/k/a, value pricing).  See, e.g., our posts starting with “Value Billing and Lawyer Ethics” (Jan 28, 2004), and culminating in  “broadening the hourly billing debate” (Aug. 18, 2008), through “smart clients care about . . . marketplace ‘value’” (Nov. 25, 2008).

As discussed in our prior posts, we’ve seen many red flags that call for ethics scrutiny and guidance, or raise fiduciary concerns regarding value billing/pricing.  For example, value billing proponents:

  • over and over tell lawyers (and other professionals) they deserve to earn higher fees than they can charge using hourly billing, and that they will indeed achieve such higher fees and greater profits by using value billing; meanwhile, most clients seek alternative pricing mechanisms in search of lower fees than generated under hourly billing.
  • argue that value pricing can and should be divorced from the time and effort expended and other costs incurred in providing services to a client; and
  • attack hourly billing, the profession’s predominant method for setting fees, and the corresponding, century-old ethical standards for reasonableness (time and effort expended), as themselves unethical — without offering any standard other than the client’s guess as to value prior to seeing the results of the services rendered.  Of course, we have fiduciary duties of fair dealing and full disclosure precisely because many clients lack the information to make such judgments about a lawyer’s fees, competence, and diligence. [see our post “chronomentrophobia,” on the ethics and practicalities of hourly billing and alternatives]
  • offer tips for reducing a client’s price sensitivity and increasing the lawyer’s leverage in order to charge premium fees, and for achieving higher prices by using information about the client gathered in confidential discussions — including financial status and personal characteristics (such as the client’s emotional condition, anxieties, obsessions, sense of urgency, credulity, etc.).
  • advise lawyers to engage in price discrimination among clients who are fully capable of paying fees in full — in order to charge higher fees to those perceived as able or willing to pay more, and therefore to cherry-pick the highest paying clients and prune-away lower-paying ones (rather than serving more buyers, which is the traditional argument justifying price discrimination).
  • boast that value billing allows lawyers to circumvent competitive market forces that prevent an increase in their hourly rate, and to avoid passing on to clients efficiency gains that would reduce the number of hours billed;
  • praise “Change Orders” as a way to charge ultra-premium fees for any unexpected or added tasks, by using the leverage over the client that the situation creates [click for our reply to Ron Baker’s Auto Mechanic analogy];
  • suggest that lawyers can expect to work fewer hours using value billing and still achieve increased profits.
  • use lots of glib mantras, metaphors and maxims — many of which seem specious or inapt.
  • suggest that giving a money-back guarantee is sufficient to remove any issue of excessive fees — although Rule 1.5 bans agreeing on an unreasonable fee, as well as collecting one, and clients should not have the burden of deciding when to demand a refund; nor should they pay a hidden premium because the fee comes with a refund guarantee.

Some or all of the above issues need to be discussed today by the panel — and, we hope, someday soon by the law professors at the two major ethics blawgs, The Legal Ethics Forum and The Legal Profession Blog, as well as those at Concurring Opinions, and the consumer advocates at Public Citizen’s CL&P weblog.

As family law and mediation practitioners, I hope the panel will comment on Matt Homann’s approach to value billing for a service such as divorce mediation.  Rather than offering a reasonable hourly or flat fee up front, Matt would ask:

“What do you think X would be worth to you?” And remember, “X” is not a contract, will, or deed, but rather peace of mind, security, or some other intangible benefit tied to the specific legal service you’ll be providing.”

[My response to this in a post back in April 2005: “Homann’s Value Billing approach turns the fiduciary relationship into an auction, where the single potential buyer is unaware of the seller’s knockdown price and has no way to judge whether the object for sale is a valuable antique or a fake. No matter the soothing words and good-feely ambiance, it comes down to playing on the consumers fears and sentiments and then saying “make me an offer.” ]

.. Traditionally, “value” has meant “a good product at a good price,” and has always taken into account competitive market forces that tend to bring price down to the seller’s cost.  That’s why computers cost less today than a decade ago, although buyers “need” or “value” them more now, as they have become central in our business and personal lives.  So, we need to be suspicious, I believe, of a new definition of value that is based on a buyer guessing in advance just how much a product is worth, without knowing the quality or quantity of the services to be performed or the actual results, and with no connection to what the service costs the seller to produce.  To say a fee is “reasonable” if the client agrees to pay it (or agrees to the subjective “value” of the service), makes the rule against unreasonable fees moot.  We need a better standard and guidelines when using value billing.  Don’t we?

update (Dec. 29, 2008): Ron Baker continues his defense of Value Pricing, and I respond, in a set of Comments appearing in a prior post on the topic of value billing.

December 1, 2008

Cal. Milk Board wants TM for “got breastmilk?”

Filed under: lawyer news or ethics — David Giacalone @ 10:55 pm


A comment this evening by Jill Jalen goes a long way to solve the mystery raised in our post “got jugs?” (July 30, 2008).  Experts on breasts, babies, and trademark law — along with those interested in jugs and lawyer antics — all wondered why the California Milk Processor Board wanted Alaskan artist and breastfeeding advocate Barbara Holmes to stop using the slogan “got breastmilk?” on her onesies and infant t-shirts.  They said Holmes’ slogan infringed on their “got milk?” trademark, but that seemed unlikely.  Jill’s Comment brings things into better focus:  On October 6, 2008, the Board’s lawyers, Knox Lemmon Anapolsky LLP, filed a trademark application with the PTO for a mark that:

consists of the wording ‘got breastmilk?’ in all lower case letters in Phenix American font.”

According to the TARR status report for the as-yet-unassigned claim with the Serial Number 77586468, the Board intends to use the “got breastmilk?” mark with the following products:

  • baby blankets, children’s blankets and burp cloths
  • breast pads and breast-nursing pads
  • baby bottles, cups adapted for feeding babies and children, pacifiers, sippy cups, breast milk storage bottles, breast pumps and breast shields
  • baby backpacks and baby carriers worn on the body
  • clothing, namely, t-shirts, shirts, short-sleeved shirts, long-sleeved shirts, sweat shirts, infant bodysuits, pants, infant sleepers, hats, caps, cloth bibs, socks and infant onesies

When the story broke, a lot of folks ridiculed Knox Lemmon for making such a frivolous trademark dilution claim — arguing that there could be no confusion between the hand-written “got breastmilk?” logo used by Holmes and the well-known wording and font of “got milk?®.”  See “‘Got milk’ lawyers huff at Talkeetna artist’s parody” (Anchorage Daily News, July 25, 2008); via Overlawyered.com; and see “Legal Blog Watch;” Language Log; and Alaska Backwoods Lawyer.

Even this weblog said the “attack on Barbara Holmes and her onesies is silly as a matter of law and one more example that we’ve become an ‘overlawyered’ nation.”  However, we always caution others who mock the conduct of otherwise competent lawyers that we might not know all the pertinent facts (or motives), and that more information might indeed show us that dollars were at stake and the action was defensible.

That seems to be the case here – – the Milk Board apparently wanted to protect more than its “got milk?” franchise.  Nonetheless, if Stephen Byers and the other lawyers at Knox Lemmon had trouble with Holmes’ logo, they should be even more worried about this baby onesie product from The Mom’s Boutique in Oshkosh, Wisconsin, which appears to use the same font as the mark in the new application, as well as the original “got milk?” campaign:

.. baby onesie and t-shirt ..

Maybe trademark experts will help us determine whether the prior uses by the breastmilk advocates are a bar to the Milk Board’s application for a mark on “got breastmilk?”  Naturally, if this new product line is projected to be a cash cow, CMPB might be willing to use a little monetary suasion to obtain the rights to “got breastmilk?”.

dairy country…
in the pharmacy window
a breast pump display

… ed markowski – Bear Creek Haiku

the baby finds
the breast

……………. by Yu Chang from Upstate Dim Sum

November 30, 2008

lawyer entitlement and the price of legal services

Filed under: lawyer news or ethics — David Giacalone @ 3:43 pm

? ? ? ? ? ? ?

It’s rare for the f/k/a Gang in our roles as Agent of Reality and Consumer Advocate within the legal profession (and broader legal services marketplace) to find a kindred spirit in the blawgisphere.  So, we were pleased when Scott Greenfield pointed his readers yesterday to Law21, the weblog of Canadian lawyer and journalist Jordan Furlong.  He sees Law21 as “an information hub for the extraordinary changes underway within the legal profession.”

What makes Jordan’s spirit akin to my own is not that we are likely to agree on every topic.  It’s that he is not afraid of the changes brought about by information technology and the dawning of a globalized marketplace, which allow and demand more choices for consumers.  He is not trying to prevent or delay those forces in order to preserve the ego, image, social status and (last but certainly not least) the income expectations of the legal profession.  His perspective is a happy contrast to many in the blawgisphere who purport to be future-oriented and the leading edge of law practice, but who spend their time trying to figure out ways to preserve, and even increase, lawyer income in the face of technological innovations and market forces that allow services to be provided more quickly and efficiently, by fewer lawyers and by more and more non-lawyers.

Jordan appears to realize — as does Richard Susskind, in books such as “The Future of Law: Facing the Challenges of Information Technology” and “The End of Lawyers? Rethinking the nature of legal services” — that the profession will have to adjust significantly to the realities of the digital era.  More important, he realizes that consumers are showing us by their choice of alternative sources and formats what is and is not valued about the way the “traditional” law firm provides solutions to client problems. The f/k/a Gang believes as a matter of principle that the legal consumer is king (and lawyers are merely the skilled-but-humble esquires holding the client’s shield).  I don’t know whether Jordan, who does after all work as the editor-in-chief of the Canadian Bar Association’s magazine National, agrees with that principle.  But, he seems to believe that a free marketplace supports the power of the consumer over the prerogatives of the provider — and, that a technological revolution is breaking down barriers that have too long protected the lawyer cartel from the forces of competition.

Two posts at Law21 got my attention yesterday, and are clearly connected: “the market doesn’t care” (Nov. 28, 2008) and  “De-coupling price from cost in legal sevices” (Nov. 26, 2008).   The primary points of “the market doesn’t care” are


November 25, 2008

smart clients care about bonuses and marketplace “value”

Filed under: lawyer news or ethics,viewpoint — David Giacalone @ 2:59 pm

. . . . from the desk of Prof. Yabut .

A few days ago, the kids who hang out at the “legal tabloid” Above the Law discovered that the major NYC law firm Cravath, Swaine & Moore was going to reduce the bonuses it pays its associates (newer, non-partner lawyers) by 50% this year — with the basic bonus for 1st-year associates (who are making a salary of $160,000 straight out of law school) set at $17,500 and seventh-year associates getting $30,000.  The America Lawyer confirmed it yesterday (Nov. 24), and the gnashing of young lawyer teeth has been heard around the world of BigLaw and the internet.

As of this morning, over 1400 Comments have been left at the original ATL post.  And, those numbers will surely swell, since Above the Law and then The American Lawyer brought news yesterday evening (Nov. 24, 2008) that Simpson Thacher, another top firm, was going to follow Cravath’s lead, with the white-shoed herd likely to join in the bonus-reduction stampede.

Nonetheless, the f/k/a Gang isn’t going to harp on either associate avarice or partner parsimony.  Instead, we want to discuss the debate that has arisen over the statement by Cravath’s representatives, as reported in American Lawyer, that many clients are applauding the reduction in bonuses.  Carolyn Elefant summarizes the controversy at Legal Blog Watch with a post that asks “Should firms cut bonuses in response to clients?” (Nov. 24, 2008):

“Though some might compliment law firms for taking clients’ views into account, others in the blogosphere suggest that clients have no business telling law firms how to run their business.”

The clients-bonuses debate (described and discussed below) highlights one of my primary concerns with the concept of “value billing” or “value pricing” by lawyers as espoused by the leading proponents of value billing [“VBPs”].

With value billing, fees are set in advance of the provision of legal services, based on the perceived “value” of those future services to the client, rather than on the lawyer’s efforts (especially, time expended), costs or risks [see A. Shields].  Separating “value” from a seller’s cost might be a nice tactic for extracting “premium” fees, but it is not what smart buyers (much less buyers owed fiduciary duties) expect in the marketplace.  Let me explain.


November 21, 2008

spotlight on greedy lawyers

Filed under: lawyer news or ethics,q.s. quickies — David Giacalone @ 11:07 am

“As recently as 1963, Everett Hughes wrote that the central feature of professionalism was a doctrine of credat emptor—”let the buyer trust”—rather than the commercial maxim of caveat emptor—”let the buyer beware.” Society counts on the law, and on lawyers as its servants, to spread such feelings of trust through the community. Instead, too often, we help weaken them.”

– from Living the Law, Chapt 1. of Sol Linowitz’s The Betrayed Profession (1994), reprinted here (DCBA Brief, June 1999)

Thank goodness for especially greedy lawyers in high-profile lawsuits.  Judges reviewing their bloated bills occasionally make it into the industry press and give us the opportunity to remind lawyers that we really do have a ban on unreasonable fees and expense charges — we can’t agree on them, charge then, or collect them.   We also get to remind clients that “buyer be wary” is still a good idea in the 21st Century, no matter how saintly their lawyers may claim to be.  Here are a few recent matters that deserve the spotlight:

Coughlin Stoia follows Coke’s Lead: You’d think a law firm whose most famous partner had recently been imprisoned for shady practices that obstructed justice, would keep a modest posture when asking for fees in a major class action suit — especially in a case that accused the defendant of artificially inflating numbers to increase share prices.  Instead, as class counsel in Carpenters Health & Welfare Fund v. The Coca-Cola Co., No. 1:00-cv-2838 (N.D. Ga.), the Coughlin Stoia law firm sought fees valued at 26.04 percent of the $137.5 million settlement with Coca-Cola over stockholder fraud  — about $35,805,000 — as well as more than $7 million in expenses and interest.   Their request led U.S. District Court Judge Willis B. Hunt to worry that the requested fees amount to “a windfall rather than just compensation for class counsel’s hard work and risk.” See “Class Lawyers Against Coke Get More Than $31.5 Million: Judge cuts request from nearly $43 million” (Law.com/Fulton County Daily Report, November 21, 2008); and see Law and More (Nov. 21, 2008)

Judge Hunt, as reported at Law.com, “ultimately reduced percentage fees requested by counsel for the shareholders from 26.04 percent to 21 percent. He also trimmed more than $4 million from the lawyers’ submitted expenses.”  Here are some of the cuts Judge Hunt decided he needed to make:

  • Class counsel claimed to have billed over 47,000 hours in the 8-year case, and their average hourly fee amounted to over $750 per hour.  Judge Hunt decided that such fees were “at the very high end of typical Atlanta rates” and needed to be reduced
  • Moreover, the law firm claimed that only 1,411.74 hours were billed by the 11 associates assigned to the case whose hourly rates were $350 or less. Like the rest of us, Judge Hunt found it surprising that “only six percent of the work performed in this matter was of the type that could be performed by lower-level associates.”
  • In disallowing more than $4 million in expenses claimed by Coughlin Stoia, Judge Hunt said that “Coughlin has not established that the amount claimed represent out-of-pocket expenses rather than what they would bill a client as an additional source of profit.”  For example, the judge disallowed about $94,000 claimed as an online legal research expens, saying, “the research service is a tool, much like a computer or a pen, and this Court considers the use of such a service part of a firm’s overhead.”
  • Judge Hunt also slashed claimed travel expenses.  In addition to outlandish requests for travel abroad, Couglin Stoia wanted to be paid an average of $1,365.95 per person per night for domestic travel. Although he did not begrudge the lawyers’ high-end accommodations, Judge Hunt concluded that the members of the class should not have to finance such a lifestyle.  He found that “a client could reasonably expect to pay $300 per night for his attorney’s food and lodging on domestic trips, and that is the level at which this Court will reimburse Coughlin for its travel.”

How About Working for Those Millions? A month ago, at oral argument on the appeal of in Lawrence v. Miller (see our prior post), the judges of the New York Court of Appeals signalled that they might not be quite as nonchalant as the appellate-level judges and the contingency fee bar over the $43 million dollars sought by the Graubard Miller law firm from an 80-year-old widow for about 4 months’ work.  According to a lengthy article in New York Law Journal, “N.Y. High Court Skeptical of $40 Million Payoff From Contingency Fee Deal” (Oct. 24, 2008; via Overlawyered.com):

“Members of the court appeared skeptical during an hour of oral arguments about the size of the fee and several questioned the propriety of Graubard Miller seeking to collect the entire amount.”

NYLJ notes, for example, that “Judge Robert S. Smith echoed several of his colleagues when he wondered whether a legitimate contingency agreement, ‘where it works out so favorably to the lawyer, where it is so much money for so little work,’ could be considered unconscionable.”

“You never anticipated anything like this,” he told [Graubard Miller’s lawyer Mark] Zauderer. “You anticipated a much smaller amount, much more work, much higher risk of recovery. This was a complete surprise. Are you still entitled to take 40 percent of a $100 million surprise?”

Similarly, an exasperated Chief Judge Judith S. Kaye repeatedly asked the firm’s lawyers to defend the fee — wondering what precisely the firm’s attorneys had done from January to May 2005 to justify the $40 million fee.  When Graubard’s counsel replied, “It had to do with skill and negotiating strategy and bluffing . . .  It had to do with a whole lot of factors,” and gave no further details, Chief Judge Kaye said:

“You’re not even giving us a clue. All you’re saying is ‘skill’ and ‘risk.’ “

Prof. Yabut says: “Oh my, do you really mean there’s supposed to be a relationship between the risk taken and/or the amount of work you actually perform and the fee you collect?  A lawyer can’t just say, “a contract’s a contract?”  Who knew?

the mountain moon
gives the blossom thief

.. by Kobayashi Issa, translated by David G. Lanoue

Travel MultiTasking-MultiBilling: Finally, the refusal of a bankruptcy judge to pay a lawyer more than half the firm’s hourly fee for travel time (see In re Babcock & Wilson) inspired a discussion over at Legal Ethics Forum this past week on “Travel TIme and Billing.”  The comment section at the LEF post is not lunchtime reading for the sqeamish consumer advocate.  You’ll find lawyers justifying charging not just full hourly fees when traveling (which is commonplace), but double-dipping by charging the original client for travel time even if work is done for a different client, who is fully-billed for that time.  One lawyer doggedly wants to be paid both by the hour and by some “value” calculus, arguing that his work for the second client in no way diminished the value of his work for the first client (assuming, we suppose, that he was neither less prepared nor more-tired due to working for Client #2).  It caused me to chime in with this comment:

“The only reason we allow a lawyer to charge fees for travel time is because the client has caused us to be unavailable for other work. If you do work for another client during the travel, there is no justification for charging the first client for that lost opportunity time. Time spent for another client does not make your services more valuable for the first client.

“I hope the public doesn’t come here to see just how greedy lawyers are and how willing some ethics experts are to make excuses for them.”

On second thought, I do want the public to see this kind of lawyer over-reaching, so they will remember to be vigilant — and shop around for a better deal.

lunar eclipse
i fall for
the hidden ball trick

the cat spits up
a red feather

by ………… ed markowski

p.s. On a totally different topic (I think), check out the Belly Dance Superstars, who are appearing tomorrow night, Saturday November 22, 2008, in Albany, NY, at The Egg, Empire State Plaza, at 8 PM.  An article in today’s Schenectady Gazette tells us that they are touring to help gain respect for Arab culture (although all the dancers are Americans).  According to dancer Jamilla, “It’s a family show . . . It shows the body as naturally sensual, not sexual. It’s very entertaining.”  Seniors can save $4 off the $24 adult ticket.  Kids are only $12 each.

in winter wind
a churning, churning
in my belly

lying belly-up
yet still singing…
autumn cicada

……… by Kobayashi Issa, translated by David G. Lanoue

November 19, 2008

tricky jury question

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 10:06 pm

.. ..ladies & gentlemen

..  of the jury? ..

— photos by Mama G. (1955) —

Looking for a quick treat to share here this evening, we knocked on Robert Ambrogi’s Legal Blog Watch door and he dropped the delicious “Costumed Jurors No Reason for Reversal” (Nov. 19, 2008) into our Beggar’s Bag.  It’s about the case of Zabin v. Picciotto, which was handed down yesterday by the Massachusetts Court of Appeals, and was also discussed at The Docket.  Bob explains:

“As the complicated civil trial in Massachusetts Superior Court dragged on into late October, the jurors asked the judge if he would allow them to wear costumes on Halloween. After consulting with counsel for all parties and hearing no objection, the judge allowed their request. On appeal, the defendants argued that the presence of jurors in costumes turned the trial into a circus and denied them due process.”

Reviewing the trial decision by Judge Mitchell J. Sikora., who now sits on the Appeals Court, his colleagues agreed with the defendants that “With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings.” However,

“However, as to the defendants’ claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.”

There was even more wackiness at that trial.  Per Ambrogi:

“At one point, plaintiffs’ counsel handed out candy to the costumed jurors. Later, a proposed ‘cast list’ was circulated for a Hollywood movie version of the trial. Neither of these provided grounds for reversal, the Appeals Court said. ‘The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the ‘cast list’ was circulated to the jury’.”

The appeals court also decided that the failure to have the American flag hanging in the courtroom was not grounds for a mistrial.

A big lesson, counselors: Don’t forget to object, and don’t agree too readily just to get along better with His Honor.

Clearly, Judge Sikora — who probably never liked being the only guy in the courtroom in a costume — presided over a rather odd trial.  In his defense, he might have felt a bit nauseous as the proceedings dragged on (the trial itself lasted 63 days), and he realized he’d still have a pile of motions to contend with once the verdict was rendered.

The case has been around for almost a decade, and the resulting opinion by the Massachusetts high court is an indigestible trick.  Just skimming it gave me heartburn.  If you have a strong stomach, or just want to be dissuaded from ever going to law school, the f/k/a Gang suggest you try to read the entire opinion in Zabin v. Picciotto (Mass. Ct. of Appeals, Dkt. 07-P-842, decided Nov. 18, 2008).

. . . Naturally, we’re all waiting to see what jury expert Anne Reed has to say about all this at her Deliberations weblog. . . .

follow-up (Nov. 23, 2008): Anne Reed came through with links to a couple of prior jury dress-up cases, including a post on the Scooter Libby trial, where 11 of the 12 jurors showed up with special t-shirts on Valentine’s Day, and another that includes a short history of juror dress-alike juries.

No more tricks; just a few new haiku treats from John Stevenson:

a couple
of May snowflakes
everybody’s talking

traffic careens
left and right
around an empty box

wheelchairs & butterflies
I close
my sketch pad

pillow on the floor
I wake up sticky
and worn out

…… by John StevensonUpstate Dim Sum (2008/II)

mistaken for a judge –
the vampire bites
his tongue

.. by dagosan (orig. at MagnaPoetsJF, Oct.26, 2007)
Photo by Cynthia Miner (1992)

November 18, 2008

lots more Wendy Savage, Esq. (and a Susan Friery correction)

Filed under: lawyer news or ethics,q.s. quickies — David Giacalone @ 10:44 am

.. …… from the Beautiful Lawyers Calendar’s Wendy Gallery ..


The folks at the Boston Beautiful Lawyers Calendar know a good thing when they see one: their featured lawyer, Wendy Savage, of the corporation counsel office of Liberty Mutual.  So, they now offer a Wendy Gallery at their website, with 10 large photos from her photo shoot — five in a pinstriped suitcoat and five in that famous black dress. We hope all this good will from the promoters of the Beautiful Lawyers Calendar will bring you to purchase a calendar to help a number of good causes.

Prof. Yabut and the f/k/a Gang thought you might want to know that for us the best part of this whole Calendar-Wendy Phenomenon has been getting to correspond with Wendy.  Having been around quite a few beautiful and smart female lawyers over the past 30 years, I was not the least bit surprised to discover the thoughtful, multi-faceted woman behind the instant-celebrity persona.  None of the other beautiful lawyers in my life ever got so much public attention, but I’m pretty sure they also would have responded in the same level-headed, modest way as Wendy.

.. That’s all for now.  Who needs punditry or poetry, when you have Wendy, Esq.? . .

 . .  p.s. Our resident poet, dagosan, thinks that Susan A. Friery, M.D., Esq., is another very good reason to buy this calendar.

Dr. Susan Friery [a/k/a Susan Mowbray] Update (Feb. 8, 2013): Prof. Yabut, dagosan and I were impressed that Susan Friery had both a medical and law degree.   So, “we” were quite disappointed to find out rather belatedly today that she had been falsely claiming to have a medical degree from Columbia University (and saying she graduated in the top 1% of her class).  Clearly, missing this bit of gossip shows how much we’ve been out of the blawg loop these past four years.

 A notice that I saw today in the February 2013 edition of Washington Lawyer announced the reciprocal 2-year suspension of Friery’s license due to her false representations in Massachusetts. (D.C. decision) The Massachusetts decision to suspend her for two years is dated Jan. 3, 2012.  The extent and long duration (a quarter of a century) of her deception at the firm of Kreindler & Kreindler can be seen in the K&K press release announcing that “Dr. Friery” had been elected a partner.  The Massachusetts court found that K&K did not know of the misrepresentation until the time of her resignation from the firm and that clients were not harmed. (I was surprised that the court never used the name of the law firm in its decision.)  The Legal Profession Blog broke the news on Feb. 2, 2012, but followed its policy of not naming the disciplined attorney; Above the Law reported the suspension on Feb. 6, 2012, naming Ms. Friery and noting she had been chosen for the 2009 Beautiful Lawyers calendar. Staci at ATL credited Thomson Reuters News & Insight for the story.  That Feb. 3, 2012 article has a good summary of this sad tale.   Also, see The Leslie Brodie Report, which has the K&K bio of Dr. Susan Friery.

 As the Legal Profession Blog noted, rather than earning a medical degree, “She had four semesters toward a Ph.D. in pathology and had worked as a morgue technician.”   The former f/k/a gang hopes Ms. Friery is still flexible and that good-doggie Silo has remained loyal.

By the way, I was not impressed that avvo.com’s profile of Ms. Friery still says “We have not found any instances of professional misconduct for this lawyer.” In addition, neither Law.com, Lawdragon.com, Mediation.com, or Quick Click Attorney mentions the 13-month-old Massachusetts suspension.  The D.C. Bar already has her suspension noted in its D.C. lawyer index.

freezing rain
two Baby Boomers
steam-up the Volvo

……… by dagosan

Year-end Update (Dec. 30, 2008): See our post “a sparkingly Savage year,” which discusses the Boston Magazine article “Counsel Requests the Right to Appeal: Smokin’-hot lawyer Wendy Savage defends her buzzy turn as a pinup” (by Alyssa Giacobbe, January 2009), and the issue of professional women posing in sexy pictures.

November 15, 2008

they’re all atwitter (we’re not)

Filed under: Haiku or Senryu,lawyer news or ethics,viewpoint — David Giacalone @ 10:41 am

.. .. .. ..  [Note: You are entering a Curmudgeon Zone]

Everywhere you look, well-known members of the blawgisphere (lawyers who have weblogs) are all atwitter, chirping excitedly about Twitter — the free web-based application that let’s you answer, in 140 characters or less, the ultimate question of the new millennium “What are you doing?“, and to monitor the answers of lots of “followers” or “followees” with common interests. [E.g., Monica Bay, Bob Ambrogi, Nicole Black, Kevin O’Keefe, Walter Olson; and see “Lawyers Flocking to Twitter for Marketing,” Lawyers USA (Nov. 7, 2008, where the distracted Justin Rebello says you get “140 words.”]

At risk of being called a twit (or a thwowback), the f/k/a Gang is pre-emptively opting out.  This shouldn’t be a surprise coming from a Proud Podcaste Pariah. We can’t help but think that the traditional definition of twitter nails it (American Heritage Dictionary):

twitter: n. The light chirping sound made by certain birds. b. A similar sound, especially light, tremulous speech or laughter. 2. Agitation or excitement; flutter.

Things might have improved a bit (or at least gotten a patina of adult and professional participation) since Time Magazine told us last year that “more often than not” Twitter’s members “are simply killing time.”  But, we’ve seen how often fellow blawgers jump on new technologies and crazes that end up creating an unmanageable and unjustifiable torrent of information and distraction.  So, I’m going to keep in mind Time‘s admonition:

“We cyberjunkies need a new thrill, and what better than a service that combines social networking, blogging and texting?

“. . . I know, it’s totally silly and shallow, but that’s precisely why Twitter is on its way to becoming the next killer app.”

If you think that constant marketing or attracting blawg visitors is at the core of your law practice (or your cyber-business), joining the Twitter revolution might make sense, as you follow dozens, scores, or maybe hundreds of other Tweeters throughout the day or hope they follow you.  But, I sure hope you’re not my lawyer (or my employee), adding yet another wave of cyber-distractions to your workday, instead of focusing on efficiently providing quality services.  For us, maintaining multiple levels of unessential multitasking is not a virtue.

Granted, the f/k/a Gang is not part of the gotta-be-constantly-in-touch generation, nor among the first-wavers clamoring to jump on every new techno- or cybercraze. That might be because the Editor is only 13 months from his 60th birthday.  That needn’t be a bad thing.  When it comes to prioritizing one’s time or activities, getting older might actually mean getting wiser. It has hopefully meant acquiring enough self-awareness to know a time-sink when I see one.

Of course, it also means that I can only speak for myself.  Please don’t let this grumpy apologia stop you from Twittering to your heart’s content.  Just don’t expect Prof. Yabut or myself to be waiting for your next Tweet.

update (Nov. 16, 2008): In our comment section, you will find some rather defensive reactions to this little piece of fluff, especially by Kevin O’Keefe of LexBlog.  Click to see his similar weblog response to this post. If you don’t want Kevin to hurl his poison pixels at you, don’t gore his pet oxen or cash cows — not even with rubber spears. [Kevin says he’s “sorry” in a new Comment left Monday morning, Nov. 17, thanks in great part to Scott Greenfield’s efforts to keep the issues in perspective; see the next paragraph. However, Kevin has refused to amend his post, telling me in a comment at Simple Justice to “grow up” and stop worrying about “ruffled feathers.”]   For a more balanced response from a Twitter fan, see blawger Susan Cartier Liebel’s comment below.

As often happens, Scott Greenfield sees through all the Twitter glitter, with wry, balanced insights about his experience using the Killer App. as a lawyer.  See “The Great Twitter Wars Begin,” Simple Justice, Nov. 16, 2008).  Go read every word of the post (including many Comments from lawyers telling their experiences with Twitter), which concludes, “But I don’t begrudge those who are clearly enjoying it, finding it useful and beneficial and chose to spend their day tweeting away.  Tweet on, Garth.” As for himself, Scott says:

“I expect to tweet again, but only when I have absolutely nothing better to do and too much time on my hands.  No matter how sweet the marketing pitch is made, whether by Kevin or any of the other fans of twitter, it’s just not that useful, and to establish one’s twitter bones requires that one spend an awful lot of time tweeting, even if you have nothing to tweet about or no one cares to tweet you back.”

afterwords (Jan. 4, 2008): Well, now I know why Kevin O’Keefe was so upset with me for failing to bow at the Twitter Altar.  I sure hope lawyers don’t discount their hourly billing for time spent on LexTweet.

Bob Ambrogi [who writes a summary of the controversy started by this posting, here] says “The difference between Twitter and a blog is akin to the difference between a haiku and a ballad.”  That’s a good enough excuse to get off our Twitter Tirade and move to the haiku portion of this posting.  For us, of course, haiku is an extracurricular activity, meant to be taken in small quantities of high quality, at our own pace and on our own schedule.

Here, for example, are a few haiku moments from a haijin we love to follow, Hilary Tann:

spring afternoon
two chickadees . . .
sol-fa, mi-re

playing hooky —
twice around
the village square

dessert menu —
falling for

late afternoon
watching the carp school
before rehearsal

spring jacket —
a haiku fragment

between flights
I summarize my life
for a stranger

waiting for you
the restaurant noren
parts in the breeze

her garden blooms
with flowers whose names
she no longer recalls

…. by Hilary TannUpstate Dim Sum (2008/II)

… photo haiga: by dagosan

November 6, 2008

who does your real estate agent represent?

Filed under: Haiku or Senryu,lawyer news or ethics — David Giacalone @ 2:02 pm

An incident around Mama G’s kitchen table, when I was visiting her in Rochester two weeks ago, has convinced me that I need to help inform the public about the various kinds of real estate agents and their duties to sellers and buyers.  Here’s what happened:

My mother, an aunt, my sister, and two longtime family friends (Sam and Rose) were sitting in Mama’s kitchen after a filling and tasty Friday night dinner out, when Sam was asked how his two daughters were doing.  Sam then said something like, “You won’t believe what happened when my daughter and son-in-law were looking for a house.”   They had pre-qualified for an unexpectedly large mortgage, given their modest income.  When they gave “their agent” a bid to bring to the seller of a house they liked, the offer was summarily rejected as far too low and rather insulting. Sam’s son-in-law then called the seller directly to say “that’s really all I think we can afford.”  The seller replied, “Well, your agent told us not to accept the offer, because you were qualified for a much larger mortgage and can pay more.”

The prospective buyers felt betrayed and called “their agent,” who basically said “before you fire me, I’m going to fire myself and stop working with you.”  Sam’s entire family was outraged (but the kids did get the house for a nice price after contacting the seller and love it). Sam was even more perturbed and disbelieving, when I said, “Unless that agent was specifically a ‘buyer’s agent’ or ‘dual agent,’ she had a duty to the seller to try to get as high a price as possible, and to use whatever information she had about the buyers.”

Despite my law degree, and having worked on real estate industry matters at the Federal Trade Commission a few decades ago (and written about them here), the entire table of folks — all of whom had participated in numerous home sales and purchases over the years — initially disputed what I told them about real estate agents, and then voiced shock and dismay.  When I said the FTC has been trying to get this message out since the early 1980’s, my sister Linda replied, “Well they haven’t done a very good job.”  I guess she has a point.

The North Carolina Real Estate Commission’s brochure “Working with Real Estate Agents” says it well: “It is important for you to know whether an agent is working for you as your agent or simply working with you while acting as an agent of the other party.”

“. . . until you are sure that an agent is not a seller’s agent, you should avoid saying anything you do not want a seller to know.”

moving day
the other men
in her life

… by John Stevenson – Quiet Enough (Red Moon Press, 2004)


November 1, 2008

saturday morning career tips for lawyers

Filed under: Haiga or Haibun,lawyer news or ethics — David Giacalone @ 9:40 am

Less than thrilled with your legal career? Two new online pieces offer suggestions for gaining relief: 1) D.C. Bar President Robert J. Spagnoletti gives us “Love the One You’re With” (Washington Lawyer, Nov. 2008) with ideas for useful attitude adjustments, and 2) Above the Law‘s associate editor Kashmir Hill presents their latest in a series of posts on job options for those with law degrees, “Career Alternatives for Attorneys: Writer/Author” (October 31, 2008).

litigation bags –
the associate’s
half-closed eyes

.. by dagosan

.. D.C. Bar President Robert Spagnoletti has noticed that “many lawyers and professional staff today seem to have different expectations about work than our parents and grandparents.”  Instead of staying in a job for decades, so long as it provided good pay, a decent pension, and the possibility of advancement, many in today’s workforce:

“move from job to job looking for the employment equivalent of a soul mate, and they become frustrated unless they receive constant praise and instantaneous rewards.”

More to the point:

“Many of us feel that unless we are completely happy every day with every aspect of our job, and that everyone notices what we do, we somehow are failing in our career—or that our career is failing us.”

After exploring why such attitudes exist, Spagnoletti notes that there are a lot of lawyers who do get satisfaction and even joy from their jobs, and that “Interestingly, those of us who love our careers are doing the same jobs as those who are feeling unfulfilled.”  Why the difference?  Spagnoletti [such a nice Italian name] says:

“I suggest that much of the difference has to do with how we approach our work and what we expect in return. Sound familiar? Every job, like every relationship, offers great opportunities and demands great effort. Lawyers who enjoy their careers can somehow focus on the positive aspects of their jobs—and there are almost always positive aspects.”

. . . ” In other words, the most successful lawyers are usually those who are able to find some joy in what they do. They are not necessarily smarter or more talented than the rest of us, they have no theme song that plays constantly in their head to keep them sane, and they don’t have a deal with the devil. Their only secret is that they no longer expect to be on Oprah.”

I like Spagnoletti’s “looking for a soulmate” metaphor better than his mostly-inapt “being on Oprah” theme (how many of us really need to be famous, at least for a day, to have career satisfaction?). For decades, I’ve remarked that we Baby Boomers somehow got the notion that a job is supposed to be totally fulfilling — interesting, meaningful, and hopefully lucrative.  Since, given the jobs available to inhabitants of planet Earth, only a tiny percentage of us will ever achieve that goal, we set ourselves — and now our even-more self-absorbed children — up for great career angst and agita.

Spagnoletti is surely correct that a good job, like a good relationship, takes “real work” and can’t be always stimulating and fun.  His final “practical advice” is:

if you can’t be in the job you love, love the job you’re in.”

That will usually be good advice — we need patience and reasonable expectations in order to find satisfaction in any job. However, jobs are also like relationships in that some are toxic or simply far too incompatible and stressful to be worth enduring for long. If you’re in one of those, and aren’t simply the victim of untenable expectations, looking for options makes a lot of sense.   Of course, while looking for your next career move, a good attitude (a willingness to do quality work and taking it a day at a time) will go a long way toward keeping you sane.

Our alter ego Prof. Yabut continues to a believe that “only a silly a$$ doesn’t self-assess.” Throughout our schooling and career, we each need to discover and understand our personal values, passions, and work rhythms. That self-assessment takes a commitment of time and a promise of honesty.   (See our post “the road to ‘L’ is paved with inattention” for discussion and links to self-assessment tools).  Of course, honest self-assessment before entering law school, or prior to graduation, may be the best way to avoid being a dissatisfied member of the legal profession. (see Yabut’s “1L of a decision“)

clear and cold
the snap
of her attorney’s briefcase

… by Ed Markowski

If your skills, propensities or dreams make you want to put that law degree to work (or aside) as an author, check out “Career Alternatives for Attorneys: Writer/Author” (Above the Law, by Kashmir Hill October 31, 2008).  Ms. Hill took her own experience and perspectives from within what she calls “the law-journo bubble” to Thursday’s panel discussion at the New York City Bar Association: Non-Fiction: True Crime Stories & the Truth about Being a Lawyer-Writer. The panel members included Thomas Adcock, who has written seven books (including Dark Maze, which received an Edgar award), and Dennis Hawkins and Rosemarie Yu have, who have recently had their work published in the non-fiction anthology Brooklyn Noir 3.

Each panel member offered advice for lawyers who would like to become a lawyer-writer, and the ATL posting summarizes their tips on Law and Literature, How do you get started?, How do you get published?, and Copyright Law.

.. Ms. Hill suggests John Gardner’s “On Becoming a Novelist” (1999)

Kashmir also relates the story of Ben Fountain, who left the BigLaw firm of Akin Gump to write full-time, and whose lawyer wife was his personal patron for the 18 years it took to win the prestigious Hemingway Foundation/PEN Award award for his book of short stories, “Brief Encounters with Che Guevara” (2007). She’s right that having a patron (i.e., an alternative family breadwinner) helps a lot when seeking to spread your writing wings outside the legal profession. But, with so many legal jobs in jeopardy these days, Kashmir advises:

“If you have a patron, or if you have lots of creativity, or if you just love spinning tales, perhaps you should think about trying your hand at the writing craft.”

Her final advice is to write every day, “And writing legal memos does not count.”

You don’t have to do much to convince the f/k/a Gang that there is a natural fit between lawyers and literature (or the subset lawyers and haiku). As ex-prosecutor and author Dennis Hawkins told the NYCBA panel, both lawyers and authors know that “the right word, and the right sentence matter” — and many of us greatly enjoy the feeling that comes from finding that word.  [See, e.g., our discussion of The Legal Studies Forum. And see, Prof. James R. Elkins course materials on “Lawyers and Literature” (Univ. of West Virginia, College of Law)]

. . . by the way: Your humble Editor is neither too humble nor too proud to accept a patron, should anyone out there want to help shelter me while I figure out how to make a living as an author.

A Haibun by Andrew Riutta

– Andrew Riutta

In two days she turns just twenty-one. Twenty-one. So young. So pale. I tell her she should stay away from the bars. I tell her she should go out west and save the whales, or a redwood-or the endangered laughter of working-class people who go out on porches at dusk to hum the same hymns over and over in their heads that their grand- parents did. She tells me that saving herself from her father is hard enough.

peaceful autumn-
a window display
of hunter’s orange

andrew riutta

.. Sometimes, you’ve got to endure a few bites and some itching, to achieve your romantic or professional goals:

you and me
and a million mosquitos —
calamine sunset

.. haiga: poem and photo by David Giacalone, orig. pub. 60th WHA Haiga Contest (Oct. 2008) —

p.s. The new November 2008 issue of the DC Bar magazine Washington Lawyer also has two topical articles of interest: The cover story “Oil: the never-ending crisis,” in which Joan Indiana Rigdon traces the country’s growing dependency on foreign oil, its economic impact, and how government is once again scrambling for solutions.

And “Mean Streets,” in which Kathryn Alfisi examines the crackdown on panhandling and food sharing as  “an increasing number of U.S. cities employs a hard-line approach to combating homelessness, [and] the phrase “public space” seems to take on a different meaning.”

Finally, the Autumn/Winter 2008 edition of Moonset Literary Newspaper (Edition 4/No. 2) arrived two days ago.  Here are one haiku and one senryu from the new Moonset, by our Honored Guest Poet (and much-used Issa translator) David G. Lanoue:

our escort
through the ruined garden

almost a nudist
his newspaper

… by David G. LanoueMoonset Literary Newspaper (Autumn Winter 2008, Edition 4/ No. 2)

October 30, 2008

lawyer miscellany (and Miss Savage, too)

Filed under: Haiku or Senryu,lawyer news or ethics,q.s. quickies — David Giacalone @ 6:10 pm

Just a few lawyer quickies, before the main attraction below (two more photos of Wendy Savage, Esq. you won’t find in the Beautiful Lawyers Calendar):

  • He Said/She Sad: At first impression, the headline and article made me think an injustice had been done to the divorcing wife of Long Island matrimonial lawyer Alan K. Hirschhorn, and a fiduciary obligation breached: “Attorney Husband Who Misled Wife About [Separation Agreement] Change Gets Benefit of Original Agreement”  (New York Law Journal/Law.com, Oct. 30, 2008).  At his estranged wife’s request, the husband had struck through a cohabitation clause in their signed separation agreement, although he knew the modification would not be valid without a more formal procedure.  His wife had been unrepresented. Hirschhorn had in fact continued paying maintenance $1000 a week after her boyfriend moved into her condo, out of love and respect for their daughter.)

However, the 23-page opinion in A.K.H. v. B.H (N.Y. Supreme Court for Nassau County, Index #200306/07, October 28, 2008) convinced me that the Justice Jeffrey S. Brown ruled correctly — and that I should have remembered from my law practice to hear at least three sides of a domestic law controversy before coming to a conclusion. There are far too many facts and reasons to detail here.  Primarily, Judge Brown found the husband’s testimony on many key issues to be far more credible than the wife’s.  There was no basis for an equitable estoppell, because “The court finds that she did not suffer any damages and did not rely to her detriment due to the elimination of the cohabitation clause.”  And:

“The issue of whether the plaintiff breached a fiduciary duty is not before this Court because defendant failed to plead a counterclaim to dismiss the complaint on the basis of overreaching. . . . Her testimony reveals that she, in fact, wants a divorce but also wants continued maintenance.”

  • As Michael B. told us in a comment this afternoon, and according to the Associated Press, “Missouri’s sex offender/Halloween law is again enforceable”  Ky3.com, Oct. 30, 2008): “The U.S. Court of Appeals for the Eighth Circuit issued a one-sentence stay on Thursday, sought by Gov. Matt Blunt and Nixon.”  This means that, despite the injunction issued on Oct. 28th by the Federal District Court against two vague provisions in the law, registered sex offenders must remain inside their homes from 5 to 10:30 p.m. Friday unless they need to work or have a medical emergency, and may not participate in Halloween activities. See our prior post in “more scary Halloween laws against sex offenders.”
  • In the recent Washington Post article “Rethinking Legal Fees for Lean Times” (October 20, 2008), we’re told that “The economic crisis is giving the prosecution a boost in the case of Fixed Fees v. Billable Hours.”  It’s great that clients are putting more pressure on lawyers to reduce fees and be more efficient.  I think it’s pretty clear, as we’ve been saying for years, that most clients want more certainty, but expect fixed fees to be lower than hourly fees, not — as the Value Pricing folks assert — premium fees that let the lawyers make more profits while making higher profits. As Susan Hackett, general counsel of the Association of Corporate Counsel notes, with the economic crisis, “There’s going to be a heck of a lot of directives for folks at the firms to lower their costs.”

As Carolyn Elefant has stressed often, “it’s not the pricing mechanisms that make legal fees unreasonable…it’s how we lawyers use them.”  Whatever the mechanism, clients deserve the benefits of competition and efficiency — and that includes price competition.  I like the reaction, in the WaPo article, of D.C. solo Joel P. Bennett, to the suggestion that hourly billing means “that outside firms are spending unnecessary amounts of time on their matters.”  Bennett says: “An honest lawyer works efficiently and does not charge clients for inefficient use of time.”

No, we can’t match the weblog traffic numbers of the most popular law professors (via Ambrogi at LegalBlogWatch). Glenn Reynolds at InstaPundit had almost 90 million visitors over the last twelve months, with 13 million visiting Hugh Hewitt, and 10 million stopping at the The Volokh Conspiracy.

But, our crafty old Prof. Yabut has discovered what brings more than enough eyes to f/k/a — images or discussion of the now famous Boston corporate-finance lawyer, Wendy Savage.  (for more see this post and the links therein)

.. .. Wendy from Myre Designs

Wendy at Newport, Summer 2008 . . ..

Many thanks to Wendy Savage for sharing these photos with the f/k/a Gang and the readers of f/k/a. (Hey, you are still coming here for the one-breath poetry and breathless punditry, aren’t you?)

afterwords (Oct. 31, 2008): Today, at The Docket, the news weblog of Massachusetts Lawyers Weekly, Julia Reischel writes “15 Minutes of Beautiful Lawyer fame,” where she states a truth that’s plain to see: “Wendy Savage, the in-house insurance lawyer who graces the cover of the calendar, is really the one responsible for turning the product into an Internet phenomenon.”  Julia also noticed that f/k/a has “unabashedly capitalized on the Wendy Savage craze.”

follow-up (Nov. 3, 2008): Capitalizing himself on the Wendy Savage phenomenon, Bob Ambrogi posted “Mild-Mannered Blawger Gets Savage” today at Legal Blog Watch. Like Julia at The Docket, Bob has noticed that f/k/a has taken a dreamy detour into Wendy World.

turning ’round
just missing a pretty woman…
willow tree

virtue beyond virtue
beauty beyond beauty…
just a poppy!

lovely —
the sky after a lark
has sung

in the leftover snow
both handprints

it’s so pretty!
so pretty!
the poison mushroom

… by Kobayashi Issa, translated by David G. Lanoue

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