Lynn Cheney and William Kristol are anti-American.

Walter Dellinger, a partner with O’Melveney & Myers, and former head of the Office of Legal Counsel, writes today (in relation to my passionate rejection of Lynn Cheney’s attack on lawyers who represented Guantanamo Detainees):

It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”

. . .

That [the lawyers] in question would have their patriotism, loyalty and values attacked by reputable public figures such as Elizabeth Cheney and journalists such as Kristol is as depressing a public episode as I have witnessed in many years. What has become of our civic life in America? The only word that can do justice to the personal attacks on these fine lawyers — and on the integrity of our legal system — is shameful. Shameful.

Thank god for our founding fathers — John Adams, honorable lawyer.

Whose values do the lawyers for Guantanamo detainees share? John Adams’, for one:

John Adams, in his old age, called his defense of British soldiers in 1770 “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” That’s quite a statement, coming as it does from perhaps the most underappreciated great man in American history.

The day after British soldiers mortally wounded five Americans on a cobbled square in Boston, thirty-four-year-old Adams was visted in his office near the stairs of the Town Office by a Boston merchant , James Forest. “With tears streaming from his eyes” (according to the recollection of Adams), Forest asked Adams to defend the soldiers and their captain, Thomas Preston. Adams understood that taking the case would not only subject him to criticism, but might jeopardize his legal practice or even risk the safety of himself and his family. But Adams believed deeply that every person deserved a defense, and he took on the case without hesitation. For his efforts, he would receive the modest sum of eighteen guineas.

So when Lynn Cheney’s group, keepamericasafe.com, suggests that there’s something un-American about the fact that lawyers in the Justice Department have defended Guantanamo detainees, the real question is this: why is keepamericasafe.com spouting the un-American propaganda that those accused of wrongdoing are not entitled to a defense and to requiring proof of their wrongdoing? In fact, as Adam Serwer reports,

Lt. Col. David Frakt, who has represented detainees both in military and civilian courts, said that the lawyers who secured due process rights for detainees were ultimately vindicated. “There is an assumption there that has proven to be a fallacy, which is that everyone at Guantanamo was a terrorist,” Frakt says, pointing to the fact that the government has lost three-quarters of the habeas petitions filed by detainees at Guantanamo. “What we have seen over and over and over is that the vast majority of detainees at Guantanamo are innocent.”

This is, in short, ugly, anti-American propaganda:

Our capacity to be just is measured by our capacity to do justice to those most in need of it.

The only way to do justice is to provide opportunities for justice. 50 years ago, in Gideon v. Wainwright, the Supreme Court ruled that a criminal defendant has a constitutional right to representation by a lawyer and that, if he cannot afford one, the state must provide him with one. Now, with our states and local governments starving for money, this foundation of our justice system is sorely threatened. Two lawyers whose careers have been devoted to these issues, Virginia Sloan and (my good friend) Cait Clarke, write:

The report of the Constitution Project’s National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, is the most comprehensive examination of the indigent defense crisis in over 30 years. The Committee, whose members represent every relevant part of the criminal justice system, including prosecutors, judges, victim advocates, defenders, bar leaders, and scholars, unanimously concluded that this country’s indigent defense system is in crisis, that the government has for too long ignored its obligation to provide lawyers in these cases, and that it cannot be ignored anymore. The report outlines 22 urgently-needed recommendations for reform.

One of the most important recommendations is that indigent defense should be provided through an independent, non-partisan authority that appoints qualified, experienced lawyers who have adequate resources. Of equal significance is the recommendation that the federal government assist the states in ensuring that the Sixth Amendment is protected and that poor people have the kind of lawyers to which they are constitutionally entitled. The federal government provides badly-needed funding for law enforcement and prosecutors, but to continue doing so without also providing funding for public defense services simply exacerbates the already untenable situation.

Another recommendation is that the federal government should create a federal office of public defense services to distribute funds, collect data, promulgate standards, and develop and deliver training similar to the federally-supported training for state and local prosecutors. Additionally, the federal government should require all states to abide by national standards for public defense. Adoption of the American Bar Association’s Ten Principles would provide constitutionally adequate legal representation for criminal defendants unable to afford an attorney.

One innovative idea that will improve the quality of representation for indigent defendants is to create a national fellowship program to cultivate and train the next generation of indigent defense lawyers. This would dramatically increase the number and caliber of lawyers working to secure justice for clients and communities. Equal Justice Works, working in partnership with the Southern Public Defender Training Center (SPDTC), is proposing to do just that.

Justice Department: Torture Memos were “insane” but not the product of professional misconduct

From Jurist

The US Department of Justice (DOJ) [official website] has overruled the findings of a report [DOJ Ethics Report] released Friday concluding that two Bush administration lawyers committed professional misconduct when they wrote memos [JURIST news archive] authorizing the use of certain interrogation techniques that critics have called torture. Instead, the DOJ said that John Yoo [academic profile; JURIST news archive], and Jay Bybee [official profile; JURIST news archive] were only guilty of “poor judgment” in writing the memos. An internal ethics investigation by the Office of Professional Responsibility (OPR) concluded that Yoo had committed “intentional professional misconduct when he violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice.” The report also found that Bybee had committed professional misconduct when he acted in “reckless disregard” of his duty to exercise independent legal advice. However, David Margolis, an associate deputy attorney general, released a separate memo [DOJ Margolis Report] overruling the OPR’s report, finding its analysis was flawed because it did not have a clear definition of what constitutes professional misconduct.

Back in August of 2008, when I began writing this blog, I explained my then long-held conviction that the White House Office of Legal Counsel — and in particular Jay Bybee (now a federal judge) and John Yoo (a tenured law professor) had acted immorally and in violation of their professional duties as lawyers in writing the so-called “torture memos” that gave legal approval to the torture the Bush Administration began. Both the DOJ Report and the DOJ Margolis Report confirm the details of  what I wrote back in 2008 — the memos were plainly written to justify a pre-determined conclusion. As I wrote then:

Somehow a justice department lawyer who is now a tenured professor at Boalt Hall Law School at U.C. Berkeley, along with his boss, who is now a judge on the U.S. Court of Appeals for the Ninth Circuit, thought they could get away with this utterly fictional definition of “severe pain.” And they did. Plainly, though, Yoo does not believe in constraints. In December 2005 he stated in a Chicago debate that there is no law that could prevent the President from theoretically ordering the torture of a child of a suspect in custody – including by crushing that child’s testicles.”

And now the DOJ Margolis Report concludes that “the’ evidence of the knowing violations . . . led us to conclude that Yoo put his desire to accommodate the client above his obligation to provide thorough, objective, and candid. legal advice, and that he thereforecommitted intentional professional misconduct.”

Mr. Margolis in the DOJ Margolis Report also stated:

While I have declined to adopt O.P.R.’s findings of misconduct, I fear that John Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, view of executive power while speaking for an institutional client.

The reports really are remarkable testaments to how far the Bush Administration went to force its desire to torture within a rule of law that does not permit torture. Among other things, the DOJ Ethics Report quotes other Bush Justice Department appointees stating that John Yoo needed “adult supervision” and describing the torture memos as “insane,” a “one-sided effort to eliminate any hurdles posed by the torture law,” “plainly wrong,”  and “slovenly”:

Our view that the memoranda were seriously deficient was consistent with comments made by some of tlie former Department officials we interviewed, even though those individuals would not necessarily agree witl! some of our findings in this matter. [Daniel] Levin stated that when he first read the Bybee Memo, “[I had} the same reaction I think everybody who reads it has - 'this is insane, who wrote this?'". Jack Goldsmith found that the memoranda were "riddled with error," concluded that key portions were "plainly wrong," .and characterized them as a "one-sided effort to eliminate any hurdles posed by the torture law." [Steven G.] Bradbury told us that Yoo did not adequately consider counter arguments in writing the memoranda and that “somebody should have exercised some adult leadership” with respect to Yoo’s section on the Commander-tn-Chief powers. [Michael] Mukasey acknowledged that the Bybee Memo was “a slovenly mistake,” even though he urged us not to find misconduct.

” Insane” about sums it up. You’re not acting as a lawyer if the research and analysis you do is insane. But, I guess, “insane” is not a sufficiently firm legal standard for Mr. Margolis. The funny thing is that I’d expect any reviewing official who didn’t see discern a standard in the report he was reviewing to state the proper standard and make his own determination whether the facts set forth satisfied or did not satisfy that standard. Or he could have sent the matter back to the ethics people with instruction to set forth a clear standard. Instead, he plainly was looking for a way to find no ethical violations here. Honestly, if the flat out lies about the law contained in the torture memos is permitted, then anything is permitted in the “war on terror.” Which, of course, is exactly Yoo’s position.

There’s wealth and then there’s wealth.

One of the most common criticisms of a lot (not all!) of the so-called “economic” analysis that has dominated the political and legal minds of the last 30 years is its inability to account for value that cannot be reduced to monetary terms. The criticism, while duly noted, tends to be immediately forgotten. As a result, we’ve had an entire generation that’s felt compelled to justify its decisions on purely economic terms. The economic crisis may be affecting this tendency as much as its affecting other ways of viewing the world. Last year, some big law firms that were getting less work from their clients gave graduating law students to whom they’d given offers of permanent employment an offer that sounded to good to be true: go get another job — let it be low paying and “public interest” — and we’ll pay you a part of your salary in the expectation you’ll come work for us permanently next year. But now, according to Georgetown Law Grad Russ Ferguson, those firms are finding out, to their surprise, that the students who took advantage of the offer like their alternative jobs too much. Most importantly, they’re realizing that they’re wealthier in real terms in their lower paying jobs:

These new lawyers have found that their new jobs are more fulfilling and more interesting, and — more importantly — they’ve seen that they can live on a smaller salary. As one of my classmates put it, “Add up the hours I worked this week and add up the hours my friends at law firms worked. Divide our salaries by the amount of hours and you’ll see — I’m rich.”

(hat tip to the ABA Law Journal)

What is a Judicial Author?

I have posted on SSRN a copy of an article entitled “What is a Judicial Author?” I presented several years ago at a conference. I have learned to my utmost gratitude that Lewis Hyde will be quoting and citing the article in his forthcoming, much-anticipated book on the cultural commons. As the article’s abstract explains:

This paper, originally presented in draft at the Con/Texts of Invention Conference sponsored by the Society for Critical Exchange, examines the ways in which judges write opinions, the ways experienced and inexperienced legal readers conceptualize judges as authors, and the affect these conceptions have on the way they read those opinions. The paper describes judicial writing as a quintessential example of collaborative writing, a view corroborated by the ways experienced lawyers use and interpret judicial opinions in practice. The judicial opinion is not, as lay opinion grounded in the Romantic view that forms contemporary common wisdom would have it, the original work of the wise and creative judge pronouncing from on high. Rather, the opinion itself is a piece cobbled together from a number of other sources that include established law, the lawyers’ written and spoken legal arguments, secondary legal sources, and earlier opinions that were themselves built up from the bits and pieces floating through the legal discourse community. Nevertheless, conventional legal thinking has since at least the 19 th Century through today propounded the notion of the judge as quintessentially Romantic author-creator. This clash between legal practice and the conventions of legal (and especially academic) discourse poses real and neglected problems in legal education, especially in the ways the Romantic view of judicial authorship instills in students habits of reading.

If you understand the uses and limits of maps, you can begin to understand the uses and limits of legal rules (and it doesn’t hurt to know the offside rules in soccer and hockey)

Jeff Lipshaw of Suffolk Law School has been asked to teach Suffolk’s six credit contracts course next year and has “been puzzling . . . about . . . teaching philosophy.” As he claims, “Contracts is the often the bane of the first year experience, and I am thinking about hitting the reasons head on.” I think Lipshaw’s point is the same I’ve been trying to get across frequently in this blog — learning law (and perhaps, especially, contract law)  is not a matter of learning rules you apply to the world, thence to go on your merry way as a lawyer who knows and understands law. Rules are useful guides, but different rules are useful in different situations; when a situation changes, a particular rule may be useless — it may be too specific, and not take into account specifics never contemplated when the rule was formulated, or it may be too general to be of any practical use.

Lipshaw writes (emphasis added):

I’ve concluded instead that the way to approach the subject (and relieve some student angst at the same time) is to reject at the outset the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as most casebooks begin – with the idea of the objective law of contracts, or, as we say more explicitly in areas like partnership, the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms. . . . Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work. No – an integrated law of contracts, if one exists, is a figment of the . . . imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

Put otherwise, if the reality of private ordering is metropolitan Boston, contract doctrine is a map, based on the mapmaker’s view of what is important.  But you could have a road map of major highways, a topographic map, a detailed street map, a map of population densities, etc.  This is merely one map, or several competing maps. . . . .

Finally, the difficulty with putting aside whatever sense of reality we might have, and reconstructing the rules of the model (or game?) on their own is a little like trying to master the rules of cricket without making analogies to baseball, or the rules of rugby without making analogies to American or international football.  Let’s say you are playing cricket, and you do something that cause the other team to cry “foul!”  You have to make your argument why what you did was legal in cricket terms, not baseball terms.  That doesn’t mean there couldn’t have been other ways to play cricket, or that the world would be better off if we interpreted the rules of cricket differently, but to win the argument we have to fashion it in a way that appears to be consistent with cricket.  Contract law is the set of rules making up the objective contract litigation game, and some arguments based on those rules are cricket, and some are not.

A map that I draw you to get you to my house will likely be of little use in helping you navigate your way to other places in Ohio, but it will be very helpful as a means of getting you to my house. Then again, most maps of Ohio I’ve seen would be of little use in getting you to my house (which is on a road leading from one side street ending in 2 other side streets, none of which lead to a street (much less a highway) of any significance). And I could explain to you how being offside in soccer is akin to being offside in hockey, and doing so would help you understand the common purposes of the 2 rules (to avoid cherry picking), but when I’m arguing about being offside in soccer I better not be using rules and jargon from ice hockey.

Or, if you’d like to get even more involved in considering the role of maps in understanding the uses and abuses of rules, it’s well worth considering an article written by Boaventura De Sousa Santos, Law: a Map of Misreading. Toward a Postmodern Conception of Law, 14 J. of Law and Society 279, 282-283 (1987)(footnotes omitted; hyperlinks added):

UNDERSTANDING MAPS

The main structural feature of maps is that in order to fulfill their function they inevitably distort reality. The great Argentinian writer Jorge Luis Borges has told us the story of the emperor who ordered the production of an exact map ofhis empire. He insisted that the map should be exact to the most minute detail. The best cartographers of the time were engaged in this important project. Eventually, they produced the map and, indeed, it could not possibly be more exact, as it coincided point by point with the empire. However, to their frustration, it was not a very practical map, since it was of the same size asthe empire.

To be practical a map cannot coincide point by point with reality. However, the distortion of reality thus produced will not automatically involve the distortion of truth, if the mechanisms by which the distortion of reality is accomplished are known and can be controlled. And, indeed, that is the case. . . . As the American cartographer Mark Monmonier put it:

[A]ll advantages and limitations of maps derive from the degree to which maps reduce and generalise reality, compress or expand shapes and distances and portray selected phenomena with signs that communicate without necessarily resembling visible or invisible characteristics of the landscapes. The three elements of a map are interdependent. Scale influences the amount of detail that can be shown and determines whether or not a particular kind of symbol will be visually effective.

Maps should be convenient to use. There is thus a permanent tension in maps between representation and orientation. These are contradictory claims and maps are always unstable compromises between them. Too much representation may hinder orientation, as we saw in Borges’s map. Inversely, a very accurate orientation may result from a rather poor and elementary representation of reality.

When you are invited to a party in a house whose location you do not know, the host will probably draw a map which will be very effective in orienting you though very inaccurate in representing the features of the environment along the way to your destination. One more example: some of you may have seen medieval portolans, those maps of ports and coasts well-renowned in the Middle Ages which, though very poor as far as representation of the globe goes, were very effective in orienting navigators .at sea. There are maps that solve the tension between representation and orientation in favour of representation. These I would call, borrowing from French cartography, image maps. Other maps solve the tension in favourof orientation. These are instrumental maps.

I would like to suggest that this dialectic of representation and orientation applies to law as much as it applies to maps. In the analysis of .the relations between law and society we should [consider] the simple paradigm of correspondence/non-correspondence. In the following I will linger on maps a little while to analyse in more detail each one of the procedures through which maps distort reality. In the process I hope to interest you in the fascinating world of maps. As Josef Konvitz has said, “lt is a supreme irony that maps, though they are one ofthe most common cultural metaphors, are still far from occupying the place they deserve in the history of mentalities.”

One common distortion of which most of us remain unaware is the ways the traditional mercator projection of the map of the world grossly distorts the relative sizes of the earth’s various landmasses. Below is the Arno Peters map , which, as Sirius Bark of Temple 3 explains “isn’t perfect (every map (and rule) creates some distortion), but . . . does address some of the overall size distortions which dominate our more well-known Mercator projections” (emphasis and hyperlinks added):

Nesson continues to blame others for his lousy job of lawyering.

The  Harvard Law Record reported yesterday on Charlie Nesson’s address to : a room full of HLS students to explain his motivations and methods as the lawyer representing Joel Tenenbaum in Sony BMG Music v. Tenenbaum, the case that resulted in a $675,000 judgment against his client.

I have on more than one occasion expressed my harsh views regarding Nesson’s lawyering in the case (here and here). But the Harvard Law Record’s story only adds fuel to my fury at Nesson’s lawyering skills. According to the story, “When the case first came to his attention, Nesson knew that there was little chance of victory on the merits, with the only truly viable strategy at trial being the minimization of damages.” (emphasis added)

The RIAA cannot have been happy about the way it looks after winning a judgment of $675,000 from a kid, especially since, as Nesson with some degree of accuracy explains, “[w]hat Joel did in downloading and sharing songs was what just about every kid in his generation did and which I bet a great many of you did.” The RIAA was anxious to settle a similar case in which it won $1.92 million from Jammie Thomas-Rasset for illegally downloading 24 songs. As Mike Masnick wrote, the RIAA “seems to recognize that the insanity of the $1.92 million doesn’t do it any favors. Even the musicians whose music was part of the case are embarrassed by the amount. . . . the RIAA would love to settle the lawsuit for some lower amount so it can run around touting the ‘risks’of file sharing without having people laugh outloud when hearing that someone had to pay $1.92 million for potentially sharing 24 songs that could be bought for $1 each.”

And Tennenbaum quite plainly had the ability to minimize damages through settlement rather than by means of Nesson’s tactic of going to trial. In February, Ars Technica reported that the “RIAA’s initial offer to settle, made way back in 2003, was for $3,500. Joel offered $500, which was declined. After the case went to court in 2007, the judge ordered the parties to settle and work it out between themselves. Joel offered $5,000. The RIAA demanded $10,500.”

And yet Nesson, realizing that “there was little chance of victory on the merits” and that the only viable way of representing his client’s best interests was to minimize the amount of his liability, failed to settle a case that at most would have cost his client $10,500 (assuming, contrary to any notion of common negotiating sense, that the RIAA would not have moved off of its last offer).

The Harvard Law Record’s story goes on to state that “the evidence presented by the RIAA . . . made it look like Tenenbaum blamed others and lied,” thereby interfering “with his effort to appear credible and sympathetic.” The problem is that the evidence didn’t merely make it “look like” Tenenbaum lied. He admitted in trial that had lied in sworn statements he had made before trial that he had not used peer-to-peer file sharing networks to download and upload recordings.

I’ve said it again and again. I’m no fan of the RIAA. The recording industry’s business and legal responses to the technological revolution that has deprived them of their former monopoly on the means of mass producing and distributing recorded music have been, to my legal and business mind, idiotic. But Nesson was Tenenbaum’s lawyer. His professional judgment as a lawyer was that any legal defense to the RIAA’s claims had little chance of success and that the best lawyering job he could do for his Tenenbaum was to minimize the damages he would be liable for. Nesson clearly had the opportunity to do so. That he passed up that opportunity in a quixotic fight for a principle might be something a lot of people admire, but it’s terrible lawyering.

Legal education is monumentally difficult. Legal “rules” are not “rules” in the sense most people understand them; they are, instead, formulations intended to reach just results based on the evidence in individual lawsuits.

In making the point set forth in the title of my post, it is worth repeating the message I sent this morning to my Contracts students, who are in the midst of studying for the first semester exams. My students are in the midst of making the transition from the lay understanding of legal “rules” as “rules” of the sort that govern the outcome of scientific experiments to the professional understanding that legal “rules” are professional terms of art used to articulate arguments intended to achieve justice in individual cases. It is not an easy transition to make, and it is a transition from a way of perceiving rules that seems to dominate the thinking of the vast majority of mankind to a way of perceiving rules as man-made constructs intended most of all to do justice to individuals.

As I wrote to my students, focusing on legal issues relating to the interpretation of disputed contract terms (the last subject of our semester’s study):

In trying to understand the law we are applying, consider the teachings of the teachings of the Chuang-tzu, a collection of writings from the fourth, third and second centuries B.C.:

Great understanding is broad and unhurried; Little understanding is cramped and busy.

Trying to understand the rules that pertain to contract interpretation will not come through a cramped and busy effort to memorize the “parol evidence rule” and the rules regarding when evidence outside of a writing is permitted to interpret the writing.

Instead, understanding contract interpretation will come first from from a broad and unhurried consideration of what language the parties are disputing the interpretation of. Then you must understand why each party considers his interpretation the correct one. What evidence does each party have that his interpretation is correct? How persuasive do you consider that evidence?

If one side’s interpretation is more persuasive, that will likely be the correct one. One must first consider the writing setting forth the purported agreement, the purposes of the purported agreement, the situations of the parties, and any other evidence that may bear on the meaning of the written agreement. Only after considering all these matters (which can range far and wide) and coming to some individual, human understanding of whether one person’s interpretation or the other’s is more persuasive can on go back to the rules to and use those rules to show how the rules and the evidence together will lead to that more persuasive result.

Thus, for example, in Thompson v. Lilly, 26 N.W. 1 (Minn. (1885), the buyer of logs insisted the seller did not supply logs of as high a quality as the parties had agreed the seller would provide. The parties had written the following brief agreement:

AGREEMENT.

Hastings, Minn., June 1, 1883.

I have this day sold to R. C. Libby, of Hastings, Minn., all my logs marked ‘‘H. C. A.,’’ cut in the winters of 1882 and 1883, for ten dollars a thousand feet, boom scale at Minneapolis, Minnesota. Payments cash as fast as scale bills are produced.

[Signed] J. H. Thompson,

Per D. S. Mooers.

R. C. Libby.

The Minnesota Supreme Court concluded that “[t]he written agreement . . . , as it appears on its face, . . . purports to be a complete expression of the whole agreement of the parties as to the sale and purchase of these logs, solemnly executed by both parties.” Thus, the court concluded that the buyer could not prevail on his claim that he and the seller had in fact agreed that the logs he had purchased were supposed to be of a higher quality than those logs the seller actually supplied.

But there really is nothing in the written agreement itself to preclude the reasonable possibility that the parties had also agreed that the logs marked “H.C.A” would be of the higher quality the buyer had not received. What is it about that 3 line agreement that suggests that it is the exhaustive statement of all the terms the parties agreed to?

Admittedly, there are a few things you might point to to support the court’s conclusion: the writing states price, it states the identifying marks on the buyer’s logs, and it states the delivery place and times. We might infer that if it includes all of those things it must include everything the parties had agreed upon.

But are we to suppose that in 1883 Minnesota in a sale between a logging company and a lumber buyer the technical requirements of the parol evidence rule were foremost in the buyer’s and seller’s minds? And are we to suppose the 3 line agreement was intended as the height of formality. And when, for example, would “winter” begin in Minesota — November, December 21, at first frost? To suppose the seller of logs and the buyer of logs would have put into the writing something they considered important is to be naive about how commercial transactions really take place (even today in the vast majority of commercial transactions, and even among investment bankers in the high flying world of Wall Street finance in which I once practiced).

In other words, if you merely start with the proposition that the parol evidence rule excludes the consideration of evidence regarding the content of a contractual agreement that is not contained in a final and complete written record of the agreement, you hardly have a convincing argument that the decision in Thompson v. Lilly must have been correct.

But if you look at the evidence recounted in the opinion (and the absence of certain evidence) the wisdom of the result (if not the clarity of the reasoning) becomes much, much more apparent — the buyer is claiming the agreement included a promise that the logs the seller was providing would be of a higher quality than the logs that were delivered. And while the writing in and of itself doesn’t inherently exclude that possibility in any conclusive way I can fathom, what evidence does the buyer have that the agreement included a promise of higher quality logs? Only the buyer’s own self-serving testimony. There is no corroborating testimony from, say,  others in the logging trade in 1883 Minnesota that an agreement on quality like that insisted upon the buyer would be expected. There is no documentary evidence outside of the 3 line agreement regarding the parties’ negotiations. There is no evidence that the buyer’s purposes for buying the logs should have indicated to the seller that higher quality logs were what the buyer expected. There is no indication the price the buyer agreed to pay reflects a market price for logs of a higher quality than that which he received.

In short, apart from the buyer’s self-serving testimony, there is no evidence of any sort that any agreement on the quality of the logs had been reached. In the absence of any evidence other than the buyer’s self-serving testimony in support of his position, the court conclusion that the three-line agreement contains all the material terms of the agreement does in fact seem convincing. If, on the other hand, others in the trade suggested the quality of the logs would not have been included in the written agreement or that the price in the agreement reflected a price for higher quality logs, the court would have had a much more difficult time suggesting the three line agreement contained all the material terms of the agreement.

Thus, the parol evidence rule does its job in this case — it prevents the dispute from ending up as a trial in which the buyer’s uncorroborated and self-serving sworn statements will be weighed by a jury against the writing and the seller’s sworn statements. But if we merely considered the 3 line agreement without considering what other evidence the buyer had (or did not have) in support of his position, the parol evidence rule in and of itself would have provided a very poor guide to determining whether there would be any justifiable basis for a trial on the buyer’s claims.

To engage in the extra effort of trial in Thompson v. Lilly would have been unreasonable as a matter of the administration of justice in that there seems no persuasive reason in the first place to believe the buyer. Trials are expensive and burdensome affairs. And keeping the case from trial prevents a jury from being persuaded by improper factors (such as preferring the buyer as a person to the seller). Thus, the court invoked the technical rule — the parol evidence rule — to produce an outcome that seems fair, just, and in accord with a common sense view of the evidence.

In other words, the legal rules and their proper application arise from the evidence the parties bring to bear. The rules do not predetermine disputes that are predictable before they arise. Instead, they provide the legal language (developed over the centuries’ long development of the common law) in which to couch the just conclusions compelled by the evidence.

So, as I explained to my students, when you are trying to figure out on an exam how to answer a question, consider first: what question you are you trying to answer. Then consider what evidence you have from each side of the dispute that helps persuade one way or another in answering that question. Then weigh that evidence and consider what we are primarily trying to determine in contract law: what the parties intended to agree to.

Then, and only then, use the rules to structure the presentation of your understanding of the proper resolution to the dispute. You are likely being asked to present your personal and human understanding as an intelligent adult being asked to solve a previously unsolved problem for the first time in your life. You are not merely being asked to repeat material your professor asked you to learn but to apply that learning to resolve new problems in a creative and original way no one other than you can be relied on to answer — that’s what you’re going to be doing as a lawyer!

I do not mean to minimize the importance of knowing the rules. You must know the rules. The rules are the language the law uses to structure the presentation of your persuasive explanations. Merely to give a recitation of your personal reaction to the evidence without reference to the rules is not to act as a lawyer. But the rules will only make sense to you if you use them to come to a result that makes sense to you as a human being.

You also have to keep in mind that rules in contract law sometimes serve purposes other than merely giving effect to what the parties intended. Rules such as the statute of frauds, for example, will in the absence of clear and convincing evidence of agreement avoid the administrative difficulties and expense of full-blown trial in certain types of important cases in which the parties have not supplied either the formal requirements evidencing such agreements or can supply other evidence as convincing as those formal requirements.

Again, this is not to discount the importance of the rules. You must know the rules to articulate your arguments in a manner that makes sense to lawyers, judges, and law professors. You are now a member of a profession, and you must communicate in the language of the profession. But you will never persuasively apply those profession-specific rules without first understanding the human disputes, the evidence, and the ways that evidence persuades human beings as to the merits of the disputes. Then, and only then, can you begin to structure your arguments in a manner that usefully employs the technical legal rules.

As a final note, my disquisition here should put to rest the myth — even one propounded by the Chief Justice of the U.S. Supreme Court as a means of obtaining confirmation in the course of a farcical political show — that applying legal rules to resolve legal disputes is the same as calling balls and strikes.

Trademark madness

From Legal Pad: “Sand Hill Advisors, the Palo Alto wealth management company, is suing Sand Hill Advisors, the commercial real estate company in Los Altos, for trademark infringement.” I am, apparently, one of the 3 people Legal Pad asserts did not know that “Sand Hill Road is the iconic stretch of pavement near which the sainted feet of venture capitalists tread daily to their places of work.” There was a time I would’ve known the signifiers that mattered to venture capitalists. I suspect I’m better off no longer knowing.

Apparently the wealth management company claims it’s been using the name since 1995 and that the real estate company is profiting off the value that the wealth management company has created in the name. There would be some merit in the claim if people really are using the real estate company because they think it’s somehow associated with the wealth management company, but that would seem to be a difficult set of facts to establish. Typically, a trademark cannot be enforced against someone using it in a different market because in doing so the alleged infringer typically is not capitalizing on value in the trademark created by the claimant.

In addition, the real estate company claims (it its motion to dismiss (pdf)), that the trademark claim is deficient because the wealth management company “doesn’t even have an enforceable service mark, since the government rejected a trademark application because the name was descriptive of a place.”

Legal Pad, though, is dead on in its prediction: “Sand Hill Advisors has it in the bag.”

But who will win the lawsuit filed by Mickey Mouse against Donald Duck?

Lawyers are beginning to learn that globalization means fewer jobs in the USA.

Did all the lawyer-lawmakers who bought into free trade realize that it isn’t just manufacturing jobs they might be selling off to other countries? Mark Kobayashi-Hillary notes that the prediction that legal services would be outsources is an old one, but he also believes that companies now are beginning to seriously explore these possibilities. One piece of evidence supporting his supposition is that “Lloyds Banking Group is negotiating a £400m acquisition of CPA Global, the patent and legal services group.”

What does CPA Global do? According to its website, CPA Global is “one of the leading legal outsourcing companies in the world, offering a full range of general legal and intellectual property (IP) support services.” Among other things, CPA Global provides

services such as document review, contract management and litigation support right through to top end intellectual property software, renewals and data management, research and consulting – assisting busy law firms and corporate legal departments throughout the litigation and IP lifecycle.

Law students and lawyers moan that if they work for “Big Law” they’ll spend years doing document review, but, hey, it’s a living. Without those jobs, the entire market, already shrinking, shrinks more. And now lawyers too begin to learn what globalization really means: selling to other countries with lower labor standards the jobs the U.S. labor market has spent a century making half-decent for the people who do them here.

The new economy, the billable hour, and law school tuition — change is afoot.

When things change, things change.

I’ve written at length before about the perversities created by the hourly rates charged by lawyers. Hourly billing has been the standard practice in most of legal practice for the past 50 years or so. The practice on its face is troubling — just as our current health insurance scheme provides incentives for doctors and hospitals to do and bill more (and, conversely, to engage in less preventative medicine), so too does the billable hour provide incentives for lawyers to do more and, therefore to bill more.

The system has maintained itself in the same way many of our economic practices have maintained themselves — by means of an every increasing pie. And from the provider end the inflation worked its way down to every level — bills, salaries, hours, and law school tuition all skyrocketed. The tuition rise could be paid for by loans that could be paid with inflated salaries. The inflated salaries were paid by inflated bills, which were produced by inflated hours.

And in 2008 the whole edifice came crashing down. Now, all the talk is about different billing practices.

We’re all still waiting for the change, however. One outcome of a change would be, I hope, a decrease in the use of sheer economic weight to out-litigate an economically disadvantaged adversary. As things stand, as much as I hoped always to be efficient for my client, the adversary would require me to do more than I otherwise would if the adversary chose to contest every matter and to thoroughly investigate every single piece of discoverable evidence (no matter how trivial or irrelevant).

And U.S. students are desperate for relief from the tuition costs the billing practices have raised. Legal jobs are scarce, and those that exist are at depressed salaries. But tuitions have not yet come down. They’re going to have to.

Credit Default Swaps and Mortgage Backed Securities: a Primer.

I’ve previously noticed Mark Labaton’s writing. Labaton is a lawyer in LA, and he writes with the kind of clarity and precision that is crucial to effective lawyering. In the most recent issue of LA Lawyer (pdf), he applies those writing skills — in the article entitled “Swap Meet” — to explaining “derivatives,” those financial instruments central to our current economic disaster. I’ve tried to do a similar thing here a few times (here, for example), but Labaton’s account is much more comprehensive. It’s an important piece. I can’t say enough to my students that they have to reject any idea that the stuff they have to face is too complicated for them to understand. We were told again and again that credit default swaps were too complicated to understand (see below, from a CNBC Telecast in November 2006). That’s hogwash. Accepting the myth our financial markets were dealing with risks too complicated for anyone to understand (even the most active participants in the markets!) put us in this mess an is keeping us from getting out of it as quickly or effectively as we might. Labaton not only understands this point, he also provides a very useful explanation for the rest of us.

Lying messes you up. Polanski, the rapist, and the lying prosecutor.

One thing potential witnesses have to understand about lying is that every lie creates problems regardless of whether the lie itself is found out. Every lie requires every statement after the lie — for an indefinite period of time — to account for the lie. If you say something after the lie inconsistent with the lie, you’ve got real problems. Which is the lie? The new statement? The old lie? Who is going to know, and who is going to believe anything you say?

I’m reminded of this problem with lies today because of a story Marcia Clark writes about one of the prosecutors in the Roman Polanski rape case back in 1977, after Polanski had entered a guilty plea to engaging in unlawful sexual intercourse with a minor and was awaiting what he hoped, and apparently expected, was a sentence that would not include jail time. As the Wall Street Journal Law Blog writes, “According to a 2008 documentary, called Roman Polanski: Wanted and Desired,  . . . a Los Angeles prosecutor named David Wells confessed to buttonholing the judge [presiding over Polanski's case] — out of the presence of Polanski’s lawyer — and convinced him to impose a sentence that included prison time.”

Lawyers cannot communicate with judges regarding pending cases outside of the presence of the lawyers for the other parties. It’s a major no, no, and Wells’ admitted misconduct no doubt is part of Polanski’s opposition to extradition.

But now, according to Clark, Wells recently told her:

I lied. I know I shouldn’t have done it, but I did. The director of the documentary told me it would never air in the States. I thought it made a better story if I said I’d told the judge what to do. . . . Look, after 30 years, I never thought they’d get the guy back here. I figured no one cared anymore, and no one here would ever see the film anyway. What can I say? I don’t have a better reason than that. It seemed like a good idea at the time.

Clark believes Wells. I don’t know what to believe. Was he lying in to the filmmakers or is he lying today? Why would a prosecutor tell a lie to filmmakers that would show him to be unethical? He has more reason to lie today — now there’s attention to the unethical conduct he confessed to on film, and the extradition of a rapist is at stake.

And, frankly, I don’t consider Marcia Clark the most reliable judge of anything. Don’t get me going, but the reason for the O.J. verdict to my mind was, purely and simply, incompetent lawyering  by the prosecution.

Lawyers do the best they can for clients; I wish law professors realized that’s what lawyers should always do.

As someone who has practiced over ten years and taught over ten years I am particularly sensitive to the divide between legal practice and legal academia, and I am partial to the legal practice side of the debate. It’s not that a lot of law professors don’t do a lot of good things; rather, it’s that too many law professors and too much legal education proceeds as if the world of practice is irrelevant. In fact, I am convinced that legal education and legal theory divorced from the application of law in practice is meaningless. Law does not exist except as it has the potential to affect the real world (unless you’re talking about religious law).

And it is fundamental to the practice of law that the first and primary responsibility of the lawyer is to the client’s best interests. When you start treating the client merely as a means to raise intellectual issues you find of greater interest you’re doomed to get in trouble.

Charles Nesson is a good example of a law professor who doesn’t understand how to be a lawyer. Nesson ignored the advice of many who are sympathetic to the plight of file sharers in conducting his defense of Joel Tenenbaum, a case which resulted in a $675,000 verdict against his client. There were many who considered Nesson’s defense bad lawyering, including myself. Blue Mass Group even asked whether he was “the worst lawyer ever” in a post that supported the legitimacy of the question with examples from the case:

[T]hrough the course of the litigation, Tenenbaum gave sworn statements that he then contradicted at trial. And in a dramatic moment, it seems that at the end of his testimony, just before the verdict, he actually admitted liability, causing the judge to find him liable and the leave only question of damages for the jury to decide. Who prepared Tenenbaum to testify? Did anyone bother?

It also seems that Professor Nesson made audio-recordings of depositions in the case–perhaps for use in the classroom?–without the knowledge of the lawyers on the other side of the case. This is potentially a crime, as well as an apparent violation of the Rules of Civil Procedure, which require a lawyer taking a deposition to notify the other side of the method to be used to record it (though perhaps if Professor Nesson was recording depositions taken by the other side, he would not be in violation of the rule–I’m not sure).

Now, Professor Nesson says he will appeal on the judge’s failure to instruct the jury on fair use. I’m not a copyright law expert, but I’ve heard others describe this issue as likely to lose.

In any case, it seems clear to me that Professor Nesson did not really act to protect Tenenbaum’s interest. This twenty-something graduate student is now facing bankruptcy when he could have settled the case for next to nothing.

More support for the criticism of Nesson’s job defending Tenenbaum comes today with the news that the judge in Tenenbaum’s case ordered defendants who did not even bother to defend file sharing charges to pay the minimum penalties allowed under the Copyright Act, prompting Ars Technica to point out that Tenenbaum and others like him “would have been far better off monetarily if they had simply ignored the complaint altogether and failed to show up in court.”

The sad part is Ars Technica is right — sometimes bad lawyering is worse than no lawyering.

Nesson’s response to criticism that he ignored defenses and other strategies he might have used to minimize Tenenbaum’s liability? He writes, without an ounce of apparent regret: “these defenses do not join the fundamental issues. this trial was not an exercise in getting joel off the hook.”

That’s precisely my point. If you treat a case as a means to an end and are willing to sacrifice the client’s best interests to get to that end, you are not doing your ethical duty as a lawyer. If you insist on a jury, make legal arguments there is no good reason to think will prevail, allow your client to lie in pretrial testimony and go ahead and put him on the stand anyway, flout good sense in recording hearings without having gotten the judge’s permission to do so, and then go and post those recordings on line, is it any wonder your client ends up paying a big price?

As I indicated in my last post (and numerous times on this blog and elsewhere), I am convinced the RIAA’s campaign to sue file sharers is misbegotten as a practical, business matter. I’ve even gone out of my way to try to help Nesson. (See also here.) That doesn’t mean that Nesson is a noble guy in sacrificing his client to what he considers a greater cause, and a lawyer should know better.

Do we really want anyone to have free online access to court files?

Court documents are public. You can go down to any courthouse and examine the files from any case you want. But there has been no smooth transition to making those documents publicly available on the internet. That may be changing, though I’m not entirely sure I agree with the majority of commentators on the subject that making those documents freely available to anyone with an internet connection is a good thing.

As explained by the Wall Street Journal, “Digital records of court filings, briefs and transcripts sit behind paywalls like Lexis and Westlaw.” Lawyers, non-profits, and researchers can use PACER to access all documents filed in the federal courts, but PACER has 2 significant defects: (1) it costs 8 cents per page to download any document (an amount that can add up rapidly to access a sufficient amount of material to make sense of any given document), and (2) you cannot search the system by keyword.

As the WSJ puts it: That’s right: In 2009, judicial records in the U.S. are essentially unsearchable.” But last week, a team from Princeton’s Center for Information Technology Policy unveiled a Firefox add-on that promises over time to make all those documents filed in federal courts freely available and word searchable:

They whipped up a sleek little add-on to the popular Firefox Internet browser called RECAP (PACER spelled backward). Legit users of the federal court system download it. Then each time they drop eight pennies, it deposits a copy of the page in the free Internet archive. This data joins other poached information, all of which is formatted, relabeled and made searchable—the kind of customer service government tends to skimp on. Users can even see what has already been liberated while within the government system, a stylish and subversive touch. This week, as RECAP picked up speed, various court offices got skittish and began sending out emails acknowledging the project’s legality, but “strongly discouraging” its use anyway.

I’m as great an advocate of government (and corporate) transparency as almost anyone, but I can’t help but be troubled by the possibility that someday all the files in every court in the land will be word searchable and accessible to anyone with an internet connection. It’s one thing to go to a courthouse (or even through many free online sites) to access the papers filed by the parties to a particular lawsuit. Courts are public institutions, and the fact their documents have always been and continue to be accessible to anyone (willing to visit the courthouse where those papers are filed) has been fundamental to the greatness of our judicial system.

But papers filed in court do not necessarily state facts. Think of what friends of yours have been falsely and outrageously accused of in bitter business and divorce cases. Think of all the ridiculously frivolous lawsuits “tort reformers” are always screaming about. Think about how often the report of a filing of a lawsuit, which sets forth allegations that are merely allegations, not assertions of proven fact, are reported and read as fact. Do you really want anyone with an internet connection to be able to search the files of all the courts in the land for your name, pull up the documents from that case, and set forth on their website what some witness has stated without regard to the larger context of the court case that might reveal the witnesses lack of credibility, hostility, limited knowledge, subjectivity, or sheer misapprehension?

Just one example of the sort of problems free access to court records could create was described by Charlotte Watson, Executivec Director for the New York State Office for the Prevention of Domestic Violence in a public hearing held by the New York State Commission on Public Access to Court Records. Ms. Watson testified as follows (at pages 82 and following of the transcript of the entire hearing (pdf):

Ms. Watson: What we innocently put on the “Web” a few years ago is now being used in ways we never considered, including invasive crimes such as identity theft. We’ve heard horror stories of how stalking victims were tracked and harmed through information posted and available to all for good or bad intent. We’ve all seen those annoying pop-up adds on our computers, advertising the ability to find literally, anyone. As a domestic violence advocate with more than 27 years in the field, and one concerned about privacy in general, those ads, and the open, easy access to so much personal information in what we term the “information age” are truly frightening.

Nowhere is this more of a concern than when considering the safety and security of victims of domestic violence, sexual assault and stalking. We know that domestic violence is pervasive, on-going, life-changing reality for millions of women and children in this country, and stalking is an integral part of the dynamic of domestic violence.

Domestic violence victims know all too well their abusers will use any means to control and terrify them and keep them from escaping. It is not unusual for a batterer to monitor the odometer on a victim’s car, record the victim’s phone calls, or use hidden cameras. Imagine what it would be like to have a Global Positioning Satellite unit attached to your car and monitored constantly by someone in authority over you. This is the daily reality of many victims of domestic violence with the state of technology today.

What will tomorrow hold? It’s extremely difficulty and often dangerous for battered women to escape their abusers. Many find it necessary to flee the area entirely in hope of

finding safety. Those who are able to get away live with the extreme fear of being found by their abuser. A losing battle for approximately 1,100 U.S. women each year who were murdered by their intimate partners after fleeing, as well as, countless others who are re-assaulted.

There have been many attempts to help victims find safety. . . . Unfortunately, at the same time we are recognizing the needs of domestic violence victims, the trend toward “open government” and access to information has become an easy, affordable and valuable weapon for abusers.

As advocates for victims of crime, however, we do recognize the need to find ways to increase the accountability of systems, including the courts, in their responses and decisions. It’s vital that these interests are balanced against victim safety and the privacy of users of our court process. In the effort to increase accountabilities, the court must be mindful of even the appearance of culpability, should granting easy access to information result in harm to a victim.

It should never be the case that potential consumers of the courts must weigh the need for safety through court intervention against the need for privacy and anonymity

which may also impact safety. In light of these concerns, I will outline a number of recommendations regarding open access to court information. . . . The negative implications include, as has been mentioned:

A chilling effect on victims who are considering using the court for legal relief. While we applaud the fact that family court and matrimonial records will not be subject to open access, I must emphasize that under current law, criminal court is the only court in which many victims may seek relief. Consider, for example, a victim who’s being abused or stalked by a boyfriend. To obtain an order of protection, that victim will have to disclose significant personal information and potentially embarrassing details about the abuse in criminal court. Under the Conference of Chief Justices and the Conference of State Court Administrators Guidelines, this information would readily be accessible by the public and the offender. It’s not a leap to say the victims will be reluctant to pursue an order of protection under these circumstances. Is it fair to ask a victim to sacrifice her privacy for the safety she’s entitled to under the law?

Imagine the heyday the pornography and smut industry will have with such easy access to crime scene photos of horribly violent rapes and homicides. Imagine the websurfer who accidentally opens a porn site or the errant adolescent going to sneak a peak only to discover the crime scene photo of his naked mother lying in a pool of blood. At what point would the balace tip from accountability at this point to culpability? At what price? Who and how would these decisions be made as to where to draw the line?

There are safety risks for crime victims and witnesses. As I noted earlier, abusers often track and monitor their victims as a means of maintaining control. These behaviors typically increase when a victim leaves the abuser. Whenever a victim becomes involved with the court system, whether voluntarily, as a result of mandatory arrest or pro-prosecution policies or for some other reason, precious information about her location, status, current name, phone numbers and other circumstances is disclosed. Such disclosure is a major concern for my agency and victim advocates across the state. We know that abusers will access this information and use it every way possible to stalk, threaten, assault or kill the victim and maybe her children.

This can be a problem even when the victim is using the court system for something unrelated to domestic violence. For example, if these involved in a motor vehicle accident resulting in legal action and the information, includinging simply the location of the Court is posted on the Internet, her address would be posted making it all too easy for her abuser to find her. Perhaps she relocates to escape the abuser and later becomes the beneficiary of a probated estate. As a result, identifying information could be posted creating similar safety risks. Ironically, if the victim is seeking a legal name change, even this information could be posted on the Web, making her efforts at anonymity fruitless.

It’s important to note she may not be a victim at the time of her interaction with the court on the myriad of non-domestic violence related actions that could bring her to court. After one date with a stalker, she would be vulnerable to his gaining valuable information about her that could lead to her demise. There’s an increased opportunity for identity theft. Destroying the victim’s credit and reputation is a tactic already used by batterers. Open public court records will only increase the opportunity for accessing and misusing personal information.

We’re concerned about the secondary uses of the information. Information stored by the courts will most certainly be used for purposes that move far from the original public policy intent of governmental accountability. It will be gleaned and sifted and compiled along with other information to create entirely new databases that can be misused and misinterpreted. Once the information is gathered for another database, it can never be taken back or corrected. In domestic violence cases, false or misleading information could be deliberately planted by the batterer in spurious legal filings that include slanderous material against the victim which are then posted on the Web for all to see and use.

Internet access could undermine the victim in custody proceedings. Seeking custody is one of the most powerful tactics used by abusers to access control their victims. Abusers will use every means available to discredit the victim and prolong a custody battle. The proposed guidelines actually aid abusers in this process. Open public access to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon we the court. This poses serious ramifications for victims who ultimately leave their abusers and seek custody. Economic survival or the abusers threats or false promises often compel victims to minimize or deny the events or later recant earlier statements of abuse that form the basis of a criminal prosecution. The fact that such records from a criminal proceeding and many civil proceedings will be within easy grasp of an abuser in a subsequent custody proceeding essentially re-victimizes the victim, rewards the abuser’s use of coercive tactics and facilitates the abuser’s use of custody as a weapon of control.

MR. ABRAMS: It seems to me that a good part of what you’re saying would apply to public access, regardless of whether there’s an Internet or not. When you say that “open public access — on page five — to court information provides abusers with cheap and easy access to all records of any criminal proceeding, regardless of whether such information was relied upon by the court.” The fact is that now, without an Internet — before we had an Internet, there was open public access to court information, regardless of whether the information was relied upon by the court. Does your office favor limiting access to the information itself, regardless of whether it’s going on

the Internet?

MS. WATSON: Our concern is the same one expressed many times today; that’s the cheap, easy affordable part of it. You can actually be sitting in your bedroom, walk over to your computer and find the information. It’s very different from having to go down to the courthouse and go through the records and find the information, being able to sit in California, sit on your computer, pull up your victim, your target’s information on a court record in New York.

Did Apple Mislead Investors Regarding Steve Jobs’ Health? Almost certainly, yes. Then why did it not disclose the medical facts? (Part I)

Steve Jobs had a liver transplant last week, and, the L.A. times and others report, the “doctor who led the transplant team said this week that Jobs was ‘the sickest patient on the waiting list’ at the time a donor liver became available.” All Apple had earlier disclosed to the public regarding Jobs’ health was set forth in 2 statements written by Jobs and posted on Apple’s website posted last January. The first, in connection with his widely reported drastic weight loss in 2008, stated that “my doctors think they have found the cause—a hormone imbalance that has been ‘robbing’ me of the proteins my body needs to be healthy. Sophisticated blood tests have confirmed this diagnosis. The remedy for this nutritional problem is relatively simple and straightforward, and I’ve already begun treatment. But, just like I didn’t lose this much weight and body mass in a week or a month, my doctors expect it will take me until late this Spring to regain it. I will continue as Apple’s CEO during my recovery.” (emphasis added) The second letter, posted one week later, stated that “during the past week I have learned that my health-related issues are more complex than I originally thought. In order to . . . focus on my health, and to allow everyone at Apple to focus on delivering extraordinary products, I have decided to take a medical leave of absence until the end of June.” (emphasis added) In April, “[a]ccording to unnamed sources . . . Jobs continue[d] to work on the “most important strategies and products from home,” though Apple’s only official statement was that “Steve continues to look forward to returning to Apple at the end of June.”

Inevitably, people are asking a question lawyers representing a company whose stock is traded on public exchanges always have to ask themsevles about any facts that might affect the company’s’ value: is the information “material”? On the one hand, the L.A. Times story states: “Companies are not required to divulge medical details about executives, lawyers said.” But the story also quotes a lawyer stating that “If [Apple] tried to lessen the disclosure and make it misleading by omission, that’s just as bad as telling something that flat isn’t true . . . . ” And Warren Buffet is quoted stating: “Certainly Steve Jobs is important to Apple. . . Whether he is facing serious surgery or not is a material fact.” (emphasis added).

What’s going on? What information is “material” and therefore has to be disclosed to the public by a publicly traded company? Well, Neil Lipschutz is right that “something is material if ‘there is a substantial likelihood that a reasonable shareholder would consider it important” in making an investment decision. Also, if there was a substantial likelihood a reasonable investor would think the information ’significantly altered the total mix of information available’ about a company.’”

Do we have anything better to guide us than (1) what seems a terribly subjective test, (2) the gut reactions of lawyers and of Warren Buffett, and (3) the almost certain fact that Apple, after close consideration of the facts and the law by its lawyers, made the business decision that the risks and probabilities of disclosure last January (or at any time between when Jobs first got sick and now) were outweighed by the risks and probabilities of liability for securities fraud if and when its lack of candor became known?

Well, if what you’re seeking is guidance in the way beginning law students and most non-lawyers want the law to provide guidance — articulation of rule that makes it easy to decide the question — the answer is a resounding NO. These are judgment calls based on the specific evidence of each case. In order to determine if a set of facts would matter to an investor, you need to look at those specific facts. And plainly I have not had available to me all the evidence that might eventually be considered to judge the question in this case. But there is a lot available, and based on only that, I have to agree with Warren Buffet that the fact Steve Jobs was so ill he required a liver transplant certainly is material.

But, again, my certainty is not a product of pointing to a “law” and having you nod your head in agreement. I have to look at the specific evidence regarding Apple, the law, and the facts in the cases in which courts have concluded that events are material and in which courts have concluded the events are not material. By doing that, I hope I can convince you that my certainty is well founded. That’s the best I can do.

Moreover, that’s not the end of the lawyer’s job. Even if the lawyers concluded that the facts regarding Jobs’ health prior became “material” at any time before the next week would not mean Apple necessarily would disclose those facts. Apple’s lawyers would have to consider what potential downside its failure to disclose those facts would present and the likelihood that downside would occur. Then Apple, not the lawyers, would have to decide if those risks and probabilities would outweigh the likelihood and degree of the impact disclosure would have on Apple’s value.

There are a number of rules under which a publicly traded company is obligated to disclose “material” information to the public or face criminal and civil liability, but the definition of “materiality” is the same under all of them. One is a regulation known in the trade as “Rule 10b-5″ [17 CFR 240.10b-5], which makes it a crime and a civil wrong for any a company or an individual purchasing or selling stock “to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, . . ” As the United States Court of Appeals for the 2d Circuit stated in SEC v. Texas Gulf Sulphur Co., 401 F.2d at 833, 848 (2d Cir. 1968), this requirement to disclose material facts is based “on the justifiable expectation of the securities marketplace that all investors trading on impersonal exchanges have relatively equal access to material information . . . .” The requirement originates in the Securities Exchange Act of 1934 (15 U.S.C. § 78j(b)), one of the keystones of the New Deal passed in response to the practices prevalent on Wall Street that had led to the 1929 stock market crash.

As the court further stated in Texas Gulf Sulfur, “[t]he basic test of materiality * * * is whether a reasonable man would attach importance * * * in determining his choice of action in the transaction in question.” Thus, material facts include any facts “which affect the probable future of the company and those which may affect the desire of investors to buy, sell, or hold the company’s securities.”

The defendants in Texas Gulf Sulfur had argued that tests showing one of their company’s mines was likely a rich one were not material because there was nothing certain to report until mining had actually begun and there was more certainty than the tests could provide.  The Second Circuit rejectted their argument, ruling that even possibilities that never occur might be material. One must look at the probability the fact would have an impact on the company’s value and the magnitude of that potential impact: “whether facts are material . . . will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.” 401 F.2d at 849. Thus, the court reversed the trial court’s decison to dismiss the criminal charges against the defedants because, the Second Circuit decided, they would be guilty if it were true that they had failed to disclose “the possibility, which surely was more than marginal, of the existence of a mine of the vast magnitude” as a result of a “remarkably rich” sample taken  ”close to the surface (suggesting mineability by the less expensive openpit method) within the confines of a large anomaly (suggesting an extensive region of mineralization).” That mere “suggestion . . . would certainly have been an important fact to a reasonable, if speculative,  investor in deciding whether he should buy, sell, or hold” stock in the mining company the defendants controlled. Id. at 849-50 (emphasis added).

The U.S. Supreme Court expressly adopted the Second Circuit’s test in 1988 in Basic, Inc. v. Levinson, 485 U.S. 224 (1988), a case in which the Court determined that corporate insiders might have had the duty to disclose negotiations for a corporate merger before the merger was concluded. Some courts outside the 2d Circuit prior to that time had ruled that a deal didn’t have to be disclosed until it was a binding deal. The Supreme Court rejected the reasoning of those courts and made plain that an event that might not ever happen nevertheless might at some point be likely enough and big enough that it would affect a reasonble investor’s investment decisions.

So the questions Apple’s lawyers had to be asking themselves all the time ever since they learned in 2004 that Jobs had pancreatic cancer, are the following:

(1) Is Jobs so important to Apple that an investor would make a decision to sell, buy, or hold on to Apple stock based on his ability to do his job?

(2) Do the medical facts demonstrate with sufficient probability that Jobs’ condition is threatened enough that those facts would cause an investor to sell, buy, or hold on to Apple stock?

(3) Did Apple’s words or omissions mislead reasonable investors in evaluating whether Jobs could continue to do his job well enough to not affect their investment decisions.

Let’s get the easy stuff out of the way. Jobs’ health and its impact on his ability to do his job  are so plainly material that to argue otherwise wouldn’t pass the “giggle test.”  I would therefore, if I were representing Apple in litigation, advise the company simply to admit this point in the answer to any complaint anyone filed. To admit the point would at least minimize attention to something that, if Apple did dispute it, would only increase attention to a weakness in the company’s case. But just in case you think I don’t understand when it’s smart lawyering to concede a point, remember these things — someone’s own words are taken by a court as “admissions.” In other words, if someone admits something that is harmful to his legal position, the court will assume the facts are at least that bad. In the letter posted online last January, addressed to the “Apple Community,” Jobs ended with this: “So now I’ve said more than I wanted to say, and all that I am going to say, about this.” I’d love to ask him in a deposition why, if he didn’t want to write what he wrote, he did. The probelm, if Apple had decided to dispute the materiality of Jobs to the company’s value, is that he’d have to deny and dance around the obvous: his lawyers told him he had to write the letter because his health and its impact on his capacity to do his job is material to Apple’s shareholders and potential shareholders.

Don’t assume I haven’t considered the arguments I could make on Apple’s behalf on this point — I could point out, for example, as MacNewsWord did yesterday, that since January, when Jobs wrote the letter he didn’t want to write, Apple stock has almost doubled in value. The Apple loving outlet implied that market shows that investors have been confident that Apple was fine without Jobs:  ”This could be due to general belief among investors that Apple has a good management team in place which has kept the company running on an even keel despite the CEO’s absence.”  Or it could mean the market had already accounted for Jobs’ illness.  Or it could be that the market is driven by unreasonable investors.  It could be for any number of reasons. Regardless, I am convinced  that a strategy to fight a securities fraud case on the grounds that Jobs isn’t important enough to be material to Apple is not going to make winning the case more likely. I could go on and on . . . Last October, just to take at random one piece of evidence easy to find via a mere Google search, (according to CSnews) “Some individual had posted a fake report . . . claiming Steve Jobs had suffered from a heart attack and was rushed into the hospital. As a result, Apple’s stock made a 10% nosedive.”

NEXT: (a) was Jobs’ health so dire its specifics would have made a difference to people thinking about buying, selling or holding on to Apple stock, (b) did Apple’s statment’s or silences mislead investors about Jobs’ health, and (c) why would Apple choose not to disclose specifics regarding Jobs’ health even if its lawyers were telling it that those were material facts?

Yes, lawyers need to be experts in design and typography too.

I always tell my students that one of the reasons the first year of law school is so difficult is that they come to law school thinking their time and effort will be completely exhausted by the effort to learn all the law. But, I go on to tell them, learning the legal rules is the easy part. You read statutes and case law and regulations and secondary source interpretations to find the rules. Applying them is a whole different thing. That’s probably the hardest part.

But one of the most difficult parts of lawyering, one most students take a particularly  long time to grasp, is that you have to pay attention to everything. So you act like a professional: you show up on time; you use professional language, not the language you use with your friends or on Facebook; you take criticism as an opportunity to learn what you did wrong; you take disagreement as a necessary part of the profession you are becoming part of, not as a personal attack; the point of your efforts is to learn to be a good lawyer, not to earn a good grade.

It never ends. But that’s okay — there’s just always room to get better.

And now comes, to fill an aching need, Typography for Lawyers, a site by Matthew Butterick, a civil litigator in L.A. who majored in art as an undergrad at Harvard, where he focused on design and typography. I’m very impressed by his recognition of the reason his expertise is needed. He explains that using good typography is like dressing well for court, a way “we signal to clients, other attorneys, and judges that we take our work seriously and we take court seriously.” Moreover, bad typography detracts from your goal of persuading your audience your client is right. “When you show up to make an oral argument, you make sure that you present yourself as professionally and persuasively as possible. Similarly, your written documents should reflect the same level of attention to typography.”

In general, the importance of graphic design to effective communication is woefully unappreciated. Butterick points to the design of the butterfly ballots that caused the 200 presidential election fiasco in Palm Beach County, Florida as an historic example of the bad consequences of bad design.

What caused the Challenger shuttle disaster? You might think it was defective O-rings, but that would be to fail to appreciate that the defect would likely have been known and its consequences guarded against, according to Edward Tufte, if the charts presenting the critical information to the decision makers had been rationally designed. Tufte’s expertise is in the effective use of graphics in conveying information. He’s a genius, and the dedication to his craft is made clear by the fact he self-publishes his books so that he can control the design of every element of them. And his advice on the use of PowerPoint is priceless.

Compliments are worthless, and losing is winning: lawyering in a nutshell

From The Namby Pamby, Attorney at Law, comes this story, which sums up concisely both what so much of legal practice is about and why it is so often difficult for students to grasp exactly what it is they’re supposed to be doing:

Eight months, untold amounts of hours, it all came to this

For the second time in the last month, my brief writing was complimented by a judge:

“Counsel, this was excellently briefed, well done…I’m going to deny your motion.”
Thanks.

The lesson here is to beware the judicial compliment.

The reality is that even though we lost our motion, we did serious (perhaps fatal) damage to the opposing side. My boss was happy. Ergo, despite my failure at a judicial declaration of winning, we still won.

What constitutes “good output” for a law school, and how do you measure it?

The ABA Journal reports that the part of the ABA that accredits law schools is due to adopt sweeping changes that will radically change the ways it evaluates the quality of the education individual law schools deliver. Most significantly, the ABA will “move away from evaluating law schools on the basis of criteria that measure ‘input’-such things as faculty size, budget and physical plant. Instead, the Legal Education Section would evaluate law schools more heavily on the basis of ‘outcome’ measures. The essential difference is that outcome measures would focus on what students actually take away from their educational experience at a particular law school rather than what the school teaches, and how . . . .”

There is one HUGE question, however, still to be resolved: “Speaking on Friday’s panel, [committee vice chair Margaret Martin] Barry and her fellow committee members said the greatest challenge is to determine the best ways to measure outcome.” 

I’ve got a suggestion on where they should look: Back in March, as I wrote,  the New York Times reported that professors at the University of California, Berkeley, have studied what makes lawyers (not law students or law professors) effective and “have come up with a test that they say is better at predicting success in” practicing law than is the LSAT.  The study concluded, as I’ve long been convinced, that “LSAT scores . . . ‘were not particularly useful’ in predicting lawyer effectiveness’. . .”  What does the new test consider factors that contribute to lawyerly effectiveness?

“[T]he ability to write, manage stress, listen, research the law and solve problems.”

When the ABA starts testing law school graduates on those abilities I’ll be convinced the ABA genuinely is measuring “outcomes.” Somehow, though, I suspect that they’ll focus on instead on salaries, clerkships, and professorships, outcomes determined to a significant degree by people with vested interests in the status quo.