Friedman to judges and lawyers: don’t “friend” or “tweet” one another!

Ohio is one of the first states to address the use of social networking by judges. As explained by the Ohio Supreme Court on its web site, an opinion issued 2 days ago [embedded below] by the Ohio Board of Commissioners on Grievances & Discipline “advises judges that social media use is permitted but must be done with caution, and it offers wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.”

My reaction to the opinion — that judges ought to avoid entirely engaging in social media communications with anyone who is or may be a lawyer or a litigant in cases before them — is one people close to me would describe as “paranoid.” Perhaps I’m just risk averse. I think, though, that I’m principally concerned with integrity.

The issue is one that pertains to what are known as “ex parte communciations” — communication between a lawyer or a litigant with the judge without the presence or participation of the adversaries to the lawsuit in which the lawyer or litigant is appearing before the judge. Ex parte communications, except under very limited circumstances all of which ensure notification to the adversaries as soon as practicable, are absolutely forbidden. Our legal system is founded on its adversary nature — not in the sense that it requires fighting but, rather, in that it tries to ensure the voices relevant to the dispute all have equal access to the judge. If my adversary communicates with the judge, I have the opportunity to judge whether it’s worthy of a response and how to respond. We don’t leave to the judge to decide whether I should or can respond — the system ensures I make that decision.

The importance of avoiding ex parte communications was brought home to me in law school by the professor who was my supervising attorney in the clinic I was part of. I was representing a child as guardian ad litem in a child abuse and neglect case in family court in Flint, Michigan. The entire scene was grim — it was 1983, and Michigan had started the precipitous economic descent it suffered at the hands of the auto industry. Unemployment in Flint was through the roof (even in 2010 terms). Abuse and neglect claims had increased. That day it was freezing and pouring rain.

After our hearing, my professor/supervisor and I stood sheltered in an entranceway to the courthouse, hoping the rain would abate a bit so we could make it to our car without getting to0 rain-soaked. As we stood there, the door opened and the judge before whom we’d just appeared stepped out, smiled, and started speaking with us, obviously intent on the same endeavor we were — waiting out the rain in the doorway. My professor immediately wished the judge a good day and, grabbing my arm, led us out into the deluge. When we’d made it to the car I asked her what in the world she had been thinking. She responded, “You do not communicate with a judge without the other side present. It’s wrong!”

It makes perfect sense to me. If the other side has an opportunity to communicate with the judge without my knowledge, how am I supposed to judge what I should let the judge know? Unfortunately, some important people seem to have underestimated the fundamental importance of this rule. Justice Scalia seems not to have worried that hunting with Dick Cheney might be deemed a compromise of the integrity of his court judging a case in which Cheney was a party. Justice Thomas’s willingness to speak before and maintain other relationships with conservative groups with a stake in cases before the Supreme Court are notorious.

And now comes the Ohio Supreme Court suggesting that as long as a judge is really careful he can communicate via social networks with people who are litigating cases in his court. I think it stinks. I would tell a judge not to allow access via social networks to litigants or potential litigants. And I’d tell any lawyer to stay away from networking with a judge before whom he will or may appear.

Incidentally, I don’t think the Ohio Supreme Court’s “guidance” really is all that helpful anyway. Essentially, the guidelines leave to the judge the determination of what is and is not appropriate, acknowledging there are no “bright lines” distinguishing between the two:

• To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
• To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
• To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
• To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
• To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
• To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
• To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.

Social Networking by Judges, Board of Governors of Grievances and Discipline, Ohio Op_10-007, 12-3-10

What does overclaiming look like? Just watch Facebook.

We have a remarkable legal system, but its greatest defect by far is the influence sheer economic weight can have on the outcomes it produces.

Back in October, I praised the lawyer for the site formerly known as Placebook for not easily being bullied, for stating straight out that Facebook’s cease-and-desist letter insisting that Placebook’s name would cause customer confusion with Facebook’s trademark very was “very predatory and not reasonable.’’ Of course, she also said that every company Facebook had asserted such a trademark infringement claim against “has rolled over and died, because no one has $6.9 billion to fight them.”

Sure enough, the client decided that the expense of fighting Facebook, even on a meritorious claim, wasn’t worth it. As Melissa Bell of the Washington Post reports, Placebook cried uncle and is now calling itself TripTrace. And now Facebook has taken “Teachbook, a teacher’s network, to court, for ‘rid[ing] on the coattails of the fame and enormous goodwill of the Facebook trademark.’”

The parody site Lamebook, however, has taken the fight straight to Facebook:

the parody site, Lamebook, however, a more direct course of action seemed the right tack. “The Austin-based Web site filed a complaint in Texas against Facebook, asserting its right to the name ‘Lamebook.’”

Fighting Facebook’s overreaching.

I’ve written plenty about copyright overclaiming and its pernicious tendency to stifle clearly legitimate appropriation of copyrighted works. As Richard Posner has written, the fear of litigating against rich copyright holders who place a premium on their fear of losing something of value leads to behavior based on law that isn’t at all what the law is supposed to be.

Of course, the over zealous assertion of purported legal rights by wealthy litigants to cow the less wealthy is not the type of behavior limited to copyright. It comes arises in all legal fields. And, unsurprisingly, Facebook apparently is prone to the practice. As Boston.com reports:

Boston-based Where Inc. has developed an application that helps users find places they might like to visit. You can save it in something called a Placebook.

Just one small problem. The owners of Facebook have apparently decided that Placebook is in violation of its intellectual property rights. Facebook argues that companies like Placebook create confusion among consumers, thereby diluting the value of their unique brand. (Hyperlink added.)

It seems to me a bit of a stretch to worry that someone would consider Placebook to be a product of Facebook. And while Facebook is a pretty brilliant name, it’s hardly original — filched as it was, after all, from the colloquial term that Harvard and many other colleges give to the photo directories they distribute to students. (At my undergraduate institution it was known as the “Pigbook.”)

But Facebook doesn’t have to worry too much about the legitimacy of its claim as long as it’s just legitimate enough to pass the giggle test and thereby scare potential defendants into giving up without a fight:

In a cease-and-desist letter to Placebook’s lawyer a couple of weeks ago, Facebook’s lawyer wrote that, in the US alone, it has successfully intervened to prevent the registration of the trademarks Officebook, Flickbook, Geezerbook, Doctorbook, Lawyerbook, and my personal favorite, Redneckbook, which would have been a website for the hunting-and fishing crowd.

Placebook, however, is not so easily bullied. Just as importantly, Placebook has a lawyer who recognizes bullying when she sees it:

“I think Facebook is having an identity crisis and they are acting like predators,’’ said Kimberly B. Herman, an attorney at Sullivan and Worcester who is representing Placebook. “It’s very predatory and not reasonable.’’

In previous cases, Facebook has gotten its way simply by firing off a threatening letter, according to Herman. That’s what happens when a company valued at nearly $7 billion unleashes its legal might against start-ups. “Every entity has rolled over and died, because no one has $6.9 billion to fight them,’’ Herman said. (Hyperlink added.)

The writer of the Boston.com piece agrees with me in thinking that “consumers are smarter than Facebook gives them credit for and are not likely to get Placebook and Facebook confused.” Unfortunately, “a court may have to decide that — if, of course, Placebook doesn’t back down, as others have.” Here’s hoping Placebook has the resources to send Ms. Herman out to fight for them.

Those naive little innocents may be a lot smarter than you, Mr. Prosecutor.

The range between online fluency and online ignorance is remarkable these days. It is largely, though certainly not entirely, generational. One example of this gap in fluency was the discovery by one of my more technically proficient students in a case we read in my Contracts course of ignorance regarding the technical implications of an online transaction. The ignorance, in my student’s opinion, undermined entirely the judge’s reasoning.

Ars Technica brings up another example, this one perhaps disclosing the naivety of a prosecutor:

Rodney Bradford, a 19-year-old Brooklyn resident, was arrested last month for allegedly robbing a man at gunpoint. This, in itself, was not a very newsworthy event—until his defense lawyer discovered that Bradford had made an update to his Facebook profile at the time of the robbery. Bradford had insisted that he was at his father’s Harlem apartment at the time, and that the update was made from there. When the district attorney verified the claims with Bradford’s father and stepmother and the IP information with Facebook, the charges against Bradford were dropped.

But, of course, “it’s obvious to everyone . . . that the Facebook posting could have been made by someone else, and there would be no way to truly verify who was sitting in front of the computer at the time.” As John Jay College of Criminal Justice law instructor Joseph Pollini points out, it might not be sufficient for the prosecutor to shrug off the possibility simply because the alibi is a teenager’s — teenagers likely know better than anyone how to construct such alibis (and that older people often fail to see through them):

Some of the brightest people on the Internet are teenagers. They know the Internet better than a lot of people. Why? Because they use it all the time.

Do you know you’ve agreed that Amazon can decide you’ve agreed to something other than what you agreed to?

I teach contract law. One of the most interesting issues in contract law is the extent to which it is based on conscious agreement. Theoretically, two free individuals are at liberty to agree to govern their relationship with respect to any given matter (the sale of a car, the division of assets in a divorce, the employment by one of another, the limitations on the use of materials posted by one on a web site governed by another) in any way they agree.

One problem with this theory is that so few of our contractual relationships are based on anything resembling conscious agreement. When is the last time you read a rental car agreement? The agreement governing use of your credit card? (Well, we might all be doing that more these days.) The terms of service governing your Facebook account?

The vast majority of us never read the terms of service governing our use of commercial web sites. Yet there is little question we are bound to them and that we entrust them with our creative work and our information we want to keep private. More surprisingly, perhaps, when we agree to these terms of service we almost always agree that the service provider can change the terms unilaterally. In other words, we are agreeing that our relationship with the web site will be whatever the web site decides that relationship will be.

As Plagiarism Today explains:

[I]t is standard practice for many sites to silently change their terms of service as the terms itself allow them to do. Users are often unaware of potentially worrisome changes until after a problem has arisen, when it is often too late to do anything about them.

But now the Electronic Frontier Foundation has created “‘TOSBack‘”: a ‘terms of service’” tracker for Facebook, Google, eBay, and other major websites”:

At www.TOSBack.org, you can see a real-time feed of changes and updates to more than three dozen polices from the Internet’s most popular online services. Clicking on an update brings you to a side-by-side before-and-after comparison, highlighting what has been removed from the policy and what has been added. . . .

“Some changes to terms of service are good for consumers, and some are bad,” said EFF Senior Staff Attorney Fred von Lohmann. “But Internet users are increasingly trusting websites with everything from their photos to their ‘friends lists’ to their calendar — and sometimes even their medical information. TOSBack will help consumers flag changes in the websites they use every day and trust with their personal information.”

Does online writing produce better writers? IMHO, it can, but hasn’t yet to any great degree.

In the Chronicle of Higher Education, Josh Keller asks: does the explosion of online writing via social networking sites mean that we’re developing a better generation of writers?

The long and the short of it is that no one knows. Students are writing a lot more, and to audiences about whom they care. On the other hand, Facebook, Twitter, and blogs do not exactly seem to promote the kind of disciplined analysis that most good writing constitutes:

Some scholars say that this new writing is more engaged and more connected to an audience, and that colleges should encourage students to bring lessons from that writing into the classroom. Others argue that tweets and blog posts enforce bad writing habits and have little relevance to the kind of sustained, focused argument that academic work demands.

The debate seems to boil down to whether more writing produces better writing. One researcher states, “People write more now than ever. In order to interact on the Web, you have to write.” But writing, on the one hand, for Facebook and, on the other,  to produce an analytic essay or a legal brief, is writing for entirely different purposes. Sometimes I wonder if the differences are like driving to a Friday night party and driving in the Indy 500 — skill at one does not necessarily translate into skill in the other. As one writing professor quoted in the Chronicle of Higher Education article points out,

[H]e spends more of his time correcting, not integrating, the writing habits that students pick up outside of class. The students in his English courses often turn in papers that are “stylistically impoverished,” and the Internet is partly to blame, he says. Writing for one’s peers online, he says, encourages the kind of quick, unfocused thought that results in a scarcity of coherent sentences and a limited vocabulary.

My own views on the effects of online writing on professional writing are mixed — it hasn’t been the benefit idealists hope for, but it’s an outstanding tool that, properly used, could be a tremendous benefit to producing a new generation of excellent writers.

On the one hand, I have encountered again and again in the past couple of years student efforts at professional writing that are so stylistically inappropriate as to make me cringe. I recently read, for example, an analysis of the jury system that read entirely like a People Magazine article, full of superficial quips and an endless series of references to examples obvious to everyone – the principal point of reference was the O.J. Simpson trial (which, incidentally, I consider an example of atrocious lawyering on the part of the prosecutors, not a failure of the jury system).

On the other hand, the internet is here, and we better get used to it, even if we are training lawyers or political analysts. Students write  a lot on social networking sites. As the article points out, “Students in [one] study ‘almost always’ had more enthusiasm for the writing they were doing outside of class than for their academic work . . . .” Moreover, online writing is “self-directed,” is “often used to connect with peers” and usually is aimed at a “broader audience” than is professional writing. One of the most interesting points to me as a legal writer is that online writing is “also often associated with accomplishing an immediate, concrete goal, such as organizing a group of people or accomplishing a political end . . . .”

These are all characteristics that quite plainly can be used to produce better professional writers even if they have not yet been used effectively to this end. I have struggled to exploit student enthusiasm for online writing. Two years ago, I created a class wiki directed at creating a brief writing check list. I did not consider the effort terribly successful. One year ago, however, I created (as the Chronicle of Higher Education noticed) a class blog to explore issues regarding copyright and fair use in connection with a legal brief the students were assigned to write. While the blog became almost entirely the product of my own work rather than that of my students, it was a huge success in producing better work product. The students were engaged in and argued about the blog, and that engagement and passion produced work that was far more thoughtful and disciplined than anything I could have imagined without the blog.

So does Web 2.0 produce better writers? If you think it does so merely because it makes people write more, no. But it is a tool that, properly employed, sure can help.

Don’t “friend” judges!

I write again and again about how changing technologies clash with law based on old technologies, but this is a particularly appalling example. In North Carolina, Judge B. Carleton Terry, Jr., who was presiding over a custody dispute, became a Facebook friend with Charles A. Schieck, an attorney for the father of the child whose custody was the subject of the dispute. As the Public Reprimand issued by the North Carolina Judicial Standards (pdf) recounts, before the matter was resolved, the Judge checked Schieck’s Facebook account and noted that Schieck had posted a question about what he would have to prove to prevail in the custody dispute. Then,

Judge Terry posted on his “Facebook” account [that] he had “two good parents to choose from” and [that he] feels that he will be back in court,” referring to the case not being settled. Schieck then posted on his “Facebook” account, “I have a wise Judge”.

Our adversary system is founded on there being an adversary. Communications between one party and the judge without the presence of the other party (“ex parte” communications in the jargon of the law) are, therefore, forbidden (except under exceptional circumstances). I remember in law school standing with my clinical supervisor in the doorway of a courthouse in Flint, Michigan, where we’d just attended a hearing for a client I was representing. It was pouring rain, we didn’t have an umbrella, and we’d decided to wait out the storm in the shelter of the doorway. A minute later the judge we’d just appeared in front of walked out, and stood next to us, smiling and saying hello. My supervisor grabbed my arm, pulled me out into the rain, and walked with me to her car. I asked what was going on, and she explained: “We can’t talk to the judge!” I got it. Getting soaked to the skin in the only suit I owned was better than risking an ex parte communication with the judge.

Judge Terry also did research online on the mom in the custody dispute without telling the parties.

Don’t befriend judges on Facebook!

Wiki contract drafting – wow, I wish I’d thought of that.

This is a very interesting innovation in contract drafting.  Facebook has announced the following to its users:

We are giving you a greater opportunity to voice your opinion over how Facebook is governed. We’re starting this off by publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we’ll consider—or the reason we won’t consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use. With both documents, we tried hard to simplify the language so you have a clear understanding of how Facebook will be run. We’ve created separate groups for each document so you can read them and provide comments and feedback. You can find the Facebook Principles here and the Statement of Rights and Responsibilities here. Before these new proposals go into effect, you’ll also have the ability to vote for or against proposed changes.

Mr. Potato Head, Esq.

E-Commerce Times reports that “Hasbro has dropped its lawsuit against the makers of a popular online version of board game “Scrabble.” As reported last summer by the New York Times, “Looking to cut down its main competition and most high-profile copycat in the growing market for social gaming, Hasbro . . . sued the two Indian brothers behind the popular Web game Scrabulous, which has more than half a million regular users on the social network Facebook.”

Given the boost to Scrabble’s sales provided by Scrabulous’s popularity, many had wondered at the wisdom of Hasbro’s lawsuit. At the time, Josh Quitner wrote, “[A]s a tech writer and life-long student of what passes for Internet economics, I’m baffled. Is Hasbro just a stupid Potato Head? Or is this a brilliant game of Stratego?”

Mike Masnick explains:

It’s difficult to see how Hasbro could have handled the Scrabulous situation any worse. Scrabulous, of course, was a Scrabble-like game made for Facebook, which quickly became one of the most popular apps on that social-networking site. Hasbro, which owns the rights to Scrabble in the U.S., didn’t have its own version, and rather than recognize an opportunity, it chose to shoot itself in the foot, suing the brothers who created it. The Scrabulous guys eventually came back with a slightly modified game, which became quite popular as well, while many angry Facebook fans organized boycotts of Hasbro products. Prior to that, of course, the attention brought about by Scrabulous had resulted in a renaissance for the game, leading many people to go out and buy physical Scrabble sets. Yes, Hasbro took a situation that was driving more sales of the board game, and turned it into one where thousands of people were boycotting its products.

Back when Hasbro filed the lawsuit, Barry Nagler, Hasbro’s General Counsel, had explained that “Hasbro has an obligation to act appropriately against infringement of our intellectual properties.”

I’ve said it before and I’ll say it again: being a good lawyer isn’t just a matter of knowing and enforcing the law. It’s a matter of knowing and using the law to advance the best interests of your clients. The mere fact your client’s intellectual property is being “infringed” does not mean that your client’s best move is to go out and try to crush the infringer.

A couple of small laughs

A couple of amusing things this morning, a dismal day here in Detroit.  First, from CNet comes the news that

A British woman has reportedly been kicked off a jury for posting a “note” on Facebook asking her friends what they thought of the trial.

She was given the boot after the court received a tip about the posting. . . .

The woman’s name has not been released, but the court appears to have been Burnley Crown Court in Lancastershire, and the case involved child abduction and sexual assault. According to The Sun, the woman posted details of the case on Facebook and added, “I don’t know which way to go, so I’m holding a poll.” Yeah, that’s bad.

The trial is said to have continued with 11 jurors instead of 12.

 And from Overlawyered comes the tip that Sullivan & Cromwell, a major and very established New York City law firm, employs an attorney named Soo Yoo.  Which reminds me of William Gaddis’s A Frolic of His Own, in which 

Oscar Crease [is] a college instructor who is suing both a film company and himself.  Firstly, he is convinced that a Hollywood mogul has plagiarised an unpublished play of his about the American Civil War and turned it into a blood-and-guts blockbuster.  Secondly, he has managed to get himself run over by his own car while hotwiring it and, through the insurance company, he is claiming damages against himself. 

The brand of Crease’s Japanese car? Sosumi.

Jurist – the oldest and still greatest legal news site

The page is designed to give our US and worldwide audience a space in which to share their JURIST experiences and their common interest in the legal news and commentary that we offer every day, while giving readers occasional behind-the-scenes peeks at law student staff operations here at the University of Pittsburgh School of Law, JURIST’s host institution. After more than a decade of delivering content to hundreds of thousands of largely anonymous readers around the world, our staff is looking forward to seeing the faces and hearing the voices of the ever-growing number of JURIST readers on the Facebook service!

Not only is Jurist one of the Ancient Wise Oracles of the online legal world, it is a moment-to-moment legal media center.  Just to give two examples of particular concern to me:

As I wrote yesterday, Google seemed on the verge of settling the long-running and profound disputes concerning its Google Library Project.  Jurist now reports the settlement is final:

With respect to another profound concern of mine, military torture, Jurist reports that a federal judge has ruled that evidence obtained by torture cannot be admitted in the trial of a Guantanamo detainee:

A US military judge ruled Tuesday that a confession given by Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive] to Afghan officials following his capture in 2002 was obtained using torture and is therefore inadmissible at his upcoming military commission [JURIST news archive] trial. Army Col. Stephen Henley found that Afghan officials threatened to kill Jawad and his family unless he admitted to throwing a grenade that injured three US soldiers in Kabul in 2002. Henley ruled that obtaining a confession using threat of death amounted to torture, and that under Guantanamo trial rules his confession is therefore inadmissible. Reuters has more.

Jawad, who was transferred into US custody after the confession to the Afghanistan government, was designated an “enemy combatant” in 2004. He was later charged [charge sheet, PDF; JURIST report] with attempted murder and intentionally causing serious bodily injury for his role in the attack, which injured two US soldiers and an Afghan translator. The case against him faces growing problems. Last month, former military commissions chief prosecutor Army Lt. Col. Darrel Vandeveld resigned [JURIST report], citing “ethical qualms” with the military commissions’ defense counsel discovery procedures. In May, Jawad moved [JURIST report] to have all charges against him dismissed, alleging that he has been tortured in US custody and subjected to the so-called “frequent-flier program,” in which certain inmates are moved between cells at two to four hour intervals in an attempt to cause physical stress through sleep deprivation. Jawad, the fourth Guantanamo detainee to be formally charged with war crimes under the 2006 Military Commissions Act [text, PDF], is set to face military commission on January 5, 2009.