Outside the Mainstream

As I sat through yesterday's IEP meeting, I felt grateful. I was surrounded by a committed group of educators capable of handling the frustrating riddle that is my child. Although she's very bright, she has trouble functioning in the classroom for reasons nobody fully understands. After moving her out a mainstream classroom, she immediately went from problem child to unqualified success. We're very fortunate.

In theory, laws like The Rehabilitation Act of 1973 and Individuals with Disabilities Education Act (IDEA 2004) guarantee all kids a "Free and Appropriate Education." They require schools to invest more resources in kids who need them. Such kids get Individualized Education Programs, or a special set of written rules for educating them. If your school district believes in mainstreaming (like ours does) this can cause trouble.

Everybody knows our teachers have tough jobs. Those who take their profession seriously are overworked. Schools are notoriously underfunded, and I know from serving on the Financial Advisory Council of our own District that special education is a huge part of the budget. The ratio of kids to teachers is never as good as anyone would like and no parent is ever satisfied with the amount of attention their child receives.

Special needs kids strain this already strained system. They add demands to a mainstream classroom that schools may not be equipped to handle. Sometimes, the mainstream teachers lack the training or temperament and sometimes they lack the resources. Two recent news stories illustrate the problem. In one, a teacher encouraged her class to humiliate a child with Aspergers by reciting what they disliked about him and then voting him out of the room. In another, the teacher called a kindergartener "pathetic" and asked his classmates if this is the kind of person they want to be friends with.

Illinois' highly restrictive wiretapping law would have frowned on the recording that ratted out the second teacher. Even so, and in spite of my earlier post on privacy, I'm perfectly fine with it. I know first hand the anxiety of trying to function in a mainstream classroom can be hard enough on a child. A stressed out teacher can make things worse, or devolve into the kind of abuse that recently hit the news. Special needs kids like mine will test teachers and schools, sometimes beyond their limits. Having an IEP that details a Free an Appropriate Education is not enough, you have to have the training and resources to implement it. The bottom line is, handling this challenge is the moral and legal responsibility of our schools. If things aren't working, don't blame the five year old, make a change. Give the teacher the training or assistance necessary to do the job right. If that's not working, take a break from mainstreaming and give the special education experts a chance.

Show me the Lifestyle

It's starting to look like associate salaries may be the latest economic bubble on the verge of bursting. First year salaries at some of the big firms have ballooned to $145,000, even $160,000. Even so, it seems hardly a day goes by when you don't see a major round of big firm "separations," Sonnenschein being the latest example. The economics are simple. Supporting these kinds of numbers means something has to give: firms bill more hours, client rates go up, partners take smaller draws. The pressure on associates to bill, and bill "quality hours" is enormous, prompting many to look for less pay in exchange for a better lifestyle. For those still chasing the big paycheck, billing more hours at higher rates for a smaller partner pie is a tough recipe. If you can't make these things happen, you cut costs and cutting personnel is the easiest way to do that. Easier, it seems, than breaking ranks and lowering the first year starting salary. In a market like this, taking less money may mean the most important lifestyle benefit of all: stable employment.

The Unexamined Life

The ironies are piling up. I read David Lat’s blog on going public with his diet while sucking down a root beer float at some roadside Steak & Shake.  We were heading home from a weekend in Memphis where I had been overeating on a grand scale.  David’s premise is: the internet is making privacy obsolete, and that’s a good thing.  People tend to behave better when their actions are public, so posting constant updates on his diet would be a powerful motivator.

I spent a good portion of my weekend getaway publicizing my own life, checking in on Brightkite, posting pictures of the interesting stops, and whistling a few tweets on twitter. Then, of course, there's friendfeed, flickr, and my new friend, Skitch.  Even writing this weblog under a thinly disguised pseudonym, I'm spending a lot of time opening windows into my life.

In spite of all this, I have a knee-jerk reaction to protecting privacy.  The words of Justice Brandeis resonate with me:

the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.

Brandeis wrote that in dissent, so he lost, too.  

Still, I'm not sure history shows that public scrutiny improves an individual's behavior.  Of course, David Lat is no Britney Spears (thank God) and this narrow slice of publicity may just serve its purpose.  I'm rooting for David as I pinch my own belly.  But I question the value of living by committee. You can debate the knowledge of the masses, and a lot of people have.   But the wisdom of the masses is something else, entirely.  I guess I'm just not ready for wikibeing.  I really don't want want people weighing in on some things (parenting decisions jump straight to mind).  Sometimes, the best thing you can do is just make a decision and move on.  Sometimes, the unexamined life is worth living after all.

Lawyer Heal Thyself

For a lawyer, I have an amazingly dangerous house.  In the back yard, there's a tall, wooden play set and a trampoline.  A hammock hangs menacingly over a flagstone path.  In the basement, there's a room that looks like the Gimp's summer home.  We call it the jumping room.  There are mattresses on the floor with plenty of gaps to the concrete floors and walls.  A swing and olympic-style rings hang from the ceiling.  We're also in the process of building an attic kid's nook with trap door access about 9 feet off the ground.

Tonight, we hosted a meeting for our Indian Princess tribe, an organization for girls age 5 to 10ish and their dads.   So, the house the was filled with 15-20 little girls... running around, inhaling sugar, poking the campfire, riding the hammock like a surfboard and jumping en masse on the trampoline.  And in all this chaos, nobody got hurt.  That is, until my son clocked his sister in the head with a toy truck.  Knock on noggin, sibling violence and general clumsiness have been the only major sources of injury in the Fortis household.

Even so, lawyer-me keeps screaming advice in my head:  "This place is a menace.  Get rid of that jumping room. One at time in the trampoline. Quote that $10 million umbrella policy." But kid-me just looks around and says: "cooool."  So far, kid-me is smoking lawyer-me like a cuban cigar.  

Great Moments in Legal Writing

After yesterday's rant on wrong v. write, I thought a different approach might be better. Why not let our profession speak for itself? Or as it would say, (ahem) res ipsa loquitur. (Lord, how I love Latin in the morning.) Here is a nice example of legal writing I picked up in my own practice. This is from a Complaint filed against one my clients in the Circuit Court of Cook County:

Plaintiff has worked very hard to establish its name and reputation in the business community and, as a result of its efforts, has a stable of repeat customers, many of whom have been customers for several years.

Now I've had some unruly clients, but I've never once thought of putting one in a stable.

Starting today, I'll be collecting these "Great Moments in Legal Writing" as a regular feature on this site. So, watch this space and if you have items to contribute from your own practice, drop me a line at: lex.fortis [at] gmail.com.

Same is not a Noun

Every industry has its own jargon but few reach the depths plumbed by lawyers. I’m not talking about terms with special, legal meaning like “warranty,” “deed” or “personal jurisdiction.” Those are necessary evils. I’m talking about a host of bad habits that make lawyer English nearly unrecognizable.

One trait of this self-important writing style is using ordinary words in strange ways, like “said person.” You know, saying “entered into the house of the said person” instead of, “went into his house.” Another feature is the “more is more” school of writing. Why say “hard” when you can say “problematical.” Why say “OK” when you can say “I generally concur with the proposed language, albeit, with some reservations?”

Who talks like that? Dead lawyers, and that’s part of the problem. New law students spend their impressionable first years studying gems like Marbury v. Madison. Take a look. Did you get the point of the case? Well, neither do most of the 1L’s who read it. The lesson most seem to take is this is how great lawyers write.

Note to lawyers: “same” is not a noun and “said” is not an adjective. Clear, simple writing is effective. Complex, affected legalese is not. Write simply. You can do it, it’s not problematical.

You've Got Mail!

Like most attorneys, I do a lot of my work by email. Many of my clients have joined the paperless trend, requiring electronic communications. More and more courts have embraced electronic filing, especially the federal courts. I keep my emails like the firm keeps its paper files, in separate folders organized by client and matter. All of my active files are in one folder and all of my closed matters are in another.

Storing things electronically has a lot of advantages for me. I can use an indexing application to quickly find things it might take a paralegal a half an hour to locate. This makes me more efficient, more effective and saves money for everyone. However, not everyone is a fan. I recently had a more or less friendly discussion with our firm's IT guy, who told me my 5 GB-plus mailbox was unstable.

While I like saving my emails, I also assumed that I was required to keep them as part of my obligation to retain client files. I said as much to our IT guy after he strongly suggested I start pruning. Lucky for me our IT guy is not a lawyer because it turns out my obligation is not so clear after all.

Lawyers are always playing catch-up when it comes to technology, so I guess it's not all that surprising that there are no clear rules on what we have to keep. It is now generally accepted that an attorney is obligated to retain his client's files. That is, most jurisdictions say you have to keep those things that were "reasonably necessary to the client's representation." So does that include email? Not necessarily, according to the Pennsylvania Bar Association. They concluded that email was something "that the client would not normally need or want, and therefore would not typically be" considered part of a client's "file." I think a lot of my clients would disagree, and since they're the ones in charge, I'm keeping my bloated mailbox.

Say it Don't Spray It

I got a brief the other day from an opposing lawyer that was filled with blogging material. This was a motion for reconsideration, sort of like an appeal but to the same judge who ruled against you the first time. Apparently, this guy thought he lost because wasn't speaking loudly enough. His brief was filled with rhetorical questions rising in crescendo until counsel finally broke the tension and answered:

This case is a question of the insurance industry's intent to provide this coverage in using this policy language, not one of outdated... law premised upon cases decided before the industry decided to provide coverage!

Nobody likes to be yelled at. Certainly the judge who disagreed with you the first time does not like to be yelled at. And as one Federal Judge observed, "[r]egrettably for plaintiff, the use of multiple exclamation points, all caps, and bolded text is no substitution for citation to binding legal precedent." Rosell v. Kelliher, 468 F.Supp.2d 39, 48 n. 13 (D.D.C. 2006). Motion denied.

Something's Rank at U.S. News

My law school roomate and I used to have epic battles over whether the U.S. News and World Report Law School rankings meant anything. My view was the rankings were basically meaningless pseudoscience. His view was, if they mean something to employers, they mean something. With the benefit of a few years, I think we were both right. Well, mostly me (sorry, Tim).

I don't need to add to the pseudoscience debate. Law schools game their numbers to raise rankings, alumni vote their schools highly, putting numbers on subjective criteria is a fallacy, etc. I'd rather hit Tim's point head on. I'm now in the position of interviewing prospective lawyers, considering their credentials and helping to decide whether they rate a job offer. Neither me, nor anyone I know pays any attention to the U.S. News rankings and here's why.

With a few vaunted exceptions (schools like Harvard) law school reputations are largely regional. In its current list, U.S. News categorizes Washington & Lee as a "top tier" school, no. 25. I'm sure Washington & Lee is a fine school, but I don't know a thing about it. My own experience gives me a feel for lots of schools, most of them in the Chicago neighborhood. So, a candidate from Loyola University Chicago, University of Illinois or Iowa, is going to have an advantage with me even though all are ranked "lower" by U.S. News. I know something about these schools and when you're taking a chance on a legal hire, you go with the devil you know.

Which brings me to the real purpose of the U.S. News rankings, law school recruiting. These rankings are wildly important to one group of people: prospective law students. I admit it, I poured over the 1995 edition myself. But here's a tip for those of you running endless U.S. News comparisons, two actually. First, the most important law school "rank" you will ever have is your class rank. A top 10% student at a "lower tier" school will have more job options (if local options) than a middle of the road student from School No. 25. Second, Law school costs a lot of money. Do the math and and amortize that cost out 10-15 years to get a sense for your real salary after graduation. A "lower tier" state school with much lower tuition may be your best bet in the long run. They often have strong local alumni networks and you might just be able to afford that Hyundai in 10 or 15 years.

What's in a Name?

I've been involved in a quite few IP-related matters. A lot involve claims that somebody stole (or might steal) their trade secrets. Some deal with more traditional issues like licensing, patents or copyrights. One memorable false advertising case came up after someone (allegedly) took out a series of ads using a picture of someone else's product.

Of course, the internet is an IP Wild West, tamed somewhat by a posse of archaic laws and an inconsistent patchwork of treaties. And all this time, I've managed to avoid any IP run-ins on the Net-- that is until now. A client has managed to build a sewing and embroidery business on the internet, trading under the name Stitches So Sweet. As the business became more successful, she took steps to protect the name, starting with registering it as a federal Trademark and Servicemark. As a precaution, she also bought the URL stitchessewsweet.com.

But the Web is a big place and it didn't take long before someone opened a online store on a Web-based marketplace. They called their store "Stitches Sew Sweet," selling personalized burp cloths, bibs and market totes, just like Stitches So Sweet. They monogramed tees and onsies, just like Stitches So Sweet.

Names are very important, especially on the internet. Building a reputation and search engine cred takes huge investments of time, energy and cash. And Trademarks are unusual. A lot of the time, you can chose to let a legal issue go without taking a lot of risk. Not so with Trademarks. If you don't protect them they can weaken and won't protect you.

In this case (at least so far) everybody is playing nice. The OSP is responsive and the User has agreed to stop using the name. If you run into a similar issue, be prepared, the OSP will probably want you to submit a notice that complies with the Online Copyright Infringement Liability Limitation Act (OCILLA). This law is supposed to protect copyrights and gives OSP's a "safe harbor" if they promptly take down offending material after proper notice. A "safe harbor" from lawsuits, that is. Trying to create a lawsuit-free zone is pretty attractive thing, so many OSP's will try to shoehorn other IP issues (like trademark infringement) into the OCILLA framework. They might require that notice be given in a certain way and may even claim the safe harbor applies.

If all you want is the offending material taken down, then playing ball may be the easiest thing. However, if you're dealing with something other than copyright infringement then you might be entitled to more than just removal and claims of a "safe harbor" may be a lot of digital smoke.

Good Morning

It's been a while since my last post--  probably about two years ago on the iFractal blog.  I've recently been busy tweeting on twitter.  Careerwise, I've had a nice string of W's lately, including this one.  More soon.