Chuck Newton

The Supremes

In anticipation of the PBS special on the Supreme Court, I offer something more entertaining.  The Supremes

Frank Sinatra In Tokyo In 1985 - His Version of Mac The Knife

John Jantsch -- Duct Tape Marketing -- Was Good To His Word

John Tantsch promised bloggers who announced his new book, Duct Tape Marketing, that he would send them a FREE copy.  Everybody knows that I like FREE, so I said to myself, "why the hell not".  Well, John, who also has a blog entitled Duct Tape Marketing, was good to his word.  I received his book yesterday.  I initially threw it on my desk and thought, "that was fun", and maybe I will get to it a little later.  But, that big role of duct tape on the cover of his book kept staring at me.  I starting thinking, "what the hell does that really stand for"?  Finally, I picked up the book and started reading it.  It is really pretty amazing.  I am not through with the book, yet.  However, I would like to point one thing out.  The book is not so much for the big boys.  It is a book dedicated to the marketing of small business.  This means it is dedicated to small law firms, solo practitioners, carpet commuters and Third Wavers.  I know lawyers do not like to believe they need to market, but they do.  And, this is the premise of the book -- marketing is about helping people to know, like and trust you.  What can be better than that.  It is a text, but it is also a workbook of sorts.  From what I've read so far, I would strongly suggest that you order and read it now.

Do You Run A Belief Tank

Did you view Gary Trudeau's Sunday Doonesbury cartoon?  It contains a very anecdotic phrase.  Discussing the Bush Library, one Doonesbury character suggests that the library will also be a "think tank", to which others respond that it will be a "belief tank", defined as a think tank without the doubt.

I have always thought that most law practices represent think tanks without the prestige.  After all, what do we do -- sell donuts?  No, we do not sell a product.  We do not so much sell a service.  We primarily consider the laws, the position of those laws in society, and how those laws effect the public.  We rationalize.  We role play.  We help our clients make it through the cerebral maze that confronts them.  We test and we push the thought process.

Or, do we?

Could it be that most of us are not that neutral in our thinking?  We are not swayed by the facts that apply to the law as they vary in each case?  We believe what we believe and we sell our legal services accordingly.  We know we are right in a particular area of the law, we sell it one way, and we have a big, big chip on our shoulder daring everyone, anyone to knock it off?  After all, as said by George Bush, we are the deciders.  Maybe many of us are operating a "belief tank", or a "think tank without the doubt"? Maybe many of us have drunk the cool-aid?  Maybe many of us are true believers?

Just a thought.

Who Bares The Cost Of Fixed Fees?

I was entrusted with a complicated little situation concerning a "paid up" life insurance policy that ultimately reminded me of the scariness of legal billing for both the consumer and the attorney.

Basically, who does and who should bare the cost of things not turning out as planned?

The insurance company sells a policy with a face value of 5 times the actual amount paid in, and sells it based upon the fact that it is a "paid up" policy that will pay out after the final spouse passes, provided that the final spouse passes by age 90. 

The only problem is that none of these representations are based upon any actual figures or facts.  They are based on assumptions, just like legal fees.  They are based upon a bunch of factors that might turn out to be true or not true.  Like everything in life, rarely does something turn out like it is planned. 

The question then is who has the risk of these variable not working out? 

In the insurance case "paid up" is determined upon the interest projected to be paid on the cash value of the policy, the cost of the premiums in the future and the life expectancy.  In the case at hand, none of these turned out to be accurate.  It is not a matter of a good faith attempt to estimate correctly, it is just that nobody knows what the future holds.  The insurance company never achieved a level of return projected, the premiums turned out to be more than what was predicted, and the life expectancy issues is Kaput.  The person that owns the insurance policy does not have a true "paid up" policy and has not in retirement been able to fund unexpected premiums.  Therefore, the face value of the policy has been reduced to the extent that it is not much more than the cash value.  Insurance companies advertise and promote "paid up" policies but they are not.  They are based upon guesswork that is typically wrong.

The policy holder pays the price for it the insurance company's assumptions being wrong.  Likewise, when attorneys who charge hourly estimate fees and costs, there are simply too many variables for any rational person to figure out what it will ultimately cost, especially in the area of litigation.  The question is who bares the ultimate costs of these assumptions?  The attorney?  That does not seem reasonable.  It is beyond the attorney what the opposing side does or what the attorney's own client might do.  Unit billing might be better, but that is ultimately the problem with fix fees on legal matters.

Martin And Lewis - Bongo Bingo

You like Dean Martin with all of his coolness, I thought you might like to see the zanier side of Dean Martin and Jerry Lewis.  Just good old stupid fun.

Dean Martin - Everybody Loves Somebody Sometime - Funny Medley

Dean Martin had the ability to be a little crazy, but otherwise he was smooth.  The right combination of serious music and acting up.  He had the ability to make fun of himself.  Any good virtual practice requires some small, fun, cheap, and enjoyable distractions.  For me it is Internet radio and YouTube.

Does Ugly Sell Legal Representation?

HuffPo's Eat The Press Blog had an interesting post entitled Does Ugly Sell Magazines? The article covered a recent Star magazine cover that stuck out like a sore thumb of ugliness amongst the glossy, prettied-up images, and featured a fat Brittney Spears and other glamor actresses at their worst.

It made me think, does ugly sell legal representation?

I think many times it must.  Or, at least some attorneys believe it does.  How else can you explain the biting, almost vitriol, stuff that some lawyers put into their pleadings, their letters to opposing counsel, and the backbiting statements made at court when clients are present?

I received an email not long ago in response to a settlement offer my office made (at opposing counsel's request by the way), in which a creditor, had willfully violated a federal court injunction informing it not to file a lawsuit against the debtor, and it had.  The lawyer first placed at the top of the letter that the email was "highly confidential".  They he proceeded to call me a "blackmailer", that my clients were unscrupulous, that the judicial system is broken, that because I represent clients in this area I was gaming the system, and he was not about to let his client succumb to my unethical practices.  The email ranted on about my vexation litigation practices.  No matter how far his client had to take this matter, he would see that my clients, and my law firm, would not realize "one red cent".  (It is interesting to note, that we later settled the case).

Now, I do not agree with opposing counsel's general observations.  He and his client certainly have a right to have the Court rule on any of these issues.  (In fact, the attorney and client relented when the Court was not impressed with his arguments in this regard).  But, why all of the ugly comments?  Why the personal attacks on my clients and myself?  My pleadings and demand letter were fact intensive, and not judgmental.

As a general rule, these kind of demand letters do not impress me or scare me at this point.  (Although when receiving one I will always go back and reevaluate the facts of the case with the law to make sure we are not wrong).  These arguments and attacks in Court generally do not impress Judges.  In fact, these kind of lawyerly temper fits most often have the opposite effect than what is intended.  It does not encourage settlement.  It encourages more litigation.  It typically results in higher damages awards.  So what is the purpose?

The answer, of course, is that the ugliness is not really for my consumption, my clients' consumption or the Court's consumption.  It is for the the consumption of opposing counsel's client.  These types of clients want to believe their attorney is a junk yard dog, a scrapper, a street fighter prone to kidney punches, clawing and biting.  Opposing counsel, at least, must believe that his client wants to see ugly.  That if he sells ugly to his client, his client will go further, pay more, or generally feel more comfortable with his representation.

We have all met these types of attorneys.  In Court and outside the range of their clients they can be very pleasant.  When their clients show up, or are provided a letter or a pleading, they turn ugly.  It is the Jekyll-Hyde phenomenon.

I was representing a debtor recently in which we settled a lawsuit in which the debtor was to get several thousand dollars where the creditor locked down an abandoned house and would not let the debtor back in immediate to get some of the furniture the debtor had left behind.  The debtor at first agreed to the settlement.  Then the debtor fired me because, as she told me, she thought she was hiring a "junk yard dog" and I turned out to be a "poodle" based upon my letters to opposing counsel and the way I argued in Court.  I told her, first, that I never represented to her I was a "junk yard dog", or that I would behave in any way except in the most courteous manner to represent her interest.  I told her this lawsuit was brought to bring about a monetary recovery for something the creditor had done wrong, and it was not a name calling contest or a hateful quest.  I am knowledgeable in my area and I had managed to achieve exactly what she wanted without trading nasty barbs with the other side or the Court.  I was told it was not enough.  The creditor was made up of a bunch of "sons of bitches" and opposing attorney was a "mother#%&^*!" and I owed it to her to let everyone know this.

I got fired or quit.  I did not get paid as a result.  (It is important to note that the Judge, who had already accepted the settlement dismissed the case and the debtor unfortunately did not recover anything either).  My point, however, is that my client was not interested in money as much as she was interest in an ugly fight.  She wanted an biting, scrapping, obnoxious attorney.  She did not want a civil discourse and a reasonable settlement.

This happens on the other side as well.  The difference is that I will not comply.  I refuse to be the courthouse version of the Jerry Springer Show for the benefit of my clients.  Others lawyers will not.  Some lawyers can and do sell ugly because they believe ugly there legal services.

As for me, I will stick with a C-Span type of practice, and hope I will get enough viewers to make a living and feel good about myself.

My Dirty Little Research Secret

Here is my dirty little secret.  I do not like to talk about it because my colleagues would think I am lame.  But, I start out all my legal research projects (whether preparing a pleading or a legal brief) with Wikipedia  Google and YouTube.  Another of my favorites is Dogpile because this search engine searches all of the other search engines to bring you the top finds of each on whatever you input.  All I can ask is that, shhhhhh, please do not tell anyone.  Oh, the utter shame of it all!

One, these services are FREE.  They are extensive.  Two, they all provide a great survey of the legal landscape that you are researching.  If I want to know who I am about to sue, if I want to know if a company has had any other similar complaints, if I want to know if the government or anybody else is after a potential defendant, if I want to generally look at a legal issue or a particular case sited, if I want to determine the exact definition of a term or concept, or any number other things, I start with these sites.

I am not saying that I conclude my research here.  I am not saying that I do not expand upon what I learn or gather.  I am just saying that nine out of ten times this is where I start.

It has gotten so that if another attorney calls me to discuss a matter and refers to a case, I do not get on my legal research or case law website.  I will punch it into one of these sources, and I will generally find the case or the reference.

It was not long ago that I asked when Google was going to bring us true FREE legal research capability.  After all, the cases are open and free to the public.  Google is already scanning the World.  It just needs some more defined search tools specific to this area.  After all, why should we all be paying West, Lexis, LoisLaw or anybody else all of the money we do for access?

What brings this up is a post on the Wall Street Journal's Law Blog asking whether Judges should use Wikipedia in their research and in their opinions?  Well, of course they should.  I seriously doubt that judges approach their material any differently than we do.   

As stated by the WSJ, in 2004 more than 100 opinion have cited Wikipedia, including 13 from federal appeals courts.  Some find this objectionable because they say it is an "unstable source", meaning that it lacks some types of quality control.  Well, I find this not so much inaccurate, but confusing.  Because as a reader of many judicial opinions I can tell you that many of these cases represent "unstable sources".  That is the reason that we have multiple levels of appeal.  I might not like what some judge says, how he reasons out an issue, or performs his legal research, but say that these decisions have any more quality control, or that they are more stable than Wikipedia just is not accurate.

Law review articles are often cited in legal decisions.  Attorney general decisions are cited in legal opinions.  In fact, out Attorney General had the unmitigated gall to get up in front of Congress and defend his opinion that the right to habeas corpus was statutory rather than constitutional because  the Constitution only defines when the government can suspend habeas corpus and does not say that it grants habeas corpus.  It was his what-the-meaning-of-"is"-is moment.  To say that decision of his, which has also been presented in Court, is stable or has undergone some type of quality control (other than spell check) is a ludicrous position to take.

I would have a problem if a judge or a lawyer started with and stopped with Wikipedia, Google or the rest, but what is the problem in looking at all available sources and mentioning those that stand for reason.

Seventh Circuit Judge Posner, who has cited Wikipedia in a decision said it best: “Wikipedia is a terrific resource . . . Partly because it so convenient, it often has been updated recently and is very accurate.” He added: “It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”

Hot Pockets

Levi Jeans has apparently focus even less on style and actually trying to sell its jeans, and more on litigation lately, having become the most litigious company in the appeal industry.

According to The New York Times, Levi has started to pursue companies that it believes has violated United States Patent and Trademark No. 1,139,254, which defines the pentagon shaped pocket surrounding a childlike drawing of a seagull in flight that was issued to it 133 years ago.

In 2001 Levi filed nearly 100  against its competitors. That was far more than GM, Walt Disney, Nike and other companies that actually have something to protect.

As stated in the article, Levi's competitors say the lawsuits are the last resort of a poor loser, a company that has lost billions in sales, laid off thousands of workers and flirted with bankruptcy as the denim industry exploded.

“They missed the boat,” said Tonny Sorensen, chief executive of Von Dutch Originals, a six-year-old denim and clothing manufacturer sued by Levi’s six months ago for allegedly borrowing the company’s double arcs for a back-pocket design. “Now they want to make a lot of noise and scare people away.”

Levi's North America President says its competitors need to be "more innovative".  You mean like Levi who is apparently relying a design developed over 133 years ago?  Levi cannot seem to rise to the $200 a pair jean craze.  Kids obviously think the jeans are no longer cool.  That being the case I can hardly see how using a 133 year old pocket design is keeping Levi from achieving what others have.  It would seem to tell you that the pocket is not an issue

Levi says it is simply trying to preserve its intellectual property rights, just like pharmaceutical companies that sue generic drug makers over their patents.  But, Lipitor is not 133 years old.  Further, Levi, contrary to its own thinking, does not have medicinal properties.  "Levi's will lower your bad colesteral".  I do not think so.  They cannot even help me build a good looking butt.  Baggy-ass jeans.

It is important to keep in mind that Levi’s sales have plummeted more than 40 percent since 1996 to $4.1 billion, forcing it to close dozens of factories and lay off nearly half of its workforce, or 7,600 employees, in the last five years.

I think Steven Shaul, the founder and chief executive of Jelessy Jeans, got it right when he said, “Why would I use Levi’s stitching? If my jeans sell for $200, I would not knock off $40 jeans from Levi’s.”

As it is, the only Hot Pocket I am even remotely interested in is the one that gets as hot a lava on the inside when you nuke it a little too long.

Even eat enough of these and Levi Jeans will be too baggy in the butt.

I like its Dockers brand, though.  Now those pants are made for fat boys.