Special Touchy-Feely Edition

In This Issue

Electronic media. But don't forget the servers, backup tapes, zip drives, PDAs, and memory sticks!

Did You Know?

I know you know I know you know that on December 1, 2006, new federal rules on electronic discovery took effect. But did you also know that electronic discovery sends the synapses of computer consultants into overdrive?

It so thrills them because so few lawyers know jack about e-discovery. A ton see it as a black box -- and will pay (or allow their clients to pay) big bucks to avoid having to master it.

I could teach you, but I have to charge. (For a free primer, see the excellent work of The Sedona Conference, available online [under "New Publications"] with registration.)

My point: Almost any case, regardless of complexity, boils down to less than a box of documents. Do you think that we ought to focus on finding them?

Your Editor reckons so. Computerization means you can search millions of pages for key words in seconds. Find the hot ones, and you have your less-than-a-box of trial exhibits. Unless, of course, you'd rather do things the hard way.

Please comment.

A Czechoslovakian device for audible detection of enemy aircraft. The Dutch army chose a different design.

Listening to Clients

How does a law firm know whether it has happy clients?

Winning cases of course makes for client contentment. It may produce even giddiness. All of us love to win.

But, short of a client's slobbery kiss or uncomfortably tight hug right after the jury returns a most excellent verdict, how can you know that you've pleased him or her? Simple: Ask.

Marketing firms probe consumer satisfaction all the time, often during the dinner hour. Savvy law firms should, too (except for the during dinner thing).

Susman Godfrey encourages its clients, at the end of each case, to answer a questionnaire. What did we do right -- and wrong? Did we staff your case properly? Did we work efficiently? Did you like the quality? Did we communicate enough or too much? How can we serve you even better in the future?

Over the years, our clients have awarded us a better than 98 percent satisfaction rating -- two points shy of our goal. Clients, we've learned, like us to listen.

Comment here.

Hot Lunch

State troopers everywhere swagger. Even when wearing those pants that make them look like cowboys with bowlegs, they strike the viewer with an impression of oblivious self-confidence.

On this New England winter day, when a woman would go on trial for operating under the influence, a gaggle of state troopers gathered in a meeting room near the district attorney’s office. Months before, two of them arrested the woman after her car weaved back and forth across the center stripe. The report said that she smelled strongly of alcohol, had glassy eyes, and couldn’t walk straight. The usual.

Local police paid attention to me, a law student in a polyester suit. But the state troopers, knee-high leather boots glistening, paid little mind to polyester law school boy.

That drove me nuts. These guys thought, with justification, that any judge would believe whatever they said, even if they sat on the witness stand in their splendid uniforms and read from their report. Even if they just pretended that they remembered this stop out of the hundreds they’d made before.

My questions about details of the stop miffed them. Why did you pull her over? Don’t look at the report! What do you remember?

I said how can you not recall whether or not a nice-looking young woman you put in the back seat of your car wore a skirt? Didn’t you notice her bare legs? Don’t you like girls?

That did it. Yeah, they said, we’d have noticed that. Come to think of it, she did have some kind of dress on. [Here Your Editor's recall fails him.]

But it didn’t turn out the way I’d hoped. Her lawyer passed a chance at acquittal in a judge trial and chose to skip on to a jury trial another day. I never even got to meet her.

Comment here.

Psychodrama -- Qu'est Que C'est ?

The Incredible Hulk acts out by hurling stuff at hovering helicopters in Ang Lee's 2003 movie. Might Hulk have benefited from psychodrama therapy?

New wave band Talking Heads recorded Psycho Killer in 1977, the year of Your Editor's high school graduation. The song starts with "psycho killer, qu'est que c'est ?" ("what is it?") and then goes into "fa fa fa fa fa fa fa far better" and "run run run run run run away".

Psycho Killer tells the story of a murderer's dialogue inside his twitching melon. Like The Incredible Hulk, he gets uncontrollably angry. It makes for high musical drama. Possibly, as in Hulk, psychodrama.

Speaking of which, Silkwood advocate Gerry Spence loves to teach trial lawyers to increase their effectiveness with jurors. His method? He calls it psychodrama.

Psychodrama -- qu'est que c'est?

A recent article in The Los Angeles Times, "Lawyers learn to share their pain with jurors ", describes the allure of psychodrama for people who try cases, especially on the plaintiffs' side. Through re-enactments of events in their own lives, lawyers discover their own traumas; admit their personal vulnerabilities; relate better to the hurt of their clients; and, as a result, convey that anguish to jurors.

Can that possibly work? Um, er. Well, um, er.

Maybe.

Psychodrama tries to sensitize lawyers to the hopes, fears, and pain of the people they represent. That, according to the theory, enables lawyers to empathize with their clients and thus to gain the empathy of jurors for their clients. The personal connection reduces the jury's self-protective resistance to acknowledging the clients' injury and feeling the clients' pain.

Whatever the merits of psychodrama -- and many do indeed swear by it -- he who wins the battle over jurors' feelings most often wins the case. Psychodrama may remind us of our humanity. And that can make killer lawyers.

N'est-ce pas?

Barry Barnett, Editor

Post a comment -- if you dare.

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Jerk Filter

Sacha Baron Cohen waves Kazakh and Canadian flags at the premiere of Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (2006). Cohen makes fun of jerks -- none of whom, we hope, clerked for a federal judge.

According to a new study by Hildebrandt International, lawyers score high on four out of 18 personality traits. We soar like eagles on "skepticism" (90 percent versus the 50 percent norm of the general public), "autonomy" (89 percent), "abstract reasoning" (82), and "urgency" (72). We rock!

But let us also note a couple of shortcomings. We receive an ugly 30 percent rating for "resilience", reflecting intolerance for rejection. And on "sociability" -- the capacity for "initiating new emotional connections, being interested in disclosing your inner life and remembering the details of others' inner lives" -- we get a piddling seven percent.

Now think of jerk lawyers you know -- aggressive, pompous, caustic, demanding, and insecure, among other things. They may make brilliant law technicians but horrible colleagues. And they probably have the sociability skills of the frat boys in Borat.

How can firms and legal departments filter out jerks from the recruiting process?

Your Editor has an idea. Federal judges display good instincts about people. The law students that they choose as clerks, more often than not, exhibit fewer of the personal failings that constitute jerkhood. A federal clerkship serves as a decent proxy for non-jerkiness.

At Susman Godfrey, we encourage clerking for federal and state appellate judges. Twenty-nine out of our 32 associates and 32 out of our 40 partners held clerkships before joining the firm. And at least a solid majority of them deny having anti-social tendencies.

Our clerk learnings make benefit glorious firm.

Comment? Do it here.

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YouTube-al Litigation

The YouTube emblem on a fake television screen. Google bought YouTube for $1.8 billion in stock. We have no word yet on when YouTube will publish clips of their founders rolling around in a room full of $1000 bills.

In November 2006, a whirlwind romance between search engine behemoth Google and video clip publishing titan YouTube led to Internet matrimony. The online nuptials followed hard on the heels of a passionate pitching of Yahoo-woo in YouTube's direction. The Google-on-YouTube action of course dashes the hopes of Yahoo for inter-corporate bliss, although Yahoo insists that it broke up first.

(Yahoo Chief Therapy Officer declined comment on the company's feelings.)

What does the cyber-marriage portend for intellectual property rights -- and litigation over them? Possibly a lot. Before its Googling, the awesome success of YouTube since its founding in February 2005 didn't translate into a big pile o' cash.

The YouTube "I do" changed that in a trice.

Google's connubial inheritance of YouTube's liabilities may prompt, in particular, lawsuits over intellectual property. Online services that provide links to "content" face exposure from the owners of copyright and trademark rights in the content -- even though the links themselves don't display the content.

In a recent case, a federal judge denied summary judgment on a claim that a competitor infringed a retailer's trademark by paying Google to display a link to the competitor's website in response to searches for key words that included the trademark. See Buying for the Home, LLC v. Humble Abode, LLC, 2006 WL 3000459 (D.N.J. Oct. 20, 2006). Under the ruling, if a searcher looks for "Neiman Marcus" and gets a link for knock-off Kate Spade handbags, the search engine may have a problem-o.

Your Editor says that, IHHO, the decision will not cause Google to FOFLOL.

Google has settled similar lawsuits -- see an example here -- and its Googling of YouTube may only encourage more.

Please don't leave a comment.

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Fun with Backdating Stock Options

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