Law and Conversation

January 14, 2012

My BigLaw column: Five tips from the bench

Filed under: judiciary,Law,lawyers,Technology — Helen Gunnarsson @ 4:41 pm
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In December 2011 I wrote a column for TechnoLawyer’s BigLaw e-mail newsletter, “Goliath v. David: Five Tips From the Bench for Large Law Firms That Square Off Against Solos and Small Law Firms.” I based it on my experience as an administrative law judge for the Illinois Human Rights Commission for nearly a decade as well as on conversations I’ve had over the years with judges from a number of different tribunals. (It was a lot of fun to write.)

Now, TechnoLawyer is soliciting reader votes for the best BigLaw column of 2011. The winner gets (1) an ego boost and (2) a virtual TechnoLawyer badge to display on his or her blog, toward bragging. (See below for the badge I received in August.) Since I’d love to have both the ego boost and the virtual badge, I’m asking anyone and everyone as well as their spouses, kids, law partners, and friends, to please vote for my column. You just have to sign up for a TechnoLawyer account if you don’t already have one, which doesn’t cost anything, and then click to vote. Here’s the info on how to do it, copied and pasted from TechnoLawyer’s e-mail; MANY THANKS to all for clicking for me.

HELEN W. GUNNARSSON’S BIGLAW COLUMN …

Goliath v. David: Five Tips From the Bench for Large Law
Firms That Square Off Against Solos and Small Law Firms

Vote for This BigLaw Column:
http://www.technolawyer.com/r.asp?L26119&M62987

Read This BigLaw Column:
http://bit.ly/x7Ax6f

TechnoLawyer, incidentally, is well worth signing up for if you’re a lawyer. It provides useful articles for lawyers in all different practice settings, focused, of course, on how to use technology to help you practice law more efficiently. And it’s FREE (at least, the current e-mails are; if you want to read an archived article in the library, you’ll have to pay). I’ve had warm and fuzzy feelings for TechnoLawyer ever since August 2011, when the company picked my cover story for that month’s Illinois Bar Journal, “To Tweet Or Not To Tweet: Twitter For Lawyers,” as BlawgWorld’s Pick Of The Week!

May 20, 2011

Judging books

Filed under: Books and writing,judiciary,Law,literary prizes — Helen Gunnarsson @ 10:20 am
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Big literary news this week: as hoped, expected, and predicted by many as a long overdue international recognition, Philip Roth has won the Man Booker International Prize.

But an interesting angle has overshadowed the substantive news.  One of the three judges, Carmen Callil, resigned in protest immediately before the announcement.

As reported in many media outlets, Callil complained that Roth’s oeuvre is the literary equivalent of the emperor’s new clothes. “He goes on and on and on about the same subject in almost every single book. It’s as though he’s sitting on your face and you can’t breathe.” Callil predicts that 20 years from now, nobody except literary historians will read Roth.

Obviously the two other judges disagreed. One, Rick Gekoski, said Roth began with a masterpiece, “Goodbye, Columbus,” and has only gotten better and better in more than half a century since.

The Guardian has a slew of articles with interesting bits and angles on this story, including one highlighting all 13 authors shortlisted. Callil did an interesting interview on the Australian Broadcasting Company’s “The Book Show” shortly before the three judges met to vote on the prize.  Among other things, Callil said that being a judge had enriched her reading life in part because she’d read so many writers in translation as a result. The Guardian says that Callil will deplore this year’s prize’s failing to “celebrate” any of those writers in her own explanatory essay, to be published tomorrow. She expressed no opinion on Roth, though she and Koval did titter a bit when Koval brought his name up.

I haven’t read, or wanted to read, much Roth. “Portnoy’s Complaint” lost me early on–I’ll just say I left while the main character was in the bathroom 😉 . I did stick with a much later Roth work, “The Human Stain,” and, to my enormous surprise, found that I liked it.

I’m looking forward to reading Callil’s essay in tomorrow’s Guardian. Reading of her disappointment that the prize failed to “celebrate” a writer in translation, I can’t help thinking that the only way around that would have been if it had been awarded to one of those writers, i.e., her choice, I suppose. Several were on the shortlist, which certainly seems to me to be an unequivocal celebration, or recognition, of their worth. The other contenders, who included Philip Pullman, Anne Tyler, and Marilynne Robinson, are also very fine writers. Only one of those 13 marvelous writers could win–that’s just the way the prize is structured. But isn’t it a huge honor to have made the shortlist?

What do you think of Callil’s resignation? Being a lawyer, when I hear the word “judge,” even in the context of a literary award, I naturally think of the courts. Three judges for such a weighty award, selecting from among thirteen finalists, seems too few to me. In my home state of Illinois as well as in the U.S. federal courts, three judges typically sit on appellate panels. If the decision isn’t unanimous, the dissenter doesn’t resign from the panel, but may write his or her own opinion that’s released for public consumption along with the majority opinion. Appeals from that decision go to the supreme court, which has more decisionmakers–seven in the case of Illinois’s supreme court, nine in the U.S.

I wouldn’t suggest authorizing dissents or appeals, but shouldn’t the Man Booker International Prize consider adding a few more judges next time around? I’ll volunteer my service!

UPDATE:  Callil’s Guardian essay is here.

February 1, 2011

More on court opinions on the Internet

Yesterday I posted about the distinction that a decreasing number of jurisdictions, including Illinois and the federal courts, make between “precedential” and “nonprecedential” opinions, historically referred to as “published” and “unpublished.”  Today brings word of an interesting new article by Peter W. Martin of Cornell Law School, “Abandoning Law Reports for Official Digital Case Law.” The article, which you can download without charge from SSRN, discusses Arkansas’s cessation of publishing its state courts’ opinions in the Arkansas Reporter, which had been the official record of those decisions, in favor of posting them on the Internet, where the state’s Reporter of Decisions maintains them as official records, and “explore[s] the distinctive alignment of factors that both led and enabled the Arkansas judiciary to take a step that courts in other jurisdictions, state and federal, have so far resisted.”  Thanks to Prof. Martin for making this article freely available, and a Hat Tip to Paul Lomio of Stanford Law School and Legal Research Plus for posting and tweeting about it.

On still more breaking electronic legal news, congratulations to young legal research provider FastCase on inking deals with the D.C. and Georgia Bars.  I wrote in 2009 about the company’s service, which the Illinois State Bar Association provides to its members as a free benefit, for the Illinois Bar Journal.  As part of preparing the article, I interviewed Fastcase’s CEO, Ed Walters, whose business acumen so impressed me that I interviewed him again and got more great commentary for a subsequent IBJ article on social media for lawyers.

And in other news related to the Illinois Supreme Court’s recent amendment of SCR 23, the state court rule that distinguishes precedential from nonprecedential appellate opinions, my profile of Chief Justice Thomas Kilbride in the Illinois Bar Journal, which includes a sidebar explaining the justice’s leadership with respect to the court’s action, is now up.  (Link may not work if you’re not a member of ISBA, and, if you’re a lawyer or a judge, you really ought to pony up and join 😉 .)  The justice has a fascinating and inspirational story, and I was honored to get to tell it in the pages of the IBJ.

On a completely different subject that has nothing to do with the law or court opinions, here’s a link to a LadyGagaLicious video:  Zheng Lab’s hilarious “Bad Project.” Send it to your favorite scientist!  Hat Tip:  Freelance writer Sandra Boncek Hume.

January 31, 2011

Shakespeare, SpongeBob, and the law

Any article with “Shakespeare and SpongeBob” in the headline will get my attention.  And, indeed, I enjoyed this article from the New York Times on Staten Island Civil Court Judge Philip S. Straniere, who, with a little help from his literary friends, achieves his goal of writing decisions that the litigants can understand.  (The article’s original eyecatching headline has been changed to a less colorful one that omits the literary and cartoon references.)

Judge Straniere numbers not only the Bard and residents of Bikini Bottom among his friends, but also L. Frank Baum, Mario Puzo, Dr. Seuss, Oscar Hammerstein, Meredith Wilson, MAD magazine, and many others, all of which he’s cited in opinions he’s written. 

Lawyers are often criticized as a profession for being poor writers.  I don’t think that’s entirely fair—there are many lawyers who are very fine writers, and many fine writers who trained in the law—but it is true that many statutes, administrative regulations, court opinions, and legal articles, all of which are, admittedly, written by lawyers, rival Ambien as cures for insomnia.  I haven’t read any of Judge Straniere’s opinions, but I’ll bet they’re delightful.

Reading about the judge’s citation of nonlegal sources in order to bolster the understandability of his opinions to his audience–the litigants–made me think about another side of legal writing:  the briefs that lawyers submit to their audience, that is, judges.

Nonlawyers may not generally know that there are two types of opinions issued by many intermediate reviewing courts: precedential and nonprecedential.  They’re also referred to as “published” and “unpublished,” though that’s no longer generally true.  In Illinois, at least, all opinions, state and federal, are published in some fashion, if only on the Internet.  The two types are also referred to as “opinions,” which are published and precedential, and “orders,” which are “unpublished” and not precedential.  The number of states that continue to make this distinction is diminishing, Ottawa (IL) appellate lawyer Michael T. Reagan, who’s studied and testified on the issue, tells me.  The federal courts also continue to distinguish them.

In those jurisdictions that continue to make the distinction, it’s important because precedential opinions are legal authority and may be cited in briefs filed with the court.  Opinions that the authoring courts or judges designate as nonprecedential are often subject to court rules that actually prohibit their citation, except under certain narrowly defined circumstances.  In Illinois, the court rule applicable to those opinions is Supreme Court Rule 23.  In the federal courts, the applicable rule is Federal Rule of Appellate Procedure 32.1.  Federal district courts may adopt their own rules to some degree on whether and to what extent to allow the citation of nonprecedential opinions issued before January 1, 2007.

I’ve written a number of articles for the Illinois Bar Journal on court rules regarding nonprecedential opinions.  The most recent addressed the Illinois Supreme Court’s amendment of SCR 23, which was effective on the first of this year

Whenever I talk to lawyers who practice before courts of review, they wonder why it should be OK, and certainly not prohibited by any court rule, to cite the words of Shakespeare, SpongeBob, the Talmud, or the person they sat next to on the bus that morning, but not OK and, in fact, prohibited by court rule, to cite the words of the very court before which they’re appearing if those words happened to appear in an opinion designated nonprecedential. 

Though the question is rhetorical, it’s a good one.  The answers I’ve heard from proponents of maintaining the distinction include that nonprecedential opinions add nothing to the law (which others say isn’t so), that they’re not as well written or of as high quality as precedential opinions (an assertion that surprises me), and that citing them is never, or hardly ever, persuasive–which may be so, but then again, Shakespeare and SpongeBob probably won’t tip the scales, either.

Lawyers and judges, what do you think?  Can anyone provide other reasons for continuing to make the distinction between precedential and nonprecedential opinions?  Do the courts of other countries make this distinction?

December 17, 2010

E-readers and privacy

Filed under: Books and writing,judiciary,Law,legal technology,privacy,reading,Technology — Helen Gunnarsson @ 10:58 am
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No matter how much you love your old-fashioned paper books, it’s hard not to own up to a few little covetous twinges when you see people with Kindles or sleek iPads.

Students who download their texts on e-readers must love not having to carry around the extra weight of traditional texts.  They must also find being able to highlight, underline, or make notes in their e-books, as the Kindle application permits, incredibly convenient.  Those who commute or travel also love their e-readers, for the same reasons.

But those capabilities have legs which give e-readers a creepiness factor.  I took note some months ago of Gretchen Rubin’s post advising that if you download a book on a Kindle and highlight or take notes, the device reports back to Amazon about your highlighting or notetaking.  NPR now picks up on the issue by reporting on other data that’s transmitted back to Amazon, or Google, or Apple, or whatever other company manufactured your e-reader or the application you use.  Those companies know, or have the capability of knowing, when you read, when you stop reading, where you were while you were reading, and whether you read the whole book or stopped at page 45. 

This information may prove immensely useful to businesses who want to sell more products to consumers, of course.  But what might a government inclined to monitor its citizens’ activities closely do with information about people’s thought processes, I wonder?  Might the government of, say, China require all university students to use e-readers that report students’ reading habits and notetaking back to it, I wonder?

The Wall Street Journal Law Blog reported that at least two justices of the U.S. Supreme Court read briefs on their e-readers, as do an increasing number of judges on lower courts.  What if those judges highlight or underline the arguments of counsel?  Do the e-reader applications they use report that data?  What implications for judicial decisionmaking does that carry?

Of course, data about individuals’ browsing habits is already stored in multiple locations on different computers and servers.  When in doubt, you can assume that online publications generally know your IP address, which articles you’ve clicked on, and other information about you.  If you buy books online, or in a store using a credit card or frequent buyer program, there’s a record of the books you’ve bought.  If you check books out of a library, there’s a record.  Bottom line:  we trade our privacy for what electronic devices, applications, and the internet offer.

NPR quotes Stephen King on the data collection issue as follows:  “Ultimately, this sort of thing scares the hell out of me,” King says. “But it is the way that things are.”

In related news, the Sixth Circuit Court of Appeals held this week that citizens have the same expectation of privacy in their e-mails as in their snail mail letters and phone conversations, so that the government must obtain a search warrant before seizing and searching e-mails held by private e-mail providers.  Hat tip for this and the WSJ Law Blog item:  Ed Walters of FastCase.

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