June 2008

Thoughts on the Art of Persuasion and the Defense in the Entwistle Case

June 30, 2008

Some thoughts on the recently concluded Entwistle murder trial in Massachusetts. A trial is the art of persuasion. Civil or criminal, jury or jury-waived, the same principles of persuasion apply. Generations of lawyers have spent their careers thinking about these principles, trying to understand, refine and apply them. The huge number of uncontrollable variables in a courtroom make trial persuasion an art rather than a science, but as in all competitive activities, even small advantages can increase your odds, so lawyers keep studying and trying. Some of the most basic principles of trial advocacy are well accepted by now. One of these is captured by the expression: “tell them what you’re going to tell them, tell it to them, and them tell them what you told them.” In a trial, this rule of advocacy applies most importantly to what lawyers call the “theory of the case.” Every experienced lawyer knows the persuasive importance of “primacy” (the first things the jury hears) and “recency” (the last things they hear). Simply put, people tend to remember the first and last things they hear better than the stuff in the middle. The principle of “primacy” is so important that many studies have found that jurors are inordinately influenced by the opening statement in a trial, and therefore most lawyers put particular effort into crafting their openings. Some jurors pay little attention to anything…

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More Legal Humor from Evan Schaeffer

June 16, 2008

We need more laughs in the legal profession, believe me. Lawyers take themselves way too seriously – and I’m putting that very politely. Evan Schaeffer of The Legal Underground is working to correct this with a long-running series of “advice” letters: advice to young lawyers, advice to federal judges, advices to partners, and so on. If you’ve worked in a large law firm (typically his target), you realize he has a talent for this. If you haven’t you probably can’t believe this stuff (admittedly, a lot of it is over the top). However, there is at least a germ of truth to all of this. Example from “Advice to Young Lawyer #24″, dated January 7, 2005: Dear Mr. Schaeffer: I’m in a terrible bind. There’s a partner in our 1,127-attorney firm named Mr. B who everyone is scared of, including me. Unfortunately, I got assigned to his practice group yesterday. Even though I’m a fourth-year associate, Mr. B apparently wanted to break me in easy. He called me on the phone, said his secretary had a document for me to copy, and told me to come to his office. When I did, he was on the phone again. He held up his right hand with all his fingers extended and mouthed, “This many.” So far, so good. I made five copies. But later in the day, he called me into…

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The Entwistle Trial

June 13, 2008

I would be remiss if I didn’t provide a link to the Boston Herald blog on the Entwistle case, which is being tried in Middlesex Superior Court in Massachusetts. The case has attracted international attention due to the horrific and gruesome facts of the case, and that the defendant, who is accused of the cold-blooded murder of his wife and infant daugher, is British. The Boston Herald is “live blogging” this trial.

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Universal Music Gets a Lesson on the First Sale Doctrine

June 12, 2008

When I started a music blog a couple of years ago (sadly ignored of late), I started getting promotional CDs from some small publishers. I’m not sure how they got my home address, and for the most part the music wasn’t very good. However, I did notice that in a few instances the CD cases were stamped “promotional, not for resale,” or words to that effect. Had I sold these CDs on eBay or at a garage sale, I might have ended up in the shoes of Troy Augustino, who (like every good eBay entrepreneur) purchased some promotional CDs from music shops and online auctions, and resold them for a higher price on eBay. Stop! Universal Music said. You have no right to resell the CDs, since we only “licensed” them, and the license prohibits resale. By reselling you’re violating our copyright rights! No dice, ruled a California federal district court judge. Universal did not “license” the CDs, it gave them away as a gift. And, under the copyright “first sale” doctrine, a purchaser or gift recipient is free to resell (or regift) the promo CDs. The “first sale” doctrine is easy to understand, since most of us take it for granted: if you buy a CD, DVD or book, you are free to resell it. The copyright owner has the right to prevent you from reproducing the work, distributing…

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Important, If True …

June 11, 2008

The Massachusetts employment bar is abuzz with word that a Massachusetts Commission Against Discrimination (MCAD) Commissioner has publically stated that the Massachusetts Maternity Leave Act (MMLA) will apply to new parents of either sex. This means that new fathers would be entitled to eight weeks of unpaid leave upon the birth or adoption of their child. (The MMLA applies to employers with six or more employees). This all unfolded in a strange manner, to say the very least. There has been no formal written announcement. The MCAD online regs have not been changed to include fathers. The underlying statute still refers only to “female employees”, and makes no mention of fathers. There has been no formal press release or request for comment or feedback from the Massachusetts business community. Legislation by adminstrative fiat. Apparently, the MCAD Commissioner announced this at a speaking event at a law firm in Boston in early June. His comments were confirmed in a follow-up interview by Massachusetts Lawyers Weekly, which quotes the Commissioner as follows: I’m not going to tell you how we are going to come out on every case, because it depends on the facts and circumstances presented,” he said. “But what we are saying is that if a man now walks in and makes a complaint, we are going to take that complaint and investigate it – which, yes, is something that…

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Quant Computer v. LG Electronics – the Supreme Court Rules on "Patent Exhaustion"

June 10, 2008

Yesterday’s decision in Quanta Computer, Inc. v. LG Electronics, Inc. is linked below (via scribd.com, which I am becoming quite enamored of as a place in the “cloud” to hold and link to documents or embed them in a web site or blog). This is a very technical case, and probably is of little interest to non-patent/licensing-professionals. The holding is as follows: The authorized sale of an article that substantially emboides a patent exhausts the patent holder’s rights and prevetns the patent holder from invoking patent law to control postsale use of the article. Layman’s translation: once you license a patent to someone, your rights in the patented product or method are “exhausted.” You are not entitled to demand a patent royalty from subsequent purchasers “downstream” from your customer. This is analogous to the “first sale” doctrine in copyright law. In both cases (patent and copyright) the exception is that you are able to restrict downstream uses by contract with your purchaser or licensee. However, negotiating contract rights that limit downstream use of a patented product or method is much more difficult than relying upon the operation of law; hence, the issue presented in this case. The Supreme Court held that its ruling applied to “method patents” as well as utility patents. And, the exhaustion doctrine extends to include the sale of products that that do not fully practice the…

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Lawyerly Humor

June 9, 2008

I don’t think Letterman or Darrell Hammond have a lot to worry about, but it’s nice to see a lawyer making fun of himself once in a while. Tom Goldstein: Hire Me For Your Supreme Court Case

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The Agony of Inadvertant Disclosure

June 8, 2008

Sometimes being a lawyer is like being an airline pilot – hundreds of hours of tedium, interrupted by moments of sheer panic. In the case of lawyers, the panic can hit from a number of sources: a missed court filing date or statute of limitations, the discovery during trial that your client has failed to produce key documents during discovery, the failure to discover a controlling legal precedent, the realization that a client has lied to you, or “inadvertant disclosure.” To lawyers, the term “inadvertant disclosure” means that during discovery documents protected by attorney-client privilege or work-product immunity have been produced to the other side, by mistake. You (the disclosing attorney) usually learn of this when the opposing lawyer calls you up to gloat (under the guise of politely informing you of the incident, which is required under the ethical rules). It’s enough to ruin any lawyers day: you demand (or beg for) the return of the documents; the opposing lawyer refuses; you file a motion with the court asking for an order that the documents be returned to you (after that embarrassing call to your client); the other side opposes your motion; and finally, the judge writes a decision ruling one way or the other on your request for return, but in either case informing the world of what a sloppy or incompetent lawyer you were to have produced…

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Yoko Ono, Ben Stein and Copyright Fair Use

June 3, 2008

Here is a copy (below) of the June 2, 2008 decision of Judge Sidley Stein in the Southern District of New York, holding that a 15 second snippet of the Lennon song “Imagine,” within the feature length movie “Expelled“, is “fair use” under U.S. copyright law. In other words, the film makers did not infringe Yoko Ono’s copyright rights. “Expelled” is a documentary that deals with “intelligent design” (vs. Darwinism, Creationism, ect.), and is narrated by Ben Stein of Ferris Buehler fame (presumably no relation to Judge Stein, but bad luck of the draw for Yoko Ono nevertheless). The “fair use” doctrine is an exception to the legal rights of U.S.copyright owners. It permits the use and publication, without permission, of parts of the work for purposes of “criticism, comment, news reporting, teaching … scholarship, or research.” A large body of judge-made law has built up interpreting and applying this doctrine. The court’s ruling on fair use is no surprise, and applies “black-letter” fair use law to undisputed facts. Any outcome other than a ruling in favor of fair use would have been a surprise. For more on fair use click here. Lennon v Premise Media – Upload a doc Read this doc on Scribd: Lennon v Premise Media

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Are Judges Intuitive or Analytical? Ruminations on the Cognitive Style of Judges

June 3, 2008

The best aspect of law school is the subordination of math. Anon _________________________ Are judges good at math? Foolish question, of course. Since many lawyers have a math phobia, it follows that many judges would, as well. Nevertheless, a group of academics gave a three-question quiz to a group of several hundred trial judges. The purpose of the quiz was to determine whether the judges’ style of cognitive reflection, as a group, was “intuitive” (i.e., bad) or “analytical (i.e. “good”) decision makers. Here are the three questions. Each one is designed to have you “jump” to a quick, intuitive wrong answer, whereas analytical reflection will lead to the non-obvious right answer. (1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost? _____cents (2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets? _____minutes (3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake? _____days. Not surprisingly, the judges failed miserably. 31% got all three questions wrong, and only 15% got all three right. Yes, for the most part…

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