June 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).Read the full article

More Legal Humor from Evan Schaeffer

by Lee Gesmer on 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.

Read the full article

The Entwistle Trial

by Lee Gesmer on 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.… Read the full article

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.… Read the full article