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Archive for August, 2011

“People should understand that their dog should mean something to them”

Here’s a short feature on Project Unleashed, a California organization that “offers students at-risk and incarcerated youth the ability to train homeless rescued dogs, giving the dogs the training and socialization they need to increase that dog’s chance for adoption” (h/t Cynthia):

Project Unleashed from Calamari Productions on Vimeo.

It looks like a great organization doing good work. I believe the only way to possibly stop animal abuse and dogfighting is by changing people’s minds, even if it can only be done one person at a time. Seeing just how sweet and friendly dogs, particularly pit bulls, are and want to be is the most important part of that. My favorite quote is from the young woman who says: “People should understand that their dog should mean something to them.”


Not all marketing ideas are created equal

While cleaning up around the house, I came across an old idea for a marketing piece that probably never would have worked out so well.

Austinites and Austinphiles are no doubt familiar with local institution Waterloo Records and their ubiquitous free bumper stickers. You can grab as many of them as you want (well, I did, anyway) and rearrange them in creative ways (People in Houston do this with stickers for the Rice University radio station, KTRU).

Or you can just do this:

This probably won't display in all its glory in this window.


You may notice that “Waterloo Records” does not include the letter “f”. I think I made the “f”s out of “t”s and “r”s that I stuck together. I think I was planning on putting this on my car to be a low-rent rolling billboard. Probably for the best that I never did that.


In praise of Austin’s cleverly snarky jurists

The Honorable Sam Sparks

It is unwise to anger Judge Sam Sparks

Law is a conservative profession, in that it is rarely given to huge leaps of fancy or whimsy. English common law has given us a system based on precedent, where the challenges and disputes of the present are resolved using the solutions of the past. Innovation comes slowly, and the writing tends to be both precise and ponderous. No one reads legal briefs or law journals for the lulz.

Every so often, though, a judge comes along who challenges the notion of a staid, unflappable jurist. Today, I take a moment to salute the Honorable Sam Sparks, U.S. District Judge for the Western District of Texas, Austin Division. (Full disclosure: I am licensed to practice in the Western District of Texas, I think, but I do not have any cases in Judge Sparks’ court and do not intend to file any. Therefore, there is really no need for full disclosure. Never mind.)

Lawyers who practice in federal court in Austin generally know that Judge Sparks does not abide tomfoolery in his courtroom. Despite conventional wisdom, every so often lawyers who should really know better decide to bring questionable motions in his court, and his responses and resulting orders ought to be forever recorded in the annals of legal history.

Above the Law, as with so many stories, has a good overview of some Sparks gems. In 2004 he compared bickering lawyers to kindergarteners, and in 2007 he issued an order in rhyming couplets, complete with this conclusion:

There will be a hearing with pablum to eat

And a very cool cell where you can meet


My personal favorite story out of his courtroom comes from recent news and involves litigation over Texas’ new ultrasound-before-abortion law. The Center for Reproductive Rights filed a lawsuit in federal court in June seeking to block the new law from taking effect (read the original complaint). The defendants in the case are the individuals and agencies that will be charged with enforcing the new law: David Lakey, M.D., Commissioner of the Texas Department of State Health Services; Mari Robinson, Executive Director of the Texas Medical Board; and David Escamilla, County Attorney for Travis County. Seems pretty straightforward–group opposes a new law, so sues the state officials in charge of enacting it–and uncontroversial, at least procedurally, right?

Oh, silly, silly reader(s)….

Have you forgotten that this is Texas?

Not content to allow this lawsuit to proceed in the same fashion as any other lawsuit filed in America, the two sponsors of the bill, Sen. Dan Patrick, R-Houston, and Rep. Sid Miller, R-Stephenville, asked leave of the court to file amicus briefs supporting the law. On August 9, 2011, Judge Sparks said no (PDF):

Both parties in this case are well-represented by competent and diligent counsel, and neither they nor this Court needs assistance from Senator Patrick or Representative Miller–particularly when much of their “assistance” is nothing more than thinly-veiled rhetoric. This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion. The Court is confident counsel in this case can protect their clients’ interests all by themselves.

Judge Sparks did not even have to make that rhyme to make it sting. A mere three days later, on August 12, he similarly rejected an attempt by other Texas legislators to intervene in the case (PDF):

[C]ounsel for the parties are more than capable of advocating for their clients’ positions without outside input. This is especially true where, as here, that input comes in the form of, among other things, commentary by legislators on “the clear legislative intent of H.B. 15′s severability clause.”

If the severability clause is as clear as the Representatives indicate, their interpretive assistance will not be required. And if it is not, it would be unhelpful, if not improper, for the Court to look to statements made by a subset of the Legislature, in a document prepared for the purposes of litigation, to determine legislative intent. (Citations omitted)

Thankfully, that put an end to the chicanery, and the case has been able to proceed according to normal court procedures. Just kidding! San Antonio attorney Allan Parker, president of the Justice Foundation (I’m not linking to them) also requested leave to intervene in the case, and he decided to do a little show and tell with his motion (specifically a picture of a “first-trimester aborted child” according to his own list of exhibits.) On August 23, Judge Sparks took his polite gloves off and went right to it (PDF, of course):

The Court has already turned down two extremely tempting offers to transform this case from a boring old federal lawsuit into an exciting, politically-charged media circus. As any competent attorney could have predicted, the Court declines the latest invitation as well.

However, the Court is forced to conclude Allan E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed. A competent attorney who did these things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilties, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.

House of detention, photo by Jascha Hoste

Not pictured: the actual holding cell at the federal courthouse (photo by Jascha Hoste)

I have no involvement in this case at all, and yet my stomach did a few lurches reading that part of the order because I can imagine the horror of having a federal judge that mad at me, and the possible implications of that. Yes, Judge Sparks called the man incompetent, and he did it a lot. Moral of the story: if you come into Judge Sparks’ courtroom with weak arguments that he has already dismissed, you will not leave with your dignity. You might not leave with your bar card. You might not leave as financially whole as when you arrived. You might not leave at all.

Okay, that last part was an exaggeration. You’ll get to leave eventually.

This week, we have a different case (h/t Mike Johnson), involving two attorneys who may have just done something really dumb, or may have had the misfortune of doing something kind of dumb with a judge fresh off of his Allan Parker-fueled disdain for shenanigans in his courtroom. Either way, the hammer dropped on attorneys Jonathan L. Woods and Travis Barton, who have been invited ordered to attend Judge Sparks’ “kindergarten party” on September 1 in his courtroom, covering topics such as how to properly plan and schedule depositions and how not to waste a federal court’s time for being “unable to practice law at the level of a first-year law student.”

Courts have a pretty specific purpose, and they have limited resources to achieve that purpose. The purpose is to resolve disputes, and to do so as efficiently as possible. Many Austin lawyers have horror stories about Judge Sparks (and no, I’m not telling any here),  but I applaud the effort to keep idiocy out of the courtroom, and to do it with some flair. I salute Judge Sparks and his brand of don’t-*******-with-me-in-my-courtroom jurisprudence.

That said, I know full well that if I ever argued a case in his courtroom, he would eat me for breakfast and use my bones for toothpicks at lunch. And I’m okay with that.


Oh, frack

A while back I wrote a juvenile post about fracking and my love of Battlestar Galactica.

In that same spirit, the following is presented sans excessive commentary, to let the absurdity sink in (h/t Shawn M. French):

R.I.P. Talisman Terry.

The “friendly Fracosaurus” featured in a 24-page coloring book by Talisman Energy that explained the controversial process of extracting gas from rock formations will no longer be distributed by the company, a spokeswoman told

Natalie Cox, a spokeswoman for Talisman Energy USA Inc., said the coloring book, “Talisman Terry’s Energy Adventure,” was created in 2009 by staff at Talisman’s headquarters in Calgary, Canada, as a giveaway for county fairs and other community events along the Pennsylvania-New York border. It’s unclear exactly how many were produced and distributed, she said.

Despite no complaints from the public — only from “the media,” Cox said — the company decided to stop using the publication within the past month.

Yes, Talisman Energy published a fracking coloring book, with a fracking mascot. And because of all the fracking controversy with the fracking-obsessed media, they had to stop publishing it. I guess they’ll just focus on fracking from now on.

Okay, I’m done. Please go on about your day.


Lame practical jokes: post-divorce edition

I’m not sure this story even needs my commentary:

Saying his ex-wife Isa had always wanted a “big rock,” Dany Lariviere of Montreal gave her one last weekend for her birthday. She will not be wearing it on her finger, though, because it weighs about 20 tons:

Bonne Fete

Bonne fête, Isa

As you may have surmised, the two have not been getting along very well since they were divorced last year, after being married for ten years. Apparently they have continued to argue about financial and custody matters, and each has accused the other of harassment. From the report it’s not really possible to tell who has the better argument there, although I guess Lariviere has now dropped off 20 tons of evidence that it’s not him.

He may have a hard time convincing a court of law that he is not being harassing, I suspect. Incidentally, he is the mayor of the town where they live, and he owns an excavation company and a quarry. Even if he didn’t admit to doing it…

Do people get all of their ideas about how to behave in a divorce from TV? It’s as though this guy watched The War of the Roses without realizing it was supposed to be a comedy.


Please, bacon, don’t look at me like that…

I love bacon.

Perhaps more accurately, I am fixated on bacon.

Bacon flowchart. Source unknown.

Due to some new resolutions to get in shape, I find I must abstain from my usual diet of putting bacon in everything, alas. But today, I learned something upsetting.

Okay, it’s something I already knew from reading John Robbins’ book Diet for a New America back in the ’90s, but it’s also something I put out of my mind when I stopped being a vegetarian about 7 years ago.

Pigs might be smarter than dogs.

Why, you might ask, is that upsetting?

Would you eat your dog?

I really hope the answer to that question is “no,” and if it isn’t, please don’t tell me. I know that I would not eat a dog because I know dogs are smart, sociable, friendly, and companionable. We also have certain cultural designations for our domesticated animals: pigs and cattle are “livestock,” while dogs, cats and ferrets are “pets.”

The basic rationale for this distinction is that livestock animals are pretty dumb, and best suited for use as food. Except what if they’re not all that dumb?

“[Pigs are] very curious, and they’ll charge off on their own,” said John Webster, a professor at the University of Bristol in England. “They will investigate the world with their noses down and batter through like a small boy.”

New research shows that chickens can be taught to run the thermostat of the chicken coop, and that even the lowly cow has a surprising inner life.

Cows have been known to form lifelong friendships, and one recent study found that they actually show excitement when they’ve learned something new “as if they’re saying, ‘Eureka, I found out how to solve the problem,’ ” said Donald Broom, a professor at the University of Cambridge.

Also, it turns out it is not that uncommon to keep a pig as a pet. Many people keep chickens in Austin, although I assume more for eggs than for companionship. A cow might be problematic as a pet, especially if you have a small yard or live in a high-rise condo.

I once read (I forget where, so add a [citation needed] in your mind here) that most livestock animals would not survive long in the wild, as they have been bred over thousands of years to serve specifically as livestock. True, I cannot imagine a chicken would survive long in the wild if there are any weasels around, and a cow might make a tempting target for drunk frat boys coyotes or wolves. The ancestor of the modern cow, the aurochs (known to fans of George R.R. Martin) was pretty bad-ass, at least until it was hunted to extinction. Does that mean we have to eat them, though?

Public domain image

Not pictured: Robert Baratheon with a spear

So what does this all mean? Am I going to follow on my refusal to eat squid and octopus by also refusing to eat pork products?

(As a side note, I am a big fan of squid and octopus, and I suspect that they will be the ones to succeed us as the dominant intelligent species on earth should we mess this whole thing up. I for one welcome our new cephalopod overlords!)

Copyright unknown. Fair use applies.

Not pictured: The lamentations of their women.

The real question is whether we can make arbitrary distinctions about what animals to eat based on cultural history (i.e. dogs are pets, cows are food). Please note that I am not arguing in favor of eating dogs for intellectual consistency. But do I return to some form of vegetarianism, even if I made a mess of it the first time I tried it? Is vegan the way to go, on the theory that if you shouldn’t eat animals then you also shouldn’t manhandle their breasts (for milk) or muck about in their bird uteri (for eggs)? Should animals get legal protections similar to humans, sort of like the way Spain extended legal protections to apes?

I’ll think about it. You think about it, too. I’m going to go watch Charlotte’s Web and have some bacon while I consider my options.


“‘Wacky’ does not a successful libel lawsuit make.”

From the Wikimedia Commons

Did the astronauts of Apollo 17 take this photo, or was it Photoshopped using 1972-era technology? (Hint: the first option is correct.)

From the annals of silly lawsuit history comes the case of Bill Kaysing versus Jim Lovell, circa 1997. A handy timeline of the case is here.

You may Know Jim Lovell as the commander of the 1970 Apollo 13 mission, who was later played by Tom Hanks in the movie of the same name.

Bill Kaysing was a purveyor of moon hoax theories, and is often credited as starting the moon landing conspiracy movement. He was the author of books like We Never Went to the Moon: America’s Thirty Billion Dollar Swindle.

In 1996, after an encounter with Kaysing and some correspondence, Lovell was quoted in an article by Rafer Guzmán in Metro, a weekly Silicon Valley-area newspaper:

Speaking from his office in Illinois, Lovell said of Kaysing: “The guy is wacky. His position makes me feel angry. We spent a lot of time getting ready to go to the moon. We spent a lot of money, we took great risks, and it’s something everybody in this country should be proud of. His problem is, he saw that movie Capricorn One and now he thinks that’s really the way it goes.”

Eager to defend his legacy of bravely standing up to mountains of peer-reviewed scientific evidence, sued Lovell for libel on August 29, 1996, specifically for calling him “wacky.”

Keep in mind that truth is a defense to defamation.

Kaysing, who wrote a book called We Never Went to the Moon, filed what amounts to a nuisance suit against the astronaut last year following a Metro article in which Lovell called the writer “wacky.” Legal experts who were contacted agree that calling someone “wacky” does not a successful libel suit make. If anything, Kaysing’s wild accusation that Lovell is a liar who participated in a government conspiracy to fool the public is more harsh than being called wacky. (Source)

I don’t see how one can argue that calling a person “wacky” is anything other than a statement of opinion. I also don’t see how it is any worse than what Kaysing said about Lovell in the same article:

Kaysing considers Lovell almost a comedian. “He’s essentially a sort of comic Manchurian Candidate,” he says. “He’s been either brainwashed, hypnotized, programmed or whatever to present this spurious story of having gone to the moon.”

Is it defamatory to say someone has been brainwashed? Not particularly. Nor is it defamatory to call someone “wacky.” Fortunately a judge agreed and dismissed the suit on September 25, 1997.

It makes for a fun example of the limits of using the courts to fix your public image. If someone says you are wacky, demonstrate how they are wrong (if you can), or determine if you really are wacky and try to fix it. If you are a conspiracy theorist, public opprobrium from an establishment figure like an astronaut ought to boost your image among the conspiracy-minded. Unless someone has said something blatantly and demonstrably false that has harmed you, don’t ask the courts to fix it for you. Even then, it’s a tough row to hoe.

Bill Kaysing passed away in 2005. Since a deceased person has no cause of action for defamation, let me just say this: the guy was wacky. Wacky, wacky, wacky. He was also absurd, bugged out, crazy, daft, deranged, dotty, foolish, harebrained, idiotic, loony, nutty, odd, and silly. (Yes, I borrowed Eric Turkewitz’s thesaurus).


Oh PETA, PETA, PETA. What are we going to do with you???

Today is a great day for my blog. A day many bloggers can only dream of.

Today I get to write about porn.

Most bloggers wait in vain for some legitimate reason to blog about porn. Well, bloggers who aren’t named Marc Randazza or Michael Fattorosi, anyway. This week, I found such a legitimate reason. (I should probably mention the NSFW status of this post. Proceed with caution.)

But first, I have to talk about PETA.

I have conflicted views on PETA. On the plus side, they have done some excellent work investigating cases of animal cruelty.

On the minus side, they have a very bad track record on many issues of animal rescue.

  • This rather snarky infographic (h/t BigMikeInAustin) shows some stats on their rescue efforts and the activities of their spokespeople.
  • PETA advocated for Michael Vick’s dogs to be put down.

    Norfolk-based People for the Ethical Treatment of Animals cautioned that people may seek to adopt the dogs for the wrong reasons, such as boasting of having a “Michael Vick dog” or returning the animals to the dogfighting pits.

    “In most cases, pit bulls seized from dogfighting rings are euthanized, and as sad as that is to all of us, it may be the best thing to do for everyone concerned,” PETA spokesman Dan Shannon said.

    Note that the concern is over what may happen to the dogs if they live. Also note that nearly all of the dogs were rehabilitated and successfully placed in adoptive homes.

  • PETA has not been much of a friend to pit bulls at all. This puts them at odds with me.
  • A PETA “sheltering adviser” offered a remarkably weak, alternative-solution-free criticism of Austin’s no-kill policies recently.

They also make widespread use of nudity in their ad campaigns and protests. I am torn as to whether this goes in the “plus” or “minus” side, as I feel it distracts attention from the important issue but at the same time features naked people.

From Fair use applies.  From Fair use applies.

From Fair use applies.

This brings me to the point of this post, where things get good: PETA plans to launch a porn site using the “.xxx” domain.

No, really.

I’m serious. And it sounds delightful:

The bizarre site will aim to raise awareness of veganism by offering pornographic material alongside graphic footage of animal mistreatment.

The porn site will illustrate the horror of life for animals on factory farms, will pictures and video shot undercover by the group’s hidden camera investigations.

Spokesman Lindsay Rajt told the Huffington Post: ‘It will have enough adult content to qualify for the XXX domain site but also some other graphic images of animals that viewers may not expect to see.‘We live in a 24 hour news cycle world and we learn the racy things we do are sometimes the most effective way that we can reach particular individuals.

She added: ‘We really want to grab people’s attention, get them talking and to question the status quo and ultimately take action, because the best way we can help the greatest number of animals is simply by not eating them.’

“Adult content” combined with “graphic images of animals”??? Does PETA, ummmm, know what porn is for??? I mean really, how often do you want to see “graphic images of animals”? Probably not very often. Now think of the absolute last time you would want to see that sort of “graphic” image. You probably thought of a time when you were eating. Now think of what might come in second. You see where I’m going with this.

I fail to see how this could succeed either as effective advocacy or as pornography. There is such a thing as too much controversy. People who aren’t already repulsed by PETA’s antics might finally be repulsed. People looking for new adult entertainment might be in for a rude surprise. Aside from joke fodder, I don’t see much good coming from this.


Today really is the day that they’re gonna throw it back to him

Liam Gallagher is suing Noel Gallagher for libel. The two brothers were in Oasis, a band that was big in the ’90s, but I can’t remember which brother did what in the band. I never thought that much of the band. I honestly felt like listening to them made me simultaneously dumber and a bigger d-bag. Many, many people loved them for whatever reason, though. Anyway, they broke up, one or more members started new projects or solo careers, blah blah blah. Then one mouthed off about the other to reporters in July:

While the London press conference was set up for [Noel] Gallagher to talk about his solo career, it did not take long for reporters to ask about the state of his relationship with Liam.

The pair fell out two years ago just before a gig in Paris and have not spoken since.

“I had a sweepstake on how long it would take,” Gallagher laughs, when the first question was put to him just two minutes into the event.

The guitarist explains how the brothers’ row escalated after Liam cancelled their V Festival slot “because he had a hangover”, although the official reason given at the time was that he was suffering with laryngitis.

Oh, snap! A rock star was hungover before a show? That’s hardly implausible, but who knows what actually happened that specific morning? Anyway, fast-forward one month, and a lawsuit ensues:

Former Oasis frontman Liam Gallagher is suing his brother Noel over his claims the band once cancelled a gig because the singer was hungover.

Noel Gallagher told journalists at a press conference in July that it was the real reason why the band pulled out of the V Festival in 2009.

The official explanation at the time was that Liam Gallagher had laryngitis.

In a statement, he said he had “tried to resolve this amicably but have been left with no choice but legal action”.

“All I want is an apology,” he added.

I’m no expert on UK law, but I have to wonder if it is wise to involve the courts in a demand for an apology a mere two months into a dispute. Also, if your brother refuses to apologize to the point that you feel you have to sue, do you really think an apology will ever be forthcoming? These two don’t seem to have ever been a portrait of brotherly harmony.


Can contract lawyers practice ethically?

A malpractice suit filed earlier this summer by JM Eagle alleges that McDermott Will & Emery failed to adequately supervise the contract attorneys they retained to do document review, leading to privileged documents related to JM Eagle’s case being released. This is one of those cases where reams of scaremongering missives by lawyers hyping the ethical risks of a given area of practice turned out to be correct–e-discovery actually is pretty difficult.

E-Discovery is a discipline.  Far too many attorneys in firms large and small think that e-discovery is something they can do on the side, when they are not drafting motions to dismiss an antitrust class action or preparing to depose a scientist in a patent infringement matter.  Unfortunately, this is simply not true.  Sure, e-discovery is an outgrowth of the rules of civil procedure and every litigating attorney needs to understand the rules.  But e-discovery goes far beyond the rules.  It is one thing to understand that there are different possible forms of production permitted for electronically stored information under Rule 34, and quite another to know how to effectively and defensibly identify, preserve, collect, process, review and produce ESI.  The layers of complexity are many.  Indeed, I would argue that there are multiple disciplines within the field of electronic discovery. (Dennis Kiker)

Photo by stevenafcI’m not technologically adept enough to know what all the different forms of digital or electronic information are, but I know they are many and varied. I am entirely receptive to the notion that this is an area of law practice that anyone could just dabble in. At the same time, be on the lookout for seasoned practitioners trying to scare neophytes away more out of self-preservation than ethical concern. Please note, I am not offering any opinion as to the motive of the above-quoted lawyer, Dennis Kiker. The guy certainly knows his stuff, technology-wise. Lawyers should just proceed with caution, particularly into areas of law that deal with technologies few people really understand.

Another question here has to do with the use of contract lawyers. It’s certainly a boon for the law firms: they save on all the pesky job training and perks, and they can even pay much lower than an associate might take home. They also sacrifice control, in that they may not be able to exercise the same supervision over contract lawyers as they would over their own employees. This is not to say that contract attorneys need supervision per se, but there is a responsibility that lawyers have to their clients to know everything being done for the client on their behalf. A common meme in the legal blogosphere of late has been how outsourcing legal marketing = outsourcing ethics. Outsourcing functions traditionally performed by associate attorneys can also lead to outsourcing of ethics as well. Again, most contractors are probably very professional and responsible, but the point is that the lawyer no longer has final say over how the work is done, and therefore no control over some of the lawyer’s ethical obligations. Note that the contract lawyers in question are only named in the lawsuit (pdf) as John Does.

With this many warnings and ethical pitfalls, it’s no wonder lawyers are so stressed out. To answer my own question posed in the title to this post, of course contract lawyers can practice ethically. the real question is how to apportion the ethical risk among the lawyers involved in a case. The lawyers who use contract attorneys still have to review everything those attorneys do, since their name is ultimately the one on the signature line. The case discussed here allegedly resulted from inadequate supervision.

How do we fix this problem? I’m working on it. Stay tuned.