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Posts Tagged ‘Litigation’

Taking Down the Trolls – UPDATED

As part of my ongoing coverage of my experiences at South by Southwest Interactive 2012, here is a my recap of a session from this morning entitled “The Undoing of Copyright Trolls” (#UndoTrolls on Twitter). Here is a recap of my notes on the session:

I've had my own run-ins with some pretty big trolls

I've had my own run-ins with some pretty big trolls

The session was conducted by Robert A. Spanner, president of the Trial & Technology Law Group. Copyright trolls, a relatively new phenomenon, acquire copyrighted material or work for someone with copyrighted material. They then go on the internet & look for people using that material. When they find someone they think has posted infringing material, they shake them down for money. The troll’s role, in essence, is that of an extortionist.

He says the problem began with production and record companies that gave the impression that infringement was a capital crime. If the public thinks copyright is extremely serious, this makes copyright trolls’ job much easier because people are more likely to cave in to demands.

Here are a couple examples of people who take a different view of copyright:
Angry Birds: the owner of these universally-recognized images views copyright infringement as free additional exposure for his products.
Neil Young thinks distributing music over the internet has taken the place of radio, meaning it is the best way for new music to quickly get wide exposure.

The most famous copyright troll is Righthaven, a company Spanner says was created specifically to be a copyright troll. Righthaven apparently acquired all of the production from the last several years of a Las Vegas newspaper. Its agents would locate infringing material online and attack.

The Digital Millennium Copyright Act (DMCA) allowed them to subpoena user info from the ISP to find out who posted an image. The troll has to provide certain info to get the subpoena. Trolls, Spanner says, are not very good at filling out the paperwork to get the subpoena. They have to pursue these cases in volume for business reasons, so they don’t always pay close attention to the paperwork. Trolls, he says, “say the darnedest things” in these papers.

Two documents required by the statute: a declaration of infringing material, identifying the material with some particularity, and a statement of copyright owner. These two documents, as filed by a copyright troll, often conflict with each other. Usually, they are full of misstatements. The trolls “learned their tactics in the sewer,” according to Spanner.

Once he files and wins a motion to quash the subpoena against the troll, the case should get thrown out for lack of evidence. The next step after getting a motion to quash granted is for the defendant to take down the offending material. This really screws the troll.

If the troll claims an error in the first petition, it must submit a revised request for a subpoena or drop the matter entirely. The troll has to identify the infringing material. If the material is taken down, the troll has nothing to claim. The troll has to show current use of the infringing material, which troll now cannot do. The troll also has to show that they have given the ISP enough information to locate and remove the infringing material, which the troll also cannot do. As a result the case gets thrown out a second time.

Courts have held that, if the troll fails to meet these statutory requirements, the case must be thrown out. Therefore, Spanner argues, if you can get past the first subpoena, you have a defense to copyright infringement under the DMCA.

At this point an audience member asked a question re: why Righthaven is called a “troll.” Spanner answered that trolls are only interested in collecting money, not so much in enforcing copyrights. It is not the fact that they are enforcing copyrights, in and of itself, that’s the problem. It’s that, according to Spanner, they do it so badly. Trolls have no interest in litigating. They may even drop defendants from a suit if it gets too hard, but they also tend to file mass suits against thousands of defendants with disparate circumstances, because it is more efficient than filing separate suits..

Now that you beat the troll, Spanner asks, are you done with him? The troll can’t bring the case again, so it is a pretty clear victory. Spanner says a copyright lawyer should consider putting the troll out of business at this point. After losing a case in this way, a troll could be facing tens of thousands of dollars in attorneys’ fees. It would not take many such motions to put a troll out of business entirely. A motion for attorneys’ fees is what brought down Righthaven.

It is not generally known, says Spanner, that if you win at that first phase of the litigation (the DMCA subpoena), you win.

He spoke about mass troll cases as well, with hundreds or even thousands of defendants accused of BitTorrenting movies. Some pretty cool software detects BitTorrent users in the stream of the internet. It is apparently rare to see a BitTorrent case without thousands of defendants. From the troll’s point of view, if 10% each pay $3,000 to avoid hundreds of thousands in statutory damages, the troll will get rich.

Spanner cited two cases of mass cases that did not go well for the troll. In a case in Fort Worth, Texas the ISP filed an elaborate motion to dismiss the troll’s subpoena. This was a nightmare for the troll, who just wanted to get money quickly. In a case involving the movie “Call of the Wild,” a troll filed suit over five different movies, naming more than 5,700 defendants. All of the defendants were sued in D.C., despite the fact that they were from literally everywhere. Even movie companies called it improper joinder. The judge allowed discovery to determine if joinder of all of the defendants in D.C. was improper. Eventually, after an extensive search, troll could only find 3 people out of 5,700.

I asked about what specific rights the trolls acquire for the copyrighted material, i.e. do they acquire the rights to enforce the copyright and collect royalties, or just enforcement? I’m not even sure how that would work, but it occurred to me that, if it is possible to only acquire the enforcement rights (or whatever they would be called), that would create an odd situation where a party is enforcing a right without actually suffering a harm, in the sense that the enforcement rights holder doesn’t actually lose anything due to the alleged infringement. Turns out it is not always clear what rights the troll obtains–these cases seem very unusual. I’m glad I learned this stuff, but that’s about it for me on this issue.

UPDATE (03/13/2012): It sounds like Righthaven is pretty much f***ed (via Wired):

Righthaven, a copyright-troll law firm that failed in its attempt to make money for newspapers by suing readers for sharing stories online, was dealt a death blow Tuesday by a federal judge who ordered the Las Vegas company to forfeit “all of” its intellectual property and other “intangible property” to settle its debts.

The order is an ironic twist to a copyright trolling saga that began in 2010, when Righthaven was formed with the idea of suing blogs and websites that re-post newspaper articles or snippets of them without permission.

U.S. District Judge Philip M. Pro of Nevada ordered Righthaven to surrender for auction the 278 copyrighted news articles that were the subject of its lawsuits.

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Will using smoking as a factor in child custody decisions lead family courts to regulate what children can eat, etc.?

SpitkidA parent who smokes can pose a health risk to a child. Can anyone honestly dispute that premise? I know a parent’s smoking can be a factor in a custody decision because I have seen it happen. A child with some fairly serious respiratory issues would tend to come home from the non-custodial parent’s house with ailments ranging from the sniffles to bronchitis, and we had the medical records to prove it. I represented the custodial parent, obviously. The parent’s defense, in essense, was that no one was allowed to smoke in the house when the child was visiting. They smoked in the house when the child wasn’t around, and they smoked outside when the child was there. The parent did not seem to understand the tendency of the particulate matter put off by cigarettes to hang around an enclosed space long after the cigarette goes out. That would be what was making the child sick. The judge, in ruling in our favor, noted that the non-custodial parent did not seem to have much understanding of, or concern for, the child’s health.

It brings up a sort of interesring question: if courts can consider smoking as a factor in determining custody, how much further can they go in making decisions for the child’s health. Can one parent use the court to dictate everything the other parent feeds the child? Attorney Myra Fleischer, writing at the Washington Times last month, describes these concerns and pretty much dismisses them, which I think is correct:

Civil libertarians and parents may argue that the state may expand its intrusion into other family affairs if it is allowed to limit the right of a private citizen to smoke as a condition of being a parent. What if the child drinks too many sugary sodas, or plays violent video games? Most people bristle at the thought the state can monitor what a child eats, even though most people understand that a high fat, high sugar diet can lead to serious medical problems such as obesity and diabetes. If the state can control smoking by parents, couldn’t the state also control the type of diet a parent provides their children? It’s doubtful we will slide down this slippery slope, since the consequences of second hand smoke are well documented scientifically, giving the state an interest.

But this argument might as well be saved. Many courts have already decided that smoking should be a factor in custody decisions. Judge William F. Chinnock, visiting Judge to the Ohio Supreme Court, said in a law review article that a “considered analysis of family law across the United States leads to this inescapable conclusion: a family court that does not issue court orders restraining persons from smoking in the presence of children under the court’s care fails those children whom the law has entrusted to its care.”

The difference between smoking and the examples cited is that smoking has no benefits whatsoever for a child. Video games are fun and fatty foods are yummy, and in moderation neither is necessarily harmful. Particularly in the case of video games, there is nowhere near the body of scientific evidence demonstrating harm like there is with smoking. Prohibitions on smoking are nothing new in society. Restaurants maintained non-smoking sections long before cities and states enacted smoking bans. To my knowledge, no one has created a non-fatty food section in a restaurant (i.e. a place where fatty foods are banned). I suppose it’s possible, but it’s hard to imagine and relatively easy to guard against.

If a parent is feeding a child nothing but hot dogs, soft drinks, and ice cream, then that is a specific problem a parent can take to a family judge. If a child, with either the permission or acquiescence of a parent, plays “Call of Duty” to the exclusion of school and other responsibilities, that is also a significant impact on the child’s welfare. Most states’ family codes empower family judges to make orders that protect the “best interest of the child.” This tends to be a maddeningly ill-defined phrase, but caselaw offers a guide to what a court can and cannot consider.

Considering smoking as a factor in child custody makes sense from a health standpoint. It makes sense from a practical standpoint because, unlike video games or fatty foods, it is not taking something away from a child that the child wants (and if the child wants cigarettes, there is another problem). Finally, existing law already allows it. This should not be a serious issue of civil liberties. Adults ought to have the right to abuse their own bodies as they see fit, for the most part. When science clearly shows a harm that is not mitigated by any benefit to a child, then the law begins to take an interest in a parent’s activities as they pertain to a specific child (bolded because this is not about trying to stop people from smoking, eating ice cream, etc. in a general sense).

The interesting part is when people start to debate what activities of the parents directly harm the children. I happen to think very few of a parent’s activities done well out of the presence of their children directly harm them (particularly ones that do not produce secondhand smoke), provided the parent does a good job of keeping them separate.

Photo credit: By Opa (Own work) [Public domain], via Wikimedia Commons.

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Something’s rotten in the state of legal academia (or how law school is like a penis-enlargement supplement)

Via Andy Mergendahl at Lawyerist, we have this gem of a quote from a law school admissions officer:

I used to be amazed by how little research students did before deciding to go to law school. Thousands of hours and thousands of dollars are invested based on a school’s marketing materials, US News ranking, and a hunch. But there is a wealth of useful, and underused, data available online from sources other than law schools.

'Danger School Traffic Signal' by Jorc Navarro on stock.xchngTo provide a bit of context, solo attorney David Anziska has filed (so far) fourteen lawsuits against law schools related to inflated and otherwise-exaggerated employment statistics provided to prospective students. I’m not holding my breath that these lawsuits will get the plaintiffs any significant relief, but I think they may help put law school on notice that we are on to them. Since I have already commented on various shenanigans of Thomas M. Cooley Law School, let’s take a look at the complaint filed against them (PDF file).

Filed as a class action in the U.S. District Court for the Western District of Michigan, MacDonald, et al v. Thomas M. Cooley Law School “seeks to remedy a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.” Cooley allegedly pumps out up to one thousand new J.D. recipients every year, with four thousand total students at any one time on four campuses. The school’s marketing materials allegedly claim that seventy-six to eighty-two percent of its graduates find employment within nine months of graduation. The rub, according to the complaint, is that the school strongly implies that this number refers to full-time legal employment, when it actually refers to employment of any kind. At the same time, the school reported average starting salaries based on a small subset of employed graduates. Therefore, according to the plaintiffs, graduates whose sole employment one year after graduation is as a part-time dog sitter get counted as “employed,” but their salary might not be included in the statistics. All told, this is not information that would allow a prospective law student to make an informed decision.

The complaint goes on to discuss the non-intervention of the American Bar Association and various other miscreants in legal education. The plaintiffs, by and large, are Cooley graduates who couldn’t find a job and had massive student loan bills. They say they relied to their detriment on the promises made by Cooley’s admissions materials. They assert three causes of action: violation of the Michigan Consumer Protection Act, fraud, and negligent misrepresentation.

Let’s go back to the statement of the law school admissions official above. Mr. Mergendahl has a good analysis of it, but I think this sentence really cuts to the heart of these cases. Time and again, law school officials seem to invoke caveat emptor (buyer beware) in response to allegations of misrepresentation or outright fraud in employment and salary statistics. In other words, law schools are chastising law students for not figuring out that the law schools were lying to them.

To my knowledge, no court has ruled on any of these cases yet, so let’s say allegedly lying.

It’s actually a fair point, to a degree. There is a wealth of data available to prospective law students now (far more than was available even to me when I applied to law schools in the ancient days of 1999.) Any prospective law school who isn’t blinded by either a desperate search for a new path in life or giddy anticipation of the riches a law degree will bring can find this information. Anyone applying to law school from this point forward should be on notice: DO NOT TRUST EMPLOYMENT STATISTICS FROM LAW SCHOOLS!!!

That covers all present and future law school applicants. What of the people who were taken in by the promises of the moon and the stars in years past, only to find themselves left to fend for themselves when the bottom fell out of the law business? Perhaps they should have known better than to trust the marketing materials of a law school. Should that let a law school off the hook for essentially committing fraud?

By way of comparison, first consider tobacco. Anyone picking up a cigarette for the first time in 2012 anywhere in the United States has a wealth of information available to them regarding the health risks inherent in taking on that habit. Should they try to sue a tobacco company years down the road after they develop lung cancer, there is a good chance that a judge would laugh them straight out of the courthouse and into the street to get hit by a bus. This is because they would be making a decision to take up smoking in the face of extensive evidence of how doing so will kill you.

For people who took up smoking years ago, when information on tobacco’s tendency to turn you into a wheezing phlegm factory was less widely available, the answer is less clear. At any rate, judges and juries have concluded that tobacco companies are liable to people killed by their products, based at least in part on their tendency to understate the product’s deadliness. Misrepresenting or withholding key information has its consequences.

In the tobacco cases, misrepresentation or withholding of information had fatal consequences. Law school, generally speaking, does not kill people. It just saps their finances and leaves them riddled with debt. The debt is voluntary, but arguably obtained under false pretenses. For a less dire, much sillier analogy, consider Enzyte.

Anyone who watched television after 10:00 p.m. between roughly 2002 and 2010 remembers the obnoxious commercials with Bob, the middle-aged guy with the enormous penis. Or enormous grin, since the commercials couldn’t actually say that Enzyte would make your junk get bigger. They couldn’t say that partly because of FCC standards, and partly because they knew that would be pushing the bullshit too far. Of course Enzyte didn’t work. It’s easy to look back and think that only an idiot would think that it would work. That didn’t stop the Federal Trade Commission from prosecuting the company for mail fraud, sending several executives to jail and the company into bankruptcy. Even with completely asinine claims about their product, they still got into major trouble with the law. At least they didn’t kill anybody.

How is law school like a cigarette or a fake dick-embiggening pill? False or misleading claims induce a person who probably should have known better to invest resources into a product or service. That person suffers injury (e.g. death from lung cancer, personal embarrassment, or mountains of student loan debt). Legal liability ensues. The remaining population is wiser.

That said, people still smoke cigarettes, Enzyte is still on the market, and people are still applying to law school in droves while that admissions officer implicitly calls them fools. One thing I learned doing family law, which applies here, is that you often cannot save people from themselves.

Photo credit: ‘Danger School Traffic Signal’ by Jorc Navarro on stock.xchng.

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Rich Guy Does Something Creepy: Deluxe Edition

Polo playersJust sit with this story for a while:

A wealthy Florida man has adopted his 42-year-old girlfriend as a daughter in a move critics say will protect the man’s assets during an upcoming lawsuit surrounding a deadly car accident.

Polo Club Palm Beach founder John Goodman, 48, adopted his longtime partner Heather Laruso Hutchins in October, The Palm Beach Post reports.

The strategy could shore up Goodman’s wealth as he confronts a wrongful death lawsuit filed by the parents of Scott Patrick Wilson, The Associated Press says. Wilson was killed in 2010 when Goodman allegedly ran a stop sign. The trial begins March 27.

Goodman had previously set up a trust for his two minor children. If Wilson’s parents win their civil suit, they cannot receive any compensation from the trust, The Post reports.

Hutchins, as Goodman’s third legal child, is now entitled to a third of the money in the trust. However, another court could later rule that Hutchins isn’t entitled to a share of the trust, Fox News reports.

A lawyer for the Wilson family claims it’s a ploy for Goodman to keep money for himself. But Dan Bachi, Goodman’s lawyer, told The Palm Beach Post, the adoption is to guarantee his children’s future and denied that it was spurred by the lawsuit.

He’s now dating his daughter. There, I said it. Based on my reading of Florida criminal statutes, this does not legally constitute that thing that begins with the letter “i.” It still seems creepy. And opportunistic. Also, what happens if they break up?

Photo credit: By Siddha (Own work) [Public domain], via Wikimedia Commons

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Lactation is not a medical condition related to pregnancy, says Houston federal judge

Manual Breast Pump 2005 SeanMcCleanTexas once again distinguishes itself in the legal field. I sure do wish Texas would stop doing that.

U.S. District Judge Lynn N. Hughes of the Southern District of Texas recently granted summary judgment to a defendant in an employment discrimination suit brought by the Equal Employment Opportunity Commission on behalf of  Donnicia Venters. In a nutshell, Venters had worked at Houston Funding for about two years when she took maternity leave on December 1, 2008. While on leave, she says that she communicated regularly with her direct supervisor, asking if she would be allowed to use a back room of the office to use a breast pump while on breaks. She specifically wanted to use a back room that afforded privacy. She claims that the vice president in charge of such a decision reacted rather negatively, and that she learned she had been laid off when she attempted to go back to work in February 2009.

The EEOC filed suit against Houston Funding on her behalf, claiming that the company fired her in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination in employment based on a number of grounds including gender. Discriminating against an employee due to pregnancy or a related condition is considered a form of gender discrimination prohibited by Title VII.

Houston Funding countered that it fired Venters because she “abandoned” her job. The company claimed that she did not stay in contact with the relevant supervisors, and that after several months, a meeting was held and the decision was made to fire her. She learned of this on or about February 17 when she tried to return to work.

Judge Hughes, in granting summary judgment to Houston Funding, seemed to agree with their account of events. Nevertheless, the judge ruled that Houston Funding’s actions would not constitute discrimination whether they actually occurred or not. The statute only covers discrimination based on “pregnancy, childbirth, or a related medical condition,” he wrote in his opinion. A “related medical condition” could include “cramping, dizziness, and nausea while pregnant” (emphasis added). Since Venters “gave birth on December 11, 2009 [sic]…she was no longer pregnant and her pregnancy-related conditions ended.”

This is a rather strict reading of the statute. He seems to think that “or related medical conditions” only applies to “pregnancy” and not “childbirth,” which seems overly restrictive. My federal civil procedure is rusty, but it seems like there is a genuine issue of fact as to why the company fired her. He skips right over that and makes a blanket ruling that lactation is not a “medical condition” “related to” pregnancy or childbirth. I have a distinct feeling that many, many people who have directly experienced both pregnancy and childbirth will take issue with this characterization.

Of course, in a world where a significant number of lawmakers seem to think a medically-unnecessary invasive procedure that has put the word “transvaginal” into the national lexicon is hunky-dory, maybe I should not be surprised that a judge thinks he can redefine the medical processes of pregnancy.

Photo credit: SeanMack at the English language Wikipedia [GFDL], from Wikimedia Commons

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Here’s a birther who doesn’t even pretend not to be racist

Meet Gordon Warren Epperly of Juneau, Alaska. He has found a novel way to challenge Obama’s place on the 2012 presidential ballot. Considering the absolute and utter smackdown that birther lawsuits took in Georgia recently, it would seem a new set of tactics is necessary (giving up and admitting it’s not only a lost cause, but also completely psychotic, is clearly out of the question) (for an excellent summary of the bloodening that the birthers endured in Georgia, check out BadFiction’s blog). How is Mr. Epperly presenting his case? Well, obviously, Barack Obama is ineligible for the office of President of the United States of America because he is black, or to use Epperson’s words, “Mulatto.” Don’t believe me? Good, that means you’re not insane.

Let’s hear Epperson tell it, shall we? (A full PDF of the complaint to the Alaska Division of Elections is here.)

[F]or an Individual to be a candidate for the office of president of the United States, the candidate must meet the qualifications set forth in the United States Constitution and one of those qualifications is that the Candidate shall be a “natural born citizen” of the United States. As Barack Hussein Obama II is of the “mulatto” race, his status of citizenship is founded upon the Fourteenth Amendment to the United States Constitution. Before the [purported] ratification of the Fourteenth Amendment, the race of “Negro” or “mulatto” had no standing to be citizens of the United States under the United States Constitution.

DredScottThere’s more, but it is worth pointing out that at this point he cites the Dred Scott decision, the 1857 Supreme Court case that held that slaves, and descendants of slaves, were ineligible for citizenship. He claims that the case “has never been distinguished (overturned).” Moving on:

As the Fourteenth Amendment is only a grant of  “Civil Rights” and not a grant of  “Political Rights,” Barack Hussein Obama II does not have any “Political Rights” under any provision of the United States Constitution to hold any Public Office of the United States government. Furthermore, there is considerable debate within the enclosed supporting documents that shows Barack Hussein Obama II was not born on the soil of the United States and that he was not subject to the jurisdiction of the United States at the time of his birth. If this is true, it would appear that Barack Hussein Obama II may not only be in want of having the status of being a “natural born Citizen,” but he may not even be a “citizen of the United States.” Being absent of proper status of Citizenship, Barack Hussein Obama II, nor his Delegates, have the qualifications to appear on the Election Ballots for the State of Alaska. (Emphasis in original)

A few observations at this point. First, he hedges quite a bit in his language, more than one might expect in a petition to a government agency. “There is considerable debate…” and “If this is true…” Not exactly the sort of forceful language one might expect in an original pleading. It is also common to use a shorthand when a name is repeated, e.g. “Barack Hussein Obama II (hereinafter “Obama”)” or something like that. I suspect he just couldn’t resist the opportunity to remind us at every turn that the president’s middle name is Hussein. At least he managed to stay away from the caps lock key.

Others have done an excellent job of putting Mr. Epperly’s arguments out of their misery, so I don’t need to waste too much ammo. If I am correctly reading his complaint (and my ability to read legal documents written in batshit can be a bit rusty), he is arguing that the Fourteenth Amendment did not actually overturn Dred Scott, and that therefore Barack Obama, and presumably anyone else of black, African-American, African, Caribbean, etc. ancestry is not a United States citizen, even if they were born here.

My legal analysis in brief: that’s crap.

Aside from that, he is rehashing many familiar tropes of the birther movement. President Obama is not “natural born” because his father was not a U.S. citizen, or because he was secretly born in Kenya, blah blah blah. This argument would have the intriguing effect of stripping U.S. citizenship from thousands of people born to citizens of other countries, despite the fact that “natural born” has been construed to mean “born on U.S. soil” for decades and longer.

In fact, any excessive amount of scrutiny of what it means to be “natural born” as it pertains to the presidency really didn’t come up at all until a black guy with a funny-sounding name got elected president. Don’t insult yourself, America, or humanity by trying to claim that racism is not a factor in all of this. Gordon Warren Epperly at least has the courtesy, and the courage, to be honest about it.

Photo credit: By Louis Schultze [Public domain], via Wikimedia Commons

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Not Every Lawyer Can Bill 3,000 Hours in a Year. Most Lawyers Shouldn’t

A lawyer who got axed from his firm for allegedly failing to make his billable hour requirements has filed suit against his former firm, claiming they essentially required him to commit billing fraud:

A California lawyer who says he was fired from his law firm because he couldn’t meet a quota requiring 3,000 billable hours a year has filed an employment bias suit over his ouster.

The former associate, Richard Unitan, claims the unrealistic requirement forced lawyers to lie about their hours, the Los Angeles Daily Journal reports. Unitan, a Riverside litigator, claims he was essentially fired for not committing billing fraud.

A 3,000 hour billable requirement would require working about eight hours a day, every day of the year. Most firms require no more than 2,100 billable hours a year.

They say that for every hour a lawyer works, they can only bill 30-45 minutes of that time. To bill 3,000 hours would therefore require spending 4,000-6,000 in the office every year, or 11-16 hours per day. (I’m not sure who “they” are, but they talk a lot.)

Some lawyers can probably take to that lifestyle with gusto. Other lawyers might enjoy exercise, the arts, food, or having a family. Some lawyers might aspire to be an interesting human being outside of the context of their periodic review with the managing partner of their firm. Some lawyers might aspire to spending some of the waking hours of their day not tracking their time in 6- or 15-minute increments.

But then, most lawyers don’t get to work at the big fancy law firms anyway.

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Jessica Ahlquist, Portrait of a Hero

Religious liberty (which includes both freedom of and from religion) won a big victory in Rhode Island this week, with a court ruling that a prayer banner at Cranston High School violates the Establishment Clause of the First Amendment and ordering the banner’s removal. At the center of the case is 16 year-old Cranston student Jessica Ahlquist, who stood up for her (and everyone’s) constitutional rights and has endured an ongoing litany of abuse and threats in response.

It is worth noting that this case is so straightforward a law professor might balk at even using it as a hypothetical in a first-year constitutional law class. A public school, in 1963, put up a banner titled “Prayer” beginning with an invocation to a “Heavenly Father” and ending with an “Amen.” Does it get any more prayerful than that? Faced with an almost-guaranteed loss, the school board decided to roll the dice with the funding that should be used to educate children, using it instead to pay lawyers to argue that their prayer is not really a prayer. Not surprisingly, a judge who has actually read several decades’ worth of Establishment Clause jurisprudence ruled in favor of Ahlquist. Also not surprisingly (but disappointingly), the backlash has been prompt and furious. The above link to the abuse heaped on Ahlquist is not for the faint of heart, nor for anyone who wants to remain blissfully ignorant of how some people can be.

Ahlquist’s supporters, of whom there are refreshingly many, are conducting a college scholarship fundraiser for her to make her future brighter than her present. Contributions will go to a fund set up by the American Humanist Association (of which I am a proud member). I encourage my reader(s) to stand in support of this brave young person. The world needs more people like her.

Related link: Ruling (PDF), Ahlquist v. City of Cranston, et al

Photo: linked from here.

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Not All Opinions are Created Equal: Martha Sperry, Frivolous Lawsuits, and the Impossibility of Arguing with Some People

“Why are people hating me for having my own opinion?”

Spend any significant amount of time engaging in discussions (arguments) on the internet and you will hear this. This is different from a situation with two people reaching an impasse between two opposing viewpoints. This refers to a person who basically refuses to defend their position, preferring to demand respect for an opinion because dammit, it’s their opinion.

I have yet to encounter a situation where it is not a craven attempt by someone who cannot defend their position to cast the attention back on the person who is kicking their butt. “No, I can’t defend what I am saying but you’re being mean!!!1!!!” is mostly how it goes.

I signed up for a Disqus account last week, and my third comment left on a blog thread garnered this response. I think this must be a record, but I do not expect any sort of prize.

It bothers me as an attorney (albeit an infrequently-practicing one), a blogger, a writer, and one who just enjoys a good argument now and then. It bothers me because it’s dishonest. No one hates you for having your own opinion, so don’t be so damn dramatic.

It bothers me because it is lazy. The argument is not going your way, so you are going to punt back to the other side.

Most of all, it bothers me for reasons that go beyond dishonesty. Trying to end an argument by appealing to some equitable notion that “everyone is entitled to their opinion” does not even deserve to be called “wrong,” because (and I cannot say this adamantly enough) not all opinions are created equal, and opinions are not worthy of respect or consideration if the opinion holder cannot or will not make an effort to defend them rationally and objectively.

This is why there can be no “honest” differences of opinion over the scientific theory of evolution versus ideas like creationism or its bastard stepchild, intelligent design, because their proponents are either ignorant of, or choose to ignore, highly relevant facts.

Let me be clear: people are free, thanks to the First Amendment, to state nearly any opinion they want, however crazy or groundless it may be. They are not free from challenge or criticism. In fact, challenge and criticism are essential to anyone learning anything, ever. Should those critics be polite? Sure, but honesty and integrity are much more important.

In a certain lawsuit brought against me and a number of media companies, lawyers, and bloggers by a certain young lawyer who Shall Not Be Named, news of a new settlement has surfaced. Back in December, an apology of sorts appeared on the blog of one Martha Sperry, along with some none-too-subtle swipes at people who would dare to use their blogs to call things as they see them and fight against frivolous lawsuits (an earlier almost-retraction appeared in October 2011). Other legal bloggers have addressed this quite admirably–I would direct you to Crime and Federalism‘s take-down of her apology for some excellent commentary.

Sperry’s blog post, aside from demonstrating a remarkable unwillingness to stand up for herself, also includes commentary from a few of my co-defendants taking her to task. Her responses invariably return to “I have my opinion and you have yours, so can’t we all just have ice cream?” I’m paraphrasing. Here’s a bit of what she actually said:

At this point, the matter seems more about tearing things down rather than building things up. And I fail to see the point of that.

You are certainly entitled to your opinion and I honor that.

I don’t know Martha Sperry, and I am sure she has her reasons for curling up in a ball and whimpering in response to a frivolous, meritless, groundless, jurisdictionless lawsuit, whatever those reasons may be. Her most recent comments to her blog post suggest that she remains a defendant in the lawsuit by He Who Shall Not Be Named (which makes her post all the more puzzling). At the end of the day, I don’t care if she settles with the plaintiff, or if she sells off all the assets of her business, moves to the South Pole, and tries to live as a penguin. I only care to the extent that it makes fighting for my own First Amendment rights (and by extension, hers) more difficult.

I also only care to the extent that pretending that an acknowledgment that “different people have different points of view” counts as an argument. It is actually laziness of the highest order. I disagree with every fiber of my being that we should always focus on “building things up.” We should, however, always focus on truth. When our opinions do not help us come to a greater understanding of the truth, then they are worthless.

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Lawsuit of the Millenium, Starring Mountain Dew

It’s hard to keep up with soft drinks these days. When they’re not reinforcing incoherent and possibly archaic gender roles, they’re busy dissolving mice. Or not dissolving mice, depending on whose story you believe. But I get ahead of myself.

Now then, I love Mountain Dew as much as the next guy. Assuming, of course, that “the next guy” permanently associates Mountain Dew with collegiate all-nighters and acute gastric distress (sometimes simultaneous). When there’s no crab juice available, it will do, I suppose.

For Ronald Ball of Wood River, Illinois, however, a swig of Mountain Dew turned deadly. If by “deadly” you just mean “really gross” and not actually deadly. I just liked the way that sounded. Anyway, Ball claims that he found a dead mouse in his Mountain Dew, after much vomiting. Unlike his forebears, Doug and Bob McKenzie, Ball did not use the incident as a means of obtaining a free case of Mountain Dew.

Okay, I’m all out of pop culture references related to Mountain Dew. Moving on to the legal stuff…

Ball filed a lawsuit in Madison County District Court against Pepsico, the store where he bought the drink, and the store’s manager. Read all about Ball’s lawsuit at the Madison County Record. Not only does he allege breach of warranty and various other consumer claims, but he also accuses Pepsico of spoliation of evidence. He apparently sent the mouse carcass, along with the remaining beverage, to Pepsico in a mason jar. He claims he never got it back. Lawyers everywhere are overwhelmed by their lack of surprise at this claim.

The case has been bouncing around since mid-2009, but it seems to be moving finally towards trial. The defense argument put forth by Pepsico is what gives this case the Lawsuit of the Millenium title (what I hope will be the first of many awarded by this blog!)

The company argues it has scientific evidence that the mouse was not in the can when the case was sealed in August 2008 and that a veterinary pathologist examined the mouse, finding that it could not have been in the can that long because its body would have disintegrated due to the acid in the soda.

Pepsi argues that for the mouse to have been in the Mountain Dew that long, the body would have transformed into a “‘jelly-like’ substance.”

So if Pepsi loses this case, Mountain Dew may lose its reputation as nerd fuel and instead become known as mouse juice, or some other less-stupid nickname.

If Pepsi wins the case, it is marketing a product that can turn organic material to jelly.

Yes, I realize that we’re talking about far longer periods of time than Mountain Dew would actually remain in the human digestive system in the form in which it goes to market, so there is little to no analogy between dissolving a mouse and causing me to have stomach aches. It’s still hardly good PR to be able to say that Mountain Dew is the official drink of land luging and mouse dissolving.

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