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The New York Legal News Round Up

Latest_news It's the Thanksgiving eve round up of interesting news headlines from the past week:

Can Lawyers Afford to Ignore Social Media?


This week's Daily Record column is entitled "Can Lawyers Afford to Ignore Social Media?"

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Can Lawyers Afford to Ignore Social Media?

Social media is radically altering our world.

People of all ages are increasingly relying on the Internet and mobile-based tools to share, discuss, and disseminate information.

Lawyers cannot afford to be left out of the loop. Attorneys who successfully leverage social media tools to communicate, collaborate and network have a distinct advantage over those who don’t.

It is not necessary for each and every lawyer in a firm to learn the ins and outs of social media. But at least one person, or group of persons, depending on the size the firm, should be familiar with emerging Web 2.0 technologies and the ways in which those technologies can help and harm their bottom line. Other lawyers in the firm likewise should be receptive and listen to their recommendations regarding social media.

You need look no further than the recent historic presidential election to see evidence of the far-reaching effects of social media. President-elect Obama’s campaign used many forms of social media, including Facebook, Twitter and text messaging, to interact with and motivate supporters.

President-elect Obama has continued to connect with the public by harnessing the power of social media. A Web site designed to ease his transition into office was established within days of the election. The Web site incorporates a blog, which provides information regarding the transition process and invites input from its readers.

A corresponding YouTube channel, has been created, and includes videos of the weekly presidential address, as well as other events, such as the recent meeting of the Energy and Environment Policy Transition Team.

By using the latest technologies —readily available and affordable social media platform—President-elect Obama, an attorney who will soon hold the highest office in the country, will connect and interact with millions of his constituents in a way never before seen.

The superiority of Internet technologies over many traditional methods was exemplified just last week Google announced that it was working with the Center for Disease Control to track flu trends.

Google’s Web site explained methodology behind the unique and unprecedented collaboration:

Certain search terms are good indicators of flu activity. Google Flu Trends uses aggregated Google search data to estimate flu activity in your state up to two weeks faster than traditional flu surveillance systems.

Such emerging social media trends are extremely important to lawyers, and lawyers who ignore them do so to the detriment of their practice.

Just ask Dallas attorney Dale Markland, a seasoned practitioner who received a crash course in the power of social media when a letter that was critical of him was widely circulated and discussed online.

Shortly after that abrupt and awkward introduction to the viral effect of social media, Markland established an online presence of his own in a last ditch effort to control the potential damage to his reputation.

As he explained on the Web site, its primary purpose was to refute the allegations contained in the original letter:

On Sept. 26, 2008, a Houston attorney, Jeff Murphrey, sent a letter to me [Markland] related to his cancellation of a deposition in an on-going lawsuit that he and I were involved in. Someone sent that letter to internet blog sites and distributed it through mass emailings such that basically the entire world has had a chance to read Mr. Murphrey’s letter, and apparently many have. … This is my statement regarding the events and the contents of the letter.

Markland learned the hard way. Lawyers hoping to avoid his predicament would be well advised to stay abreast of the changing landscape of social media.

Knowledge is power. Smart practitioners will choose to learn about and appreciate the effect of emerging and affordable technologies upon the practice of law. Lawyers who fail to do so most certainly will pay the price.

The New York Legal Blog Round Up

Blawgs It's almost T-day, and it's time for the weekly round up of interesting posts from my fellow New York law bloggers:

Juz the Fax:

New York Attorney Malpractice Blog:

New York Criminal Defense:

New York Law Blog:

New York Personal Injury Law Blog:

New York Public Personnel Law:

Rochester Family Lawyer:

Simple Justice:

Define That Term #303

Dictionary_2 The most recent term was secondary meaning, which is defined as:

In trademark law, a mark that is not inherently distinctive becomes protected after developing a "secondary meaning": great public recognition through long use and exposure in the marketplace. For example, though first names are not generally considered inherently distinctive, Ben & Jerry's Ice Cream has become so well known that it is now entitled to maximum trademark protection.

No one guessed this time around.

Today's term, as suggested by Harvey Randell of the New York Public Personnel Law blog, is:

the doctrine of legislative equivalency.

As always, no dictionaries, please.

The New York Legal News Round Up

Latest_news It's a snowy Wednesday and time for the round up of interesting legal news headlines from the past week:

Religious liberty for some, not all


This week's Daily Record column is entitled "Religious liberty for some, not all."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Religious liberty for some, not all

“Hypocrisy is oftenest clothed in the garb of religion.”

I was intrigued when the Becket Fund for Religious Liberty, a public interest law firm that purports to protect all religious expression, recently confirmed it would be filing a religious discrimination lawsuit against the Town of Morristown in U.S. District Court for the Northern District of New York on behalf of Amish residents.

The lawsuit will allege Morristown’s enforcement of building codes against the Amish, including a requirement that all homes have fire alarms, violates the sect’s constitutional rights.

In a letter to the members of the town board dated March 18, the fund states:

We are writing you to express our deep concern over Morristown’s decision … to engage in selective prosecution of 10 Old Order Amish men for alleged violations of the Town’s building code. … As an international, interfaith, public interest law firm, the Becket Fund is dedicated to protecting the free expression of all religious traditions and the freedom of all people of faith to participate fully in public life without discrimination. (Emphasis in original).

The position asserted in the letter is in keeping with the fund’s statement of beliefs found, on its Web  site: “What Do We Believe":

Freedom of religion is a basic human right that no government may lawfully deny. … Religious expression (of all traditions) is a natural part of life in a free society, and religious arguments (on all sides of a question) are a normal and healthy element of public debate. Religious people and institutions are entitled to participate in public life on an equal basis with everyone else, and
should not be excluded for professing their faith.

Upon delving deeper, however, it appears that the fund’s assertion that it serves the interest of all religious traditions is disingenuous, at best. Rather, the fund represents only the interests of politically and socially conservative religious groups.

The apparent disingenuousness is most evident in the fund’s ardent opposition to gay marriage. Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in Over the last few years, the fund has  filed amicus briefs opposing the legalization of gay marriage in at least three state courts —Maryland, Connecticut and Iowa.

In the brief filed in the pending Iowa lawsuit, Varnum v. Brien, Case No.: CV5965, the fund admits in footnote 3 that it does not represent the interests of all religions, but rather those whose beliefs conform to the fund’s conservative agenda:

Notably, the signatories to that brief consist exclusively of persons and groups that ‘support the dignity of loving, committed same-sex couples, and believe that same- sex couples should be permitted to enter civil marriage.’ See, Brief Amici Curiae of Iowa Faith Leaders at 8. These signatories, who have faced no threat to their religious liberty under the traditional legal definition of marriage, would face no greater threat if that definition changed since their theology supports same-sex marriage. But their brief ignores the many interests of religious groups (perhaps the majority) that theologically oppose same-sex marriage. And it is precisely those more traditional religious institutions whose religious liberty is threatened.

It is clear, then, that despite empty assertions to the contrary, the fund does not support the interests of every faith, since all religious institutions do not oppose gay marriage.

In fact, a number of religious organizations openly support same sex relationships as a matter of policy, including the Universal Fellowship of Metropolitan Community Churches, Ecumenical Catholic Church, Church of God Anonymous, the Alliance for Jewish Renewal (ALEPH), Reconstructionist Judaism, Reform Judaism and the Unitarian Universalist Association.

Others, including United Church of Christ and various Quaker groups allow clergy, congregations and local governing bodies to determine the appropriate level of support for gay marriage.

The Becket Fund for Religious Liberty is but a caricature of a true public interest law firm. While purporting to represent religious liberty for all, the fund supports only those religions that conform to its conservative agenda, rendering its litigation efforts selective at best, and hypocritical at worst.

The New York Legal Blog Round Up

Blawgs It's a cold, seasonal Monday and time for the weekly round up of posts from my fellow New York blawgers:

Coverage Counsel:

New York Attorney Malpractice Blog:

New York Personal Injury Law Blog:

New York Public Personnel Law:

Rochester Family Lawyer:
Simple Justice:
The CPLR Blog:

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. V

Checkmark Next up, questions from the audience and corresponding answers:

  • Unknown re: whether NY Court of Appeals will permit electronic filing
  • Per Judge Jones--inescapable fact of life that entire legal community moving towards electronic filing, technological advancements--but how quickly we'll get there is unknown
  • Per John Speranza--make a story out of your briefs--use creativity--make it interesting
  • Judge Pigott referenced a case out of Oneida County-People v. Pepe as an example of a great prosecution brief that told a great story
  • Per Judge Jones-avoid sequential date story telling--tell a story in the Statement of Facts and try to phrase it in away that more closely reflects the main issues in the case
  • Per John Speranza-flamboyant language/descriptions can liven up a brief
  • Question re: depraved indifference standards/decisions.  Per Judge Pigott, hard to predict where it's going. Difficult and evolving area of law-new cases with new factual scenarios come down and are increasingly difficult interpret. Per Judge Jones-part of the problem with the analysis is the inability to determine whether "depraved indifference" describes a mens rea or a set of circumstances.
  • How to make leave applications compelling. Put main issue up front and be concise and persuasive per Judge Jones. Don't clutter up strongest argument.  PerJudge Pigot-use a rifle not a shotgun and request phone conference in letter accompanying leave application if feel like it would help.

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. IV

Jones Next up, Hon. Theodore T. Jones:

  • It is an unfortunate fact of life that you must practice law defensively in the current day.
  • Judge Jones personally looks at all leave applications.
  • Places them in piles--meritless and potentially meritorious.
  • Disagrees with assertion that if application sits around with the court for too long, it's bad news. In his chambers-some meritorious cases actually take a while to process once flagged as possibly meritorious.
  • Judge Jones likes to speak with attorneys on phone, so may want to suggest a phone conference in your letter accompanying the leave application.
  • Most preservation issues are confronted and resolved in the Appellate Division, and if you lose on that basis at AD, it's an uphill battle.  Make best, persuasive argument regarding preservation at intermediate appellate court.

Live Blogging at NY Court of Appeals Criminal Justice CLE-Pt. III

Pigott Next up, the Hon. Eugene Pigott, such a great speaker/presenter--main points:

  • Best advice to defense counsel-win early, so need to appeal;)
  • Begin all arguments with "Judge you're out of order, this whole court's out of order!" ;)
  • Timely preservation--important, but does it assist your opponent in making the case?
  • Preservation important to allow the trial judge chance to consider issue, but it's also important for the appellate courts.
  • Find way to get trial judge to allow you to get argument on the record, even where judge insists s/he "understands the argument."
  • Can be difficult to younger attorneys, no matter how knowledgeable, to convince a judge, so you have to assert yourself.
  • Judge Pigott reviews applications himself.
  • Jokingly claims he grants all 4th Department applications;)
  • A mistake ADA's tend to make is to fail to respond to leave applications--generally in other departments, of course, not the 4th Dept.
  • Lawyers work too hard and get too myopic--need to look at the big picture/statewide implications
  • Attach exhibits to leave applications if relevant
  • Attach stuff to appellate briefs as well, rather than requiring judges to thumb through record
  • Get out of "your lawyer suit"--be imaginative.
  • Follow rules-don't violate them-but don't be confined by them.