By Brian Malcom

While "attractive nuisance" would be a terrific band name for a bunch of law students who are wannabe rock stars, it is also what a Georgetown law professor is calling laptops in the classroom.  In case you missed it, Washington Post has the story here.

Apparently, the professor has shaky confidence in his ability to sustain the rapt attention of his audience while the Internet and solitaire are tempting their wandering eyes.

I can't imagine why.  I know my mind never wandered to espn.com when we were discussing the Rule Against Perpetuities in law school.  Why would I care about my March Madness bracketology when the Testator's heirs' interest in Blackacre is hanging by a measuring life?  Why?!

Another problem with laptops in the classrooms, according to the professor, is that they can be used to spread rumors.  I know I got all of the juciest gossip in law school during class and straight from the professor's mouth.  This piece of logic ignores the fact that PDAs are just as capable at spreading rumors as laptops and even more portable.

Despite this insult to the students' ability to manage their own attention spans, some students support the ban on laptops in the classroom.  Most say they are more engaged in classroom discussion and could concentrate easier.

What are your thoughts?

Brian Malcom

No good deed goes unpunished, especially those done in violation of copyright law.  Copyrights & Campaigns posted about this very subject last week.  

Harvard Law Professor Charles Nesson led a defense team for a graduate student at the university pro bono.  The student was ordered to pay $675,000 for unlawfully downloading 30 songs on the Internet.  (Yes, that is $22,500 per song).  Here's hoping he really likes the songs. 

A while ago, the plaintiffs in the case filed a motion to compel seeking evidence regarding the posting of seven songs to a public website.  The federal district judge granted the motion to compel in June 2009.  The plaintiffs then filed a motion for costs and fees under Rule 37.  The motion for costs and fees is available here.  No opposition was filed. 

Last week, the judge also ordered the defendant and his attorney, Professor Nesson, to pay the costs and attorneys fees for the motion to compel filed by the plaintiffs.  Professor Nesson apparently posted some songs at issue in the case on his blog, with a public link for anyone to download the songs. 

The Lessons: 

1. If you find yourself in a lawsuit concerning illegal downloading or distribution of copyrighted material, do not -- I repeat, do not -- post a link for everyone and their cousin to download the material for free;
2. Respond to motions that seek to tax costs and fees against you and your client; and 
3. Pro bono can cost you. 

By Brian Malcom 

Social media is becoming a crime-fighting weapon, and criminal defense attorneys are catching on.  For some reason, most people believe that there is anonymity on the Internet.  This is an especially absurd belief when people go through great pains to make themselves as visible as possible in social media.

A Nashville, Tennessee criminal defense attorney named David Raybin immediately advises his clients to shut down their Facebook account.  I suspect that he is not the only criminal defense attorney giving this advice to his clients.  Lately, there has been an increased use of social media by police investigations.

The ABA Journal writes, "USA Today notes several cases throughout the country in which police investigations were bolstered by taking time to explore YouTube, Flickr and other online message boards:" 

• Police in Suffolk, Va., were able to identify suspects involved in a Dec. 14 street fight when cellphone videos were posted on YouTube.
• Police in Chattanooga, Tenn., discovered an online forum where residents were planning illegal drag races, staked out the area and ticketed participants.
• Police in Los Angeles used YouTube and Flickr to identify people suspected of being involved in riots following the June 2009 NBA Championship. 

What can a young lawyer learn from this?  Well if you are interested in going into criminal defense, you may want to advise your client to immediately delete their social media account.  If you are not interested in criminal defense, maybe you should just take this as a yet another example that social media can be dangerous.

I would place good money on the fact that all bar organizations are already trolling social media outlets for information about bar applicants, committee applicants, and practicing attorneys under investigation for ethical misconduct.  This may be a good time to take down the picture of you doing a keg stand at last month's young lawyers get together.

Reminder about my rule of thumb: never post anything on the Internet you don't want your employer to see.  Thanks to cache technology, anything posted to the Internet will exist forever in cyberspace.

By James Bowden

Do you need an attorney, and are more familiar and comfortable with online dating sites than the common law firm website?  Are you a practicing attorney who wishes for a way to use your charismatic personality and your rakish good looks to woo clients?  Have no fear, LegalTube is here!

LegalTube is apparently the natural evolution of legal advertising in the information age.  According to the ABA’s Business Law Today:

The site is intended to mimic that initial conversation for a prospective client—learning about the lawyer's personal style, experience, areas of expertise, and answers to general queries. As opposed to a standard directory where only certain text information is available, lawyers participating in LegalTube can not only give virtual tours of their offices, but also give viewers insight into their firm, their personality, and their background.

I don’t know about all of that, but the website does feature the three worst-delivered lawyer jokes in history.  Also included is an honestly entertaining “webisode reality series” called “Law After Dark,” which is really just a series of hilarious/sad clips from the Jefferson County Alabama (Birmingham) Circuit Court.  Fun game: juxtaposing the instructions concerning appropriate courtroom attire in the “Shorts?” clip with the treatment given to the defendant wearing the Hooters t-shirt in the “Nice hair” clip, planning wardrobe for upcoming hearing in Jefferson County appropriately.

Overall, I don’t know how well the site functions as a business development tool, and I somehow doubt that its existence will improve a client’s ability to select their ideal attorney – but the limited content available certainly is entertaining.  It should keep you chortling for at least a .2.

By Eileen Burkhalter Smith

So, I have just learned that there are rules in hockey about who can fight whom in a fight (the allowance of which is in and of itself an unwritten rule).  Apparently, these rules are not actually written, but they are enforced.  Check out the outrage that happens when someone doesn’t follow them here.

This made me think about the unwritten rules in a trial.  I think we can all agree that we have our fair share of written rules, but would you agree with me that there are unwritten ones as well?  Here are three (a hat trick?) that I think exist based on some recent experience:

1.  Embrace your case.  We all have to be advocates, right? I was surprised recently by seeing someone act almost sheepishly about her position in a case during a trial.  I think this might be effective during negotiations, counsel to counsel communications or in other situations, but in front of the judge? The jury?  I think you have to take a stance and believe it.  If you don’t, no one else will.

2.  Pick your battles.  A trial is different than a written motion where it may be appropriate to footnote or reference every facet of every argument.  In a trial, making a mountain out of a molehill can backfire.  Consider whether your strong dispute about a harmless hearsay statement will make the Judge less likely to give you time to argue your later motion to exclude testimony.

3.  Respect their time.  I think it is also important to edit arguments, witness examinations and even evidence depending on how a case is going.  Has the point been made?  Is it 4:00 p.m. on a Friday?  If the case allows for it, I think it is appropriate to realize that the trier(s) of fact may have made a decision and would appreciate an early end.

These are all case specific, of course, but perhaps we should learn a thing or two from hockey:  don’t run a foul of the unwritten rules; it may leave you short-handed.