Here is a nice analysis of the telemarketing industry's desperate attack on the do-not-call registry in the courts.

The Dennis Kozlowski trial is underway and they've begun picking a jury. I heard on the news this morning that jurors were asked whether they could serve for 3 or 4 months. That's a long time to put your life on hold.

Now, granted, this is a contender for trial of the century so far. The jurors will dine out on this one for a decade once it's over, but still, imagine that length of time in the jury box.

And a trial that long isn't exactly rare. Imagine getting socked with the same length of service on some complicated patent dispute. Ouch.

Here's an idea that might raise an outcry. Trial lawyers should be told that they have a week to put on their case. The total trial will be two weeks. If they can't put on their case in that time, then they can only have a bench trial, unless they're willing to pay jurors real money to sit for all those months. So one side will agree to do it in a week. The side that won't agree has to pay the jurors. (If by some miracle the parties agree, then they can just split it.) Under the current system, the jurors get some pittance that varies from jurisdiction to jurisdiction -- basically an amount that is supposed to cover lunch and parking and never quite does. I'd make a party who wants an endless jury trial pay about $600 a week per juror. That's a pittance compared to what they'll spend on legal fees, and it will take the sting out of being banished to the jury box for months. It'll also shorten up many trials.

Then what do we do with the party that said they could put their case on in a week? Well, if the other side insists on taking three months, then they probably need some rebuttal time. I'd have to work on that piece, but maybe they get another free day per week for rebutttal (again, the party that makes the trial endless pays the jurors), and if they suddenly realize they need more time than that then they get the tab.

This won't work in criminal cases, to be sure, since most criminal defendants are already getting court appointed counsel, but I don't think there is any constitutional right to a four month trial. The courts can control their dockets in criminal cases too.

Sure there will be problems, like a party who tries to chew up time during the presentation of the other party's case just to run up the tab. But I'm sure the judges can clamp down on that sort of conduct. It's an idea that needs some fleshing out, but it's got some appeal.

Looks like some better news may be on the horizon for consumers, as the U.S. Circuit Court of Appeals for the 10th Circuit has tentatively indicated that it will rule that the Do-Not-Call Registry is Constitutional. Surely there is no First Amendment right for telemarketers to inflict their speech on you in your own home?

The deluge of interesting legal news continues this week. The Quattrone trial and the Tyco trial are imminent (both go on Monday according the WSJ this morning (see page C1), and Godaddy.com has sued Verisign for allegedly highjacking browsers when someone types in the wrong domain name.

The FTC, predictably, has appealed the Oklahoma Court ruling nixing the Do-Not-Call registry, and asked the Oklahoma judge to stay the effect of his ruling pending the outcome of the appeal. More on that here, with a Massachusetts slant.

What a week. More to come once I've digested it all.

Big day in legal news. Check this one out: Oklahoma Judge Nixes Federal Do-Not Call Registry. I need to get a copy of the opinion and will report back.

Wow. Just spotted this: California Anti-Spam Bill. Spam infuriates me as much as the next person, but this looks harsh. I'll have to study it a bit and comment further later.

Another site for the Securities Lawyers out there (and others interested in the topic): The Securities Lawyer's Deskbook. I've used this site a ton. It's free, and has loads of useful stuff for securities lawyers -- primarily the 1933 and 1934 Acts and the accompanying regulations and forms as well as the Sarbanes Oxley Act of 2002.

Here's reason to smile: AOL Settles Charges. The FTC went after AOL for continuing to charge customers after they tried to cancel their service. The FTC also went after an AOL subsidiary for failing to pay promised rebates. AOL entered into a consent decree to settle the charges.

In my humble opinion, AOL is a menace in other ways as well. For example, I downloaded a Real Player a few days ago, and found AOL offers tucked onto my desk top and in my "favorites" file on my browser. I sure as heck didn't knowingly agree to that. In my book, secretly inserting files into someone's computer is wrong. Certainly I'll never use AOL if for no other reason than I feel like it has violated my computer. I'd like to see the FTC look into AOL's other bogus tactics as well.

Here's one: Angry Jury. This poor jury has been deliberating since May 29 (that's essentially the entire summer) to reach a decision in a case about police officers allegedly beating a suspect and lying about it in their reports. There are 35 separate counts, and they were given 122 pages of instructions by the judge. They've reached a verdict on 8 counts after nearly 4 months of struggling.

So the jury tells the judge they can't reach a verdict on the other 27 counts, and the judge tells them to try again. Is this likely to produce a fair and just result? I doubt it. If you've been trapped in a room for 4 months, and the judge essentially tells you that you're not leaving until you reach a verdict, I bet you're going to reach one, even if it means "changing your mind." I suppose they could just harmonize the 27 counts that they're deadlocked on with the 8 that they agree on, and it might not be a total travesty. But this jury has done it's bit and then some. It's time to let them go.

Here's a cool legal site: The Stanford Law School Securities Class Action Clearing House.

You can find all sorts of good stuff there -- complaints for securities fraud, settlements, court decisions, statistics. If you're interested in this stuff, it's a must-see site.

A few thoughts today on the Attorney Client Privilege. There are undoubtedly slight variations to the privilege depending on where you live, but it's pretty consistent in the broad strokes in this country. (See my disclaimer here. I'm a lawyer. Can't help myself.)

Anyway, the Attorney Client Privilege is a rule that lets you keep what you talk about with your lawyer confidential. The important part is you can refuse to answer questions about what you talked about with your lawyer during a deposition or even at a trial, and the judge won't make you answer or punish you for refusing. (In some instances, the jury might be entitled to assume the answer would have been bad for your case, but that's a topic for another day.) The modern rule is that the client owns the privilege. That means that the client decides whether to answer or not, and whether or not the attorney can disclose what you talked about. (Really, the rule applies to "communications" which encompasses more than just conversations. The privilege would protect letters, e-mail, gestures, anything that conveys information between you and your lawyer that is related to you asking for or your lawyer giving you legal advice.

There are occasional exceptions when the lawyer can decide to disclose the contents of the communications. For example, if you sue your lawyer, he or she can reveal privileged communications as part of the defense to the claim.

Anyway, the privilege only applies if the communications were confidential in the first place. That usually means that only you and your lawyer (or other members of the legal team or other co-clients) are present during your communications. If you cc your sister on an e-mail to your lawyer, bring her along to a meeting, or even tell her all about what you talked about with your lawyer afterwards, then you've blown the privilege. Sometimes you can skate on mistakes like this, because the other side's lawyer is too polite or doesn't know enough to ask a few hard questions, such as: "Was anyone else present when you met with your lawyer?" or "Have you told anyone what you talked about with your lawyer?"

But you shouldn't count on catching breaks like that. If you want to keep your communications with your lawyer privileged, keep them confidential.

One of the hottest topics in litigation the past couple of years has been "electronic discovery." That is, more or less, when during the investigation phase of a lawsuit, you demand that the other side fork over the contents of its computers. Partly you want to see if drafts of documents may be floating around in your opponent's hard drives or network servers, but mostly you're after the e-mail.

It's amazing how many bodies are buried in the e-mail. Even now, when you would think that people were starting to learn that e-mail is forever, and saying something dumb in an e-mail can come back to haunt you, people continue to treat e-mail as if it were a casual conversation, quickly forgotten.

The next frontiers are going to be: (1) records of the websites people have visited -- I've already seen a case on this concept; (2) figuring out a way to preserve and get at instant messages; and (3) getting at voice mail. Once something is converted into bits and bytes and sent out over the Internet, it can conceivably last forever.

Interesting legal tidbit in the Boston Globe this morning: Closing Argument Article.

In Massachusetts, it's against the rules for a plaintiff's lawyer to name a number for what he thinks the jury should award in damages. This is not true in every jurisdiction. The lawyer in the article is potentially in trouble (the court is mulling it over) because he alluded to the size of professional baseball players' salaries and said something along the lines of: "They pay baseball players, pitchers, I won't mention any amount. . . . That is the amount of money we deal with in today's society."

The other side objected, and the jury awarded a $14.3 million verdict. One justice on the Massachusetts Supreme Court said that the lawyer's argument "borders on egregious."

I'm not going to weigh in on whether the lawyer at issue broke the rule. That could go either way. But does the rule make any sense? It seems like a paternalistic throw back to days when the system believed that juries were unsophisticated and gullible, and were likely to put too much stock in what the lawyer said.

That just doesn't seem to hold any water today. Is is plausible that the jury was improperly influenced by this guy's allusion to baseball players' salaries, and awarded a big number when the evidence didn't support it? Maybe. But I'm pretty skeptical. I think juries understand perfectly well that the lawyer is there to argue for one side, and that they have to take anything he or she says with a grain of salt, unless they can see solid evidence to back it up.

I'm pleased to announce the opening of my own web site at seancarnathan.com.

It's hard for a lawyer to concede a point. We're hardwired to argue everything and fight to the last. When an opponent refuses to consent to something, our first instinct is to run into court and ask a court to make the other side do what we want them to.

But is that always the best course? No. Looking again to the martial arts, and in particular Tai Chi, for a little wisdom, sometimes it's better to yield to your opponent's force.

Does that mean you just take it in the chops? Of course not. But you don't try to catch a big roundhouse punch in your hand like a moron in a Dolph Lundgren movie. You redirect (misdirect) the blow so your opponent misses and is left off balance and out of position. Then you let 'em have it while they're unable to defend.

Okay, so I didn't make it back on Thursday. I did, however, work from six in the morning until after midnight without any real break, unless you count the part where I was driving to and from the office. Phew. Such is the life of a lawyer.

At least for me it comes in streaks. Sometimes I work every waking hour. Sometimes I get to take it easy for a bit here and there. I have known lawyers who simply work every waking hour.

But it's good to be busy. I'm glad my clients are calling with things they need me to do. I hope it keeps up. (With a little break in the action here and there.)

But I'll keep adding interesting stuff here daily, allowing for the occasional lapse. Stay with me.

Absolutely out straight today. I'll be back tomorrow.

Here's something new for Massachusetts residents to worry about: There is a debate going on among real estate lawyers about whether refinancing your home blows up your homestead declaration. (There's an article about the debate in the September 8, 2003 issue of Massachusetts Lawyers Weekly -- but it's not on their web site, which is here.)

In Massachusetts, you can file a homestead declaration at the registry of deeds, which will protect the equity in your home from creditors (up to $300,000). But when you refinance the fine print may provide that you agree that your homestead declaration is discharged.

Some lawyers are recommending that you file a new one every time you refinance (which will cost you a few hundred bucks a throw). Others say that the clause in Massachusetts refinancing paperwork merely subordinates the homestead declaration to the mortgage (i.e., the lender who is giving you the mortgage gets paid before your equity gets calculated). That would mean you don't need to file a new one when you refinance.

Personally, I'm going to pull out my mortgage paperwork and see what that nasty little clause says. I sure didn't catch it when I refinanced (and I'm a lawyer).

A little musing on the "discovery" process today, inspired by a decision by the U.S. Circuit Court of Appeals for the 8th Circuit. A little law 101 first.

What is discovey? It's the process of investigating a case that goes on after a lawsuit is filed. It is governed by the court's rules. The federal courts have a set of rules that applies in every federal court, and each federal court has its own "local" rules that supplement the common set. Each state will have a set of rules for its trial courts as well. In general terms, discovery primarily consists of: (1) "depositions," i.e., calling witnesses in to answer the lawyers' questions under oath while a court reporter transcribes the questions and answers; (2) interrogatories, which are written questions that the parties have to answer (in writing) under oath; (3) requests for production of documents, in which each party asks the other side to fork over all the relevant documents; and (4) requests for admissions, in which a party can ask the other side to admit that certain things are true and will not have to be proven at trial. There are some variations, but that's the backbone of the process.

A U.S. Circuit Court of Appeals is nearly the last word on federal law. The U.S. Supreme Court trumps a Court of Appeals, but because of the sheer volume of cases across the country, only a tiny fraction are ever heard by the Supreme Court. In most cases, when a Circuit Court of Appeals makes a decision, the jig is up.

So I read an opinion today in which a federal court dismissed a party's case for "discovery abuse." That means the party failed to comply with its duties under the rules to answer questions, etc. during the discovery process. The rules definitely provide for a court to sanction a party who tries to game the system, but to actually lose your case for discovery abuse, you have to be way over the top. In this case, it looks like the party who lost was. According to the court's opinion, the party violated court orders, filed "numerous baseless motions," failed to answer requests for admissions, obstructed a deposition, and failed to pay a monetary sanction imposed on it. That's pretty bad. You can read the decision here.

I've never had a client who was anywhere near that awful, but I've sure had my share who had to be cajoled into coming up with their documents, etc. Lawsuits eat up a lot of time for the parties, and can be a real nuisance, but once you're in the chute, you have to bear down and get this stuff done. To do any less just opens you up for attacks from the other side. And even in cases where you don't get booted out of court like the party in the 8th Circuit case, you can suffer all sorts of other problems if you don't do the grunt work. Not least of the problems you'll face is not having your case properly prepared. If you aren't aware of all the facts, haven't seen all the documents (or haven't told your lawyer about them), then you'll make mistakes. Sometimes the mistakes don't hurt too much, sometimes they can hurt alot. So when your lawyer tells you to round up your documents, do a good job. You're not just doing it for your opponent, you're doing it for yourself.

So Janus mutual funds are under seige. First NY Attorney General Eliot Spitzer announced an investigation into Janus's market timing activities. Read about it here. Then the plaintiffs' lawyers pigpiled on with class action complaints. Read about it here. The basic idea is that Janus would let its favored (read, rich) customers buy shares late in the day when they know that the shares will be repriced higher the following day. (A mutual fund's price is based upon the movement of the securities it owns.) You can bet this one's going to snow ball.

The Internet is flooded with law-related sites. Our national fascination with courtroom battles is amazing. A serious portal that I like a lot as a starting place for surfing for legal information on the Internet is FINDLAW. It's a really useful site.

One of the cool internal bits it provides is the LITIGATION WATCH.

You can plug in a company name and it will give you a list of pending lawsuits against that company. You can also run the stock ticker or even choose an industry segment. It only runs the federal courts (they tend to be on line themselves). But still, it's a tremendous source of information. For example, if you're in a lawsuit against a big company, you can see who else is fighting with that company. (The enemy of my enemy is my friend.)

Here's a concept I like: Holistic Lawyering. There's an international organization of lawyers who are working toward a different approach to the practice of law. Check out the INTERNATIONAL ALLIANCE OF HOLISTIC LAWYERS.

The baseline idea is to strive for a more healing, less adversarial approach to the law. An emphasis on mediation instead of (or at least before) litigation, the idea that mending a relationship, or at least ending it peacefully, is preferable to scorching the earth in a quest for retribution.

After ten years in the trenches, I can tell you that these ideas are sound. The problem from my perspective is how to incorporate an effort to promote healing and reconciliation without appearing weak. In my experience, weakness simply encourages the other side to try and take advantage of you and your client. So much of what lawyers do in litigation is about posturing and perception.

Do you have to be hard to be strong? I don't think so. In fact, redirecting and overcoming hard, stiff force through flexible, soft force is a key tenet of Tai Chi and other advanced martial arts. I have been studying Tai Chi long enough to know it works if you're skill level is high enough.

I think the same concept can be applied to litigation. You can seek a peaceful resolution without being or seeming weak. You simply have to be skillful in doing so.

I love this one. I read in the paper this morning that complaints are flowing into the Attorney General's office in Massachusetts because mortgage lenders have been letting rate locks expire, then forcing borrowers to choose between a higher rate or no loan. What a scam. These companies charge people to "lock" in their rate, or guarantee it for a period of time, usually 30 to 60 days. The fee for the lock can be as high as $500. Then, in an environment where rates are rising rapidly, the lender fails to close the loan within the lock period. If the failure is because the lender didn't get things done on its end, then how can it justify slapping the borrower with a higher rate? I'd have to read the rate lock paperwork, but my guess is that there is some nasty fine print in there that purports to get the lender off the hook. This, of course, makes the rate lock a virtual illusion (except when rates are dropping, in which case you can bet the lender will get the loan done within the lock period). There just has to be a way to hold these clowns liable for what they promised.

Here's a link to an online article I liked, written by Marci Hamilton, a professor at the Cardozo Law School: http://writ.news.findlaw.com/hamilton/20030828.html

Hamilton argues that the music downloading craze is a function of an entitlement mentality -- essentially the deeply felt attitude that I'm entitled to whatever the heck it is that I want, regardless of what the law says. I'd say that's a pretty accurate assessment of American culture today, and a driving force behind a lot of legal squabbles.

Long holiday weekend . . .

I read in the Globe today that there are many workers out there who are paid hourly, and work overtime on a regular basis without putting in for overtime. I would say that the implicit message of the article was that these people are fools and should put in for all their overtime, perhaps for back overtime. Just a couple of quick thoughts.

In real careers, there is no overtime. The money is a lot longer, and so are the hours. In some jobs, putting in a little unpaid overtime may be the equivalent of auditioning for the big time. It can be a rational, and indeed canny choice to make. This concept obviously does not apply to some types of jobs, where there is no legitimate shot of moving up the ladder to the executive suite.

But even for those in jobs where putting in for the overtime was probably the way to go in the first instance, it doesn't seem right to me to come around looking for back overtime going back weeks, months or even years. The employer should have the opportunity to control its costs on a current basis, and should have the opportunity to verify that the hours were actually worked. It should have the chance to say, "no overtime this week, our cashflow is not good right now." Any claim put in for back overtime long after the fact is unfair. It's one thing if you put in for it on a timely basis and the employer stiffed you. The law is on the employee's side then. But if you never submitted a claim, you can't decide long after the fact that you should have and expect to get paid.

Any claim like that would be particularly unfair to a small company. The media tends to lump corporations together as if they were all just inexhaustible sources of cash, which the Dickensian owners are funneling into their pockets while cackling as the workers suffer. The truth is there are lots of small businesses out there that are keeping people employed and fueling our economy, while their owners struggle to make payroll and stay up at night wondering how they're going to bring in the next sale or the next engagement.