Though it seems to happen with less and less frequency these days, the goal of most litigators is actually to litigate cases.  Being successful in trial depends, in part, on the ability to connect with the jury, a relatively anonymous panel of citizens about whom litigators only know very limited biographical information.

Because lawyers do not know who their jurors will be until trial begins, it is relatively impossible to reach conclusions about how a particular jury will respond to a given trial presentation.  As a result, litigators are forced to make decisions about their cases based largely upon personal experience, anecdotal evidence, conventional wisdom, and old-fashioned stereotyping.

Because secrecy is a crucial and fundamental component to the jury process, empirical or analytical studies of juror behavior are few and far between. However, a recent research study by the U.K. Ministry of Justice provided some interesting insight into jury tendencies.

The study’s author examined over 68,000 jury verdicts, post-verdict surveys of jurors, and case simulations with real juries, but only examined criminal cases.  The author’s goal was to answer the question, are juries fair? Read the rest of this entry »

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As has now been widely reported, the former Dean of the University of Maryland School of Law, Karen Rothenberg, was identified in a routine State audit report as having received “questionable” unreported additional compensation payments over and above her salary. From the Baltimore Sun:

University payroll records show that Rothenberg received a $350,000 payment on top of her base pay of $371,387 in fiscal 2007. Her total compensation that year was $787,387, up from $365,668 the previous year. The records also show research stipends of $30,000 in 2007, $20,000 in 2008 and $10,000 in 2009, which add up to the $60,000 described in the audit.

The payments to Dean Rothenberg have been quickly and roundly condemned, with the criticism taking on an exceedingly populist tone. One letter to the editor in the Sun, by a respected local attorney, found the payments to Dean Rothenberg especially concerning in light of the fact that she “oversaw the largest tuition increase in the school’s history.”

This alum’s populist side, which happens to be the same side which will be paying off law school student loans at least until my own children are in college, appreciates the criticism. The initial reports of these payments sound suspicious at best and dishonest at worst. If the reports are true that some of these payments were inappropriately approved by subordinates, it raises legitimate and significant questions about the management of the University system and the mechanisms in place to prevent the system from being taken advantage of.

But while much of the community was castigating Dean Rothenberg and the University system, the defense lawyer in me questioned whether much of the criticism was the premature result of a knee-jerk lack of reasoned analysis. Read the rest of this entry »

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I once accidentally spent $1,800 to find out if South Carolina was a comparative negligence state.

I was a summer associate working at a small local law firm during the summer of my second year in law school. A partner was contemplating whether to take a truck accident case that South Carolina law would control and he asked me for some research.

Unbeknownst to me, the firm only paid for Westlaw access to Maryland sources and case law. All other research resources, including the three South Carolina cases I accessed, were outside the firm’s subscription package, thus charged separately and exorbitantly.

My agreement to comply with a partner’s request error was made known to me by the partner responsible for Westlaw billing. Her compassionate understanding sounded something like, “Don’t you know how to use books? That’s the problem with law students. You get hooked on Westlaw and Lexis like they’re drugs.”

I was recently reminded of my alleged addiction upon receipt of an e-mail from the managing partner of my firm advising that we would all soon be trained on WestlawNext. I logged onto Westlaw to find that its outdated interface was finally being replaced, likely in an effort to protect its market share from increasing competition.

The five years of research and development of Westlaw’s new project was described by Out of the Jungle, a blog that tracks legal research trends, as follows:

The programmers thought carefully about how researchers work and interface with Westlaw, and did huge amounts of research at all levels of use. They looked at usability, what causes confusion in users, and what makes sense to them. They did in-depth analysis of users’ real research logs, recreating the searches and looking for opportunities to improve the search, retrieval and ranking. They analyzed eye-tracking of large numbers of users, and found that bright, flashy designs actually drove the eyes away. Focus groups and design reviews, performance testing where real associates were hired assigned research tasks and paid as though it were a case for a regular client, all went into testing this product.

Apparently, Westlaw’s changes are aimed at “googlizing” legal research, making good researchers more efficient, making poor researchers more effective, and making searching more intuitive. Part of me is skeptical because although my early experiences with connectors and Boolean operators were frustrating at times, I have grown rather accustomed to Westlaw, in all its outdated glory.

It seems, though, that in this age of rapid technological advancement, where companies like Google have managed to revolutionize how we all do just about everything, legal research companies have remained embarrassingly behind the curve. To think that online legal research has remained essentially the same for the last 10 years makes this new push by Westlaw, and a similar new interface which Lexis is developing, decidedly overdue.

Ultimately, I am eager to test drive WestlawNext and to explore all the new, shiny bells and whistles that are sure to keep me hooked. Who can blame me? Everyone is doing it.

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As I sit at my computer drafting this blog entry, my television is tuned to the ABC network and a television show called Conveyor Belt of Love. Not just a clever name, the show involves five women sitting in chairs in front of a conveyor belt on which men scroll along the stage making sixty-second pitches about why the ladies should select them for a date. ABC’s website for this television show includes this irresistible teaser: “5 Women, 30 Men…One Conveyor Belt.”

The conveyor belt gimmick was unique and interesting when incorporated into the sushi dining experience at places like Towson’s Kyodai Rotating Sushi Bar. I am sad to report that in the case of ABC’s new show, where the conveyor belt is used to shuttle reality television date seekers du jour off a stage after being screened for marriage potential by insult-spewing female counterparts, we have undoubtedly hit a new and depressing low.

This criticism comes from someone not embarrassed to admit that I have been entertained by some pretty terrible television shows over the years — e.g., Small Wonder, Joe Millionaire, and just about any MTV “reality” show – but Conveyor Belt of Love may be the worst show ever to grace our precious airwaves, so precious that I had to watch it until the end.

The compelling introduction you just read is apropos of nothing at all, but serves as a helpful segue nonetheless. If you are reading the Generation J.D. blog, you are probably someone who enjoys filling his or her spare time with more noble pursuits than conveyor belt dating shows (as if such a thing exists). There are so many great legal blogs on the internet, that it can sometimes be difficult finding the best. A brief list of just a few of the most entertaining, insightful, and interesting legal blogs follows after the jump…

Read the rest of this entry »

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The primary legal research companies, Westlaw and LexisNexis, were among the first companies to recognize the potential of the internet as a legal research tool when they launched online versions in the early 1990s. Given their entrepreneurial spirit, the commercial rivalry between the companies, and amount of time lawyers necessarily spend out of the office, I have wondered for some time when we would see a LexisNexis or Westlaw app for the iPhone. Though surprising that it did not happen until the end of 2009, it appears that LexisNexis won the race with the recent release of its “LexisNexis Get Cases & Shepardize” app for the iPhone.

This inevitable app release is the latest in a slow, but consistent, line of apps geared towards lawyers, leading me to wonder whether it was finally time to make the switch to the iPhone from the various Blackberry versions I have used since I started practicing law. Because I use my phone primarily for talking, emailing, and calendaring, I have always preferred the Blackberry for its ability to integrate with Microsoft Exchange seamlessly and its easy-to-use full QWERTY keyboard. Mine were sentiments apparently shared by a majority of lawyers.  According to a summer legal technology survey by the ABA, sixty-four percent of lawyers surveyed reported using Blackberries at work, compared to just fourteen percent using iPhones and thirteen percent using the Palm Treo.

Change may be on its way, though.

In addition to the LexisNexis app discussed above, a number of other iPhone apps have been released with lawyers in mind, including the Black’s Law Dictionary (priced unusually high at $49.99), LawStack (a free app containing the Constitution and all of the up-to-date Federal Rules), and Court Days (an ever useful app allowing calculation of the number of days between events, which includes court closure dates from over sixty jurisdictions). Companies seeking to assist those studying to become lawyers have also seized upon the new technology, with multiple apps for LSAT preparation, Bar exam review and even law school rankings.

The legal community has been slow to adapt to the popularity and growing influence of the smartphone app market.  As the makers of legal products release new and useful apps aimed at lawyers, though, and as lawyers become more comfortable with the iPhone platform, I expect to see more and more lawyers leaving the familiar confines of the Blackberry behind to join the iPhone revolution.  With these changes, “there’s an app for that” may be a refrain finally applicable to the legal field.

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Earlier this year, the Philadelphia Bar Association’s Professional Guidance Committee was requested to offer its advisory opinion on a novel issue involving social networking sites and witness background investigation.

The question was whether a lawyer could, within the bounds of the Rules of Professional Conduct, ask another person to contact a witness on Facebook or MySpace in order to “friend” them and gain access to the information on their personal profiles.  Its opinion, issued in March, can be found here. (Special thanks to Joseph A. Hennessey of Beins, Goldberg, & Hennessey, LLP for recently forwarding this opinion to the MSBA Litigation Email List).

The situation about which the opinion was written involved a lawyer who had deposed an independent witness whose testimony was adverse to his case.  During the deposition, the attorney learned that the deponent had personal profiles on both Facebook and MySpace.  He accessed those sites to view the profiles, but access was limited to “friends” of the witness.  The attorney wanted to know the ethical implications of having a third party “friend” the witness on Facebook and MySpace for the sole purpose of gaining access to her personal profiles.  The attorney hoped to use the information on the profiles against the witness at trial.

Though non-binding, the Committee opined that the proposed conduct would violate Rules 8.4 (Misconduct) and 4.1 (Truthfulness in Statements to Others) of the Pennsylvania Rules of Professional Conduct.  Those rules prohibit “conduct involving dishonesty, fraud, deceit or misrepresentation,” and the making of “a false statement of material fact or law to a third person.”  It does not appear that the Maryland State Bar Association’s Committee on Ethics has yet addressed a similar issue.  However, Pennsylvania’s relevant Rules of Professional Conduct are identical to Maryland’s, so it is likely Maryland’s Rules would similarly prohibit such conduct.

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