by Lee Gesmer | Jul 10, 2008 | Courts, Readings and Novelties
Lawyers from out of state often ask me about the judges that their cases are assigned to in federal district court. What are they like? What’s their philosophy? Are they pro-plaintiff or pro-defendant? (good luck on the last one …).
Most of these judges hold their cards close to their chests, but U.S. District Judge William Young is an exception. His keynote speech before at a Florida Bar event last June is on the Boston Bar Association website, and any lawyer practicing before Judge Young is well advised to read it, along with Judge Young’s 2004 decision on the federal sentencing guidelines. Judge Young’s judicial philosophy is clearly spelled out in these writings, and you’ll be far better prepared appear in his courtroom if you’ve read them.
by Lee Gesmer | Jul 8, 2008 | Technology
“You have no privacy. Get over it.”
Scott McNealy
——————————
The Internet and the press are abuzz with the potential privacy issues raised by the federal court order requiring YouTube and Google to produce the YouTube “Logging database.” This database is described in the court order as follows:
[the database] contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video. . . . That database (which is stored on live computer hard drives) is the only existing record of how often each video has been viewed during various time periods. Its data can “recreate the number of views for any particular day of a video.” [Viacom] seek[s] all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party
website.
In addition to this database, YouTube was ordered to produce copies of the millions of videos that had been deleted from YouTube.
Whew! Just a few, eh? My favorite quote from this decision is the judge’s offhand comment that “while the Logging database is large, all of its contents can be copied onto a few “over-the-shelf” four-terabyte hard drives.” (Sorry Judge, you can’t get those at Best Buy ….).
This order, when complied with, is certain to set a new record for a document production in U.S. litigation, or for that matter litigation anywhere, ever. Twelve terabytes (three four-terabyte drives) would hold 12 thousand billions bytes (or characters). Thats 12 trillion bytes, or 12 followed by 12 zeros.
Google is involved in a separate copyright suit over Google Book Search, and all of this makes me wonder what will happen if Google is ordered, in that case, to produce the digital database of all the books that it has scanned. How many bytes would that be? A googol?
Judge have fully caught on to the fact that in electronic discovery size just doesn’t matter. No lawyer will ever again be able to say, with a straight face, those venerable words that applied for so many years to paper document productions: “that’s too much data, your Honor. It would be overly burdensome.” With this court order electronic discovery has truly entered a new era.
by Lee Gesmer | Jul 2, 2008 | Trademark
Trademarks are meant to identify the source of products and services.
Do you get confused between Coca Cola and Pepsi Cola? Between Payless Shoes and Comfort Shoes? Between Domino’s Pizza and Papa John’s Pizza? Probably not. “Cola,” “shoes” and “pizza” are what trademark law classifies as “generic” terms – they describe the product, not its source or origin. If someone started selling a drink called “Rockstar Cola,” Coke and Pepsi would have no legal grounds for objection. The “cola” part of their trademarks are generic, and in a trademark infringement suit a court’s focus would be on the first word in the trademark, “Rockstar.” On the other hand, if someone started selling Koka Cola or Popsi Cola, the lawyers for Coke or Pepsi would be working overtime to prepare their lawsuit.
Now let me ask you a question that might be part of a “trademark survey” – a survey designed to determine how strong a trademark is, whether two trademarks are confusing, or whether a trademark is generic:
What do you call a sightseeing tour that uses an amphibious vehicle to transport tourists on land and water?
What other names, if any, do you use to refer to this type of sightseeing tour?
Did you answer “duck tour” to the first question and “don’t know” to the second? If you did you went right to the heart of the First Circuit Court of Appeals’ decision in Boston Duck Tours v. Super Duck Tours. And, you did very quickly what it took two federal courts almost a year and 85 pages of turgid legal prose to do.
The issue in this case (linked at the bottom of this post) was straightforward: Did Super Duck Tours infringe the trademark of Boston Duck Tours by offering duck tours in Boston? U.S. District Judge Nathan Gorton concluded that it did, and issued a preliminary injunction in July 2007, ordering Super Duck Tours to stop using this name.
Last month the First Circuit reversed, holding that the term “duck tours” is generic (it describes the service, not the source of the service). A “duck tour,” the First Circuit concluded, is generic for amphibious, sightseeing tours. Consumers were unlik ely to focus on the generic “duck tour” part of the overall mark (any more than they would focus on “cola” in comparing Coca Cola and Pepsi Cola), and instead use “Boston” and “Super” to differentiate between the two marks at issue. In reaching this conclusion the First Circuit noted that the media often used “duck tours” to refer to amphibious sightseeing tours; that “duck tours” was used by many other companies around the country that provide the same or similar services; and that Boston Duck had used the term “duck tours” generically in its own marketing literature.
There’s a great deal more to the First Circuit’s decision in this case. In fact, the opinion is likely to be an important guide to the application of trademark law in the First Circuit Court of Appeals for many years. And, I’ll resist the temptation to make duck jokes about this case, as so many lawyers and commentators have done already; none of them can touch the Marx Brothers.
So, anyone up for an amphibious sightseeing tour?
by Lee Gesmer | Jun 30, 2008 | What Were They Thinking
Some thoughts on the recently concluded Entwistle murder trial in Massachusetts.
A trial is the art of persuasion.
Civil or criminal, jury or jury-waived, the same principles of persuasion apply. Generations of lawyers have spent their careers thinking about these principles, trying to understand, refine and apply them. The huge number of uncontrollable variables in a courtroom make trial persuasion an art rather than a science, but as in all competitive activities, even small advantages can increase your odds, so lawyers keep studying and trying.
Some of the most basic principles of trial advocacy are well accepted by now. One of these is captured by the expression: “tell them what you’re going to tell them, tell it to them, and them tell them what you told them.” In a trial, this rule of advocacy applies most importantly to what lawyers call the “theory of the case.”
Every experienced lawyer knows the persuasive importance of “primacy” (the first things the jury hears) and “recency” (the last things they hear). Simply put, people tend to remember the first and last things they hear better than the stuff in the middle. The principle of “primacy” is so important that many studies have found that jurors are inordinately influenced by the opening statement in a trial, and therefore most lawyers put particular effort into crafting their openings. Some jurors pay little attention to anything except the openings and closings. As the jury experts at DecisionQuest write:
Jurors listen deductively, developing a story that explains the conflict early in the trial process and then filtering the evidence selectively to maintain a consistent picture. The trial lawyer must tell a complete story – which includes compelling themes, a specific narrative structure, and narrative elements – in the opening statement if he or she is to get jurors to form a favorable story of the case.
Lawyers also are taught early on that every party in a case needs a “theory of the case.” The evidence presented by each side is designed to explain the evidence in a way that is consistent with that theory. Common examples are: “my client wasn’t negligent, the injured plaintiff was reckless.” Or, “my client didn’t commit the crime, the evidence the State is using to attempt to convict him is defective because the crime lab mishandled it.”
Or, less commonly, “my client didn’t murder his wife and child. His wife killed their daughter and then committed suicide. My client removed the murder weapon from the murder site in order avoid shaming his wife’s memory. ”
Typically, the theory of the case is introduced in the opening statement (tell them what you’re going to tell them), and each side attempts to introduce evidence to support its theory and discredit the competing theory (tell it to them). In final argument, the lawyers for each party attempt to persuade the jury that the facts and the opinions of experts support their theory (tell them what you told them). By then, the jury has heard each party’s theory repeatedly. And most importantly, the opening statement has given the jury a mental framework within which to organize and make sense of the (often chaotic) evidence presented during the trial.
It appears that these basic rules of persuasion were not followed in the Entwistle case. Defense counsel for Neil Enwistle did not introduce his defense theory during his opening, but rather introduced it in closing argument. As one Boston paper summarized:
“Neil found Rachel and Lillian dead,” defense attorney Elliot Weinstein said in his closing argument in Middlesex Superior Court, where he said Entwistle had returned the gun to his in-laws’ home and did not report finding the bodies because he did not want to shame his wife.
“Neil saw the .22 and knew instantly what had happened, and in those moments, he knew what he had to do and what he couldn’t do,” Weinstein said. “He had to get the .22 back to Carver, and he couldn’t call the police because he couldn’t tell them what Rachel did. He wouldn’t tell them because he wouldn’t tarnish Rachel’s memory.”Was he thinking rationally, clearly or correctly? Of course not. How could he? Neil drove to Carver and returned the .22.”
If this is accurate, this defense violated every rule in the book.
First, the jury was unprepared for this “suprise” defense theory. The jury didn’t hear it fully expressed until closing, although I understand it may have been hinted at or implied during the trial (but not in the defense’s opening statement). For the jury to hear this theory for the first time in closing was the worst possible way for Entwistle to present it. It required the jury to test the theory against the evidence after the evidence had been introduced, rather than as it was being introduced. A worse approach to the psychology of persuasion is hard to imagine.
Second, from what I’ve read about the trial, the defense gave the jury no evidence to support this theory of the case. No only did Entwistle not testify to what he did and his motivation for doing it (he didn’t testify at all), but no one else provided any evidence to support this theory.
Along the same lines, the defense presented no expert testimony on the phenomenom of postpartum depression. There was no evidence showing that Entwistle’s wife was depressed, much less that she was so depressed that she would kill her baby daughter and then herself. If such evidence had been available, and expert opinion explaining postpartum depression and its possible consequences would have been essential to the defense.
Judges always instruct jurors that the evidence comes from the testimony of witnesses, as well as documents or objects (guns, clothing) that are allowed into evidence. What the lawyers say is not evidence. The Entwistle defense may have presented a theory of the case in closing argument — depression, murder, suicide, husband found wife and daughter, husband returned the gun to the wife’s father’s house to avoid shaming his wife — but there was no evidence to support this theory.
Rarely has a defense to a murder charge been so weak. It’s possible that Entwistle played the only hand he had and prayed for a miracle. It’s also possible that the district attorney’s office was unwilling to negotiate a plea that was acceptable to Entwistle, and Entwistle felt he had nothing to lose by going to trial.
However, to me the defense recalled the old Lenny Bruce line, “if your old lady walks in on you [when you’re in bed with another woman] deny it. Yeah. Just flat out and she’ll believe it.”
(Disclaimer: I am not a criminal lawyer, and I did not attend this trial. The trial was covered heavily by the Boston press, and my observations are based on media reporting. This is the first time, and very likely the last time, that I will comment on a criminal case in this blog, but the rules of persuasion are much the same in a capital case and a case involving the infringement of intellectual property rights, and hence my interest in the defense in this case.)
by Lee Gesmer | Jun 16, 2008 | Humor
We need more laughs in the legal profession, believe me. Lawyers take themselves way too seriously – and I’m putting that very politely.
Evan Schaeffer of The Legal Underground is working to correct this with a long-running series of “advice” letters: advice to young lawyers, advice to federal judges, advices to partners, and so on. If you’ve worked in a large law firm (typically his target), you realize he has a talent for this. If you haven’t you probably can’t believe this stuff (admittedly, a lot of it is over the top). However, there is at least a germ of truth to all of this.
Example from “Advice to Young Lawyer #24”, dated January 7, 2005:
Dear Mr. Schaeffer:
I’m in a terrible bind. There’s a partner in our 1,127-attorney firm named Mr. B who everyone is scared of, including me. Unfortunately, I got assigned to his practice group yesterday. Even though I’m a fourth-year associate, Mr. B apparently wanted to break me in easy. He called me on the phone, said his secretary had a document for me to copy, and told me to come to his office. When I did, he was on the phone again. He held up his right hand with all his fingers extended and mouthed, “This many.” So far, so good. I made five copies. But later in the day, he called me into his office again. He wasn’t on the phone anymore. He held up his right hand and extended his fingers again. Then he started screaming. “Look!” he yelled. “Tell me what you see!” A chill ran down my spine when I counted only four fingers.
As it turns out, Mr. B is missing the pinky on his right hand. As a result, I really screwed up. Continue reading …
Here’s a link to a collection of all the “advice” letters, and here’s a link to an earlier posting of some of his stuff (“17 types of lawyers”) on this blog.
I think Evan may the be the Garrison Keillor of the legal profession, or more to the point, our Hunter S. Thompson.
