Blog Ipsa Loquitur

My Fellow Americans (and foreign people who speak English),

It has come to my attention that we have been misled and bamboozled. We trusted the people in charge of our money, and unwittingly took on thousands of dollars in bad loans. Our return for this investment was promised to be boundless. Instead, it turns out that we will be hopelessly shackled with debt for the rest of our lives.

No, I don’t mean the national debt. I don’t mean the mortgage-backed securities crisis that is currently imploding our national credit markets. I speak, of course, of the crisis to our nation’s most valuable commodity:

Law students! You see, I’ve been bedridden all week with a horrible cold. (I dragged my zombie-esque self to the office yesterday, and came back home to snuggle up to a Nyquil smoothie, but let’s not split hairs.) So I finally wake up to a morning where my sinuses aren’t attempting to choke me, and I read the news.

The Wall Street Journal has a nice little article about how the aforementioned Creditpocalypse is impacting student loans. With credit for big companies being hard to come by, who wants to lend money to a guy with a bachelor’s degree in philosophy and a resume full of “waited tables in college?” Banks are being a little more shy with their money, and law students have to borrow quite a bit.

sidebar: If you’re not and never have been a law student, you might not understand a couple pieces of jargon: “Biglaw” a big law firm that can afford to pay big salaries to starting attorneys. “T14” is the top fourteen law schools in the country.

But the anonymous commenters to this article are the brave prophets of a doomed world. Much like Jor-El, only they truly understand the horrors that await the blissfully ignorant.

Here’s the deal: there are lots of law students in America. There aren’t enough new hirings at Biglaw for all of us. So the law students that go to T14 schools get first dibs on Biglaw jobs. The anonymous commenters get up in arms, griping about New York Law School (which is not one of the T14) and how expensive their tuition is. They reason that schools shouldn’t charge a lot of money if they can’t guarantee that their students will land jobs with Biglaw:

Matasar should be ashamed of himself. Most New York Law School grads can look forward to years of debt, stress and low income, while Mtasar enjoys his six figure income.

It’s hard to imagine an educational institution where the dean doesn’t make more money than the graduates. I’m not sure what this one is trying to say, actually.

Any tightening of loans that disuades potential law students from going to a rip off school like NYLS should be encouraged. They are a lower tier school charging $40,000 a year in tuition. Nobody should go there unless they know they will be top 10% (doesn’t everybody think that?!), has solid connections in law, or does not have to take out loans to pay for law school. Otherwsie you are commiting financial suicide.

This is another of the “Biglaw or bust” crowd. Maybe he’s one of the people that thinks the world is ending in 2012. If you don’t have a job with Biglaw, yes, you probably won’t pay off your $120k in loans before 2012. But I plan to be employed for a while. (If the economy doesn’t collapse, mind.)

If the market worked properly, then NYLS would have only filled 20% of its incoming class this September.

Actually, if the free market worked properly, lawyers wouldn’t have a monopoly on the practice of law. Lawyers would have to compete against non-lawyers to provide legal services. (more on this another day)

The single best part about all these comments is that these folks are wrong: Biglaw is far from the only option available to pay off huge student loans you’ll run up financing your law school education.

The College Cost Reduction and Access Act was signed into law last year. The article I’ve linked to does a wonderful job explaining how the law works. (Seriously, go read it right now). Basically, if you work in public service or non-profit, and make modest loan payments for ten years, your loans will be forgiven after the 10th year. This is huge news for anyone with an interest in public service work, but too many student loans to afford the smaller paycheck.

So if you go to a “lesser” school that doesn’t qualify as T14, and you’re not likely to land a Biglaw job, it doesn’t mean you’ve committed financial suicide: it just means you should strongly consider doing some public service. (Heck, if 90% of the law students in America went into public service, lawyers might not be so reviled.) It’s a good deal.

I can work for the government or for a non-profit group for a while, and then be just as free from student loans as the lawyers that went to work for Biglaw. So Biglaw isn’t my only option for paying off my student loans, despite the fact that I’m not a top 10% student at my lower-ranked school.

What do you say, anonymous trolls? Can we at least agree that there are options for people who want to work somewhere besides Biglaw, and that lower-ranked schools aren’t committing financial homicide on their students?

For instance, you could have sex with strangers for money to pay back those loans.

Filed on under The News

Lawyers have specific rules about conflicts of interest. Because of the nature of advocacy, you want your lawyer to have your interests in mind as he earns his paycheck. If your lawyer is also being paid by the other side to have their interests in mind, you’re not really getting advocacy so much as arbitration. (Sidebar: arbitration, by the way, is much cheaper than going to trial, and you can generally get your claim resolved much more quickly.)

The other big concern, of course, is keeping confidential information that your lawyer has confidential. To that end, not only is a lawyer prohibited from representing both sides of a conflict, but every other lawyer in his firm is prohibited from representing his opponents. And not just within the same trial, but in any two trials (about the same legal issue) where two clients have diametrically opposed interests.

A lawyer that is found to have a conflict of interest is disqualified from the case, and forfeits the right to bill his client. Whoops. All that time you spent working on the case before someone pointed out your conflict of interest? Turns out it was pro bono! Congratulations.

I’m simplifying, of course. But there are implications even in the simple version of the rule. In the age of huge law firms with an army of lawyers located in offices all around the world, it can be complicated to figure out which branch is representing whom, and which lawyer in which branch is representing whom.

In the olden days, this rule made a lot of sense. A law firm was comprised of three gentlemen who would sit down for tea every afternoon and talk about what they were working on. But law firms kept getting bigger and bigger, and eventually, the rule seemed kind of silly. There were five hundred lawyers in three different offices, and the lawyers from one office couldn’t pick lawyers from another out of a police lineup.

These days, the rule seems like a good idea, because computer networks have made it possible to share more information with more people than ever before. While two attorneys from two offices on two continents might not have ever met, they can share information (whether intentionally or not) that ought to be held in confidentiality.

At some point, some lawyer got the bright idea to treat conflicts of interest not just as situations to be avoided, but situations to be created.

Apparently, large corporations are continually buying and selling pieces of other companies, attempting to create a hopelessly tangled web of business relationships. If you own a stake in a dozen companies that each retain a firm, that’s a dozen firms that can’t sue you. Even better, if you can create a conflict of interest with your opponent’s lawyers during a trial, you can disqualify them from the case, and force new lawyers to come in and start all over.

As far as I can tell, being a good lawyer involves more than just being good at the practice of law. Sometimes, it involves being a cunning bastard advocate and thinking of all the unorthodox things you can do to represent your client. Why beat the other team’s lawyer when you can disqualify him? One of my professors likes to say “you’re not being paid to be ‘fair,’ you’re being paid to do the best job you can.” There’s a reason jokes like this are so popular.

Filed on under Legal Theory

During a trial, a lawyer isn’t permitted to speak directly to the jury outside the opening and closing statements. But the opening statement is (theoretically) a preview of the evidence, and the closing statement is a summation of the evidence. So to actually present the evidence, lawyers use witness testimony. “I saw the robber point his gun at the victim.” “The blue car ran a red light and hit the plaintiff’s car.” And so on.

A lawyer also gets a chance to discredit the testimony of her opponent’s witness by asking things like “what kind of gun? How far away from the robber were you? Were you behind the victim, or behind the robber? How dirty were your glasses?” or “Were you watching the car, or the light? Where was the plaintiff’s car? My client’s car has a dinosaur sticker on the bumper: did you see any such sticker on the blue car?” Now we get to hearsay.

Hearsay is, briefly, testimony by proxy. The witness is not telling the jury what he saw: he’s telling the jury what someone else claims to have seen. This is problematic for a number of reasons.

I Heard It’s Not a Big Deal

In ye olden days, the big problem was that the testimony was (ultimately) coming from someone who wasn’t under oath. Sure, the guy on the stand swore to tell the truth with his hand on a Bible, but he’s just saying “Frankie Two-Face told me the blue car ran the red light and hit the plaintiff’s car.” Frankie Two-Face could be a two-faced liar, for all we know.

Further, in ye modern days, the role of the oath and Bible in keeping people from lying is… well, diminished. The big concern today is that a lawyer won’t get to cross-examine a witness providing testimony from an out of court statement.

So today, there are two chief reasons for this concern. The first is that the jury can’t see Frankie Two-Face’s face when he says all those horrible lies. Maybe he’s a lousy liar, and the jury would see right through him.

The second reason is that a lawyer cannot adequately cross examine Frankie Two-Face by proxy. The information is coming down a one-way street. Probing questions on cross examination will be met with answers like “I have no idea. Frankie just said that guy looked really guilty to him.” This is the big reason we don’t permit hearsay these days: the absence of any meaningful opportunity to cross examine the real source of the information.

However, as one of my professors said on the first day of law school, “law is ten thousand rules, each with ten thousand exceptions.”

Exception, The Setup for One

My favorite exception (which isn’t technically an exception because a statement falling under this “exception” actually fails to meet the three elements of hearsay under the Federal Rules of Evidence) involves a problem out of my casebook. To be hearsay, a statement has to be offered for its truth, and not for another purpose. Keep that in mind as you read:

Land Lloyd owns a field. Farmer Brown leases that field to grow some corn. Brown grows corn in two plots: one to feed his family, and a bigger one to sell at the end of the year. All goes well for a couple of years, until a home lending crisis all but decapitates the economy, and nobody wants to buy any corn.

Brown takes Mr. Lloyd out to his big plot of land, and explains his predicament. Brown says “All the corn in this plot is yours: I’ll harvest it for you at the end of the year, but it’s yours today if you want.” Mr. Lloyd accepts Brown’s offer.

A month later, the housing problem has started to impact the rest of the economy. Desperate, Farmer Brown borrows some money from the bank and uses his corn as collateral, telling the bank “oh, yes. I own all this corn. Yes, this is definitely my corn.” Sadly, Brown defaults on his loan and the bank takes his corn.

Mr. Lloyd isn’t thrilled about this, since he thought that corn was his. He sues the bank to try to win back his corn. During the trial, Lloyd testifies that Farmer Brown (who has since fled the rest of his creditors, and is nowhere to be found) said the corn belonged to Lloyd. The bank objects to this evidence as hearsay. Is it?

Mr. Lloyd, in this case, is asserting that he owns the corn. So if he offers this statement by Farmer Brown to prove that it’s true that Lloyd (not the bank) is the owner of the corn, it’s hearsay.

But Mr. Lloyd can offer this statement by Farmer Brown for another purpose. Lloyd’s lawyer should respond to the objection by pointing out that it’s not being offered to prove ownership, the statement is being offered as evidence of a verbal act. The statement by Brown had an operative legal effect: it was an offer to engage in a contract (or to modify a contract, which brings in legal issues that are totally unrelated here).

So if Lloyd can testify about this statement by Farmer Brown, can the bank’s loan officer testify about Brown’s statement that he owned the corn? Nope. The jury will never hear that evidence, because it’s hearsay. Brown’s proclamation of ownership has no operative legal effect. Brown’s offer to Lloyd did, and so Lloyd can testify about that all day long.

The answer turns on what Lloyd is testifying about when he says that Brown offered him the corn in place of his usual payment. If Lloyd is using Brown’s statement to convince the jury that the corn belonged to him, it’s hearsay. But if Lloyd is using the statement to convince the jury that a contract existed between himself and Brown, it’s not hearsay. It’s a statement that created a legal relationship.

Filed on under Legal Theory

Some airlines are starting to offer internet connections on their flights.  This worries people, because there is a whole lot of pornography on the internet.  It’s understandable, and there certainly is room for a discussion.  What I really like about this article is the approach one airline’s spokesman takes:

While [the internet] does provide a new access point for information and content, customers viewing inappropriate material on board a flight is not a new scenario for our crews who have always managed this issue with great success.

If people are allowed to take pornographic magazines onto a plane, or pornographic DVDs, or iPods full of pornographic movies, then there is no reason to filter pornographic web sites on a plane. I am a firm proponent of the idea that the internet only changes the game because we think it does; really, it’s just another means of distributing the same information we’ve always gotten.

(Although really, this airline’s policy isn’t about technology being viewed as I stubbornly insist it ought to be.  It’s probably just too expensive to filter content on the plane.)

Filed on under The News

So there’s this company called Apple. They sell this product called the iPhone. It’s this computer that drops makes phone calls, and I’m pretty sure I’m not the only one on the planet that thinks they’re really cool.

Apple sells programs for their iPhone through this online store they run called iTunes. They’ll let you sell your programs for their product in their store, and they’ll even split the money with you. More than 100 million programs have been downloaded: some free, and some not free.

But what would the internet be without bombast, grandstanding, and brave souls exercising the right of self-defense against the vicious attacks of straw men?

Well, Apple is forbidding certain programs from being sold in the store. They have a set of guidelines that dictates what you can and can’t do with your program if you want it sold in the iTunes store. And, like most contracts you enter into by clicking a mouse, (see the EULA for every program you’ve ever installed, ever) the terms of the iTunes store give Apple sole and arbitrary discretion over what’s allowed in and what’s allowed out.

Apple has banned a number of programs. For instance, one program turned your iPhone into a whoopie cushion. Another was a comic book reader that was useless unless you downloaded pirated comic books. There were grumblings, but it’s the internet, for Pete’s sake; someone here is grumbling about everything. (First one to guess that I’m about to grumble about someone grumbling wins a cookie.)

The other day, Apple banned this really cool program that everyone really liked. What exactly it did isn’t relevant at the moment. Apple came up with an excuse to the effect of “it’s offering a feature that we should have thought to include with the iPhone.” Whether or not this was high treason on the part of Apple, whether this was because there are technical issues involved with this much data being streamed through an iPhone, or whether this was just a transparent maneuver against a perceived competitor is also not relevant.

sidebar: Also, essays conflating competitive behavior with anti-competitive behavior are irrelevant to the discussion. I don’t take Corporations until next semester, but I’m fairly certain there are no anti-trust charges pending against Apple for exerting its power over its iTunes store. There are also no anti-trust charges pending against Pepsi for refusing to sell Coca-Cola in Taco Bell restaurants (a brand owned by Pepsi). Neither of these outcomes should shock the reader. Competition is not the same thing as anti-competitive behavior.

Rather, it’s the outrage that I find outrageous. There are precious few sources of rational discussion about this whole Podcaster (for that is the name of the banned program) fiasco. In particular, there is one person who has written a popular program for the iTunes store who is making the ultimate sacrifice.

Why, Fraser Speirs is boycotting* the iTunes store from this day forth!

* Do note that he’s not actually removing his popular program from the iTunes store, just that he’s not going to bother writing any new programs for Apple to sell. His idea of boycotting is to continue to let his program earn money for both himself and Apple. Truly, never before have so few given so little for… so what?

It’s really difficult to see how this is a principled stand against a corporate giant when you’re still making money. It’s even harder to see how this is a principled stand against a corporate giant when you’re still making money for them. (Remember, Apple takes a portion of every sale.)

It’s worth noting that I certainly agree with at least one of his demands:

Publish clear and unambiguous rules for what will be accepted and what will not. I don’t even care if this is a long and detailed document, but it needs to be The Rulebook from which both sides play.

Without a simple courtesy like that, I can understand how application developers will be much more hesitant to devote a lot of time and energy into applications. In that regard, I also agree with Fraser. But the iPhone market is hard to ignore. With just a trivial amount of effort, you can make money hand over fist.

I’d be interested to see how many programs have been removed from the iTunes store, so we could see just how likely it is that a developer’s time will be wasted if his awesome program is banned from the store. Is it 1 out of 10 programs that is banned? 1 in 100? How many does an average programmer submit? 10? 100? 5?

Regardless. People are upset because it’s not just the really silly whoopie cushion programs that are being banned. This Podcaster program sounds ridiculously cool, and no one wants to come up with the next huge program that just ends up getting banned. (Not least because I’m sure designing whoopie cushion programs would drive anyone to madness.)

But Fraser: the bombast? The grandstanding? The straw men? It all really undercuts your point. To say nothing of this paragraph:

You have to wonder if Apple wants the App Store to be a museum of poorly-designed nibware written by dilettante Mac OS X/iPhone OS switcher-developers and hobbyist students. That’s what will happen if companies who intend to invest serious resources in bringing an original idea to the App Store are denied a reasonable level of confidence in their expectation of profit.</blockquote>

Truly, this plebian uprising of “dilettante switcher-developers” and “hobbyist students” doth sully the kingdom’s very name. Seriously, what do those even mean? The guy who didn’t own an Apple computer before OS X came out? The student who’s learning how to write programs? No amount of bombast will change the facts: your principled stand would be much more effective if you were actually taking a stand. Merely threatening to not write any more programs for them to sell is just pointless grandstanding.

And the whole grumbling (and my grumbling about the grumbling) reflects a deep seated dissatisfaction with the internet. You and I, Fraser, don’t have any say when it comes to computers. Forget about iTunes for a moment. We both have a Flickr account. When we signed up, there was a whole mess of text that indemnified Yahoo! from any claims we make against them for… you know, catastrophic photo sharing accidents. (Seriously, are my JPEGs going to burst into flames, guys?)

There’s not a whole lot of negotiation going on when it comes time to agree to the terms on which I’ll use Flickr, or Gmail, or Firefox, or Windows, or practically anything on a computer. The terms of the contract (and it is always* a very binding contract) are set in the technological equivalent of stone. If I don’t agree to every last term, I don’t use Gmail.

* “always” means “almost always” with respect to the law.

There is free software that comes with practically no such restrictions, but how far do you get on the internet without agreeing to someone’s terms somewhere? It’s like having a country devoid of regulations on their internet: even if you connect from Blergistan, your packets are going to pass through someplace with laws. Sure, where you’re sitting (your computer desk, or maybe in a café in Blergistan) is free, which is great. But you’re going to want to connect to something at some point.

I can’t help but wonder what law students in twenty years will say to themselves as they read some of the turn of the century licensing agreements for class. “My goodness! No wonder those barbarians argued among themselves so much on the internet! Look at the terms of these contracts.”

Filed on under The News

Sure, the long distance thing always starts out well enough. You assume you’re going to stay in touch. You assume that nothing can go wrong. And hey, it’s kind of convenient to have the place to yourself again. But in the back of your mind, you know that what you had together won’t be the same when you’re so far apart.

I speak, of course of the lawyer-client relationship, and the law firms that outsource work on your case to foreign countries. In a bizarre twist, saving costs by sending jobs to India isn’t just for companies that make blue jeans anymore.

At this point, it’s very important to note that in America, lawyers have a monopoly on the practice of law. If you want legal advice, you’re either hiring a lawyer or trying to memorize the Wikipedia article on eminent domain. The latter approach is what you call a catastrophically bad idea, and will likely lead to an interstate being built where your bedroom used to be.

The only people allowed to give out legal advice are lawyers, who have passed the bar exam, which has granted them Magic Lawyer Powers. These include most of the skills of a paralegal, and a better parking spot. Now here’s where the fun bit happens.

When you’re suing someone, one of the Magic Lawyer Powers that a lawyer can call upon is the mighty subpoena. You get a court to make people turn over records to you, so you can read through their diary looking for the part that says “Dear Diary, today I committed a tort!” and use that as evidence.

But looking through a box full of diaries can be tedious. As not all law firms are lucky enough to have herds of unpaid interns wandering the halls, some of these firms have taken to shipping documents of one kind or another overseas. Lawyers in countries with lower costs of living (and lower costs of BMW leasing) do the tedious work, and ship the results back over to America, at a firm that may or may not have passed the savings along to you.

I say “have passed,” because recently the American Bar Association’s ethics committee advised attorneys that they should start passing the savings along to the client. This is merely an advisory opinion, and there can be a significant gap between ethical and legal. But ideally, a law firm will be open about shipping work to lawyers overseas.

As a client, I don’t know how I’d feel about spending money on a big fancy law firm, only to find out later that the work was done by some fellow making less in a year than the lawyer handling my case does in a week. The wacky part is that yout the client can’t go grab those savings yourself: Foreign Lawyer is not licensed in America, and so he can’t provide legal advice to you. You need to ask American Lawyer to hire Foreign Lawyer for his own convenience, and to pass the savings along to you.

And as a second year law student, I’m not going to pretend to be at ease with the prospect of outsourcing legal work. I mean, I don’t think every lawyer in a firm can be replaced, but tedious legal work is the domain of the first-year associate. On the one hand, I probably won’t feel the direct effect of outsourcing, but the secondary effects like lower wages or plain old unemployment have a very real chance of impacting new lawyers.

Long distance complicates everything.

Filed on under The News