Blog Ipsa Loquitur

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.

Apparently, one of the law schools that rejected me was just named the “Ugliest Campus in America” by some magazine I’ve never heard of. Yes, Drexel University has earned this dubious distinction with a patch of grassland known as the “rape garden.” That can’t be good.

There’s a problem with giving away someone else’s music for free. The people who made it want some money for making it. This is a less than unreasonable proposition. However, there is a storm a-brewing in the backyard of internet radio stations, who, like terrestrial radio stations, play music that you can listen to for free.

I won’t retrace the history of the process, but as it stands today, an internet radio station owes the record companies some money per song per listener. A terrestrial radio station (that is, the regular FM and AM station) pays no such fee based on play statistics. There are certainly fees to pay when you broadcast copyrighted material, but charging per song per listener is physically impossible with terrestrial radio: there’s no way to know how many listeners you have at any one point.

Computers, however, are powered by magic: on any given internet radio station, you know precisely how many people are listening to each song. As such, the digital age has obviated the need to guess how much a radio station owes a musician (or his record company). In theory, the two sides sit down and negotiate a fair rate for each song each listener… err… listened to.

No theory survives contact with reality unscathed, however. Pandora is one of the biggest internet radio stations, and because it can’t afford to pay the fees established to compensate the musicians and their record companies, they’re going broke. Currently, the royalty fee sits at eight-hundredths of a penny per song per listener. According to Pandora, this represents an annual cost of $17 million dollars in royalties alone. That’s 70% of their projected revenue this year. To make matters worse, in two years, the fee will go up to nineteen-hundredths of a penny.

You don’t need to be a mathologist to realize that this does not bode well for Pandora’s bank account. They’re trying to decide whether or not the situation is dire enough to close up shop. For smaller internet radio stations, the situation is already past “dire” and well into “burn the joint down and collect the insurance money” territory. Fortunately for insurance companies, you can’t burn down the internet.

sidebar: …or can you? Note to self: take out insurance policy on the internet.

The record companies are making $17 million this year in royalties from just one radio station. There are literally thousands of these prospective sources, and as the internet becomes an ever more ubiquitous part of our lives, the number of total listeners will only increase. This is literally free money: the music has already been made, it’s already been sold, it’s already being played on terrestrial radio, and there’s no added cost to the record company associated with getting the music onto the internet. (Hell, I think they spend a lot more money trying to keep their music off the internet.)

And yet, the federal agency that sets the fees keeps raising the royalty rates for internet radio. It’s in the best interest of the radio stations to keep the fees low, so they can stay in business and make money. It’s in the best interest of the musicians to keep the fees as high as the radio stations can pay. They should both be working together trying to halt the hiking of the royalty fees, but instead, negotiations seem to have stalled.

The internet as a mass-medium is still very much in its infancy. No one’s quite sure exactly how much money you can make on all this stuff. Billboards? Magazines? Commercial breaks? This stuff is down to a science at this point. But making money on the internet? Facebook is valued at $15 billion, but hasn’t turned a profit. YouTube still hasn’t turned a profit, almost two years after its acquisition for $1.6 billion. Some companies are doing very well, and some are not.

I applaud Viacom, Fox, and NBC for their experimentation with putting popular shows such as the Daily Show, the Colbert Report, South Park, and hundreds of other shows on the internet for free. I’m sure they have a rough idea that they won’t lose (a lot of) money. There are automated bean-counting machines at this point which can ensure that the ad revenue should at least cover the bandwidth and server operation costs.

Of course, these two situations aren’t perfectly analogous. Piracy of audio files is much more rampant than video files; record companies are right to be more wary of the digital age than television studios. But with internet radio as we know it being strangled, I can’t help but wonder if the record companies would be better served by experimenting with generating revenue on the internet, and not just trying to quash digital distribution because it threatens the traditional model.

When we last left off (because I was tired and I’m on vacation), I had finished an orientation video which began by observing, essentially, that “no one likes jury duty, but it’s better than trial by boiling oil.” I found that kind of logic unassailable, if cold comfort. Although it’s worth noting that the jury in Ye Olde Boiling Oil Trials didn’t actually have to dip their hands in boiling oil, and probably didn’t even have to pay attention. From their perspective, jury duty might seem positively onerous.

After sitting around for a couple hours, a large group of us were herded off to a small room where we were seated briefly before being herded up twenty floors to the courtroom. The trial sounded pretty high-stakes: the indictment was for attempted murder and a whole bunch of assault charges.

sidebar: For any one act, you can be indicted on a number of crimes. Say, for instance, that a jury doesn’t find you intentionally ran over the judge’s dog, and intent is an element of Riding Dirty in the First Degree. They decide you weren’t paying attention; they say you were negligent (an element of Riding Dirty in the Second Degree) in your driving. If the D.A. didn’t charge you with the Second Degree crime, but decided he could get a conviction of the First Degree crime, you would be free even though the jury decided you had committed a crime. You can’t be convicted of crimes you were never indicted for. The D.A. is just hedging his bets.

The case sounded interesting enough (I’m afraid I was kind of morbid even before law school), and I was eager to serve on the jury. However, there were nearly sixty of us jurors, and only twelve seats in that jury box. The process by which you whittle the many down to the few is called “voir dire” - essentially, the judge and the attorneys take turns asking the jurors questions. The judge wants to make sure the jurors are impartial, and the attorneys want to make sure the jurors are partial. Sadly, after two rounds of voir dire, a full jury (and a couple of alternates) had been selected. I was not on said jury.

In fact, I never even got asked questions. But I did get to sit any listen to a lot of people explain that they were unfit for jury duty. Some people admitted to being unabashedly racist. Some people admitted to being convinced that the police are all a bunch of crooks. A couple of people confessed that they didn’t feel comfortable convicting a person based on the testimony of a single witness.

One particularly plucky young juror claimed that she would not be able to listen to the judge’s instruction on the law if she didn’t personally agree with the law. It was a pretty good ploy, apparently. For one reason or another, she was dismissed.

Another juror was dismissed, I think, in part because he was unbelievably chatty during the voir dire process. The interview between judge and juror consists of mostly biographical information: age, hometown, family, and any brushes with the law. This juror gave long, rambling replies that initially answered the question, but veered off into unrelated, irrelevant, or downright personal territory. He was the subject of hushed snickers from the rest of the jurors (during the interview process, all sixty of us were in the room, even though only twelve were being interviewed), because most of us assumed he was batty.

He was, however, batty like a fox. While the judge and attorneys conferred about which jurors they wanted to dismiss, the jurors were removed from the courtroom. While we waited in the hallway, Chatty Juror confessed that he gets himself out of all kinds of jobs by pretending to be so desperate for human contact that he rambles on to no end. It was by far the most sinister ploy I saw all day.

If not sinister, at least it was more inventive than “yes, your honor. I am definitely prejudiced against whatever ethnicity that defendant over there is.”

Anyway, after being dismissed from that trial, the remaining jurors and I returned to the jury waiting room, where we were informed that there were no more trials requiring jurors, and that we were free to go. Rumor was that the truck full of hot oil had finally arrived.

I found myself in a jury waiting room last week. It’s a good thing, too. A jury duty summons is not something you want to ignore. I mean, it’s been a while since I read up on what the penalty is for contempt of court, but I’m pretty sure you’re sentenced to be the judge’s butler or something. With this in mind, I went to court.

sidebar: At the risk of perpetuating some unsavory stereotypes about law students, I have to say that one of my favorite parts about going to court is telling people that I’m going to court. Technically, this time it was as a juror, not even in the pseudo-lawyerly capacity that I do for work. But it’s still pretty cool to tell civilians that you had to go to court.

First, I showed up at the New York State Supreme Courthouse in Kings County about ten minutes before the time printed on my summons. As it turns out, that was a mistake. Apparently, New York State (rightly) assumes that most people will show up late, so they print a time on the summons that’s actually thirty minutes early.

When someone did show up, it was a rather genial clerk wearing a bright pink halter top dress. I only note that because the jury duty summons specifically requested I show my respect for the proceedings by dressing respectfully. As I’d spent the bulk of my commute sweltering in a shirt and tie, I was almost jealous. Many people just wore t-shirts and jeans.

The first thing we did was watch a hilariously awful juror orientation video with Ed Bradley and Diane Sawyer. It was done at some point in the 90s, but everyone involved had 80s hair. The video kicked off by describing the process of “Trial by Ordeal” that was used in barbaric times to determine a defendant’s guilt. Then someone made a grim joke about jury duty being as painful a process as sticking your arms into boiling water, and the point was thoroughly missed.

Now, you’re probably saying to yourself “but Dominic, you’re a student and an intern with the government! Why do you not ride out of jury duty on a litter borne by twenty burly eunuchs?” And this is a fair question, although it does seem a little outdated. I mean, eunuch-borne litter hasn’t been a popular mode of travel since like the 1960s.

Apparently, New York has drastically reduced the amount of exemptions, deferrals, and generic “Get Out of ‘Sending Someone to Jail’ Free Cards” in the last few years. Being a student no longer gets you removed from jury duty. Nor does “accidentally” parking in the judge’s parking spot. I assume flat-out claiming to be an unabashed racist still works, but nobody played that gambit while I was in court.

Because fewer people get out of it, more people serve. Because more people serve, people get called fewer times. The end result is that no citizen of New York State is required to serve jury duty more than once every eight years.

I’ve been summoned for jury duty.  Doubtlessly, myths and songs of my legal prowess have reached the ears of the king, or whoever is in charge of the Kings County courtroom.  I can’t wait to get Sam Waterston’s autograph.

Details forthcoming.