Blawgletter®

Quote of the Day: Stephen S. Trott

Charisma . . . is not copyrightable.

SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 10-56535, slip op. 10 (9th Cir. Mar. 11, 2013) (Trott, J.) (holding that fair use doctrine barred copyright claim for showing of seven-second clip from Ed Sullivan's really big show in musical play about Four Seasons, which launched Frankie Valli's singing and dancing career).

Bonus: The court upheld an award of attorneys' fees for SOFA, the producer of Jersey Boys, because Dodger had tried pretty much the same thing with clips involving Elvis Presley.

Gud Rytin

Did you see the piece in the March 2013 issue of ABA Journal by Bryan Garner? The guy who edits Black's Law Dictionary? Author of books on American, legal, and American-legal prosel. He wrote "Why lawyers can't write".

Whoa.

Mr. Garner said the great mass of legal writers think themselves Far Better at pen- and keyboard-wielding than the facts support. He cites "the Dunning-Kugler effect" as the chief cause of their blindness to the poverty of their prose. He compares lawyers in their guise as writers to duffers who delude themselves into thinking that their 23 handicap makes them the in-fact equal of Phil Mickelson or Tiger Woods.

As Wikipedia explains:

The Dunning–Kruger effect is a cognitive bias in which unskilled individuals suffer from illusory superiority, mistakenly rating their ability much higher than average. This bias is attributed to a metacognitive inability of the unskilled to recognize their mistakes.

Those who suffer from D-K do as the Black Knight in Monty Python and the Holy Grail did. As you will recall, when King Arthur's sword relieves the Black Knight of his upper limbs, he calls his injuries "a flesh wound". After Arthur then hews off his legs, too, he says "alright, we'll call it a draw." Dunning-Kruger.

The article doesn't explain why lawyers can't write, but you'll like it anyway. Mr. Garner does have a way with words.

B. McLeod does, too. He wrote in one of his comments on the piece:

I fur wan wuz glad to see this artikul.  Mini tymz ovur the yeers, aftur fileeng an upellit breef, I wood find a miztake in thair.  Eevun tho I red the theeng a duzzen tymz beefor sendeeng it in.  Now I reelize it must be beecuz of my bad golf skilz, which hav ulweez bin veree por.  To Mistur Garner for cawleeng this to my attenshun now I veree thankful am.  I hoap I will hav a chans eevenshulee to by his boox, or sum of such, so I can beegin to fix my awbveeus Dunnig-Kruger prawblum too.  Providud, howevur, that he duz not want too big a pryce for the such boox menshund hearin abuv (beeeeng nawt so much a faymuss ritur myself, I prawblee need to be mor cairful how I spend my munny).  Of corse, I hav bawt a fue boox beefor, but sum of them wur kwite unhelpful.  Fawnix, fur exampul, woant ulweez git yu thair.  Thatz fur shure.

Polydactyl Cats on Key West Affect Commerce, Eleventh Circuit Rules; Hemingway and Snowball

The federal man came from grim shellshock on the swampy mainland far north, just this side of the line. It didnt matter. He must feel anguish. The yowling menace he saw meant that nothing but quietus would suit his alien vision of needful harsh loss. Or maybe just a license.

The old guy watched the man write the ticket. Who wouldve thought you could get in trouble for six-toes, he thought. What the [unprintable] did the extra pads matter, he said to no one except the night air but really maybe the cicadas.

Snowball, he said in a whisper. We thought you was a boy.

See 907 Whitehead Street, Inc. v. Secretary of Agriculture, No. 11-14217 (11th Cir. Dec. 7, 2012) (holding that museum in Ernest Hemingway's winter home on Key West during the 1930s needed a federal license to "exhibit" 40-50 "polydactyl" cats, many of which descended from the fecund Snowball).

Quote of the Day: Scott Adams

Hairless CEO to Dilbert's pointy-hair boss:    Did you know that poor people invented ethics to control rich people?

Hairless CEO to empty space:    Nice try, poor people! It's not working!

Hairless CEO to pointy-hair boss:    If they haven't killed me by now, a little trash talk won't make any difference.

Scott Adams, Dilbert, Sept. 14, 2012.

Quote of the Day: Bumper Sticker

    Honk if you love Jesus

    Text if you want to see Him

Mock Trial -- Dare You NOT Do It?

Blawgletter's firm handles much of our work on a contingent fee basis. That means we share risk with our clients -- and earn no fee if we don't help our clients get a good result.

What counts as a good result will vary from case to case. It often involves a money inflow, sometimes not having to pay. In some instances, a particular outcome -- winning a motion to dismiss, to compel arbitration, for class certification, for preliminary injunction, and so on -- defines success.

Why do we mention the risk-sharing? Mainly because our firm has a rule that, before trying any case in which we have a contingent fee on the line, we must MOCK TRY it. That should tell you how much we believe in the usefulness of the mock trial.

But what good, you may ask, does the mock trial do? Do the results predict the real outcome? How could they? Cramming weeks of opening statements and witnesses and argument and PowerPoints and blow-ups and expert opinions and juror notebooks and sidebars and so forth into TWO OR THREE HOURS -- how could that possibly tell you anything worthwhile?

Okay. Listen up. We don't want to have to repeat this.

Mock trying the case forces you -- the lawyer and the client -- to prepare. It makes you think about the other side's strengths -- especially if you compel your lead trial counsel to play the other side's lead (in her or his own style, of course). And it fast-forwards your client to the main event, which he or she may have an unrealistic Hollywood-y image of.

Does the outcome predict actual results? Heck no -- by which we mean in the particulars. Mock juries often differ widely in their damages awards. That goes double for punitive damages. But the direction of their verdict -- you win, or the other side does, big time -- has a fair degree of reliability.

Third, the process reveals the One Fact. The One Fact that the lawyers know Has Importance. But that nobody realizes -- until the mock trial -- the Whole Case Turns On.

So mock try your cases. Spend your own money doing it, if you work on a contingent fee. Clients should insist on jury research. You'll like the results. 

Quote of the Day: Bucky Katt

I listen to a lot of AM radio.

Bucky Katt, Get Fuzzy, Jan. 1, 2011 (responding to question "and where do you come up with all your wacko theories?").

"Under Seal" Doth Not Equaleth "In Camera"

Michael Smith at EDTexweblog.com has a fun post on why you should know the difference between "under seal" and "in camera". 

It features a photo and dialogue from Ghostbusters.  Way to go, Mike.

Quote of the Day: Damon Darlin

[A] nerd is someone . . . who has more e-mail addresses than pants.

Damon Darlin, "Behind My Seven Phone Numbers", The New York Times, Sept.12, 2010.

(Note:  The online version of the article changed the title to "Cellphone Carriers Are Turning to Wi-Fi, Too".)

Quote of the Day: Tim

It would help enormously if the British would just speak English properly.

Tim, Aug. 19, 2010, commenting about Martha Nell, "Big Law's Secret to Success in Retaining Women Partners:  82 Holidays a Year", ABA Journal online.