Thursday, October 23, 2014

Representing a Small Business

Last week we brought you an interview regarding patent litigation and a podcaster. Who knew representing a small business could involve every legal issue under the sun? It's like being general counsel with the need to know everything from employment law, lease agreements, tax, intellectual property and who knows what else.

If you represent small businesses (or would like to once you are admitted to the bar), help them issue spot so that you avoid litigation in the first place. Here are a few resources to get you started:

And if helping the little guy isn't motivation enough, think about this: you could be the next John Lowe.

Monday, October 20, 2014

Patent Trolls and Lessons in Civil Procedure

I (and Professors Greenbaum and Caust-Ellenbogen) would like to say Civ Pro is one of the most popular classes out there, but I just don't think or know that is true. But it should be. In the interview we mentioned on this blog last Tuesday, Mike August is clear that one reason the parties settled is because his company's counsel (i) believed dismissal with prejudice was not possible in the jurisdiction in which the suit was located, and (ii) would not agree to dismissal without prejudice.

Civil procedure isn't just knowing where to file---it's trial tactics as well. And in this case, where to file was as critical to the outcome of this litigation as any other piece of the trial process. Civ Pro is the rules of the game. So check out a book to brush up on civil procedure and register for Professor Ralph's Pretrial Litigation course to learn how to maximize the rules of the game.

Friday, October 17, 2014

Patent Trolls: How to Spot Them

What is a patent troll? A search on Google of course turns up results galore offering a biased view. If you're headed to court, you need a legal definition. It's the legal writing tip that sometimes going with a neutral, factual definition rather than a loaded, so-persuasive-as-to-be-hyperbolic definition can give you more credibility in court. Here are a few definitions from cases:

A patent troll is
  • "somebody who tries to make a lot of money off a patent that they are not practicing and have no intention of practicing and ... [have] never practiced.", Inc. v. Furnace Brook, LLC, 420 F.Supp.2d 1217, 1218 (2005).
  • "nonpracticing entities” who “do not manufacture products, but instead hold ... patents, which they license and enforce against alleged infringers." Amgen, Inc. v. F. Hoffman-La Roche Ltd., 581 F.Supp.2d 160, 210 (2008).
  • "a small company who enforces patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based on the patents in question." InternetAd Systems, LLC v. Opodo Ltd., 481 F.Supp.2d 596, 601 (2007).
That's fine, but how do you identify one? Law librarians to the rescue! Law librarians are collectors and problem-solvers. The latest collection I've seen on the librarian listservs is tools for spotting patent trolls, as used by law librarians working in firms to help attorneys:
  • PTO’s Patent Litigation Toolkit;
  • Innography;
  • Total Patent (Lexis);
  • Lex Machina;
  • Opportunity Finder Monitor Suite;
  • Docket Navigator;
  • MaxVal;
  • Patexia;
  •; and
  • RPXCorp.

Tuesday, October 14, 2014

Patent Trolls, Patent Holding Companies, and a Wealth of Blogging Opportunities

Podcast entrepreneur Adam Carolla was leading a legal fight against Personal Audio---variously considered a patent troll or a patent holding company depending on who's telling the story. Mr. Carolla had a Fund Anything Campaign to raise around half a million dollars, and Above the Law has a fascinating interview with Mike August, the business manager for Carolla Digital, regarding the settlement reached between podcasters and Personal Audio.

The interview raises a number of interesting topics for blog posts, which we'll explore in the next two weeks of blog posts, perhaps along with other topics as they arise. Stay tuned.

Thursday, October 09, 2014

Court of the Planet of the Apes?

The Supreme Court has ruled that corporations are legal persons.  What about chimpanzees?  A New York Appeals Court is considering this issue and may expand our concept of legal personhood. 

Lawyer Steven Wise has filed suit on behalf of Tommy, a 26-year-old chimp.  Tommy currently resides in a "dark, dank shed," which Wise argues amounts to unlawful imprisonment. 

If you're inspired by animal rights law, try looking at OSU's collection of animal rights books or check out the Law Library of Congress's research guide on the subject, An Introduction to Animal Law. 

Wednesday, October 08, 2014

Free (to You) Online Study Aids

We've touted our study tips for law students on this blog before, and with midterms nigh, we'd like to remind you of one resource in particular: the online, free-to-law-students West study aids collection. To find your favorite study series (e.g., Acing [  ] Law, Black Letter Outlines), do the following:

1. Log in to Westlaw (
2. Click the "My eProducts" tab near the top of the page:

3. Browse by subject or series:

4. Stop by the reference desk if you have any questions. We also have many of these books in print in the Reserve Room (behind the Circulation Desk), and you are welcome to check those out as well.

Monday, October 06, 2014

Who Owns How?

The New York Times brings us a story from one of the coolest (and often misunderstood) legal areas: trademark. The mark in question is HOW. Those unfamiliar with intellectual property shake their fists and protest, "How can you trademark the word "how?" That's just silly!" (Incidentally, this is the same group of folks up in arms about the makers of Candy Crush Saga trademarking CANDY.)

But trademark attorneys (and any ol' law student who has taken intellectual property) know the reality of trademark: the trademark owner can protect the mark in association with the goods or services. It's not the mark on its own that is the property right. The Candy Crush Saga owners are not declaring that for all time no one can say or use the word candy. Instead, they've filed for the right to exclude others from using the word CANDY in conjunction with other game apps. You know, so other people can't think "Hey, this candy crush thing is popular; why don't I just copy it, name my thing something similar, and confuse people into downloading my app too/instead?"

At any rate, the mark HOW is in dispute for yogurt (Chobani) and Dov Seidman, a man "in the business of helping companies create more ethical cultures." And his business model is captured by the word "how." Curiously, Mr. Seidman has a law degree. The article is interesting: it centers on the respective market power each party has, though it does touch on whether one can trademark a word separate and apart from its goods or services (or as the article suggests "a particular connotation of a word in a specific context").

For more on trademark law, we have a large collection of books, treatises, and journals on the subject.

Wednesday, October 01, 2014

Happy Federal Fiscal New Year!

Today marks the start of a fresh federal fiscal year.  Lawyers who practice for the federal government are not the only ones who need to know appropriations; attorneys representing state and local governments or contractors also benefit from familiarity with federal fiscal law.

The mainstay of federal appropriations law, the Government Accountability Office’s, Red Book will help you navigate the guiding CYA principles: color (purpose), year (timing), and amount.  Find appropriations for recent years at congress.govIf you want to delve more deeply into the federal budget, Morgan M. Stoddard presents ten free online places to start.

Tuesday, September 30, 2014

Think Before You Hit Send

E-mail is old hat for most law students, and by now, most of us professors have caught up too. Here's the thing: we often focus on what we are saying rather than how we are, how what we are saying is communicated. For the former, we have books to help you. But you might want to consider your communication style as well.

The software company WordRake has a wonderful blog post series about e-mail communication, and one piece of information is particularly startling:
“People consistently overestimate their ability to communicate effectively with email.” A 2010 study found that “participants lied 50% more when they negotiated over email compared with pen-and-paper.” One of the reasons, surmised researchers: “Emails are less permanent: it feels closer to chatting than writing a letter.”
What's an e-mailer to do? Your best bet is to think before you hit the send button. Save a draft of your e-mail and revisit it in an hour or two. This approach might increase your odds of responding thoughtfully to an e-mail rather than merely reacting.

You might also consider creating a rule in Outlook to time-delay all your sent e-mails by three-to-five minutes. You can hit send, then change your mind a few minutes later to re-read, double-check who you've sent the e-mail too, and possibly delete the whole thing if you've since come to your senses. This approach can save you from the countless lawyer e-mail blunders that make headlines.

Remember: e-mail is permanent. You can't really retract it once it's been sent, so think twice or four or five times before hitting "send."

Thursday, September 25, 2014

Getting Good Help These Days - A Closer Look at Employment Law

Richard Susskind is trending on Twitter for his keynote address at Clio Cloud Conference. Mr. Susskind suggests law firm clients want "a fence at the top of the cliff, not an ambulance at the bottom." In other words, your goal as an attorney should be risk avoidance rather than risk management. Dispute avoidance is a far greater priority than dispute resolution, according to Mr. Susskind.

I've always found Mr. Susskind's perspective persuasive. It makes good sense. Yet how often have you known someone to put off car maintenance including oil changes preferring to avoid the expense of something they don't think they need, only to have to pay an exorbitant bill for a serious car repair later? It seems perhaps people don't want an insurance policy. They don't necessarily want to involve the attorneys unless something has gone wrong.

This approach can be disastrous in the employment world. recently ran In Defense of HR, an article which suggests start-ups should have sound HR (or legal) advice early on to ensure that as the company grows, it complies with local, state, and national employment laws.

And Home Depot's security breach woes, stemming from a former security architect with a history of causing computer mayhem at a previous company, suggest that solid hiring practices are critical. From arstechnica,
When Mitchell learned he was going to be fired in June of 2012 from the oil and gas company EnerVest Operating, he “remotely accessed EnerVest’s computer systems and reset the company’s network servers to factory settings, essentially eliminating access to all the company’s data and applications for its eastern United States operations,” a Department of Justice spokesperson wrote in a release on his conviction.
What does this mean for you? Give employment law some thought and move beyond considering a career in litigation. If you can work with clients early and help them avoid risk at the outset, you may find yourself in demand. Here are a few books to get you started:

Employment Law in Context: An Introduction for HR Professionals
The Manager's Guide to HR
Employment Law for Human Resource Practice

Monday, September 22, 2014

What Do Professors Do All Day?

Professors do a ton, from teaching to writing to volunteering. Perhaps you're curious what they write about but don't quite feel you have the time to commit to a 45-page law review article. That's what blogs are for. Many of our law professors blog on a regular basis, so you can read their timely insights on critical legal issues.

Here is a list of blogs specifically written by Moritz professors. Of note, Doug Berman got in on blogging early, and his Sentencing Law and Policy blog recently had its ten-year anniversary.

For blogs by other law professors around the country check out the Law Professor Blogs Network.

Friday, September 19, 2014

Ignoring Court Rules...Not Just for Less Experienced Attorneys!

Judicial opinions addressing publicly and for all time the misdeeds of attorneys (i.e., a bench slap) are not uncommon. Whether its for poor legal writing or a brief riddled with inaccuracies that seem to amount to outright lies, judges hold officers of the court to high standards. Now, not everyone can be the Bryan A. Garner of the legal writing world, and sometimes you write what you think is true but your clients have misrepresented facts to you. Perhaps you deserve a pass in those situations. But there's one thing it is easy to get right: court rules about spacing and other technical formatting issues. For example, Rule 3.09 of the 2013 Rules of Practice for the Supreme Court of Ohio states
(a) Every original document filed with the Supreme Court shall be single-sided, shall be typewritten or prepared by, computer, word processor or other standard typographic process, and shall comply with the requirements of this rule. (b) The text of all documents shall be at least 12-point type and in one of the following (i) Times New Roman; (ii) Cambria; (iii) Calibri; (iv) Arial Standard (i.e. not Black, Rounded, Unicode or Narrow); (v) Palatino Linotype. . . . The text of all documents shall be double-spaced. Footnotes and quotations may be single-spaced; however, they shall also be in 12-point type.
Alas, when you have more to say to the court, but it limits you to a mere 35 pages, it is awfully tempting to skirt (perhaps flout) the rules and hope the court does not notice. Here's the latest from the BP oil spill case:
BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck.

Wednesday, September 17, 2014

Celebrate Constitution Day

Although the Constitution has been around for more than 200 years, Constitution Day is a relatively new phenomenon. 

As the Senate explains: "To encourage all Americans to learn more about the Constitution, Congress in 1956 established Constitution Week, to begin each year on September 17th, the date in 1787 when delegates to the Convention signed the Constitution. In 2004, Senator Robert C. Byrd of West Virginia included key provisions in the Consolidated Appropriations Act of Fiscal Year 2005 designating September 17th of each year as Constitution Day and requiring public schools and governmental offices to provide educational programs to promote a better understanding of the Constitution."

If you'd like to explore this legislative history in more detail, start with the historical and revision notes for 36 U.S.C. § 106

Not historical enough for you?  The ABA notes that we are nearing the 800th anniversary of the Magna Carta, contributing to this year's designated theme, The Bill of Rights at 225

Monday, September 15, 2014

Asking for Help

We have one more story to add to the list of attorneys with mental health and addiction issues. Unfortunately, it's less frequent that we have stories of recovery to post, though a blog post from a few months back did highlight one attorney's success after getting help. In that post, we identified several resources here locally that are designed to keep you on track or get you back on track if you suffer a personal or professional setback.

If you'd prefer to do some reading up before reaching out, we also have several books on wellness. In fact, we've pull all of our wellness books into a small collection in the Reserve Room, so you can quickly access them.

We've written here in the past about exam stress, but really, law school can be stressful year round. It's not just the challenge of class; it's the challenge of figuring out a job or a career, perhaps for the first time. Don't worry if you're worried. Just ask for help.

Wednesday, September 10, 2014

The PACER Debacle

Librarians, researchers, and attorneys have come to love PACER (Public Access to Court Electronic Records), the online database of federal pleadings. It's a terrific resource for those following cases or who need examples of real complaints or motions for summary judgment. When BloombergLaw came along, it made searching federal dockets even easier.

Alas, PACER has disabled online access to selected court records for several appellate courts, and commercial databases (i.e., Bloomberg, Westlaw, and Lexis) will only carry what they have downloaded. In other words, they are not a complete substitute.

For the latest updates on access, check out these excellent blog posts by librarians at the Kathrine R. Everett Law Library at UNC: Changes to Online Access to Federal Court Records and What Happened to the Information Removed from PACER?