lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Bloggers as Newsmen – Expanding the Testimonial Privilege

Should bloggers have the same testimonial privilege as the newspaper people? Um, yes please…? In any event, an interesting Note from Boston University Law Review:

This Note examines the complexities of the reporter’s privilege and how it has been interpreted in the context of advancing technology. Part I examines the history of the debate behind the reporter’s privilege, stemming from the Supreme Court’s decision in Branzburg v. Hayes, that the First Amendment does not guarantee an absolute testimonial privilege to journalists. It then compares examples of the various types of state statutes that grant reporters a shield protection despite the Court’s ruling. Part II explores the question of privacy and its unique application to the anonymity that the Internet provides to bloggers and online newsmen. Part III discusses the legal questions surrounding blogs more specifically, including the courts’ current rulings that relate to Internet speech and newsgathering. In Part IV, this Note argues that bloggers should be considered journalists, and calls for a federal shield statute that protects all newsmen from compelled testimony in response to a subpoena. The proposed statute would apply regardless of the medium these reporters employed in the dissemination of news. It further proposes that the criteria for determining who qualifies for the federal privilege should be based on the product an individual produces, rather than professional affiliation or chosen medium. Yet, to address the interests of the justice system and of civil plaintiffs, this Note proposes an exception to the grant of privilege for misprision of felony, an additional statutory protection for whistleblowers, and a balancing test to accommodate the differing priorities of parties to a civil claim.

Anne M. Macrander, Bloggers as Newsmen: Expanding the Testimonial Privilege, 88 B.U. L. Rev. 1075 (2008)

Curious Effect of Filing Motion Five Minutes Late on Opposing Counsel and Judge

The following is from this honest to goodness actual order from Western District of Wisconsin in Hyperphase Technologies v. Microsoft.

True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up to seventy-two minutes later.

Hat tip to Conglomerate via my law license

2008 James Hippard Sr. Open Mock Trial Competition

2008 James Hippard Sr. Open Mock Trial Competition

I choked on my coffee when I saw this photo of these jokers on the law school’s home page yesterday. Although it’s a bit difficult to write this with a straight face, congratulations are due some of my old section-mates, Chris Domingo and Rob Jackson, for winning the 2008 James Hippard Sr. Open Mock Trial Competition at UHLC. The prize for these competitions is principally bragging rights, but those bragging rights are bitterly contested and much cherished. Congratulations fellas.

When the smoke and dust cleared from the Law Center’s largest intramural mock trial competition, two students stood as champions. Chris Domingo (left) and Robert Jackson earned top honors in the 2008 James Hippard Sr. Open Mock Trial Competition after facing off against Donald Crump and Chris Halgren in the finals. The Honorable Keith P. Ellison of the Southern District of Texas and Law Center Prof. Brent Newton presided over the last round of the tournament, which attracted a crowd of more than 100 students. Congratulations to Chris and Rob – and to all competitors and judges who made the 2008 Hippard tournament a fun and memorable experience.

The Gen-Y Albatross

Once a year, just before the OCI season heats up, the 2Ls at UHLC are herded into a classroom, hosed off and made presentable and treated to a presentation by Mary Crane.  Mary Crane believes we are part of the "T-Ball Generation"; among other things this means we:

  • wear questionable attire into the office
  • don’t care when someone suggests we are inappropriately dressed
  • schedule work assignments around opportunities to connect with friends and families
  • ignore the existence of any sort of hierarchy in our respective workplaces
  • have parents who phone HR any time we don’t receive the performance evaluation or merit pay raise our parents think we are due

In other words we’re spoiled, inconsiderate, self-obsessed dilettantes who having become accustomed to an inflated sense of self-worth and exceptionalism now demand recognition for it despite all evidence to the contrary. In my favorite part of this yearly ritual, Mary informs us of the shocking revelation that body piercings, visible tattoos and exotic dye-jobs are not acceptable in most large law firms. Mary honestly believes her advice is all too necessary, that real law students actually do these things, that we must therefore be reminded to do things like remove our iPod earbuds when talking to senior partners. Normally, I would not begrudge Mary her shtick. If there were people out there whom evolution has overlooked who genuinely learn and benefit from this type of advice, so be it. Who am I to judge?

I should have known better. Horrifyingly, more than once in the last few weeks I’ve been interviewed by partners who have referred vaguely to reports that "my generation" is "different." They been lead to believe that we have an insatiable appetite for text-messaging each other throughout the day and though we might appear to be doing some research on WestLaw, we’re surreptitiously updating our Facebook profiles. For some reason we have to be spoken to like mental patients for fear of damaging our delicate psyches. Mary recommends developing a list of open-ended, probing, linked, evaluative questions before providing us feedback. I’m starting to get a glimpse into this mindset from the 60 Minutes segment, The "Millennials" Are Coming. The scariest part is that everyone seems to believe that this behavior should not only be tolerated but accommodated.

So I have something to ask senior partners of a certain generation – did you spend your law school career popping shrooms in the law review basement, grooving to the Grateful Dead, rapping about "The Man" and tie-dying your dashikis? No, of course not, because that’s a ridiculous stereotype conjured by the media to scare old people.

I grew up with plenty of millenials but very few of them made their way to law school or stayed very long if they did. Most of my classmates work long hard hours to get to this point. I am in constant amazement of their talent and perseverance. They’re no different than any other generation of young lawyers, imbued with a recognition of the duties as well as the rewards of the profession. They’ll make you proud if you give them the opportunity.

The Problem of Discovery

Martha Neil with the  ABA Journal  has a pair of articles up on discovery, OK, Discovery’s a Problem, But What Can Be Done About It? and Litigation Too Costly, E-Discovery a ‘Morass,’ Trial Lawyers Say, prompted by an interim report released by the American College of Trial Lawyers: ACTL & IAALS PUBLISH INTERIM REPORT ON PROBLEMS ASSOCIATED WITH DISCOVERY

Some of the themes of the report:

  1. Although the civil justice system is not broken, it is in serious need of repair. The survey shows that the system is not working; it takes too long and costs too much. Deserving cases are not brought because the cost of pursuing them fails a rational cost-benefit test, while meritless cases, especially smaller cases, are being settled rather than being tried because it costs too much to litigate them.
  2. The discovery system is, in fact, broken. Discovery costs far too much and has become an end in itself. As one respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.” Electronic discovery, in particular, clearly needs a serious overhaul. It is described time and time again as a “morass.” Concerning electronic discovery, one respondent stated, “The new rules are a nightmare. The bigger the case, the more the abuse and the bigger the nightmare.”
  3. Judges should take more active control of litigation from the beginning. Where abuses occur, judges are perceived to be less than effective in enforcing the rules. According to one respondent, “Judges need to actively manage each case from the outset to contain costs; nothing else will work."
  4. Local Rules are routinely described as “traps for the unwary” and many think they should either be abolished entirely or made uniform.

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