Blawg Review #106

Donington Park, in North West Leicestershire, England, first opened its gates 1931 as a motorcycle race course. Since that time, Donington has hosted MotoGP, the European Grand Prix, the British Touring Car Championship and even Ozzfest. Despite its prestige and renown, Donington still has "trackdays" where amateurs like myself can lay their rubber on that of top legends like Kevin Schwantz, Wayne Rainey, Valentino Rossi and Nicky Hayden.



While dropping my 750 GSX-R into and out of turns all day today at the racetrack, I concluded that bloggers are much like motorcycle racers. Among the tens of millions of spectators, there are but a precious few willing to take up the challenge themselves. While the A-listers do it for fame and fortune, the remaining 99% do it for the thrill and the wonderful people you meet along the way. It is those friends, both online and ontrack, to whom I dedicate this post.



In a salute to both bloggers and bikers, I have correlated each of this week's blogs with a particularly fond memory of Donington Park. Enjoy!

Getting inside your head (Old Hairpin)


In Brain Management: Law Firm Leadership on the Neuro Frontier, Stephanie West Allen explains how our brains use control, communication and competence to guide our law firm management decisions. Trial Lawyer and jury consultant, Anne Reed, gives us a peek inside the heads of real live jurors in her analysis of the Nacchio case. Eric Turkewitz provides a somewhat more cerebral analysis of a medical malpractice case, suggesting meticulous economic vetting is critical.

Ronald Miller writes that juries tend to treat doctors favorably, suggesting that the incredibly low rate of the success of medical malpractice cases that go the distance is a result of insurance carriers being more eager to settle, rather than these types of cases being dogs. Scott Greenfield details the issues revolving around anti-social behavior and brain dysfunction and whether courts should consider brain dysfunction in sentencing.

Oops


Mishaps are inevitable. To reduce the likelihood of them happening to you, Walter Olson, in Overlawyered, offers some helpful Don'ts. For those of you who do not believe all potential mishaps are foreseeable, Walter suggests contacting the judge in this case for some insight.

Think you know how to date a contract? You might want to think again after reading Ken Adam's blog post on Revenue Recognition and How You Date Contracts. Randy Braun concludes, with the help of the Naussau County Supreme Court that Chronic Sinusitus is not a disability under New York Law.

The Competition(the esses)


Patently O's Dennis Crouch discusses submarine patents of the Living Dead, while Stephen Albainy-Jenei of Patent Baristas invites us to celebrate World Intellectual Property Day. Ilanah Simon of IPKat tells us about the first ever copyright trading floor opening in Ho Chi Minh City and Marty Schwimmer of The Trademark Blog summarizes the list of most valuable trademarks in the world.

Robert Scott provides his definition of Software Piracy in contrast to that of his arch nemesis, the Business Software Alliance, which appears to be rather aggressive in pursuing business for "overusing" licensed software. William Patry analyzes an exception to architectural copyright which allows homeowners to modify their homes.

Tight Turns (McLeans)


In his Law Practice Tips Blog, Jim Calloway foretells the Rise and Fall of the Dictation Tape. For my two cents, I agree that most law firms need to turn more quickly toward technology. I have thrown away $250+ a pop on multiple Olympus machines, at least one of which lasted less that two months. In my Tech for the Non-Tech lawyer, I suggest a Sony or some other more rugged, less expensive recorder.

The Pope has a hand in this week's Blawg Review by abolishing limbo. No, Rush, you can still get drunk and dance low under the stick; this is (or was) the limbo between Heaven and Hell. With a single edict, the Vatican has tossed what is probably one of the greatest Blawg Review posts ever, into turmoil. The loss of limbo has forced Colin Samuels' deft hand into dispelling Kevin O'Keefe, the Blawg Review Editor and Ross Rinkel out of Blawg Review #35 limbo, along with the infants, virtuous pagans and pre-Christian Jews.

Can an employer require a male-to-female transsexual, who has a female gender identity, to use a male-only shower room or dressing room? Dr. Jillian Todd Weiss examines this issue and more as they relate to a recently proposed Employment Non-Discrimination Act.

Leon Gettler discusses lawmakers legislating corporate social responsibility which large corporations do not seem to be adopting of their own volition.

Only in (Hollywood)


Texas. Mark Herrmann explains a Texas state court Vioxx decision pundits anticipate will preempt private party "failure to warn" claims against drug manufacturers based upon the alleged inadequacy of warnings previously approved by the FDA.

India. In his LawSites blog, Robert Ambrogi explains how to get United Kingdom legal advice at a 66% discount. I wonder what my local barrister blogger Tre Critelli would have to say about that.

Florida. Even if you are a firm specializing in representing motorcyclists, the Florida Bar wants to make sure logos used in your representations to the public are not untoward. But the question of what passes muster is obviously somewhat in the eye of the beholder. David Giacalone examines the Florida Bar's apparently somewhat capricious rejection and acceptance of various law firms' logos.

Hollywood. Professor and cyber copyright visionary Lawrence Lessig eulogizes the late Hollywood icon and model of a man, Jack Valenti.

True Originals


Enrico Schaefer explains how most law firms' hourly billing model puts clients at odds with their attorneys. Think you know who owns the copyright on the Virginia Tech killer video? You might think again after reading the Volokh Conspiracy post. Law student Scott Felsenthal discusses the legality of Peer-to-Peer file sharing systems, like Limewire, under current copyright laws.

Jamie Spencer explains one of the biggest problems with the Texas criminal justice system. Texas actually sends some parolees back to prison after they have been acquitted of new charges brought against them. Jeff Lipshaw gives a great summary of the top ten reasons Lawyers should take up knitting.

Bloggers and racers know what kind of bloggers and racers they are. If you are unsure about what kind of lawyer you are, visit Evan Schaeffer's Legal Underground. (I can't decide if I am the lawyer who brings his/her breast pump to the office, or the lawyer with the shiny new gadget. But aren't they the same thing?) Actually, as a patent attorney, I am very interested in Wordlab's post on Oppendahl & Larson LLP's domain name patents.com going on the auction block. If you have an extra $500K laying around, it might be something to think about.

In his award-winning student lawblog Lawyerlike, Ryan Austin provides those on the fence about entering law school some insight into how one might compare the various stages of lexmatriculation with various movies.

Jim Calloway gives us the heads up on an article by practice management advisor Ellen Freedman examining various law related document assembly packages.

Those wacky officials


If you do slip up and get something on your pants, be sure your dry cleaner offers "satisfaction guaranteed . . ." . . . and you have a judge bring them in for you. Ted Frank and Carolyn Elefant both posted good pieces on how to claim $65 million in damages, based upon the novel legal theory of "unclean pants."

David Harlow examines Social Security and Medicare's insatiable thirst for cash that legislators will increasingly attempt to slake with our tax dollars. Tami Cowden, in discussing common law, explains that the recent increase campaign contributions to judicial candidates may be more of a purchase than a wholly altruistic act. I would consider buying one myself, but black is just too difficult to keep dusted.

Al Nye The Lawyer Guy discusses the case of Mailee Jones, dean of admissions at MIT, outed and forced to resign for some creative writing on her resume and the case of a Judge and prosecutor facing disbarment for having sex in the judge's chambers. I have had that happen to me several times - but it has always been in more of a metaphorical sense.

Nicole Black waxes philosophical on the untoward motivations of district attorney Mike Nifong in the Duke rape case. Eoin O'Dell's call to arms seeks the European Union to take the lead in comporting centuries old copyright laws to the realities of online commerce.

Things are not all bad. Mike Masnik of Techdirt blogs about Judge Lee R. West forcing the RIAA to pay the attorney fees of litigants it incorrectly sued.

Special Thanks (Corner Workers)


Thanks to Connie Crosby, author of Blawg Review #105, for setting the bar so high and forcing me to play with my blog, rather than work last weekend. And special thanks to Colin Samuels of Infamy or Praise, Jen Burke and Derrick Hughes, for forwarding me so many great links to law blogs I might otherwise have missed.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Brett Trout

Blawg Review Donington Park

The World's Most Expensive Trademarks

Millward Brown Optimor has just released its Brandz Top 100 Most Powerful Brands survey. It is interesting to compare these recent rankings of 2007 trademarks with the 2006 list.

2007
1. Google $66.4 billion
2. GE $61.9 billion
3. Microsoft $54.9 billion
4. Coca-Cola $44.1 billion
5. China Mobile $41.2 billion
6. Marlboro/Altria $39.2 billion
7. Wal-Mart $36.9 billion
8. Citigroup $33.7 billion
9. IBM $33.6 billion
10.Toyota $33.4 billion


2006
1. Microsoft $62.0 billion
2. GE $55.8 billion
3. Coca-Cola $41.4 billion
4. China Mobile $39.1 billion
5. Marlboro $38.5 billion
6. Wal-Mart $37.5 billion
7. Google $37.4 billion
8. IBM $36.1 billion
9. Citibank $31.0 billion
10. Toyota $30.2 billion

Brett Trout

Brandz trademarks Google Microsoft Millward Brown

Come to Iowa - We won't sue you

. . . or if we do, we will not get any money. At least according to the annual assessment of state liability systems conducted by Harris Interactive. The assessment ranked Iowa's legal climate No. 4 in the country (Delaware was #1). Rankings are based upon in-house general counsel and senior corporate litigators' assessment of how fair and balanced each state's court system is.

While this is great news for Iowa patent attorneys, my personal injury attorney buddies might not see things quite the same way. The study concludes that low ranking states like Illinois must legislate legal reform to attract new business and increase employment. You can read the whole survey here.

Thanks to Adam Steen for the pointer.

Iowa Tort Reform Harris Interactive


Brett Trout

Blawg Review Next Week

This is just a reminder that I will be hosting Blawg Review #106 next week. If you would like to submit a legal blog article (either yours or someone else's) please use the Blawg Review submission guidelines. Based upon the volume of email I receive everyday, if you send something directly to me instead of using the submission guidelines, it is doubtful that I will find it in time to make it into the post. I am looking forward to some great posts!

Brett Trout

Blawg Review

IgniteIT Tomorrow in Ames

Thanks to everyone who voted for my IgniteIT talk. Turns out I have been given the completely no pressure slot immediately following Guy Kawasaki. If you are interested in seeing either of us speak for five minutes, or if you want to stay and see me try my hand at PowerPoint Karaoke be sure to sign up. BTW/PowerPoint Karaoke is not what you think . . . it is actually probably much geekier than you think. But, it should be fun and there will be free libations. A drunk patent attorney giving a PowerPoint presentation he has never seen before. Heck, you might even want to bring a date.

Here is the schedule.

7pm : Eat and Drink
An open bar and plenty of snack food (that is worth sitting through my talk right there).
8pm : Communicate I
A series of rapid-fire 5-minute presentations on all things tech in a casual atmosphere.
8:30pm : Connect
We'll have a good break to provide a chance to meet and talk with people in Iowa's IT community. Sponsors will have tables of stuff to check out and people to meet.
9:00pm : Communicate II
A second series of rapid-fire 5-minute presentations.
9:30pm : Connect
Another chance to get network the WoW cheat codes out of your neighbor.
10:00pm : Door Prizes
If you don't know what a door prize is, check Wikipedia.
10:15pm (or thereabouts) : Laugh
PowerPoint Karaoke. Presenters ad-lib a short talk around randomly selected PowerPoint slides drawn from the web. It's either laugh-out loud funny or horribly tragic. Come share the schadenfreude.
11pm (or thereabouts) : Everyone heads back to Rush's mom's basement for Budweiser and an LAN party (just tell her I said it was okay).

Brett Trout

Guy Kawasaki IgniteIT

Link Love and the Practice of Law

I noticed I have been getting a lot of press this week. From Colin Samuels' incredible Infamy or Praise to a substantial quote in the Des Moines Business Record concerning the Iowa Microsoft case.

One particularly notable hat tip came from Canadian Law Librarian, and host of Blawg Review #105 Connie Crosby. In her post, she quotes some rather profound insight from Rajesh Setty, author of Life Beyond Code, in his 10 things they didn't tell you about blogging:

7. If you want to succeed, you HAVE to start making others succeed.

You want to succeed in your blogging initiatives. Others want to do the same. If everyone thinks that ONLY they want to succeed, it will be hard work for everyone. Please spread the word about other blogs. You don't have to promote other blogs blatantly. A little bit of "link love" will go a long way. Don't worry. People will reciprocate if you write "linkworthy" content

This is particularly important advice for lawyers who blog. You are never going to succeed as an island. That old school philosophy of "step on everyone to get to the top" just does not work in the blogosphere. The great news is that you do not have to despise your colleagues. The main reason I enjoy blogging so much is because the successful bloggers I meet are such great people and lawyers are no exception. Upon meeting me, their first thought is "How can I help you." They do not expect anything in return; they just want to give back to something that has done so much for them.

The best thing about blogging is that it naturally weeds out the bad eggs. Blogs make you transparent. If you are honest, that shows through. If you are nice, people can see that. You can try to hide it, but your blog will eventually bring out your true personality. Blogging is putting a new face on an oft criticized profession. People are using blogs to sort the wheat from the chaff and find the best lawyers out there. Based upon the lawyer bloggers I have met, and continue to meet, I have a new found optimism that the legal profession is more civil, more collegial, smarter and more caring than it was even five years ago, and it is getting more so every day.


Brett Trout

Be sure to check back in Monday, when I will be filling Blawg Review #106 with dozens of links to the amazing attorneys putting this new face on the practice of law.

Blawg Review Lawyers Blogging Rajesh Setty

Des Moines Business Accelerator

Are you an inventor or owner of a new start-up business in or around the Des Moines area? If so, be sure to tune into Rush on Business Podcast No. 5 In this latest podcast, Rush interviews Mike Colwell, Executive Director of the Business Innovation Zone of Central Iowa (BIZ). BIZ is Des Moines' newest business accelerator, and is sponsored by the Greater Des Moines Partnership.

Unlike other business accelerators, BIZ offers flat fee mentoring and counseling to entrepreneurs and new businesses. Most importantly, BIZ focuses on fulfilling talent and leadership needs. As a Des Moines patent attorney, I would like to say that creating a new product or service is the most important thing a new business can do. Even more important than a great idea, however, is a plan and the people to fulfil the idea. If you would like to know more after listening to Rush's podcast, you can email Mike Colwell at mcolwell@desmoinesmetro.com or call him at 515-286-4915.


Brett Trout

biz Rush Nigut Mike Colwell Des Moines business accelerator

Iowa Microsoft Case Settlement

Attorneys announced a settlement in the Iowa Microsoft case the day before Valentine's Day, but it was not until yesterday that they announced the details. Under the deal Judge Rosenberg preliminarily approved yesterday, consumers would receive up to $179.95 million: $16 for Windows or MS-DOS; $25 for Excel; $29 for Office; and $10 for Microsoft Word, Works and Home Essential software.

A hearing on final approval is scheduled for August 31, 2007. To receive payment, check the settlement website beginning April 25, 2007 and fill out and submit your Claim Form by December 14, 2007. Microsoft will donate half of all unclaimed proceeds to the Iowa Department of Education to provide computer hardware and software for Iowa classrooms. In Minnesota, this amounted to over $50 million for their schools.

The most amazing thing, something I did not predict, was that the payments will be made in cash. Although Roxanne Conlin is demanding $75 million in attorney fees, the fact that Microsoft will be paying cash indicates she must have done something right. Attorney fee awards in similar cases have run about 10% of the actual award. Plus, I believe even Faust might think $75 million a tad inequitable. Let's hope this is just a starting point for negotiation.

Brett Trout

Microsoft antitrust class action Iowa

Top 10 Ways to Commit Malpractice with Your Blog

Kevin O'Keefe has been closely following the issue of legal malpractice coverage for blawgs. In his most recent post, Kevin lays out some blawging don'ts:

1. Puffing on your blawg.
2. Establishing an attorney/client relationship on your blog.
3. Failing to use the same precautions you use for email, fax and phone.
4. Going into the specific facts of a case with a commenter.
5. Not displaying a disclaimer that you are not offering legal advice.

In addition, I would add the following don'ts taken from the book I co-authored with Rush Nigut Yblawg: The Nuts and Bolts of Lawyer Blogging:

6. Discussing client information.
7. Discussing any cases your firm currently has pending.
8. Posting or responding to comments by an opposing party or presiding judge.
9. Affiliating your firm with personal blogs of firm staff or lawyers.
10. Failing to comport with the advertising laws of your state.

For more "don'ts," be sure to contact Rush to get your copy of Yblawg: The Nuts and Bolts of Lawyer Blogging.

Thanks to Matt Krigbaum for referring me the latest on this story.

Brett Trout

blawg law blog Chubb malpractice yblawg

Top 10 Technologies for the Non-Tech Lawyer

You will never get ten attorneys to agree on the top ten technologies. Heck, you probably cannot get two to agree on the two top technologies. Different experiences, training, backgrounds, resources and tolerances for technology make different technologies more or less appropriate for one particular attorney. So how do you choose new technology, knowing the answer is different for everyone?

The key is to take the first step. You might not be stepping in the right direction, but even a misstep provides you valuable insight as to what you do NOT want. The more you try, the more adept you become at determining what technology is right for you. You will likely never be on the cutting edge of law office technology, but who wants to be? Being on the cutting edge wastes a lot of time and costs a lot of money. Isn't saving time and money the whole reason you wanted the technology in the first place?

While you may be a leader in your particular area of law, when it comes to law office technology, you do not want to be a innovator or an early adopter. By the same token, you do probably do not want to be a laggard or part of the late majority. Unfortunately, most of the attorneys I know fall into one of these two latter categories. Most are just paralyzed by all of the options.

You are in luck though; it is never too late to become one of the coveted early majority. Here you get the best of both worlds: 1) you do not spend a lot of time and money chasing cutting edge technology that never takes off; and 2) you gain the efficiency benefits of well-tested technology at a lower price. So get out there! Try some not-so-new-anymore technology.

While I am far from the last word on law firm technology, these are some no-brainers that I have found to be beneficial in my own practice:

10. Scan all incoming documents - You can scan them right to the client file. You never have to worry about tracking down a lost hard copy or accessing a deposition while you are in Belize. Best prepare yourself sooner, rather than later for the inevitability of the paperless office.

9. Get a Network of Geeks – Geeks are not like attorneys. They know the value of sharing. You will never weather the storm of technology as an island. Google around for some legal bloggers in your area and get to know them. Before you know it, you will be the one offering your hand to a noob.

8. Digital Dictation – While I have not settled on the perfect digital Dictaphone, I am fairly confident it will not be an Olympus. The last two very expensive models I had lasted barely longer than a sneeze. I like my cheapo Sony, which seems fairly durable, but I am still looking around for one with a few more features. Even with multiple bad experiences, I am solidly convinced digital is the way to go.

7. RSS feedreader – Search once and subscribe. Process 24 hours of information in five minutes. Careful though, it is addictive.

6. Add Website Content – A website is often the most valuable piece of technology a law firm has. More people see your website than any other type of advertising you do. What is does a one-page website say about your firm?

5. Smartphone – Come on. Little Jimmy will hit other home runs. If you do not read BlawgIT during the game, how will you keep up with all the latest intellectual property news? Combining a phone with email, Internet, an iPod, movies and a calendar? Res ipsa loquitur.

4. Add a screen to your computer - OK, eight screens might be overkill, but once you indulge yourself with two, eight does not sound all that crazy. Extra screens often means throwing in a new video card, but if your kid defeated Halo 2, he/she should be able to get you set up.

3. Google Toolbar - Are you still going back to Google 100 times a day to perform a new search? Kick your Googling into high gear. Get this toolbar.

2. Internet security – There are only two kinds of business with an online presence: 1) those who have had a security issue; and 2) those that lie about it. Get protected with AVG or a similar security package which protects against spyware, viruses, spam, scams etc.

1. Blog - Get out there and read blogs by other attorneys in your practice area, by your clients, by legal scholars. There is nowhere an attorney can find more valuable information in less time than through blogs. Once you realize blogs generate better, more well-informed, happier clients, you might even be motivated to write one yourself.

Try some of these out and let me know how they work. If you find something better, let me know. If you are the first one to tell me about something better, that I start using, I will send you a free copy of Internet Laws Affecting Your Company. Good Luck!

Brett Trout

law firm technology law technology ediscovery non-tech lawyer new technology

New Des Moines Patent Blawg

Reading RushOnBusiness this morning, I see the Des Moines patent attorneys at McKee, Voorhees and Sease have launched a new patent, trademark, trade secret and copyright blawg. From the email I have been receiving today, apparently I am not the only one that was not aware of FileWrapper.com. I know Kevin O'Keefe will be glad to see a new blawg in town ; )

McKee, Voorhees and Sease apparently launched Filewrapper the week after some of their more insightful attorneys attended the YBlawg seminar Rush and I presented through Lawpportunities last fall. Given the impressive layout of Filewrapper, the blawg was undoubtedly at least on the drawing board prior to our seminar. It is still nice to know we may have played at least a small part in bringing another blawg to Des Moines.

Filewrapper will be particularly useful for other intellectual property attorneys. The case law updates covering patent, trademark and copyright issues are well written, with links to both patent numbers and statutes. I am adding it to my feedreader today. Now, if we could just get their superhero "Blog Staff" to reveal their true identities at an upcoming Blogga Nostra meeting . . .

Brett Trout

McKee Voorhees Sease IPMVS Des Moines patent attorney
blawgs

Don't Miss IgniteIT

If you can make it to Ames, Iowa Thursday night, April 26th you are in for a treat. Iowa State University is hosting Emerging Technologies Conference ’07. The Conference runs for three days. Friday April 27 is Industry Innovation Day with the inimitable Guy Kawasaki offering the Keynote.

But there is a way to see Guy Kawasaki before his keynote. In addition to his keynote address, Guy will present a short introduction to the IgniteIT event the night before. The IgniteIT meet and greet starts Thursday April 26 at 7p.m., with the program starting at 8p.m. The IgniteIT format involves a series of speakers each presenting a 5 minute PowerPoint presentation selected by the attendees. My proposed talk covers the Top Ten Legal Oversights That Can Shut Down Your Website.

Out of the hundred plus talks I have given, the "oversights" talk has been one of the most informative, universally applicable and well received. In fact, it has been so well received, I included it as a chapter in my book, Internet Laws Affecting Your Company and will be including the updated version I will be presenting at IgniteIT (assuming you votefor me), as a chapter in my new book coming out this Fall. Andy Brudtkuhl, the brainchild behind Central Iowa Bloggers has also submitted a talk covering Web Three Dot Oh. If you would like to hear either of these talks, be sure to register (it’s free) and vote.

Don’t miss this unique opportunity to see Guy Kawasaki and pick the brains of your fellow Central Iowa bloggers. Register, submit your own talk, vote for the talks you want to hear, add fellow attendees to your online “want to meet” list and get ready for a tech night out. Plus, with free admission, it is guaranteed to be more fun than a clown on fire or double your money back.

See you there!

Brett Trout

Guy Kawasaki IgniteIT Iowa State Emerging Technologies

Employees Remain Biggest Threat to Corporate Data

Does your company have rogue employees selling sensitive data and trade secrets to a competitor or identity thief? How would you know? By the time you find out, it is likely too late.

An audit of data theft cases by Palisade Systems, of Ames, Iowa concluded that the problem is larger than you might imagine. Over 65% of corporate data theft cases are attributable to employees. Either through theft or mistake, these employees caused the loss of more corporate proprietary information than competitors, thieves and hackers combined. Patent applications, research and development activities, trademarks, trade secrets and other sensitive corporate data are all at risk from accidental or intentional acts of employees.

To reduce these risks, it is imperative that every company have an employee handbook. The handbook needs to be updated regularly to address changing technology and procedures, such as those relating to confidential data transfer and security. At the very least, the handbook should address the following issues:

General Rules of Conduct (as well as unacceptable conduct)
Employment at Will (if applicable)
Resolution Process (written steps)
email policy (no expectation of privacy)
Internet Usage Policy (include monitoring procedures)
Performance reviews (at least annually)
Workplace Guidelines (attendance, dress, meals)
Blogging Policy (make sure it is specific to your company)
Document Retention (including litigation hold procedures)
Data Security (written guidelines and reporting procedures)
Data Confidentiality (signed by employee)
Non-compete agreements (if applicable)
Termination Procedure
Exit Interview

Rush Nigut of the West Des Moines, Iowa law firm of Sullivan & Ward, P.C. has been following the trend in his blog and has some simple solutions for reducing the impact of this potentially costly threat. Rush recommends a human resource audit, the outline for which is available free on his website.

The audit details the necessity of having appropriate termination procedures in place, including employee handbooks and exit interviews, before a termination becomes necessary. Well crafted termination procedures are probably the simplest and least costly way to prevent disgruntled employees from causing malicious damage to your company's invaluable data. For more information, contact Rush.


Brett Trout

Other Related Topics:
Employment Law, Human Resources, Human Resource Audit, Corporate Law, Corporate Lawyer

Internet Jurisdiction

What is jurisdiction and why should you care? Jurisdiction is whether a particular court has the power to hear a case. Jurisdiction is often an issue in Internet related cases, since the parties both want to have the case heard in their own back yard. Not only is “home field” advantage a factor, but the costs of not having to travel (or, more importantly, not having to have your lawyers travel) can give you the added resources to see a trial through to the end or leverage settlement negotiations.

There are two types of jurisdiction: personal jurisdiction and subject matter jurisdiction. While the parties have the power to waive personal jurisdiction, they cannot waive subject matter jurisdiction. Indeed, if the parties fail to timely assert a lack of personal jurisdiction at the outset of a case, they may be deemed to have waived the issue. Conversely, either party can raise the issue of subject matter jurisdiction at any time.

Because a lack of subject matter jurisdiction may wrest a case from a judge, even after years of work, judges are rightly fanatical about assuring subject matter jurisdiction exists before proceeding with any other matters. To avoid having your case tossed out of court, it is often advisable to provide the court with multiple reasons why it has subject matter jurisdiction. Therefore, even if the other side is able to kick out one of your reasons near the end of trial, the court still has justification for ruling on the case.

Brett Trout

Internet jurisdiction Cyberspace Lawyer Internet Litigation

Personal Jurisdiction

Personal jurisdiction means does a court have power over a particular defendant? Personal jurisdiction is usually not an issue where both the plaintiff and defendant reside in the same state. The problem becomes trickier, however, if the plaintiff and defendant are from different states. Is it reasonable to require a defendant to travel thousands of miles to defend a frivolous lawsuit in the plaintiff’s backyard? Conversely, is it reasonable for a defendant to rip-off people in another state, knowing that the plaintiff will not spend the money to travel to the defendant’s state to file a lawsuit? The law of personal jurisdiction addresses these issues.

A plaintiff can demonstrate personal jurisdiction in several ways. The plaintiff can physically serve the defendant with the lawsuit within the subject jurisdiction. The defendant can also “consent” to personal jurisdiction by: 1) answering the lawsuit (general appearance); 2) being incorporated or having a designated agent for receipt of service, in the subject state; 3) being a resident or being domiciled within the subject state; 4) agreeing to the subject jurisdiction in a written contract.

It is very important to examine the question of personal jurisdiction before doing anything else. Filing a lawsuit as the plaintiff, or answering one as the defendant may waive any claim you might have had that personal matter jurisdiction is not appropriate in your particular case. The first thing to do is to look at the law of the state in questions. These laws are called “Long Arm Statutes” and list the types of cases the state’s courts will allow a plaintiff to obtain personal jurisdiction over a defendant. Whether a state has a long arm statute or not, the plaintiff must demonstrate the non-consenting defendant has sufficient minimum contacts to comport with constitutional due process.

Once a plaintiff demonstrates sufficient minimum contacts, the plaintiff must prove that the defendant’s conduct and connection with a state are such that the defendant should have reasonably anticipated being haled into court in that state. The critical element is forseeability. Given defendant’s activities, would a finding of personal jurisdiction over defendant offend traditional notions of fairplay and justice. Should the defendant have objectively foreseen being haled into court in that state? The defendant’s subjective feelings are not at issue.

The question is “what would a typical person in defendant’s position have foreseen?” If a reasonable person in defendant’s position should have anticipated that its activities would give rise to a lawsuit in a particular state, then personal jurisdiction is likely proper.

Brett Trout

internet jurisdiction internet law personal jurisdiction

Subject Matter Jurisdiction

Any lawsuit, whether it involves cyberlaw issues or not, must demonstrate subject matter jurisdiction before a court will allow it to proceed. Indeed, a lack of subject matter jurisdiction may wrest a case from a judge, even after years of work. Judges, therefore, are fanatical about assuring subject matter jurisdiction exists before proceeding with any other matters. It is important to have all "ducks in a row" with regard to Internet jurisdictional before filing a lawsuit. Anticipate the other side’s objections to jurisdiction and have responses at the ready.

Do not rely on a single basis for jurisdiction. Most cases provide ample support for jurisdiction under multiple theories. The more jurisdictional theories the case can support, the less likely the other side will be able to convince the court to dismiss the case for want of jurisdiction. With multiple theories in play, even if the other side is able to kick out a jurisdictional basis near the end of trial, the court still may have justification for ruling on the case.

Conversely, a defendant can rest assured the plaintiff did not choose the particular jurisdiction with the defendant’s interests in mind. Therefore, it is just as advisable for the defendant to thoroughly research the issue of jurisdiction. Although not nearly as satisfying as a jury verdict, getting the other side’s case tossed early due to a jurisdictional technicality can save hundreds of thousands of dollars, and years of legal wrangling.


Brett Trout

Internet jurisdiction Internet law subject matter jurisdiction

Iowa Inventor Patent Database

The State Library of Iowa has just launched the Iowa Inventor Patent Database on its website. The Patent Database includes the patents of over 75,000 Iowa inventors, covering the years 1843 until 2006. I just did a vanity check of my patent and the search appears to be working flawlessly. Thanks to Martha for the heads up on this great Iowa project.

Brett Trout

inventors patent Iowa

Need More Law Blogs?

Ever thought you might need to read a law blog other than Blawg IT (hypothetically, of course). You might want to check out this week's Blawg Review #102 over at Declarations and Exclusions. Blawg Review is a travelling post of recent law blogging. It is also a nice way to keep your finger on the pulse of the Blawgosphere.

Click all the links and you will eventually end up back here. After all that reading, who knows? It may even give you the bug to start blawging yourself!

Brett Trout

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