By Brian Malcom

While "attractive nuisance" would be a terrific band name for a bunch of law students who are wannabe rock stars, it is also what a Georgetown law professor is calling laptops in the classroom.  In case you missed it, Washington Post has the story here.

Apparently, the professor has shaky confidence in his ability to sustain the rapt attention of his audience while the Internet and solitaire are tempting their wandering eyes.

I can't imagine why.  I know my mind never wandered to espn.com when we were discussing the Rule Against Perpetuities in law school.  Why would I care about my March Madness bracketology when the Testator's heirs' interest in Blackacre is hanging by a measuring life?  Why?!

Another problem with laptops in the classrooms, according to the professor, is that they can be used to spread rumors.  I know I got all of the juciest gossip in law school during class and straight from the professor's mouth.  This piece of logic ignores the fact that PDAs are just as capable at spreading rumors as laptops and even more portable.

Despite this insult to the students' ability to manage their own attention spans, some students support the ban on laptops in the classroom.  Most say they are more engaged in classroom discussion and could concentrate easier.

What are your thoughts?

Brian Malcom

No good deed goes unpunished, especially those done in violation of copyright law.  Copyrights & Campaigns posted about this very subject last week.  

Harvard Law Professor Charles Nesson led a defense team for a graduate student at the university pro bono.  The student was ordered to pay $675,000 for unlawfully downloading 30 songs on the Internet.  (Yes, that is $22,500 per song).  Here's hoping he really likes the songs. 

A while ago, the plaintiffs in the case filed a motion to compel seeking evidence regarding the posting of seven songs to a public website.  The federal district judge granted the motion to compel in June 2009.  The plaintiffs then filed a motion for costs and fees under Rule 37.  The motion for costs and fees is available here.  No opposition was filed. 

Last week, the judge also ordered the defendant and his attorney, Professor Nesson, to pay the costs and attorneys fees for the motion to compel filed by the plaintiffs.  Professor Nesson apparently posted some songs at issue in the case on his blog, with a public link for anyone to download the songs. 

The Lessons: 

1. If you find yourself in a lawsuit concerning illegal downloading or distribution of copyrighted material, do not -- I repeat, do not -- post a link for everyone and their cousin to download the material for free;
2. Respond to motions that seek to tax costs and fees against you and your client; and 
3. Pro bono can cost you. 

By James Bowden 

Here are a few drafting tips that I’ve learned the hard way: 

“Due to” Always Means Money Owed – If the recession has affected a registrant’s financial position, “overall revenue decreased because of prevailing economic conditions.” Leave “due to” for promissory notes and the like. 

Define Terms and Use Them – It is best practice to write out the full “the 2010 Annual Report to Shareholders on Form 10-K (the “Annual Report”) as filed with the Securities Exchange Commission (“SEC”) on March 15, 2010” the first time the terms are used in each document. After that, writing the full description in detail is too cumbersome in a document that refers repetitively to the Annual Report and the SEC, especially since 10-K and proxy season dictates that emails to my spouse routinely refer to the Annual Report and the SEC (“I’m going to be a bit late – we’ve got to get the Annual Report to the SEC”). 

When Drafting Board Minutes, Stay Out of the Weeds - If you are drafting minutes to a meeting in which two engineers and a software executive on the Board of Directors get hot and wonky discussing the compatibility of a potential acquisition’s patented technology with the Company’s product line in endless and graphic detail, “A thorough discussion of the potential benefits of a strategic partnership ensued.” That is all. 

Triple Check People’s Names – Want to offend an executive officer who is very proud of their Scandinavian heritage? Pretend you are a customs agent at Ellis Island circa 1907 when you draft a document requiring their signature. Bonus points for feigning shock that “Bjerke” is a proper noun after granting the hapless exec an involuntary name change (“Since when is Sarah Burke our CFO?”).

 Plain Language is a Badge of Honor – Keep it direct and legible. Annihilate all unnecessary adjectives; eliminate superfluous SAT words with extreme prejudice. Leave “Whereas, the party of the first part heretofore dost transfer all dower and curtesy thereto to the party of the second part” in the nineteenth century where it belongs. The SEC has requested that I mention the benefits of justifying left. 

Replace-All Has Been Disabled – A friend of mine once told me that the fact* that the blender is always broken was the best lesson he learned in bartending school (“I’m sorry – I could spend 10 minutes making a sticky mess of the bar and ignoring other patrons while I make you a frozen daiquiri that you will not tip me for, but unfortunately the blender is broken. Can I get you a rum and coke instead?”). Similarly, it is a fact* that the “Replace-all” feature in your word-processing program has been disabled. That is, of course, unless you want to change every “unit” in your document into “membership interests,” including those in the Membership Interested States of America. It is also a fact* that reply-all has been disabled on your email.  

If you have any other drafting tips, please leave them in the comments section for my benefit. Please.

So what have we learned in our first year blogging at the YLB?  Here is our totally opinionated list, derived specifically from our experience with this blog only:

For Part I, here are the dos:

• DO have as many contributors as possible.  In addition to having articles coming from a variety of people, it helps to have a number of people involved in the editing and “managing.”  We, after all, have day jobs.
• DO create recurring “themes” which can be used for articles on similar topics or forms.  Sometimes it is easier to “see” an article in a news story or experience in the form of something we have done before.
• Do get people involved, who want to do it.  It is no use having a practice group leader “suggest” that someone write an article or participate in the blog.  People need to want to do it!
• DO employ the grammar-police.  Like most writing, it is impossible for one person to catch all the mistakes and typos.  With more casual writing like this, it can be easier to make gaffes. 

The Young Lawyers Blog is one year old, which, obviously, makes it our blogiversary today!

Thanks for hanging in there with us. 

We’re working on a list of what we have learned with this blog this year.

Good Idea:  Using Snooki and The Situation to increase the value of your real estate. 

Bad Idea:  Hoping Jon and Kate will do the same.

By Brian Malcom 

Social media is becoming a crime-fighting weapon, and criminal defense attorneys are catching on.  For some reason, most people believe that there is anonymity on the Internet.  This is an especially absurd belief when people go through great pains to make themselves as visible as possible in social media.

A Nashville, Tennessee criminal defense attorney named David Raybin immediately advises his clients to shut down their Facebook account.  I suspect that he is not the only criminal defense attorney giving this advice to his clients.  Lately, there has been an increased use of social media by police investigations.

The ABA Journal writes, "USA Today notes several cases throughout the country in which police investigations were bolstered by taking time to explore YouTube, Flickr and other online message boards:" 

• Police in Suffolk, Va., were able to identify suspects involved in a Dec. 14 street fight when cellphone videos were posted on YouTube.
• Police in Chattanooga, Tenn., discovered an online forum where residents were planning illegal drag races, staked out the area and ticketed participants.
• Police in Los Angeles used YouTube and Flickr to identify people suspected of being involved in riots following the June 2009 NBA Championship. 

What can a young lawyer learn from this?  Well if you are interested in going into criminal defense, you may want to advise your client to immediately delete their social media account.  If you are not interested in criminal defense, maybe you should just take this as a yet another example that social media can be dangerous.

I would place good money on the fact that all bar organizations are already trolling social media outlets for information about bar applicants, committee applicants, and practicing attorneys under investigation for ethical misconduct.  This may be a good time to take down the picture of you doing a keg stand at last month's young lawyers get together.

Reminder about my rule of thumb: never post anything on the Internet you don't want your employer to see.  Thanks to cache technology, anything posted to the Internet will exist forever in cyberspace.