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Electronic Communications, Privacy, Data Protection, and More

The Marble and the Sculptor

A few months* ago, Keith Lee, who blogs at Associate's Mind, was kind enough to send me a review copy of his book titled "The Marble and the Sculptor". The book is a survival guide of sorts for newly minted lawyers, tackling a wide range of topics such as how to dress, whether networking should play a role in your daily grind, and tips on how to improve your writing. Even though I'm not a just-out-of-law-school lawyer, and I have an ambivalent relationship to self help books, I thought it was an enjoyable and worthwhile read. It was well put together, organized, and mixed anecdotes with practical tips. Will it provide you a silver bullet to use against the law practice beast? Probably not. Will it reaffirm and reinforce concepts that you probably know intuitively and perhaps offer one set of responses to those in doubt about the practical course of action? Yes. 

In a sense, the book is somewhat self illustrative of the concepts Keith talks about. It must have taken a chunk of time to germinate the idea, get with a publisher, actually write and now market the book. It was obvious he took a professional approach to these tasks, rather then approaching it as some sort of hobby that could have just languished on the vine. 

The content itself is a mix of parables, examples, and just nuts and bolts on particular topics. Again, none of it is a silver bullet (and of course one aspect of his point is that no such silver bullet exists), but it was generally useful stuff. I recommend the book to lawyers young and for that matter old.

[FWIW, a couple of years ago Keith wrote what is to this day one of my favorite posts about Twitter: "The Anticipation of Being Re-Tweeted".] 

* I feel guilty about the timing of this post. I get the sense that when you get a review copy you're supposed to crank through it and publish a post so the publisher can take advantage of it in marketing the book. For whatever reason I did not crank out the review in a timely fashion. 

The Problem With the Sharknado Reference

Judge Mills throws in a reference to Sharknado in Faulkner v. Woody Allen. (h/t @ericgoldman) The problem with the reference is this: five years from now, no one will know or recall what Sharknado was. Even today, many people reading the opinion won't know what Sharknado is. So they will have to look it up. On the internet. Forcing people to look up stuff online when reading judicial opinions--whether it's little known cultural references or obscure words--is never a good call. It's distracting, often seen as gratuitous, and many people prefer to not read opinions while they are connected to a device. 

On the other hand, the #sharknado reference does show that judges, or at least their law clerks, are far less out of touch with things like social media than people give them credit for being. Kudos to them for this I suppose. Being the "first opinion to reference Sharknado" is a great way to get people talking about your opinion .. on Twitter!

Just Who Are the Change Agents in Law?

Scott Greenfield has an interesting post up today with an equally interesting response from Keith Lee. Both posts nudge me in the direction of a "Godin-esque" question that's been percolating in my mind for a long long time now: 

the legal profession is obviously undergoing tremendous pressure to change, and will obviously be transformed over the next 10, 15, 20 years . . . just who will be the "change agents"?

[Their posts don't directly address this or raise this question, but raised it in my mind.] Here are some possibilities:
  • apps or services who seek to displace or replace lawyers (e.g., LegalZoom; RocketLawyer)
  • consultants (Richard Susskind, author of two books on lawyering that are widely read by other consultants)
  • people who provide 'practice management' and other tools for lawyers (e.g., GoClio; RocketMatter)
  • apps or service providers who seek to give clients more control in choosing or working with lawyers (Q&A sites; Avvo; Quora)
  • companies that try to democratize and reduce costs but not necessarily exclusively client or lawyer focused (e.g., docracy?)
  • 'alternative model' law firms (Axiom?)
  • practicing lawyers who "chip away" at established ways of doing things, experiment and come up with alternatives
We can say that it will be a combination of all of the above, but we all know that misses the definition of "change agent" (and the nature of change). It's also worth pointing out one basic assumption that I think everyone agrees on. Some of lawyering will never go away--someone who is charged with a serious crime will never turn to a computer or algorithm to represent them in court. (A traffic ticket, on the other hand, is something that people may feel comfortable handling via an app.) Some of it has already gone away--LegalZoom handles (some would say poorly) a great many transactions that are 'automated'. 

I would place the large majority of lawyers I know from online interactions in the final category. Most blog. Most recognize that there are aspects of the legal practice that have been in place for years that could warrant reexamination or change. And most in their own way try to implement change and experiment, even if it's through something relatively small, such as blogging (sharing knowledge freely). 

The consultants (bless their hearts) I view as most unable to effect change. They mostly rant and market to their prospective large firm clients about things that most of the lawyers who fit into the "lawyers who practice but try to 'chip away'" are already doing. I view the trade press as fairly non-consequential in the process as well. A quick look at their "legal rebels" feature is enough to confirm that they aren't the most tuned in to change in the profession, or have a tough time really capturing stuff that happens on the ground across the country. 

A final note, a twitter exchange with Scott Greenfield also raised an interesting point. What obligation do we as lawyers have to be wards for the future of the profession? I readily admitted to Scott that it's tough for me as a practicing lawyer to worry about much beyond my own immediate sphere of influence--i.e., I will readily meet with any young lawyer who wants to have coffee or lunch, and I generally have a total open door/email policy. But beyond this, it's difficult to worry about big picture change beyond my own experimentation and tinkering. 

Anyway, I'm curious about reactions or responses to this question!

I meant to include but did not initially mention a link I recently came across from Josh Blackman: "Robot, Esq." ("In the not-too-distant future, artificial intelligence systems will have the ability to reduce answering a legal question to the simplicity of performing a search. As transformational as this technology may be it raises fundamental questions about how we view our legal system, the representation of clients, and the development of our law.") (see also the comment by Jason Wilson)  

[I added a category ... 'alternative model' law firms. Obviously, my list is far from exhaustive.]

Disconnection and Organization

As I sat there drinking my cortado, I went through the checklist of people I had to email. All minor, small things to take (or to have taken) care of. Some internal; some external. All my emails would of course come with the courteous disclaimer that I "didn't expect a response until after the holidays." 

I've always thought it was important to respect the schedules of others, including holiday schedules and vacation schedules.  That's not to say that I didn't like to work over the holidays. Although I have rigorous vacation standards, for some odd reason, I find myself doing at least some work over traditional holidays. Perhaps it's a combination of not being a serious celebrant with the fact that the approximately six weeks or so of vacation has to be spread out over some time of the year. All of it does not fit within traditional holidays.

Anyway, coming back to my emails, I wondered how people would react or if they would react at all to the fact that I was sending out emails on the Sunday before Christmas Day and through Christmas Eve and Christmas Day. That's when it hit me. Many of these issues I would address in the emails are not "mission critical." They are far from it. As a good friend used to always say, "we're not exactly dealing with the Exxon Valdez here". Sure, I have my fair share of stuff that I end up devoting a lot of waking hours to, but in this instance I was thinking about cleaning up a bunch of smaller issues, where timing was not particularly important. Sure, I have my own practice and utilize entrepreneurial instincts in this endeavor, and some amount of 24/7 thinking about work was to be excused. But to send an email to the person that deals with invoicing that "let's make sure all of the November invoices were out by year end?" . . . did I really need to send this email today. Now? 

I took a long look at this and thought about it and I think it boils down to a certain extent to disorganization. I am the type of person who doesn't go crazy on maintaining a to-do list with lots of bells and whistles. Apart from a few minor forays into GTD, I've never gotten anywhere with "to do" systems. Sure, I have a docket for when I have case deadlines, and I have an overall to-do list with big picture items, but beyond that I use the "brute force" method of making sure I get things done. A not-so close cousin to the "Pomodoro" method, it basically entails that you think about what's on your plate for an extra hour or two and you'll eventually make sure you don't miss anything. Sure, I'm the type of person who responds to emails and never (or rarely) "misses stuff" but this comes at a cost. Particularly under the current regime of organization. I wonder what the best way is to change this.

As for blogging while on vacation, let's not get started there. I always debate as to whether it's an indulgence, or more of the same.

Blogger Motivation

I've posted a bunch about what motivates bloggers. My view is that it's a labor of love. You do it because you enjoy it. It may bring you some amount of recognition, but ultimately you enjoy shouting from the rooftops. You may or may not profit from it, but the correlation dollars and cents-wise is certainly not direct. It's so indirect that it's hard for me to even see it. I'm firmly convinced that unless you're among the handful of super high traffic/high audience bloggers in your niche, there are infinitely more profitable things you could spend your time on.  

One of the most challenging aspects of being a blogger is finding the time to post. Regularly. I've given up on having any sort of a schedule, but I like posting on the weekends. Unless I post early in the morning (as I'm doing now), it's tough to justify interrupting the workday with a 45 minute blogging session. I also always try to post while I'm on vacation, but this never ever ends up panning out. Is it the lack of access to a printer? Not being at my desk? The wrong kind of coffee? The pull of wanting to explore the non-familiar environment? Who knows.

Anyway, on the topic of "finding the right time and/or circumstances" to blog, check out John McAfee, anti-virus software king, Belize resident, and man on the lam: "Who is McAfee?" Not only is he blogging while on the lam, he says with confidence that if he is captured, he has "pre-written" enough material that his blog will continue for "at least a year." That's pretty impressive. 


I've been a big fan of Twitter from the point I first started using it (h/t Evan ... thanks for nothing). I can't say much for any personal branding benefits from my 20,000 or so Tweets (I'll leave that to my personal branding consultant). 

I use it because it's fun--a great way to find information and pretty much chat with anyone. Being a chatty person by nature, I thoroughly enjoy this medium. As to the people who are driven by marketing purposes to use Twitter I sort of feel bad for them. Going down this road you will either find yourself in the town of disappointed expectations, or you will have a fairly staid and boring Twitter experience. If you signed up after attending a webinar then this is a triple whammy.

For no reason in particular, for the past couple of weeks, I scaled back on my Twitter usage. Shockingly, life went on, and pretty much stayed the same. I survived. It's sad and a tragically first world thing to say, but it was sort of a strange and liberating realization that I didn't need to send out 10-15 tweets a day. I also (coincidentally, on Twitter) came across Ta-Nehisi Coates' post on leaving Twitter: "I left Twitter."  It's meta, but Ta-Nehisi was a really fun person to follow and a prolific twitterer. Here's what he had to say about why he left:

And so at times I'd find myself babbling, taking no real account of who I was babbling to, or what I was babbling about. All of it wasn't babbling. Twitter was great for improving my French, for instance. But I think the sheer ease with which one could speak--to thousands of people--was a problem. It should never be that easy for me. I must be forced to think. I must remember that I don't talk for the benefit of other people, but, primarily, for myself.

Maybe he'll be back, and I can't say I feel exactly the same way about it, but food for thought.  

Leaving Facebook

Prompted (nudged is probably more accurate) by a post from William Carleton, I finally deleted my Facebook account. I had been thinking about doing so forever, but just never got around to doing it.

Numerous others have written about why they "left Facebook" (see, e.g., Steve Coll: "Leaving Facebookistan"), and I'm skeptical that I have anything to add to the mix, but finally deleting my account feels like a very small (tiny pebble-size) weight off of my shoulders. I had approximately 200 friends, and about 100 friend requests pending, but I just never ended up logging in to Facebook. I'd say I logged in once per month at most. (I should note that I still use Instagram and couldn't get myself to delete my account there.) 

Facebook's privacy settings were not the easiest to figure out and changed frequently. In particular, it seemed difficult to figure out how to control distribution of your posts, who could comment on your posts, and what account to post from if you have multiple accounts. I controlled my group of friends pretty carefully and they are all run-of-the-mill, mainstream, law abiding citizens (one or two exceptions notwithstanding), but I just couldn't shake the sense of paranoia that something could go wrong with my Facebook account. I never bothered with Facebook's mobile app. From what I heard, it wasn't very easy to use, and always seemed like the true grey area as far as user privacy was concerned. But what truly prompted me to leave was a feeling similar to the sentiment expressed by Eryn Loeb in this 2010 article from the Awl ("My Former Best Friend's Wedding"). I'd state Loeb's point in slightly different terms: why mess with the natural order of things when it comes to your past friendships and relationships? 

Try as I might, I couldn't think of a good reason to do so.

Seattle Blawger Meetup

I really enjoyed last week's Seattle blawger meet up. It was great to see a bunch of Seattle law bloggers and twitterers. (In attendance: Colette, Mike Atkins, Bruce Johnson, Tonya Gisselberg, Heather Morado, Asher Bearman, Ziff, Brian Rowe, Joe Skocilich, the 'other Kevin' from LexBlog, Eric Goldman, William Carleton, Josh King, and Mark Britton.) 
I'm not sure what it is, but I've always enjoyed meeting law bloggers (and bloggers generally). Lawyer gatherings tend to be relatively mundane and mostly unenjoyable affairs, but law blogger gatherings are different. There's something about a law blogger's personality perhaps that makes finding common ground easier?  On thing is for sure, it's the most painless form of networking that exists (in the lawyering world). 
Here's @wac6's recap: "Last Night's Tweetup for Seattle Blawgers." (Thanks to Avvo for hosting.)  [Do we look like a bunch of gangsters, or what? Check out the picture below:]

On a related note, I also enjoyed meeting Eric Goldman in person last week. It's funny to meet someone in person that you've exchanged thousands of emails with. This isn't the first time I've experienced this but there's that feeling of wondering whether the person will match up in person to their 'online personality'. Sort of a professional version of meeting someone in an online dating context after you've corresponded with them a bunch (in this case, a ton). Eric is great. Very fun to hang out with. He treated me to dinner at a vegetarian restaurant and to gelato (and they say blogging isn't profitable!).

A Reading List for the Novice Social Networking Lawyer

The other day, a lawyer pinged me out of the blue and asked if I would be willing to chat about social networking and share some tips. This has only happened two or three times before, but this is still enough to concern me (you want to be known for your lawyering skills and not your social networking skills). Anyway, I did what I usually do, which is to drink the coffee and chat for 15 or 20 minutes. It was enjoyable. 

The person asked me if I had any interesting links or reading materials to pass on about social networking for lawyers. I didn't have any links off-hand, but I thought about it again over the next few days and came up with (sorry, 'curated') a few links. I don't think you have to read anything if you are thinking about dipping your foot in the social networking waters, and it may even be preferable to not go in with any preconceptions, but here are a few of the articles (among the many thousands) that I think are worth reading beforehand:

1. "Lawyers: You're Being Played by Twitter" (Keith Lee). This is an excellent post by Keith Lee that talks about 'gamification' and social networks. It's a simple enough concept but crazy when you think about it--the fact that the gaming instinct is what drives so much of behavior on social networks. You put something on Facebook and Twitter and the anticipation of seeing how people react to it is what makes you click over and over again. I can't say that reading this article affected my behavior much, but it provides some very helpful context. It's tough to deny that the process described here doesn't at least form a part of everyone's social networking drive. This is not something I would have realized naturally, even after having spent a significant amount of time on social networks.

2. "Why Digg's MrBabyMan is the King of All Social Media" (Farhad Manjoo).  This article profiles Andrew Sorcini, a Los Angeles area film-editor, who Manjoo describes as the "Michael Phelps of Digg." You may not have heard of Digg. That's not really important. (See below.) What I really liked about the story is that it gave a human face to someone that spends a lot of time on social networks, and describes his process for scouring the internet for interesting stories and posting these links to a social network.  I'm not sure what Mr. Sorcini is up to these days and whether he still posts in Digg, but that's neither here nor there. This is the profile of someone who is (or was) a "power social networker."

3. "The Great and Powerful Reddit" (Farhad Manjoo):  This is another Manjoo article that talks about Reddit. He describes Reddit as once having been a "second-tier aggregator" (it was formerly a Digg competitor) but is now a driving force in online discussions. Reddit has become a barometer for what news is important online (and thus to the world at large). It was very influential in the anti-SOPA/PIPA debates. The big takeaway for me on this one is that networks live and die. They constantly change. No network lasts forever. For that matter, nothing lasts forever, but this is stating the obvious.


Two bonus reads.

First, I would read anything by Brian Tannebaum. Tannebaum is one of my favorite social networking lawyers (of those that I've come across). Why? He seems to share my almost irrational dislike for legal marketing. I just have an instinctive aversion for how it plays out, particularly online. (This probably says more about me than about legal marketing, but again, that's neither here nor there.) Tannebaum is a die-hard skeptic about marketing over the internet. That's not entirely true. He writes a blog and sends out a fair amount of tweets, but let's just say he calls a lot of BS on what's going on out there. When it comes to online marketing, this is an extremely healthy trait.

The final read isn't an article, it's a book. A book by a former Rolling Stone reporter turned pickup artist, called "the Game". I'm happy in a long-term relationship and don't have much practical use for a book about getting dates, but it is a compelling read. A good friend of mine who was a lawyer mentioned it to me about ten years ago and told me that a mutual friend of ours who was a geeky lawyer read this book and achieved some success with it. I dismissed the whole story as typical pub chatter, although I was sort of curious about it. A couple of years ago, another friend actually sent me a copy of the book. It appeared to me that he had downloaded the copy from a torrent site and for some reason one morning I was feeling paranoid (maybe somewhat guilty) and decided to buy the book on Amazon. I never thought about it or read the book until I was sitting on a long plane ride and ran out of books to read on the Kindle. I started in on The Game and ended up blazing through it over the course of the next four or five days. The Game ended up providing some good insight into a topic I have forever been curious about: self help subculture. The book was marginally interesting for its treatment of the tricks of the pickup artist but what was more intriguing about the book was how it delved into the self-help world. This is something that is prevalent in social networks. Whether you talk about the "gratitude economy" or the "like economy," a very very interesting social phenomenon you will inevitably come across online is people building little communities that they then impart knowledge to, often for a small fee. (I haven't read Seth Godin but I think this is what his "Tribes" concept is all about.) 

Anyway, here is my list of the key reads on social networking. Enjoy.


I meant to post a congratulatory note to Marc Randazza about four or five (or six) months ago on the Righthaven smackdown but never did. This post from Scott Greenfield reminded me that I never got around to doing it.

For the few who may not be familiar with him, Randazza is an awesome kick ass lawyer and uber blogger. He was and is one of the provocative voices in the blawgosphere who to me exemplifies what law blogging (and blogging in general) is all about. At the Legal Satyricon, he and his band of Satyriconistas post on a wide range of topics from online liability and the First Amendment to politics and the ethics of eating meat (see "Ethics challenge - come up with a good reason for being a carnivore"). In an era where lawyers and others are increasingly concerned with "brand perception" and "personal branding," it's refreshing to say the least to see someone who is not weighed down by these things.  I haven't talked to him about it but I would guess that he scoffs at the idea of a personal branding consultant. I'm guessing he's not following Klout with keen interest either.

Anyway, Randazza (and others at the Randazza Legal Group) deserve serious kudos for taking down Righthaven, taking away their domain name, and their intellectual property. The domain name was bought at auction and now offers "hosting service with a spine." As Eric Goldman said, it's a pleasure to watch Randazza litigate. More important than his blogging exploits are his accomplishments as a lawyer. And Righthaven is just one of the many cases where he's achieved a big win. The Glenn Beck domain name smackdown is one that sticks out in my mind. (See "Glenn Beck's Attempt to Rape and Murder Free Speech in 2009 - Thwarted.") Here's a list of some of his successes, many of which vindicate First Amendment/free speech rights or involve pushing back aggressively against people who try to bully bloggers and others: "Marc Randazza: First Amendment Badass." 

I sometimes get mildly depressed when I think about the era of the "social media lawyer" and lawyers doling out advice in 140 characters. It can be dispiriting to say the least to see the direction social media has taken much of the legal profession. It's nice to see people like Randazza out there in these times. 

[That's not to say I don't disagree with some of the positions Randazza takes. I have some some core philosophical differences with the position he takes in this post, for example.] 

Media Mentions and Articles

Media Mentions:

The twisted world of online copyright
(Econsultancy; Nov. 11, 2010)

Rise and Fall of a Spam Crusader
(North Coast Journal; Sept. 30, 2010)

Appeals court absolves firm that exposed man's SSN
(The Register; June 4, 2010)

Spam--a Lot
(ABA Journal/Wendy Davis; March 1, 2010)

Texas county to name drunk drivers on Twitter
(SF Gate/IDG News; Dec. 24, 2009)

Starbucks sued after laptop data breach (; Feb. 23, 2009)

Spam pins 'Strong Arm' Missed court date earns Frank Azar judge's reprimand
(Rocky Mountain News)

Microsoft Sues More Hotmail Spammers
(PC World)

Zango Sues Antispyware Vendor PC Tools (InfoWorld)

Software Notebook: Two major spam cases end up in Seattle
(Seattle PI)

Venkat on Copyright and More 1/2
(Rasmus Rasmussen Dot Com; May 22, 2009)

Court Limits Third-Party Text Message Ads
(Inside Counsel; September 1, 2009)


CAN-SPAM Put to the Test (cNet; May 22, 2007)

Spyware Skirmishes: Spy Versus Antispy (cNet; June 5, 2007)

Recent Posts

  1. The Marble and the Sculptor
    Tuesday, December 31, 2013
  2. The Problem With the Sharknado Reference
    Friday, July 19, 2013
  3. Just Who Are the Change Agents in Law?
    Saturday, January 19, 2013
  4. Disconnection and Organization
    Sunday, December 23, 2012
  5. Blogger Motivation
    Tuesday, November 20, 2012
  6. Twitter
    Saturday, July 07, 2012
  7. Leaving Facebook
    Sunday, June 10, 2012
  8. Seattle Blawger Meetup
    Sunday, April 15, 2012
  9. A Reading List for the Novice Social Networking Lawyer
    Thursday, April 05, 2012
  10. Randazza
    Saturday, March 24, 2012

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