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Monthly Archives: August 2013

LOOKING DUMB AND COMMITTING MALPRACTICE ON A MAILING LIST

Every law-related mailing list has its cast of characters: those who answer questions, those who simply lurk, and those who ask questions. A list depends upon the interchange among its subscribers; it wouldn’t exist without the give-and-take of information. Most of those who ask the questions are a reasonable lot, framing their questions intelligently and even taking time to pose queries that will not identify and pinpoint serious gaps in their ability to practice law. Mailing lists can be vast sources of information on just about any topic under the sun, but they do have their boundaries. Those who answer the questions have limits on the quantity of information they’re willing to dole out for free.

And then there are those who just can’t help looking dumb, practically committing malpractice while they post messages like these:

 

I have a trial tomorrow, and I need to know about mandamus. Is there a Dummies’ Guide?

 

I do family law in Illinois, and I need to know the Illinois law on visitation. Please email ASAP or call me on cell and leave code – 519-771-6666.

 

I don’t have a Westlaw or Lexis account. Could someone please find this case for me?

 

Do these lawyers really expect others on a mailing list to do all of their work for them? Are they lazy or just plain stupid? Clients can find out what a lawyer has posted to a mailing list. So, too, can opposing counsel and even judges. Even if a list’s archived messages aren’t publicly accessible, it’s not that hard to gain access to a restricted list’s archives. Or to expect that a leak in even the most tightly-controlled list just might forward that message on to an interested party.

Posting to a mailing list takes no effort and little intelligence, but structuring an inquiry that doesn’t reveal every detail, exposing the poster to ridicule and liability, does require a modicum of effort and good sense. Mailing lists can serve to explain, illuminate, debate, direct, and even play devil’s advocate, but they should be no substitute for basic concepts involved in the practice of law or earnest research.

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WHEN A LIST GOES DOWN

The list was down. That wasn’t the first time that had happened: the server was on the fritz, something had clogged the pipeline, or the night custodian unplugged something. But no one told the list manager, who was simply sitting back, waiting for service to start up again, just as it always had done in the past.

Finally, after a full day without listserve traffic, one savvy list subscriber who knew the ins and outs of mailing list management, took it upon himself to forward a rejected message to the list manager. In that rejection notice were the magic words: “the list had been held.” That provided the key to what had gone wrong.

The list manager went into the list’s web interface to explore the situation, only to find that some gremlin had transformed the heavily trafficked list from unmoderated to moderated status, yet failed to designate an editor-moderator to weigh upon which lists should be approved for distribution, creating a backlog of more than three hundred messages sitting in limbo. Feeling like the Roto-Rooter man, the list manager went to work approving messages which merited distribution and tossing out the detritus.

What surprised the Roto-Rooter list manager was the number of messages which contained nothing more than “test” or “Is the list down?” What were these subscribers thinking? Sending messages like that were the equivalent of trying to compose and send e-mail on an ATM or using Green Stamps in lieu of U.S. postage to mail a letter. Out of nearly 3,000 list subscribers, only one had the foresight to contact the list manager directly and enclose a copy of a rejection message. The rest were sending off messages which were the equivalent of hollering “downed tree” in a forest of deaf mutes.

Now, what’s the lesson in this experience? If there’s no list traffic, a subscriber who’s still subscribed to a list and whose e-mail isn’t being diverted to a secret spam file sends no effective message simply by querying the entire mailing list about its viability. Contacting the list manager with a copy of a rejected message is the solution.

 

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TAKING IT PRIVATE

You remember the old adage about not discussing sex, religion and politics at the dinner table. Some things are better discussed privately. And that goes doubly for some discussion threads on legal mailing lists.

Archived messages don’t always reveal the full extent of a list’s activity and subscriber participation. Substantial off-list communication, immeasurable, often takes place among subscribers. And that’s not a bad idea. In fact, a growing number of mailing lists have started urging subscribers to discuss matters, once introduced to the list, among themselves.

Some mailing lists are configured so that replies only are delivered to the entire list; that doesn’t prevent a subscriber from copying and pasting a desired address to the reply. Other mailing lists have two options: reply to all and reply to sender. Study the options and decide which is most appropriate under the circumstances. Before sending off that message, take notice of who’s destined to receive it.

There’s a lot of merit to encouraging off-list correspondence once a topic has been introduced. Simply reducing the volume of e-mail is the first and most obvious result, but that’s not the only reason. Some topics don’t bear boring and taxing a large mailing list with boring and extensive discussion interesting to only a few participants. Sometimes the response is germane only to the poster who asked the question; there’s absolutely no need to fill others’ inboxes with e-mail that pertains only to the original poster. Some intimate details shouldn’t be broadcast, particularly where archives may be publicly accessible. And some writers would rather address a topic more frankly in one-to-one communication instead of one-to-all.

Take the time to decide whether a response should be taken off-list or shared with the entire mailing list. And once a conversation has been taken private, don’t take it public by re-posting it to the entire list, absent permission. The sender may well have intended the message for your eyes only.

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MAKING THE BEST USE OF TIME SPENT WITH LAW-RELATED LISTS

Many lawyers think that heavily trafficked listserves are just too burdensome to deal with. Subscribing to a digest or referring to a list’s web interface strikes them as just too clunky and ineffective. But there are some solutions:

  • Don’t even think about reading every single post. Remember, almost no one reads The Wall Street Journal in its entirety. The days have long since passed when it was reasonably possible to read everything – much less all of your e-mail!
  • Sort out posts topically, discarding those which aren’t relevant.
  • Resist the compulsion to respond. Time constraints aside, drafting a well-reasoned response can be distracting. Realize that others may be just as likely to respond.
  • Take the response private to avoid having to concentrate upon the niceties of crafting a response which may be read by several hundred other subscribers who may find your boring prose irrelevant and which may be preserved for longer than the Rosetta Stone.
  • Remind yourself that time spent on listserves may serve important professional and networking goals, but it rarely leads to billable hours.

Marc S. Stern, a seasoned Seattle bankruptcy lawyer and a curmudgeon by his own admission, found responding to listserves occupied too much of the time he’d rather spend doing something else, and he decided to take some radical steps. He kept his presence known on general listserves by occasionally responding to general questions which could be answered in a sentence or two or a simple link, but he decided to meld an old-fashioned technique with electronic media. He started writing privately to a list poster, suggesting that he would be willing to discuss the problem by telephone. Doing so saved this lawyer the time of back-and-forth e-mail and permitted him to frankly discuss the subject matter. Not only was he able to network and share his expertise with others, some of his callers even offered to pay for his counsel.

Sometimes even the best of us just get tired of typing!

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POSTS WHICH SHOULD NEVER BE MADE TO A MAILING LIST

Electronic mailing lists, web fora, message boards, discussion groups, and bulletin boards have been part of lawyer’s cyber-lives for ages, but that doesn’t stop lawyers from sending off messages which never should’ve been sent. Sure, everyone slips once in a while, sending a very personal message intended for only one recipient to an entire list, but those mis-sends are vastly outnumbered by the clearly inappropriate and frankly stupid posts made even by respected lawyers. You’d think they’d know better, particularly after all these years, but they don’t. Let’s explore some of the posts which should never be made to a mailing list:

 

  • My friend Joe Lawyer would like to join this list. Please subscribe Joe Lawyer, JoeLawer@lawyer.com to the list.

 

  • Unsubscribe me.

 

  • Please switch me to the digest version.

 

  • How do I reply to a message?

 

  • Test.

 

  • I’ve changed my e-mail address. (Usually forwarded to everyone in the sender’s address book, the names and e-mail addresses of every contact are revealed to an entire listserve.)

 

  • My e-mail address is JaneAttorney@gmail.com. I’d like to receive my listserve mail at JaneLawyer@rocketmail.com.

  • I’ve got a divorce trial tomorrow at 9 a.m. before Judge Nash in Chippewa Falls. Is he really the jerk everyone says he is?

 

  • If you’re looking for a lawyer who does research and writing, hire me. (This is right up there with “I’m Sasha, and I’m lonely tonight. Wanna chat or meet me?”

 

  • I know that this list prohibits chain letters, jokes and forwards, but I’ve just got to pass this one on, because it’s so funny. And I really need to warn everyone that the federal government is going to start taxing everyone on e-mail.

 

Most mailing lists deliver a welcome message to new subscribers, revealing the list’s rules and FAQ, suggesting the topics which are and aren’t acceptable to the list and setting forth the procedures for subscribing, unsubscribing and changing subscriber settings. And nearly every mailing list now has a click-through, either as part of the header or at the bottom of every message, enabling subscribers to easily change subscription options. Since rules are part and parcel of a lawyer’s business, you’d think they’d comprehend the most basic rules of any listserve. But they don’t.

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MAILING LISTS WON’T DIE FOR A LONG TIME

 

They’re as plain as the Big Chief tablets generations of school kids learned to write on. They require no terribly sophisticated tools to set up and keep running. Gaining entry usually only means having a working e-mail address, an Internet connection, and the ability to send e-mail. Stashing away an important message is as easy as archiving any other piece of e-mail. Mailing lists, the Model T of electronic discussion, offer up no fancy bells, whistles and alluring features. They’ve duked it out with fancy web forums, and they won.

A few weeks ago, I was invited to be among an august group of private beta testers for a brand spanking new social networking project for the legal profession. Oddly enough, while I was asked to keep the details of the project “under wraps” without being asked to execute any kind of non-disclosure agreement, at the same time I was invited to promote the site as something new for the profession. Just how quiet, secret testing was supposed to take place in a parallel space with promotion is beyond me. (Contact me directly if you’re legally minded.)

Promising cutting-edge social networking for the legal community, this project offered up a carnival of blogs, discussion groups, profiles, wikis, the ability to search out other members on a people map, and a host of articles on practice management, careers, education, work, life and community. The only things missing were the sounds of an organ-grinder and a ringmaster promising a “really big show.”

The exciting new product, which purportedly is intended to ultimately replace plain ol’ mailing lists, was definitely not as thrilling as watching 1950’s episodes of The Ed Sullivan Show on HD TV. What went wrong? Was the new product a day late and a dime short? Or was it trying to offer each of its potential users everything under the sun, even if it in a watered-down version? As far as the concept of electronic discussion groups, it just plain missed the mark. There are times when the plain and simple, tried-and-true, formats remain the superior product. Mailing lists are going to be around for a long, long time.

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REVIVING A MORIBUND LIST

 

Mailing lists start off with all of the best intentions. Setting up a mailing list is child’s play for even the most technologically-challenged lawyer, and populating it with subscribers can spell little more effort than copying an address book. Early on, enthusiasm fuels a mailing list as its subscribers introduce one another, express glee at finding a venue, trade tips of the trade, and eagerly foment discussion and debate. And then sometimes after a flurry of activity, the list simply flatlines. Nothing is sadder and more forlorn than a mailing list with a substantial subscriber base having nothing to say.

Before pulling the plug, the owner of a moribund mailing list should examine the reasons for lack of list activity. Is this list’s subject matter as relevant as WordStar and the Rule in Shelley’s case? A discussion of the impeachment issues faced by the Clinton Administration may well have reached its useful life. Is it time to refocus the list? Has the list been superseded by other lists? What exactly is keeping subscribers from posting?

If a mailing list is worth keeping alive, there are a few steps which can be taken to resuscitate it:

 

  • Spark discussion by introducing new topics.
  • Plant a few shills in the studio audience to drive discussion and even create friendly controversy.
  • Discuss pending legislation, something newsworthy, a law review article, a court case, or even a law-related blog post.
  • Poll the members
  • Market the list to other mailing lists, blogs, and even websites.
  • Repurpose old list posts.
  • Refine and redirect the list’s subject matter to timely, noteworthy topics.
  • Ask list subscribers to confirm their interest in the list, purging the nonresponsive.
  • Hire new management.

 

Sometimes, it’s best to simply realize that the list’s purpose in life has come to an end. If its archival value is not likely to impress researchers, euthanize the list, cremating its archived posts. Even old law office files face certain destruction in time.

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Make Yourself Look Good in a Mailing List

Of all professions walking the face of this earth, none is more concerned about appearance than lawyers. From the first day of law school, when that new leather briefcase carried little more than lunch, impressions counted. The theme carried right through to the design and style of lawyers’ offices, the selection of letterhead and font, the right kind of rolling laptop luggage and cell phone. Most lawyers would rather be caught bare naked and unprepared on Court TV than be found toting the wrong icons of style.

When a lawyer participates in a mailing list, his or her personal appearance, age, office décor, and even c.v. is hidden from view, accessible only to those inclined to follow the link to the lawyer’s firm website. And even that can be styled to deceive, revealing only selected clues about who the lawyer really is.

It’s a simple matter for an incompetent, marginal, unethical and worthless lawyer to create the appearance, over time, of being the progeny of Felix Frankfurter and Ruth Bader Ginsburg in the anonymous world of law-related mailing lists, fooling a good many. But it’s even easier for an AV-rated, well-respected lawyer to create a poor impression in short order, simply by:

• Posting inappropriate jokes.
• Making sexist, racist, or other offensive comments.
• Engaging in rude behavior.
• Reacting to others’ posts by haranguing, deriding, belittling or attacking others.
• Deploying poor spelling, grammar and punctuation.
• Repeatedly using all capitals or all lower case.
• Persistently promoting him- or herself, either in the content of posts, attaching an annoying signature file, or contacting others, unsolicited, off-list.

The image created by poor posting behavior can endure far longer than something laboriously drafted and printed onto Crane’s Crest, simply because it will reach a larger audience, who may transmit it to others, and it may be archived forever. It’s one matter for an e-mail addressed to one person and written in haste and anger to find its way into hundreds of others’ inboxes, but it’s entirely another, and more serious offence, to intentionally disseminate messages which denigrate the sender’s appearance by posting to a listserve that which would never be sent out over a lawyer’s own letterhead.

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HOW LAWYERS CAN PROVE THEIR INCOMPETENCE ON A MAILING LIST

I represent the defendant in a f/c action and want to remove the case to federal court. Service expires on Sunday. I cannot remove under the complaint, but the affirmative defenses and counterclaims involve federal questions. I have good reasons for the removal. I have not done much none-BK federal practice. Can anyone please help and either call me or respond to me directly? I’m ignorant and lost.

Thanks!

Otis Campbell
Attorney and Counselor at Law
911 Main St.
Mayberry, NC
Cell: 555-555-5555
Fax: 555-555-5551

That’s a real message sent by a practicing lawyer one Friday evening to a very, very large law-related mailing list with publicly accessible archives. Only the name and address have been changed. You didn’t know who to feel sorrier for – the lawyer or his client. In a matter of minutes, off-list messages flew, taking odds that whatever responses the lawyer received would be the extent of his research.

The lawyer knew that he was in over his head, and he knew enough to venture forth in search of help. That part was certainly honorable enough, but where did he go wrong? He broadcast his plight to practically the entire world, revealing not only his lack of expertise but also his time constraints and his name and address. It would be an easy matter for a curious client, gruntled or disgruntled, as well as opposing counsel to simply search him out and expose him. Just how would he justify billing for research that he got some list subscriber to do for him?

What should this desperate lawyer have done? First, he shouldn’t have expected a listserve to do all of his work for him. Second, he shouldn’t have revealed everything, right down to his name and contact information. It would have been a wiser course of action to indicate a rough version of the facts, leaving out identifying details. Even taking the route of subscribing to a listserve under an assumed name and omitting contact information would’ve been a safer course of action. But at least you have to credit the lawyer for his honesty and candor.

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IS IT TIME FOR MAILING LISTS TO FIND CORPORATE SPONSORS?

Readers of a certain age may remember the General Electric Theater, a television program which didn’t have much to do with electricity other than the announcement at the beginning and end that the production was “brought to you through the courtesy of GE.” Or maybe you recall twenty-mule-team Borax’ sponsorship of Death Valley Days.
Today’s advertisers find themselves buying banner ads on websites and putting dollars into Google’s AdWords. Yahoo’s mailing lists aren’t exactly charitable enterprises, even though they may cost listowners and list subscribers nothing. Yahoo makes perfectly good money by selling advertising on each message sent through its mailing lists.
Even though mailing lists don’t cost much to establish and operate, they do harbor revenue-generating potential for the right corporate sponsor. At the top and bottom of each message sent through a mailing list is valuable real estate which can be leased out to one or more sponsors, creating a banner which could read, in addition to the usual signoff instructions or relevant web pages, something like:
Jackie “I am outraged!” Chiles, lawyer to Cosmo Kramer, is a proud supporter of the LitigationLaw Listserve. To learn more about Jackie Chiles, Esq., go to http://www.jackiechiles.com/.

In a 600-subscriber list generating fifty messages each day, that message could be repeated 30,000 times daily – or 900,000 times each month. Now, obviously e-mail may not be as a valuable a medium as print, but the economy of reaching a larger number of eyeballs, time after time, bears exploration both by list administrators as well as potential corporate sponsors. Configuring a list to include a banner (or to remove one) takes all of about thirty seconds. The banner could remain active as long as both the listowner and its fee-paying sponsor desire. Could there be any easier way to generate income while providing a valuable advertising opportunity?

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