Bloggers Rally to Defense of Defamation Defendant

I have previously written about Crystal Cox, a self-styled investigative blogger, who found herself on the receiving end of a judgment for $2.5 million after she posted caustic comments about a bankruptcy trustee.  You can find the prior post here.   One aspect of the District Court's opinion which raised my eyebrows was the court's stingy application of the media privilege.    Under the District Court's view, most bloggers would not be entitled to some of the protections available to the professional media.   

Apparently I was not the only one who thought this to be a strange result.   UCLA Professor Eugene Volokh, who blogs at the Volokh Conspiracy is representing Ms. Cox on a pro bono basis in her appeal to the Ninth Circuit.   Scotusblog.com, the leading Supreme Court blog, and the Reporters Committee for Freedom of the Press have weighed in with amicus briefs.    

In an unusual twist, the Plaintiff sought to have the Sheriff levy upon and sell the Defendant's right to appeal.   By auctioning off the right to appeal, the Plaintiff could effectively insulate its judgment from judicial review.   Prof. Volokh successfully obtained an order from the District Court blocking this relief.   You can read about it in his own words here. 

I am pleased that the Plaintiff's nefarious tactic was rebuffed and that there are some serious amici weighing in.   This case raises important issues about the First Amendment protections applicable to the citizen media.

Florida Case Provides Textbook Example of How to Handle a Discharge Violation

A case involving an elderly woman and egregious violations of the discharge has generated a bit of buzz in the blogosphere. I first noticed it here on the Huffington Post. I decided to write about this case because I was frustrated with trying to verify the posts and because I think ithe case offers a good example of how to efficiently deal with a discharge violation. The case is In re Anita Smith, No. 6:08-bk-01035, which can be found here.

What Happened

The Debtor filed a chapter 7 petition on February 15, 2008. One of the debts that she listed was a mortgage debt owing to Countrywide Home Lending. The debtor surrendered the property during the chapter 7. The Debtor received a discharge on June 6, 2008 and Countrywide received notice of the discharge. Bank of America acquired Countrywide and obtained a judgment of foreclosure upon the real property.

At some point, Bank of America began calling the Debtor to try to try to collect upon the debt. Neither the opinion nor the motion say when the calls started, but on June 24, 2010, the Debtor's lawyer sent a polite letter to Bank of America informing them that they were violating the discharge.

The calls continued. In fact, at least fifty calls were made after the first letter.

The Debtor's attorney sent a second letter on November 16, 2011. The second letter informed Bank of America that the Debtor "is 79 years old, in deteriorating health, and has been hospitalized recently."

The calls continued.

The Debtor called Bank of America twice in November and December 2011 to ask them to stop calling.

The calls continued. There were forty-nine calls during a three week period from November 16, 2011 to December 6, 2011.

At this point, Debtor's counsel filed a Motion to Reopen the Case and a Motion for Sanctions.

Bank of America did not appear for the sanctions hearing.

The Court's Ruling

The Court did not have any problem finding a violation of the discharge. It stated:

Bank of America's behavior was intentional, egregious, and extreme. It blatantly and willfully ignored the discharge injunction, despite having received multiple notices of the discharge and requests to discontinue its collection efforts. Bank of America acted in bad faith. Its repeated telephone calls to the Debtor were vexatious and oppressive. Bank of America committed ninety-nine separate willful violations of the Debtor's discharge injunction.

Opinion, p. 5.

The Court awarded actual damages of $10,000.00 for "significant aggravation, emotional distress, and inconvenience." Opinion, p. 5. The Court stated:

Emotional distress constitutes actual damages. (citation omitted). Emotional distress is expected to occur where the conduct is egregious or extreme. (citation omitted). Significant emotional distress is readily apparent where the conduct is egregious and corroborating medical evidence is not required. (citation omitted). Entitlement to emotional distress damages exists "even in the absence of an egregious violation, if the individual in fact suffered significant emotional harm and the circumstances surrounding the violation make it obvious that a reasonable person would suffer significant emotional harm. (citation omitted.).

The Debtor's emotional distress is readily apparent due to Bank of America's intentional, egregious and extreme conduct. She is not required to present corroborating medical evidence. (citation omitted).

Opinion, pp. 8-9.

The Court awarded actual damages of $10,000.00 and attorney's fees of $1,500.00.

What the Debtor and the Debtor's Attorney Did Right

My firm is in the unusual position that we both represent debtors in bankruptcy and defend debt collectors accused of violating the stay or the discharge. In the former capacity, it is not unknown to get hit with a complaint that goes on for pages and pages of boilerplate allegations based on a few isolated contacts with no cease and desist letter from counsel.

In this case, counsel sent not one but two cease and desist letters. In the second letter, counsel specifically informed Bank of America that his client was elderly and, as a result, very sensitive, to continued calls. Counsel also had the Debtor document the continuing violations. The Motion for Sanctions details forty-nine (49) specific violations, identifying them by date and time.

Debtor's counsel also showed considerable restraint in filing a motion for sanctions rather than a complaint. While many plaintiff's lawyers prefer to file an adversary proceeding, there is no reason why contempt cannot be dealt with by motion. In this case, the debtor's attorney was able to proceed from motion to written opinion in a mere six weeks with only five hours of attorney time. Debtor's counsel was able to obtain relief for his client in a prompt, efficient manner. In my opinion, counsel placed his client's well-being ahead of his ability to recover fees, which is commendable.


A Note on Accuracy in the Blogosphere

Blogs sometimes get a bad reputation. When my daughter was doing a research project recently, her professor forbade the use of blogs as authority on the basis that they were "just someone's opinion." At A Texas Bankruptcy Lawyer's Blog, I make it a practice to provide case citations and links to original documents so that the reader can verify the accuracy of my comments. In this case, neither the initial post from The Bankruptcy Law Network nor the followup on The Huffington Post, provided much information from which the facts could be verified. Indeed, it is entirely possible that we are writing about different cases. I found the case that I wrote about above by researching recent opinions from Judge Arthur Briskman involving Bank of America. However, the case that I wrote about involved ninety-nine (99) violations, while the other posts refer to a case with thirty-eight (38) violations. While the failure to provide attribution may have led me to a more egregious case, it could just as well have caused the reader to dismiss it as unsubstantiated rumor.

Montana Blogger Tagged for Big Defamation Damages in Suit by Trustee

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A Montana blogger has learned that First Amendment freedoms do not extend to saying that a bankruptcy trustee is “guilty of Fraud, Deceit on the Government, Illegal Activity, Money Laundering, Defamation, Harassment” among other things. In Obsidian Finance Group, LLC and Kevin D. Padrick v. Crystal Cox, 2011 U.S. Dist. LEXIS 137548 (D. Ore. 11/30/11), the Court ruled that the blogger was not entitled to protections accorded to traditional media and found that the trustee was not a public figure. You can read the opinion here. (PACER registration may be required). While the case is no doubt welcome news for trustees who can be exposed to some bizarre public criticism, it is troubling for its constricted definition of “media.”

What Happened

Summit Accomodators dba Summit 1031 Exchange was a company that was supposed to facilitate tax free 1031 exchanges. The company filed for chapter 11 relief on December 24, 2008 amid allegations that it had used customer’s money to fund insider ventures. At least four persons associated with the company have been indicted or convicted. The Debtor initially employed Terry Vance as Chief Restructuring Officer. It also employed Obsidian Finance Consultants, LLC as financial adviser and paid it a retainer of $100,000. Shortly after the case was filed, the Debtor sought to replace Mr. Vance as CRO with Obsidian Finance.

At the hearing to replace the CRO on February 11, 2009, the Court entertained an oral motion from the U.S. Trustee to appoint a Chapter 11 trustee. The Court granted the U.S. Trustee’s motion and suggested that perhaps Obsidian Finance or Kevin Padrick, who was one of its principals, could be appointed as Chapter 11 trustee. The U.S. Trustee did appoint Kevin Padrick as Chapter 11 trustee.

On May 12, 2009, the Court confirmed the First Amended Joint Plan of Reorganization filed by the Official Committee of Unsecured Creditors and the Chapter 11 trustee. The Plan provided for establishment of a Liquidating Trust with Kevin Padrick as Liquidating Trustee.

Crystal Cox is the daughter of one of the creditors of Summit Accomodators. She was present at the hearing on February 11, 2009 and subsequently met with Padrick on February 12, 2009. She became convinced that Mr. Padrick had used his position as financial adviser to undermine the CRO and get the job as Chapter 11 Trustee. She also was convinced that Mr. Padrick should not have been appointed Chapter 11 Trustee because his status as a principal of the Debtor’s financial adviser made him an insider and therefore ineligible for appointment.

On July 19, 2009, Crystal Cox started a blog with the URL www.obsidianfinancesucks.com. The headline of the blog reads “Kevin Padrick, Obsidian Finance Group, I Demand Transparency in the US Bankruptcy Courts.” In her blog, she described herself as follows:

I am the Self Appointed Real Estate Industry Whistleblower. I am a Self Appointed Real Estate Consumer Advocate. I want to be a voice for Real Estate Victims that are not being heard, that are Powerless, and that Have no voice.

My, Self appointed job or mission, have you is to get the TRUTH out so that real estate victims can get justice, get "made whole", get their MONEY and get on with their REAL LIFE...

Ms. Cox wrote hundreds of articles for her blog, many of which made accusations against Kevin Padrick and Obsidian Finance. In some cases, she would post ten or more articles in a day. She also wrote for:

www.BankruptcyCorruption.com
www.LiquidatingTrustee.com
www.BankruptcyTrusteeFraud.com
www.RealEstateIndustryWhistleblower.com

On January 14, 2011, the Trustee’s counsel filed a defamation action against Ms. Cox in the United States District Court of Oregon. The case went to trial on November 29, 2011. Ms. Cox represented herself. The jury found that Crystal Cox was liable for defamation to both Obsidian Finance Group, LLC and Kevin Padrick. It awarded damages of $1,000,000 to Obsidian and $1,500,000 to Mr. Padrick. The Court entered judgment against Ms. Cox on December 8, 2011.

Prior to trial, the Court made several rulings from the bench which were incorporated into a memorandum opinion on November 30, 2011.

The Trustee Was Not a Public Figure, Not Even a Limited One

The defendant argued that the trustee was a “public figure” so that proof of actual malice was required under New York Times Co. v. Sullivan, 376 U.S. 254 (1964). A person can be a public figure if they “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes” or an individual may “voluntarily inject() himself or (be) drawn into a particular controversy and thereby become() a public figure for a limited range of issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

The Court found that the Trustee and his corporation were not “all purpose” public figures and that that they had not thrust themselves into a particular controversy so as to be limited purpose public figures. While the bankruptcy of Summit Accomodators itself received attention for its failure, agreeing to serve as trustee did not constitute “thrusting” oneself into a controversy. Moreover, a person must be a limited purpose public figure prior to the alleged defamatory statements rather than because of them. In this case, Ms. Cox could not create controversy over Padrick’s handling of the estate through her blog and then contend that this made him a public figure.

The case would have been a closer call if the Trustee had sought out publicity about the job he was doing. While many lawyers are publicity shy, some actively seek to keep their names in the news, issuing press releases and taking out ads trumpeting their successes. The lawyer who blows his own horn too much in a case of public interest may find himself to be a limited purpose public figure.

The Blogger Was Not Entitled to Protection As a Member of the “Media”

The Court noted that “plaintiffs cannot recover damages (against media defendants) without proof that (the) defendant was at least negligent and may not recover presumed damages absent proof of ‘actual malice.’” Opinion, p. 9. This would have made it more difficult for the plaintiffs to recover. However, the Court rejected the contention that the “investigative blogger” in this case qualified as media.

First, the Court noted that Defendant had not cited any cases giving media status to bloggers. “Without any controlling or persuasive authority on the issue, I decline to conclude that defendant in this case is ‘media,’ triggering the negligence standard.” Opinion, p. 9. This appears to be a bit of a cop out by the court, since blogging is a relatively new phenomenon. By holding that bloggers do not qualify as media because Courts have not previously granted them this status creates a self-fulfilling prophecy.

However, the Court did go one step further and lay out a test for what evidence would establish someone’s standing as a journalist.

Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting "the other side" to get both sides of a story. Without evidence of this nature, defendant is not "media."

Opinion, p. 9. Unfortunately, the Court did not cite any precedent for this test. However, there is a growing body of case law which rejects this narrow definition.

Other Views on Bloggers and Journalists

Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011)(rejecting qualified immunity for police officers who arrested citizen for filming them with a cell phone camera).

In another case, the Court refused to recognize a claim to a “reporter’s privilege” not to divulge sources on the grounds that it could lead to a slippery slope which would include bloggers.

The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" (citation omitted). Are we then to create a privilege that protects only those reporters employed by Time Magazine, the New York Times, and other media giants, or do we extend that protection as well to the owner of a desktop printer producing a weekly newsletter to inform his neighbors, lodge brothers, co-religionists, or co-conspirators? Perhaps more to the point today, does the privilege also protect the proprietor of a web log: the stereotypical "blogger" sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way? If not, why not? How could one draw a distinction consistent with the court's vision of a broadly granted personal right? If so, then would it not be possible for a government official wishing to engage in the sort of unlawful leaking under investigation in the present controversy to call a trusted friend or a political ally, advise him to set up a web log (which I understand takes about three minutes) and then leak to him under a promise of confidentiality the information which the law forbids the official to disclose?

In re Grand Jury Subpoena (Miller), 397 F.3d 964, 979-80 (D.C. Cir. 2005)(Sentelle, Concurring).

Finally, one Court got it right when it held that “not all bloggers are journalists. However, some bloggers are without question journalists.”

Further, there is no published case deciding whether a blogger is a journalist.

However, in determining whether Smith was engaged in news reporting or news commentating, the court has applied the functional analysis suggested by commentators and the Plaintiffs in their memorandum in support of a preliminary injunction, which examines the content of the material, not the format, to determine whether it is journalism. (citation omitted). In addition, the court has considered the intent of Smith in writing the article. The court agrees that not all bloggers are journalists. However, some bloggers are without question journalists. (citation omitted).

Bidzerk, LLC v. Smith, 2007 U.S. Dist. LEXIS 78481 at *16-17, 35 Media L. Rep. 2478 (D. S.C. 2007).

Applying the Obsidian Test to A Texas Bankruptcy Lawyers Blog


It is a shame that the Judge in Obsidian v. Cox used an intellectually lazy definition of journalist when it probably did not influence the outcome of the case. The statements made by Ms. Cox in her blog were so outrageous that they likely would have failed a negligence or actual malice standard. I take personal offense because I like to think that the work that I do on this blog bears a passing resemblance to journalism. However, I doubt that I would qualify under Judge Hernandez’s test.

1. Any education in journalism. I took three years of journalism in high school and wrote for both my high school and college papers. Is that enough?

2. Any credentials or proof of any affiliation with any recognized news entity. My blog is distributed by the State Bar of Texas, the American Bankruptcy Institute and the LexisNexus Bankruptcy Community. However, these are all legal organizations rather than recognized news entities.

3. Proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest. I do edit my pieces, although my partner says that I should do more of it. I do fact check my posts, which are mostly based on court opinions and thus pretty easy to document. Finally, if I have involvement in a case I write about, I disclose that.

4. Keeping notes of conversations and interviews conducted. I rarely do interviews. However, when I do, I don’t necessarily keep my notes after the post is published unless it is because I have a messy desk and they get buried under something else.

5. Mutual understanding or agreement of confidentiality between the defendant and his/her sources. Sort of. If someone asks me not to use their name, I respect that. However, it just doesn’t come up that often.

6. Creation of an independent product rather than assembling writings and posts of others. Yes.

7. Contacting “the other side” to get both sides of a story. Generally, I write about judicial opinions. I do not contact the losing party to get their side of the story. If a party to a case contacts me and points out a factual error, I will correct it. Sometimes I will allow the other side to tell their side of the story in the comments. However, I did not contact Crystal Cox or Kevin Padrick about this post.

Out of seven criteria, I qualify completely under two, partially under four and not at all under one. However, if you compare my writing to that of Bill Rochelle, who writes for Bloomberg and is definitely a real journalist, you will see that we frequently write on the same topics and discuss the same issues. The difference is that he is better at it than I am and gets paid for it, while I still have my day job.

The Ironic Conclusion—It’s All in How You Say It

In reading through Crystal Cox’s rambling and often obsessive blog, there is occasionally some solid reporting and good questions raised. It certainly raised my eyebrows that the Court would appoint a trustee based on an oral motion without any prior notice to parties in interest. It also was unusual for the Court to suggest an individual to the United States Trustee. It was also a very close call as to whether the principal of the Debtor’s financial adviser qualified as a disinterested person eligible to be appointed as trustee. These were all good questions. However, from my personal review of the lawsuit and the blog, it appears that Ms. Cox took a wrong turn when she took the unusual circumstances of Mr. Padrick’s appointment and her personal dislike of him and constructed a narrative of wrongdoing and fraud. Blogs that traffic in rumor, innuendo and unsupported allegations make the rest of us look bad and bring disrepute to blogging in general. On top of that, rumor, innuendo and unsupported allegations belong on talk radio, where they can be advanced by serious journalists like Rush Limbaugh, Alex Jones and Glen Beck, not on blogs.

Legal Village

A quick mention and thank you to Legal Week who are picking up some of my selected blog posts to feature in their Legal Village, an online community of blawgers sharing their random, and sometimes even serious, points of view for the entertainment of lawyers on coffee breaks across the nation.

Image copyright of brewbooks on Flickr, and which features Legal Grind Coffee in Santa Monica.

I am Still Here

I am still here.

It's just that there are only 24 hours in a day, and while that's enough hours (just) most of the year to work, run a family and engage in social media experiments, in the run-up to Christmas with the prospect of 4 families around 1 table and a demanding 5 (nearly 6) year old to satisfy on the present-front as well as the usual year-end activities and projects on the work-front, well, I am only human (and a specialist plant of course) and things slip.

Fear not, the in-house lawyer remains committed to (a) being an in-house lawyer  (b) social media and (c) fusing the two together in pursuance of this blog.

A Merry Little Christmas post will be with you before the Big Day itself, and normal blogging service will be resumed once the festivities and stress are over.

200th Post!!!

This blog began on June 2, 2006 with a post entitled Supreme Court Rules in Favor of Federal Jurisdiction in Anna Nicole Smith Case; Few Prurient Details in Opinion. Now, 1,613 days later (a number which does not appear in BAPCPA), I am on my 200th post. For this post, I am going to take a look back at how the blog started and look back at some of my favorite posts.

How I Got Started

My introduction to blogging is a good illustration of technology has changed. Back in the day, the Austin Bankruptcy Bar would make copies of local unreported cases to pass out at meetings. This required making large numbers of copies and was done sporadically. Someone in the bar had a tech person who knew how to create a list serve. When I came across new cases, I would email them to the members of the list serve. Over time, I started adding some discussion of the cases so that my emails became short articles. At that point, Ron Satija suggested that I start a blog. I initially protested that I didn’t know how to create a blog, figuring that it must involve mastery of html, javascript and klingon (apologies to Weird Al). However, Ron sent me an email showing how to create a blog in three easy steps and it took off from there.

Blogs are a very democratic medium. Anyone can start a blog at no cost (if you don't count billable hours lost) and very little computer knowledge. Go to blogger.com. Click on the button that says "Create a Blog" and follow the instructions from there. If you can access the internet and type, you can start a blog. The real challenge is to put up content that someone else will want to read.

Most Popular Posts

At some point, I installed Google Analytics on my site. This allowed me to track which posts received the most traffic. The tracking isn't perfect, since I don't have it for the whole time I have had the blog. However, as near as I can tell, here are the ten most viewed posts, several of which have been viewed over a thousand times:

1. Assigned Credit Card Debt: A Problem of Paper, Electronic Images and Faith (June 13, 2007). This was the first article that I wrote about assigned credit card debt, a problem which foreshadowed the current problem of missing mortgage documents.

2. Judge Kelly Finds 401k Loans Deductible Under Means Test (November 22, 2006). I have no idea why this post was so popular. It was about a very well-reasoned opinion from former Bankruptcy Judge Larry Kelly, which, unfortunately, was reversed the following year.

3. The Sad Case of John Gellene or What It Feels Like to Be Struck By Lightning (July 16, 2006). John Gellene was a lawyer who went to prison for failure to adequately disclose connections on a Rule 2014 disclosure. Milton C. Regan, Jr. wrote a book about the case, which I received at the State Bar of Texas Bankruptcy Section Annual Meeting. I was struck by the randomness of the prosecution so I wrote about it.

4. Court Protects Homestead Proceeds But Leaves Open Questions About Tardy Objections (October 22, 2007). Bankruptcy Judge Leif Clark has provided me with a lot of excellent material to write about over the years and this post was about one of his thoughtful opinions. I managed to discuss the Texas Homestead exemption, Judge Clark and Avril Lavigne in the same post.

5. Bankruptcy Court Limits Texas Homestead Under 1,215 Day Rule (May 26, 2008). This was a rare post about one of my own cases. The Fifth Circuit affirmed the decision earlier this year.

6. Means Testing Opinions Strictly Construe Statute While Identifying Problems (August 10, 2006). In the days after BAPCPA took effect, we were all trying to figure out how this means testing stuff would work. This post examined some of the earliest opinions.

7. Bad Debtors Find Limited Homestead Protection (June 5, 2007). There seems to be a pattern here: people want to read about the Texas homestead exemption. This post drew a sequel when one of the debtors involved called and demanded that I remove his name from the post. Thus, you can read about Mr. Name Withheld by Request (although you can easily go to 366 B.R. 677 to find his name in the published opinion).

8. Interesting Opinion on Privilege and Work Product (December 21, 2009). Another post about an opinion from Leif Clark. However, this post's popularity seems random.

9. Leif Clark on Reaffirmations: Six Short Clark Opinions and What They Mean (April 7, 2009). These opinions caught my eye because I noticed that Judge Clark was writing a lot of really short opinions denying reaffirmations. He seemed to be sending a message, so I did my part to pass the message along.

10. Judges Examine the Murky Standing of MERS (December 30, 2009). At the end of each year, I try to write about opinions that I didn't get around to. This was one of those end of year posts.


My Favorite Posts

Some of my personal favorites were not among the most popular. However, they are still special to me. Here are some posts worth revisiting (in reverse chronological order):

1. Do Not Hide Assets From the Trustee. You Will Get Caught and Go to Jail (August 25, 2010). One of the frustrations of being a bankruptcy lawyer is being cornered at a party with a story about someone who filed bankruptcy and hid his assets. In the popular mind, this is a common occurrence. It is actually quite rare in my experience. This story made a good object lesson because the guy who tried to hide assets got caught red-handed. The post has the pictures to prove it.

2. Chrysler Seeks the Ultimate 363 Sale as the Treasury Department Dictates the Pace (May 3, 2009). The Chrysler and GM cases will probably go down in history as two of the most important cases of our time. This was my attempt at providing some real time analysis based on the filings in the case.

3. Pennsylvania Judge Writes Epic Opinion on Technology and Professional Responsibility (April 26, 2009). This massive opinion caught my eye because it captured the tension between law as a business and a profession. While the case that I wrote about was reversed, the questions it raised are still relevant. This post formed the basis for an article I wrote for the Texas Bar Journal entitled "Maintaining Professional Responsibility While Using Legal Technology, 72 Tex. Bar J. 538 (July 2009).

4. Judge to Secured Creditor: The Loan has been PAID!!!! (February 3, 2009). This opinion captured the uniquely blunt style of former Judge Frank Monroe. The headline says it all.

5. Tchaikovsky's Overture: How an Unremarkable Case Took on a Life of Its Own (July 19, 2008). This post was about a dischargeability case in California. While the ruling was unremarkable, the media coverage of it captured the unease about the emerging mortgage crisis.

6. Don't Mess With Judge Jernigan (October 27, 2006). One of the things that appeals to me about bankruptcy blogging is the unique styles of the various judges. In this particular post, Judge Stacey Jernigan caught an attorney omitting a key phrase from a statute. With deft humour, she noted that "Thankfully, the court has several copies of the Bankruptcy Code handy so it could consult the entire statutory provision in addressing this this question."

7. On Abstention, Multi-Prong Tests and Being Mistaken for David Bowie (September 27, 2006). This post was about a classic Leif Clark opinion which explains that a picture is worth a thousand multi-part tests. Only Judge Clark would compare himself to David Bowie. You just can't make this stuff up.

8. Opinions Regarding Failure to Obtain Credit Counseling Underscore Dissatisfaction With Law (July 18, 2006). The outspoken Judge Frank Monroe gained a lot of attention when he blistered Congress in an opinion about credit counseling. This post used three opinions to contrast approaches to credit counseling.

9. From Seminole to Katz: What a Long Strange Trip It's Been (June 7, 2006). This was my history of the Supreme Court's decisions on Eleventh Amendment immunity. I realize that finding this fascinating classifies me as a total nerd. However, I like it.

10. Supreme Court Rules in Favor of Federal Jurisdiction in Anna Nicole Smith Case; Few Prurient Details in Opinion (June 2, 2006). This was the post which got me started as a blogger.

Here's to the first 200 posts. I hope to be here for another 200.

A Halloween Hoot

Welcome to the 31 October 2010 edition of ukblawgroundup, and the fourth in the series of round-ups initiated by Michael Scutt to promote blogging lawyers in the UK.

The theme of this edition is, spookily enough, what with the date and everything, Halloween; the origins of which date back to the Celtic festival of Samhain which celebrates the end of the "lighter half" of the year and beginning of the "darker half", where the border between this world and the other becomes thin enough to let the spirits pass through, and when we wear costumes and masks to ward off evil.

But I live in the countryside, and what this time of year means to our family is the harvest from the local farmers. And at Halloween, of course, we take great delight in carving up some of that harvest. I was most proud of my local farm in Little Budworth, Cheshire, which this October has just harvested over 3,000 pumpkins:

Image copyright of The Hollies Farm Shop

Halloween festivities are embraced with much more vigour on the other side of the Atlantic, and when Michael started this UK blawg review at the beginning of 2010 he observed that lawyers in the UK hadn’t embraced social media nearly as much as their American counterparts either.  And what a difference (not even) a year makes, because I’m now writing this edition against the backdrop of Legal Week’s recent analysis of the UK blogging scene. It’s article, The Geek Shall Inherit, introduced the audience of the mainstream legal press to the lawyers who operate in the online world, looking back at history of the UK legal blogging scene and presenting both some established bloggers and recent entrants. 

As insightful as the article was, and that one piece of journalism probably succeeded in bringing forward the legal digital mind-set by approximately 5 years, what it was unable to do was mention every credible UK blawgger, and there are few. Some additional players are mentioned in the commentary against the article, so do take a read of both the article and the commentary if you’re looking to increase the number of blawggers on your watch list or your RSS stream.  What the omissions do tell me though is that blawg round-ups such as this one are extremely important to spread the word and to promote the profiles of all of the great blawggers in the field, because by giving each other a pat on the back from time to time, we can help this community grow.

The Law Actually Blog knows a thing or two about patting its fellow blawggers on the back.  Penned by The (mysterious) Michael (whom we only know as an LLM and LLB student working in-house for a telco company)  this quarter it successfully ran its annual "Blawggies", the awards for, well you guessed it, blawgs.  As well as the  Blawggies Results, you can get to know the blawgeratti by reading the regular  “A Law Actually Interview with…” series of posts.  Take a look at the most recent, Law Actually Interview with Charon QC  for the type of thing which you can expect.  You'll also become very familiar very quickly with tech law developments and generalist legal observations too such as Council Goes Bonkers over Conkers, a scenario observed with the observational dis-belief that a fellow in-houser can truly appreciate.  Speaking of which, have you had the good fortune to stumble upon Legal Bizzle? An anonymous in-houser The Biz, who in his own words has been "saving your ass since 1999",  just tells it like it is.  Check out 5 Words I Hate to Hear, and  What does Success Look Like? to see why.

Another round-up we saw this quarter was the FT’s Annual Survey of Innovative Lawyers, but I was disappointed that it didn't feature lawyers who are taking strides into social media as part of their practice strategy, however, to rectify the position, we also saw the 360 Awards, at which Paul Hajek received the award for most effective social networker. Paul is a regular on the UK legal blogging and Twitter scene, and the Clutton Clox Blog succeeds where a lot of law firm blogs fail: it's kept bang up to date and presents a well-rounded perspective of what the firm is about, its work and its people.

The reviews kept on coming this quarter, and one which caught my eye was from Linda Cheung, CEO of Connectegrity.  In September, Linda reviewed the Top 100 Law Firm Websites in Pictures. No spoilers here, you'll have to check out her blog for the winner.  

Image copyright of Tyson Moore, via Flickr, depicting some spooky fence ghosts 

The telling of ghost stories and viewing of horror films are common at Halloween. This quarter has seen its fair share of legal horror stories and frightening tales too. Most of which, it has to be said, have emanated from the demise of Halliwells. So may I take this opportunity to present Peter Blair, Director of Mar-aon Consulting which specialises in Risk, Operations, Strategy & Communications in Law Firms, and his eminently sensible Pitch for Common Sense, dealing with issues ranging from Responsibilty and Leadership to Keeping Up to Date. Whatever your profession or specialism there is a multitude of "makes sense" opinion and information on Peter's blog.

More gremlins in the machine this quarter, but thankfully with much less consequence.  Brian Inkster summarises his encounters on the Inksters Solicitors blog in IT Problems at Trainee Summer School. Inksters are officially Cool Lawyers recognised for the example which they set in social media, and I'd agree, like the Clutton Clox blog, Inksters keeps a refreshing balance of posts about the firm's work and it's people.

The above image is of Vice President Dick Cheney's Labrador retrievers Jackson, left, and Dave, right, prepare for Halloween, as they sit for a photograph at the Vice President's Residence at the Naval Observatory in Washington, D.C. Jackson is dressed as Darth Vader, Dave is dressed as Superman. (Random legal copyright fact: This image is a work of an employee of the Executive Office of the President of the United States, taken or made during the course of the person's official duties. As a work of the U.S. federal government, the image is in the public domain.)

The practice of dressing up in costumes and begging door to door for treats on holidays dates back to the Middle Ages. ‘Guising’ as it became known, was prevalent in Scotland and Ireland in the 19^th Century, and became extremely popular in the US in the 20^th Century. Rather aptly, blogging also allows lawyers to take on a disguise where their  be-devilled alter-ego can roam free.

Guising with expertise is the UK’s very own Baby Barista who provides us with a fictional "worm's eye view of the English Bar" with unparalleled eloquence and wit which has been observed and applauded for some time, however hot on his heels is a the new and superb Magic Circle Minx providing readers with a fictional account of the life of a trainee solicitor at a London Magic Circle Law Firm, her blog is now a regular on my RSS list.  Another esteemed blawgger who makes no bones about his devil-may-care blogging style is the wonderful Charon QC who this quarter has had me hooked on his (fictional?)  Muttley Dastardly LLP series.

Taking on a guise, but not one so scary, is iPad Lawyer documenting his journey as a lawyer with THE piece of kit of the quarter. The iPad Lawyer explains step by step how to use the apps and software for a lawyer's best effect and productivity, and his excellent commentary in iPad workflow - some thoughts is a great example of his hands-on, explanatory approach.  The man behind the mask is Jon Bloor of Peninsulawyer fame who this quarter has also taken a look at Go Compare the Money SuperMeerKat (or why I don't buy Wigster) providing his views on the recent announcements by Wigster and others of the launch of price comparison sites for solicitors.

Image copyright of Shane Gorski, via Flickr "no one knows who lives here but there is proof of life at this property"

There is a tradition of decorating a haunted house at Halloween, filling it with eerie music, cobwebs, spiders, zombies, mummies, jack o' lanterns, devils, witches and of course the witch's cat.  One of my favourite cats is IPKat, aka Jeremy Phillips, home-grown but internationally recognised for his passion of all things IP.  Jeremy and his team provide regular consistent and credible work and I've personally read Jeremy's blog since I discovered it back in 2003, immediately capturing my attention for its valuable insight in my practice area. In September, I was impressed further by the excellent live-blogging series, Handbags at Dawn 1, 2, 3 and 4, reviewing an IP & Fashion conference - yes, live blawgging, as it happened, brilliant.  The team really do live, breathe and eat IP; see The Advertising Wars of Kelloggs Cornflakes for evidence of this assertion.

Other animals featuring in this blawg round-up, but not seen so much at Halloween, include:

CyberPanda, aka Asma Vranaki, who is a Doctor of Philosophy of Law at Oxford University. Asma's blog posts and tweets are brimming over with information and considered opinion tackling issues such as Facebook: the Privacy Backlash and Pan-European Copyright Laws all helpfully summed up in a Cyber-Law News Daily; 

and

Technollama, aka Andres Guadamuz, a lecturer at the Edinburgh School of Law.  This month I enjoyed reading his discussion on cyber-regulation in the well-penned post Is it time to take Anonymous Seriously? Readers of Andres' blog are always guaranteed an enlightening read.

Staying true to her identity, and founder of another technology blog, is Shireen Smith at Azrights Solicitors.  Shireen's posts are bang on the money for her target audience and I always benefit from a legal brain refresher when reading her posts.  She has a knack of making her specialism a subject which everyone should take an interest in:  Facebook Places, Privacy and Implied Consent and Rejecting Anonymity, Making Authors Accountable are both good reads whatever your specialist practice area.

Stepping away from technology blogs, and back full-circle to the founder of the UK blawg round-up now. Michael Scutt's passion for blogging is evident as he wears two blawgging hats, one for Jobsworth, Employment Law Explained, and the other for There May Be Trouble Ahead, Legal Services De-regulation.  Jobsworth is an essential blawgging read for anyone in practice remotely affected by employment law (and, lets face it, who isn't?).  His analysis of the Equality Act in The Equality Act: Here at Last ? Worth the Wait? (and the earlier posts referred to therein) really get to the nub of the issues underlying why and how the legislation has come about to provide a much fuller and contextual picture, but he also does the practical stuff too, see Why Employers Shouldn't Ask Pre-Employment Health Questions: Equality Act 2010 #2 for the answers to the "ok but what does it mean I actually have to do" questions.  In There May be Trouble Ahead, Michael has himself well-positioned as a thought-leader amongst the profession challenging views of what de-regulation will mean for it.  His September post, More on Branding, questions how much a law firm is prepared to invest in a franchised brand. 

I couldn't let the opportunity of this blawg round-up go by without mentioning Mark Gould, with a background as an academic and lecturer in Competition Law, Mark is currently Head of Knowledge Management at a leading law-firm.  His blog, Enlightened Tradition explores a rational approach to organisational learning and knowledge management. He draws inspiration from many sources and his blog posts pay homage to his academic background being clearly well-researched; a shining example is his recent post  Corporate Professional Spectrum: Law Firms, KM and the Future.

And last but not least, Jennie Law, a law librarian in Edinburgh. I've had Jennie's feed on my RSS stream for a while now, and her light-hearted "say what you see" approach is perfectly summed up in How to Make a Librarian Happy.

Image copyright of Anon, via Flickr

And now, the witching hour really is upon me, I have work to do! Happy Halloween readers!

The SD FL Has A Fancy New Website!

They even have an RSS feed:

 The new website focuses on user-friendly navigation including the addition of a search function.  Some of the new features are:

Alphabetized phone directory
Searchable press releases and public notices
Link to the Federal Bureau of Prisons inmate locator
Media information page
US Courts Library page
About the US Courts
Obtaining records page
Section pages for Magistrate, Court Interpreters, Financial and Procurement
RSS feed option (this allows you to sign up to get notices for certain items on our website)
Mobile version (you can view the site via your cell phone)

RSS feed and mobile version -- I guess we're all bloggers now.

The best part is they put up a picture of a swanky new downtown hotel, complete with swaying palm trees -- take a look:

See you all poolside!

(unfortunately, contract documents specify that "Olympic-sized" swimming pool depicted in marketing materials actually oversized bathtub)

The Next Big Thing: Is the social media tide turning?

Today's Legal Week has focussed on the use of social media tools by the legal profession.  It ran two pieces today:

New ideas in Law: The geek shall inherit... a wonderfully well researched piece of journalism by Alex Aldridge summarising the history of the legal blogging scene at home and abroad and introducing the new, rising talent in the UK blawgosphere. I was thrilled and honoured for this very blog to be included in the article, quote:

"Then there's In-House Lawyer, a more serious, non-fictional, yet still distinctly irreverent insider account of life as an in-house lawyer, authored by Melanie Hatton, a former Mayer Brown lawyer who is now head of legal and company secretary at Latitude Digital Marketing. In it, Hatton reflects candidly on issues facing in-house counsel, with recent posts including a piece drawing attention to the friction between in-house legal departments and sales teams in companies and an admission that she always leaves anything litigious to a Friday, the day of the week when "opposing counsel seem much more inclined to strike a deal with less antagonism".

Irreverent and candid. Heck, I hadn't realised! But I can roll with that.  Alex's article is a suberb blawg round-up, culminating in his blawger roll of honour list.  It makes my job of hosting this quarter's ukblawg round-up next week quite a challenge!


Tweet Disposition: the tech-savvy lawyers making social media work for them is written by Sofia Lind and introduces a selection of in-house and private practice tweeting lawyers.  I was over the moon to be mentioned in this article along with other tweeting companions I know, and some which I didn't but I no doubt soon will.  Sofia's article also takes a look at blogging and Linked-in and interestingly identifies what the Top 10 law firms are doing (or not doing) about social media, confirming what I suspected, i.e. that its the individuals, independents and smaller firms in the UK which are getting to grips with social media a lot more quickly and effectively than the larger firms.
These two articles have brought the UK's legal social media scene to the fore, their angle very much that social media is here to be embraced and not policed, and I predict we'll now see the tide changing with more of our profession surfing the social media waves. 

Cartoon courtesy of Geek & Poke