Blawg Review #241

Back on 7 December 2005, I posted under the title "Pearl Harbor Day Trivia" a throwaway comment about President Franklin Roosevelt's famous "Day of Infamy" speech:

December 7, 1941 was immortalized the next day in a speech by President Franklin D. Roosevelt as "a date which will live in infamy".

What is not well-known, however, is that this memorable phrase was not the President's initial choice. In an earlier draft of his speech, he referred to the day as "our generation's 9/11", but this did not play well with confused test audiences. The phrase was changed and the rest, as they say, is history.

There were a few links and a considerable amount of traffic to that post and I thought nothing more of it until a year later, when the traffic to Infamy or Praise spiked unexpectedly around 7 December. Looking at the logs, I saw that nearly all of those readers were at my site for the Pearl Harbor Day Trivia post, led there by Google. The same thing's happened every year since.

In 2006, I said that "smartassery lives forever" on the web. What I wrote in 2005 on this blog is the sort of thing I'd post now to Twitter, where it might be seen by a couple hundred folks for a few minutes before being quickly forgotten. Instead, my post has lived in infamy here since 2005, and, truth be told, I've felt a little bad about it. It's still the second result when gullible and lazy schoolchildren Google "pearl harbor day trivia" and is in the top half-dozen for "pearl harbor trivia". It's high time then that I write something here on 7 December which eclipses a four-years-old smartass comment.

In this post, I won't dwell on the attack on Pearl Harbor itself, its orders of battle, or other military matters; however, if you'd like to get an overview of the attack before we begin, you may find this video of some use:

Instead, I'll build Blawg Review #241 around a work of the practical literary arts — President Roosevelt's "Day of Infamy" speech.

Yesterday, December 7, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.

With these famous words, the President commenced the address by which he hoped to galvanize his nation's shock and anger at the attacks of the previous day into a collective resolve to defeat the threat posed by the Japanese Empire, whatever the cost. This sentence illustrates the approach Roosevelt had determined to take shortly after hearing the first reports from Hawaii and had enhanced as subsequent reports arrived.

Roosevelt and his advisors had marked the steady march toward war with Japan and understood the importance of the President's planned address to Congress at midday on 8 December. Within the President's inner circle, two alternative approaches to the speech were discussed.

One approach, championed by Secretary of State Cordell Hull, was to recount the extensive record of negotiations with the Japanese and the timeframes of diplomatic and military actions preceding and following the attacks. With this approach, Hull sought to demonstrate evidence of the United States' good faith, to provide clear legal justification for Congress' declaration of war, and to establish for history's judgment that America was right to fight.

The alternative was to address the President's remarks more simply and directly to the American people, making an uncomplicated appeal which would succinctly set the tone for the nation's entry into war. The President himself favored this approach from early in their deliberations. Roosevelt saw the merits of Hull's proposal but believed that, wearied by the Great Depression, Americans did not want to engage in an idealistic crusade to make the world safe for democracy. As the early years of the Second World War were fought desperately by Britain and its European allies, a strong anti-war sentiment persisted in America; Roosevelt sensed that the Pearl Harbor attack had shocked his nation's citizens from their isolationism and he preferred a short speech focusing upon the Japanese deception and appealing to his people's raw anger.

Toward that end, Roosevelt strengthened the language in his earlier draft of the speech. Instead of "a date which will live in world history", December 7, 1941 became then and forever "a date which will live in infamy." Within hours, Congress had declared war on the Empire of Japan.

Sixty-eight years have passed since then. Today at the What About Clients? blog, Secretary of State Hull's descendant, Dan Hull, combines his ancestor's global view with President Roosevelt's singular focus and the clients of client-centric counsel are all the better for it. This week, Hull wonders whether attorneys are sufficiently mindful of getting things done efficiently and effectively — whether we are able to work within a structure:

"Structure" is not just the hard process of getting things done. It's a frame of mind and a value which must be sold to others in your shop--like the importance of making that 5 minute call to a client about a loose end at the end of the worst day you can remember, even while you could do it the next morning at 8:00. It's realizing that letting anything but emergency tasks "slide" makes you inefficient, unlikely to meet your real goals, and tired.

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For a long time I've thought that American business schools and the training programs of global and often publicly-traded companies do a much, much better job than do law firms of training recruits to value and adhere to the structure of a plan on an item for action. It's almost as if law school and firms deem us all such "professionals" and "artists" that we are beyond learning skills of project planning and execution.

What a crock. Because you're a lawyer, or other professional (MD, CPA, engineer, broker), you now have a license to be incompetent, semi-competent, or a chronic screw-up on the details of getting much (if not most) of your work done? You're special? An artiste?

Of course not.

As Roosevelt composed his "Day of Infamy" speech, he did not hesitate to revise and redraft as newer, better information became available. Eugene Fidell questions whether editorializing on the day the Supreme Court hears arguments is effective in influencing the Court or, indeed, whether it's ethical at all when done by lawyers in print and in blogs.

In writing and revising his speech, Roosevelt was concerned that his words be clear and concise to most effectively — and dramatically — convey his meaning. Ernie Svenson can appreciate this instinct now, but it was a painful lesson to learn when he was fresh from a place on his school's law review:

Upon graduation I went to work for a federal trial judge. He was whip smart and well-respected. He had been the Editor-in-Chief of the same law review when he was in law school. I assumed, therefore, that he held law review service in high esteem. During the job interview he scanned my resume and then quickly observed that nothing I learned while on the law review would be of any practical use to me as a lawyer.

I was stunned. But I was relieved to find out that I would nevertheless be offered a two year clerkship.

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Someone came up with the idea of doing a tribute issue in the law review. Many people wrote essays about the Judge and his many accomplishments. I was asked permission to have my blog post republished. I agreed, and emailed the editors the text file.

My words didn't need any editing, or fact checking. They didn't contain citations, and there were no Bluebook issues. Nevertheless, they couldn't just publish the article as written (that would belie the fact that that being a law review editor served little purpose). So, they naturally set about editing my words.

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All they had to do was copy and paste what I sent them. But the right thing, the easiest thing, was simply not within their skill set. My judge was right: law review experience is worthless.

In many cases, it might actually be dangerous.

It will be recorded that the distance of Hawaii from Japan makes it obvious that the attack was deliberately planned many days or even weeks ago. During the intervening time the Japanese Government has deliberately sought to deceive the United States by false statements and expressions of hope for continued peace.

While the attack on Pearl Harbor was sudden and shocking, it was by no means the start of Japanese aggression during that era. Many historians trace the militaristic Japanese regime which precipitated and pursued the devastating war in the Pacific to a rise in Japanese nationalism during the 1920s and 1930s. In many ways, we've moved beyond simple nationalism in recent decades, but it's by no means a dead concept. Ilya Somin suggests that cultivating a sense of nationalism is "playing with fire". He writes that nationalism can breed mass murder, repression, and xenophobia, and that while "just enough to bind us together in a 'common identity'" is acceptable (even advisable), "history shows that it is extremely difficult to limit nationalism in such a fine-grained way. Once established, it readily morphs into chauvinism, protectionism and often much worse."

Some suggest that in the Pacific, World War II effectively began not with the Japanese attacks at several places on 7 December but with the Empire's conquest of Manchuria in 1931. These days, a different China strategy is recommended. Dan Harris discusses how to succeed in China; as much as times have changed, it seems, an effective plan of attack is still necessary.

On 26 November 1941, the "Hull Note" was delivered to the Japanese; the memorandum outlined the American diplomatic proposal to maintain at least a tense peace between the two powers. Japan's representatives in Washington did not deliver the Empire's response — a declaration of war — until after the strike on Pearl Harbor, but it is known now that on the day they received the Hull Note, Japan's naval strike force left its home waters for Hawaii. President Roosevelt did not opt for Secretary Hull's recommended recitation of the lengthy diplomatic negotiations between the United States and Japan, but he did not fail to mention the Japanese duplicity during the two nations' diplomatic discussions.

"Blessed are the peacemakers, for they will be called the children of God", the Bible tells us; as Jesus could attest, however, being a child of God isn't a picnic in any era. A number of bloggers discussed peacemaking this week. Douglas Noll, who describes himself as a "court room warrior turned peacemaker", posted about a history of Clinton-era Mideast diplomacy and offers us the benefit of a few lessons others have learned in mediating between Israelis and Palestinians:

We are led to believe that the people in charge are mediating and negotiating international disputes, conflicts, and wars because they are the best, the brightest, the most experienced, and the most knowledgeable. The Truth About Camp David is a chilling wake-up call that when those in power have little professional expertise, knowledge, or experience in mediating deep and intractable conflicts, bad things happen. This is a great book of how not to conduct any mediation and especially how not to mediate deep, serious, and difficult international conflicts.

As the Obama Administration again attempts to mediate peace between Israel, Syria, Lebanon, and the Palestinian Authority, let us hope that it brings in skilled, experienced, competent mediators and not political hacks or diplomats using 18th century techniques and processes. What is needed is a modern mediation and negotiation approach based on best practices. Otherwise peace will be unattainable.

Stephanie West-Allen advises that the arts have their place in peacemaking — that playing, making music, and drawing can access parts of the brain not normally used in negotiation and be beneficial to the process as a whole. In Victoria Pynchon's forthcoming book about conflict resolution, "A" is not for "Arts", but for "Asshole" instead. She shares an anecdote from a chapter of A is for A$%#hole: the ABC's of Conflict Resolution and explains that "F is not only for 'friend.' It also stands for fixing and forgiveness. It represents fallibility and the fearlessness that friendship sometimes requires."

Roosevelt's administration quietly funneled arms and funds to Britain as strong isolationist sentiment made it politically impossible for the United States to join the war before it experienced a day of infamy. While America delayed its fight against Japanese imperialism in the Pacific and German-led fascism in Europe, Britain held its own. Instead of American allies sending military aid, this week it was a British pussycat sending news from America to his master back home; John Bolch shares Muhammad's thoughts with us.

Meanwhile, continuing the Battle of Britain is Charon QC (Mike Semple Piggot). He reports that the judiciary in Britain has taken two commendable steps recently — protecting the rights of those who would be held with secret evidence and reining-in Britain's overbroad libel laws. He also continued his excellent "Inside Track" podcast series with an interview of Shami Chakrabarti, Director of Liberty, a respected civil liberties and human rights advocacy organization in the U.K. Charon proved a triple threat this week, acquitting himself admirably not just with the written and spoken word but in the performing arts as well; don't miss his appearance as "Judge Charon QC, Most expert judge in the world" on the popular GuyNews web program.

With the U.S.' entry into the war, President Roosevelt faced the daunting task of not just fighting powerful enemies in two distant theatres, but working with a host of sometimes self-interested international allies to do it. The problem of successfully organizing collective action to address international concerns has not become much simpler in more recent times. Considering the upcoming Copenhagen climate talks, Kenneth Anderson wonders whether or how the participants will overcome collective action problems:

I do not understand how this Copenhagen conference manages to overcome the collective action failure problems that have been encountered in Kyoto and every other exercise in this area. Extremely diffuse damage from a multitude of players, now and into the future; diffuse set of actors who must act in a coordinated way; individual states being tasked to take sacrificial actions that in the short and medium term at least are bad for their individual economies and their voting citizens; consistent record of failures not just in the nature of the promises made, but in their non-fulfillment even as they stand ... on what grounds does anyone plausibly think that Copenhagen might produce a different outcome?

At the Popehat blog, Ken is not so much concerned about what result, if any, Copenhagen might yield as he is bothered by the "Climate and Health Council" urging doctors to talk to their patients about the health effects of climate change:

Does the climate impact everyone’s health? Certainly. So do a thousand other social and political issues that impact us as a society. If you accept the premise that doctors should lobby us all on global warming, there’s no reason they shouldn’t lobby us all on war, and government spending on research and health care, and education, and stem cell research, and any number of other things. Before long, a visit to your doctor will be like that endless Thanksgiving dinner with that uncle who got a tattoo of Glenn Beck, or the cousin who won’t speak to you because you refused to serve tofurkey.

We’ve slowly ramped up to such pestering. First we made doctors report all injuries resulting from violent crime. Then we started passing laws making them mandated reporters of types of violent crimes that are of preeminent on our social agendas, such as domestic violence. Then some political groups began to lobby to have doctors interrogate patients about handgun ownership. And, of course, the state can’t allow your doctor to assist you to the extent his or her views of pain relief diverge from the received wisdom of the Great War on Drugs.

In short, we’ve slowly letting the government and various busybody groups wield increasing influence over the conduct of the doctor-patient relationship. That relationship — like the attorney-client relationship — is fundamental to freedom and autonomy. Your doctor is supposed to be looking out for your best interests, not the relatively nebulous best interests of society as a whole. Sometimes you don’t like your doctor’s advice — and that’s fine. But you shouldn’t have to be worrying that a doctor’s advice is governed by a political and social agenda imposed upon him or her from some interest group.

For strategic reasons, the United States agreed to devote the greater portion of its military efforts to defeating Nazi Germany and its allies in Europe before turning its full attentions on the Japanese Empire which had attacked it at Pearl Harbor. Steven Hirsch's most recent Courthouse Confessions interview suggests that our fight against the Nazis may not have been entirely effective — there seem to be Gestapo amongst us here at home.

The attack yesterday on the Hawaiian Islands has caused severe damage to American naval and military forces. Very many American lives have been lost.

Although President Roosevelt updated his speech with new intelligence as it became available, it seems that none of his drafts described the nation's losses in ships, equipment, and infrastructure, or in military and civilian personnel; instead, Roosevelt chose to acknowledge the losses, speaking of "very many" lives lost and "severe" damage to our Pacific fleet. Some have speculated that he refrained from greater specificity for fear of damaging American morale even more than the Japanese attack had the prior day. Others suggest that, especially considering the unreliable information coming from Hawaii (though rescue and salvage efforts were underway, the extent of the damage was still not clear), the President understood that numbers were relatively unimportant just then; while the damage to the nation might not yet be fully-assessed, it had to be frankly acknowledged before Americans could be moved to the extraordinary efforts the President would soon ask of them.

Our profession has suffered considerable economic damage of late. Week after week, the blawgosphere has concerned itself with speculating what shape the practice of law will take when the present economic turmoil has passed. One advantage we have which President Roosevelt did not on 7-8 December 1941 is the benefit of clear information. The Law Shucks and Above the Law blogs have joined forces to provide a weekly tracking report for law firm layoffs.

It's the considered opinion of many in the legal community that the rise of outsourced online legal marketing, search engine optimization consulting, and social media experts and gurus of every stripe are damaging the profession as a whole. While some disagree that these changes in the profession damage it at all, others are leading a frank discussion of the ethics of those who outsource their marketing and of those who advocate the aggressive use of new technologies to market legal services to the public. Justinian Lane bluntly assesses the legal marketing consulting industry:

Tonight, I reached my level of tolerance for snake oil salesmen who bill themselves as social media experts for lawyers. Perhaps snake oil salesmen is too kind. People who want to charge lawyers money for teaching them about social media are bullshit peddlers who hope to exploit the (presumed) ignorance of the (presumed) rich.

If a guy with a J.D. is trying to make his or her money from teaching other lawyers about social media, you can be sure that he or she is a failure as a lawyer. Lawyers who are good at rainmaking have one thing in common, no matter whether they do their rain dance for plaintiff or defense firms: They’re rich. They don’t try and teach others how to be rainmakers because (a) they don’t want the competition, and (b) they don’t need the money. Every time I get a Facebook, a Twitter, or a LinkedIN spam from some lawyer offering to teach me everything I need to know about rainmaking via social media, I know I’m dealing with a first-class failure as an attorney. Insert some more epithets if that “lawyer” is wanting to charge me money for his or her teaching.

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If you really want to know about social networking, here’s what to do: Just do it. Get on Facebook and find your old high school/college friends. Get on LinkedIN and find the people you worked with fresh out of college. Start a blog. Play around. Explore. Have fun. And for God’s sake, don’t worry about the “right way” to do this. There is no right way, but there is a wrong way: The wrong way is to be a self-promoting ass who spams everyone on his friends lists about Rainmaking.

Brian Tannebaum is not shy about calling out particular members of that social media consulting industry, questioning their professional qualifications and standing and, when he's unable to get straight answers from them, doing a bit of investigating on his own:

The culture of the social media "guru" "expert" "bullshit peddler" on twitter is a cess pool. There is no code of ethics (other than the rules of professional conduct that these non-practicing "shhh, don't tell anyone" lawyers have long forgotten).

And it's time for it all to stop.

Recently, Adrian Dayton has been the focus of his attentions; in a pair of posts, Tannebaum questioned Dayton on the details of several of his online biographies and reported that, after claiming that Tannebaum's accusations were "very close to libel", some of the key details of those biographies were changed.

Eric Turkewitz has led the effort to "out" law firms which have outsourced their online marketing to consultants who leave spam comments on legal blogs in an effort to boost Google rankings; he's written previously:

If it is the crappy search engine optimization companies that they hired that are doing it on their behalf, without their knowledge, then the attorneys will still suffer. Lawyers are responsible for the acts of their agents.

I came up with this little rule about lawyer advertising when it comes to solicitation, but it applies equally well here:

Outsourcing marketing = outsourcing ethics

Perhaps, if enough bloggers do this then the lawyers that get busted for this kind of slimy stuff will fire the people responsible. And if enough SEO companies are fired by their clients for having done this in their name, then the tactic will be used less often. I'm not so naive as to think it will stop, but if it gets cut in half that would be a huge victory.

This week, after discovering that directory company Martindale-Hubbell had left comment spam on his blog and outing the company for it, Turkewitz received an apology from Martindale-Hubbell. Accepting the apology, Turkewitz nonetheless suggested that the firm come clean about its outsourced marketing and change its methods:

There is no choice for MH but to fire the company, and to do it publicly. Because that is the only way to stop the practice. Marketers/spammers should know that they will lose business by spamming, not gain it.

To its credit, Martindale-Hubbell did just that, answering Turkewitz' questions and promising a full public accounting of the spamming done in its name.

While Turkewitz continues to fight the good fight, the battle continues on other fronts. Several legal bloggers wrote about the actions of Seattle-area attorney Bradley Johnson. Mike Cernovich explains that after the Popehat bloggers found some of Johnson's spam comments at their site, Cernovich found similar spam comments at his own:

Now it could be that Mr. Johnson is using some scummy marketing service, and that he is not personally posting the comments. Could be. And so what? A principal is responsible for the acts of his agents. Don't hire scumbags unless you want to be held vicariously liable for scumbaggery.

Some have persuasively argued that lawyers who hire scummy marketing companies are strictly liable for spam comments. They say that a lawyer who outsourced his marketing has also outsourced his ethics and reputation. I am not so harsh. People are technologically unsophisticated, and are entitled to one screw-up.

However, someone has been posting comment spam on Mr. Johnson's behalf since at least September. I have it on good authority that Mr. Johnson was alerted to the problem. Yet the comment spam continues. Recently, Mr. Johnson left a similar spam comment at the Blog of Legal Times; and the Washington Legal Rebel.

Well, Mr. Johnson: Congratulations. Your name will indeed have a high result in Google. In a week or two, anyone Googling your name will quickly learn about comment spam.

Back at the Popehat blog, Patrick continued his struggle with Johnson and his band of merry spammers:

One of the firms for which we [removed spam comments upon request] was the law offices of Bradley Johnson, Seattle criminal and personal injury attorney, just 17 days ago, when a representative of Johnson’s office contacted us to request we remove a post naming Johnson as a spammer, and explaining that it was all a misunderstanding caused by an overzealous marketer. After an email exchange, we got an apology, and a promise not to spam again.

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Evidently Bradley Johnson is a really great lawyer. He found a loophole. Where we’d been complaining about his spam under the monicker, “Seattle Personal Injury Lawyer,” we never asked him not to spam under the name, “Seattle Criminal Lawyer.” So like suckers, we took down our post. Well it’s back now and it will stay. Fool me once, shame on you. Fool me twice, shame on me.

Mark Bennett helpfully recapped things, sarcastically calling this multi-site drama Bradley Johnson's "free four-part symposium on internet marketing for lawyers" and reminding us all that when lawyers outsource their marketing, they outsource their professional ethics as well. There is no shortage of books on how to leverage the tools of Web 2.0 for fun and profit; thankfully, Amy Derby gives us the last word on this sad state of affairs by not writing a book entitled Chronic Bullshit Syndrome. As one satisfied(?) reader wrote in his testimonial, "I couldn't see how full of shit I was until I read this book." Scott Greenfield notes an odd instance where a firm has been implicated in a "spam scam" through no fault of its own, unless by "fault" you mean "establishing too much credibility":

Apparently, some miscreant has stolen Bluestone's law firm identity and sent out letters to numerous business claiming to represent Nintendo. The letters are amateurish, calling the firm Bluestone Lawfirm (one word) and notably coming from outside the United States of America, although Bluestone is a Manhattan-based lawyer (and yes, that remains a part of America, despite the views of Texans).

While it's not clear on the surface, it would appear that the scheme behind these letters is basic extortion, alleging infringement and, after a response is received, likely offering to settle for some nuisance amount. Given Bluestone's reputation as a litigator, it's quite likely that anyone who hasn't figured out that this is a total scam might well be inclined to pay him off.

Over the past few days, Bluestone has had to field dozens of calls asking if these letters in fact came from him. The signatory to the letter claims to be "Kenneth Stone," and there's no one in Bluestone's office by that name. Nor is the email URL the same as Bluestone's. But despite certain obvious flaws in the letter, on the whole it's fairly convincing, enough so that these companies figured that it was better to inquire than ignore.

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This is an insidious scam, one that can do grave harm to a lawyer's reputation and credibility. Be aware that it's happening and, if anybody receives a communication of this nature, make sure that you ascertain whether it's real before moving on it. And if you get anything from the Bluestone Lawfirm which includes "USA" in your address, know that it's a scam. But I bet that by tomorrow the scammers will be well past using Bluestone's firm, and will be onto another lawyer's name. Let's hope it's not mine or yours.

Kevin O'Keefe, who's built a generally solid group of legal blogs at his LexBlog network, stays away from the worst of the overhype about social media and offers a practical guide to return on investment (ROI) for those firms still somewhat dubious about the value of Web 2.0. The key is audience, he suggests:

When looking at social media and blogging don't compare them how to you measure the return on a website. Client development through blogging is closer to going to a Rotary meeting where all the Rotarians are your target audience than web or Internet marketing. And you don't measure the ROI of networking through civic involvement by looking at webstats.

A number of firms, practitioners, and academics have demonstrated that they understand how to use social media to engage with others and add value to the larger conversation. The ABA Journal's latest Blawg 100 list recognizes more than a few of these; it recognizes more than a few who don't, though, so caveat listreader. It's possible that you could find the best lawyers in New Orleans on New Orleans magazine's list, but as Ernie Svenson discovered, you'll have to dig through a disorganized structure and a lot of chaff to find them:

The more names in the article, the more people will buy copies to show their friends, family (and clients, of course) that they have been listed as a 'Top Lawyer.' New Orleans Magazine does the same thing for 'Top Doctors.' And you can be sure that's the same kind of scam.

So why do I say this is a scam? Well, in addition to being hopelessly disorganized, and thus of no use to the general public even if it were an accurate list of top lawyers, it's...well, not an accurate list of top lawyers. I know this because I know some really excellent lawyers who are not included in the list. And I spotted a couple of folks who are (in my learned opinion) manifestly incompetent at practicing law.

The devastation at Pearl Harbor was undeniably terrible, but as the Americans began to rebuild they determined that while they were bloodied, they were by no means beaten. The Japanese attack had been meticulously planned and until the strike began, secrecy had been effectively maintained throughout the operation; the famous "Tora! Tora! Tora!" code used by Japanese pilots that day confirmed that complete surprise had been achieved. All in all, the attack achieved its objectives nearly as well as the Japanese leadership hoped it might.

And yet it was not enough.

What only a few in Japan realized was that no single operation could so damage the United States that it could not respond, if not quickly then eventually and decisively. Admiral Hara Tadaichi assessed the impact of the surprise attack on the Pacific Fleet by saying, "We won a great tactical victory at Pearl Harbor and thereby lost the war." In early 1942, Admiral Isoruko Yamamoto, who guided the planning and execution of the Pearl Harbor operation, reportedly heard intelligence concerning the Americans' salvage and rebuilding progress and thereupon advised his closest aides that Japan had already lost the war.

Ultimately, some of the most severe damage proved repairable and weapons (including aircraft carriers, submarines, and code-breaking) which were lightly-regarded before the war and not targeted by the Japanese on 7 December 1941 proved of critical importance. Even mistakes which contributed to the losses at Pearl Harbor can be seen in hindsight to have held then-unappreciated benefits for the Americans. Military leaders were rightly criticized for the concentration of relatively unprotected ships on Battleship Row; historians note, however, that the failure to keep greater numbers of sailors and troops onboard and nearby these ships diminished the defensive response but also saved us from much greater losses of life in the overwhelming attack. Moreover, the concentration of ships in the shallow waters of Pearl Harbor enabled them to be raised and salvaged after so many were sunk and damaged; had these ships been at sea in more defensible positions, they might have been sunk in deep waters and been lost.

As we learned at Pearl Harbor, damage may be severe but not as severe as it might appear. So it may be with the challenges facing the legal profession generally and legal blogging particularly.

In recent weeks, I've seen a number of legal bloggers write compellingly about the profession of law — how we can serve our clients effectively rather than just generate business more efficiently, do the right things in all aspects of our practices rather than just complying with the letter of applicable ethics rules, and demonstrate that we are learned and privileged professionals rather than self-interested businessmen. In Britain, traditional firms and legal practice face the prospect of mass-market competition from "Tesco Law" providers. John Flood considers whether competition from non-traditional, non-professional legal services providers will damage the legal profession and what effect that might have on us:

Lawyers are worrying about the potential effects of "Tesco Law" when it hits the streets in 2011. Some have predicted that more than 1,000 law firms might be extinguished.

One other impact, not normally talked about, will be the loss of professional identity or, worse, status. There's no doubt we will see deprofessionalization occur. But does it matter? Is professional identity nought but a chimera?

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When we look at the histories of professions, their existence seems to be one of tension and struggle with the state. Are they monopolies? Are their practices in the public interest? Do they extract rents? Should they self-regulate?

The answer of the British state is to deprofessionalize and externally regulate where it can--doctors, accountants, university teachers. In this respect lawyers are the last of the tribe to be taken on. And in the case of the Legal Services Act 2007, they didn't realise what hit them. Many still don't.

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It's very easy to slide down the professional pole; but it is exceedingly hard to climb it.

Many see our profession as damaged, and with good cause; the question we must answer now is whether this damage is as severe as it appears or whether we can and will salvage and live to fight another day.

Always will we remember the character of the onslaught against us. No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory.

I believe I interpret the will of the Congress and of the people when I assert that we will not only defend ourselves to the uttermost but will make very certain that this form of treachery shall never endanger us again.

Hostilities exist. There is no blinking at the fact that our people, our territory and our interests are in grave danger.

It's a natural instinct that once severely injured, we want to believe that we've learned the necessary lessons and should be able to protect ourselves from similarly severe injuries in the future. In military terms, this translates to a tendency to fight the last war rather than the next one, guarding against risks already encountered and overlooking greater risks from new threats. We don't want to see mistakes repeated, particularly when lives are at stake.

In criminal law, this tendency leads us to punish more severely with longer prison terms and fewer opportunities for reform and parole, to treat more and more misconduct as criminal acts, and to show mercy only very reluctantly and cautiously even where it seems reasonable to do so. Recently, the murders of four police officers in Washington State were quickly tied to a man whose lengthy prison sentence in Arkansas had been commuted by then-governor (and 2008 Republican presidential nomination hopeful) Mike Huckabee. There was criticism of Huckabee's decision, but also considerable debate whether, given the reality that some percentage of paroled or commuted criminals will reoffend, the entire process should be reexamined and made even more stringent.

I wasn't a fan of Huckabee's politics during his campaign, but even I was impressed with his defense of his decision despite the tragic outcome. So was Adam Benforado, who praised Huckabee's frank discussion of the racial and social inequalities which led to sentencing disparities and prompted him to commute and pardon more people than the three previous governors of Arkansas combined; nonetheless, Benforado wondered at the political disincentives for others to act similarly:

I guess what really shocks me is that any governor with broader political dreams ever commutes or pardons a criminal. There are such minimal incentives and such immense potential costs. (If you have any doubt about that, consider that yesterday Jason Tolbert, the Arkansas coordinator for Huckabee’s PAC resigned, in part, because of the commutation mess.) In the eyes of the public, if you fail to stop an execution, you make an omission; if you commute someone’s sentence, you take an action. Despite the fact that, in both cases, the governor is making a decision that results in a terrible death, when an innocent man is put to death, the governor is usually way down on the list of blameworthy actors, and when a pardoned man kills, the governor is one of the first to be called out.

Perhaps if the media did not get so whipped up about matters like this or reported stories about the subsequent positive contributions to society of people whose sentences were commuted, it wouldn’t be such a politically-foolish thing to do, but given the current climate, we should expect many more governors like George Bush and way fewer like Mike Huckabee.

Jonathan Simon can see our tendency to try to prevent crime by attempting to incapacitate those who have demonstrated some capacity for it, but he doesn't entirely understand it:

Once we have sent someone to prison it seems maddening to Americans that we cannot guarantee they will remain tame forever after. This leads us to keep too many people in prison, for too long (something that this and other recent crimes will only stroke); blind to the fact that the odds of any particular ex-prisoner committing a violent crime are scarcely, if at all, measurably different from other non ex-prisoners with similar demographic circumstances. Ironically, the one trait that really may help us track future violence--evidence of major mental illness combined with acts of violence--seems to be largely ignored by our criminal justice system (which accords it little measure of mercy or forewarning).

The War to End All Wars wasn't, of course, nor did World War II, Korea, or Vietnam end our experience with war. It seems highly unlikely that the current war against terrorism in Afghanistan and Iraq will be our last, either. John Yoo, whose legal memoranda provided justification for the detention and interrogation policies used early in the war and, in some respects still in use now, is currently defending a civil suit brought by one detainee. The Obama Administration has defended Yoo, arguing that he and others should be immune from civil liability for the advice they provide to presidents. Dave Hoffman notes that the Administration has now filed an amicus brief in Padilla v. Yoo:

Part of the argument depends on the availability of other forms of relief, including habeas and disciplinary proceedings against Yoo, as well the potential for congressionally sanctioned damages. Note this brief is separate from the substantive defense of Yoo that the government has undertaken: this is the position of the United States on the policy question of whether government officials like Yoo ought to be liable in civil court for the consequences of their advice. Because the government obviously had no need to file this brief, it is sure to be greeted by Obama’s liberal base as quite demoralizing.

Lyle Denniston reports regularly on the legal challenges to many aspects of the current war. Recently, he explained a new brief filed in the Kiyemba matter concerning Uighur detainees:

The brief is a wide-ranging complaint that the Supreme Court's Boumediene decision — and the rights it recognized for detainees — have been frustrated by a combination of actions of the D.C. Circuit and the federal government (most recently, the Obama Administration). "At Guantanamo, where winners and losers remain, habeas corpus is an academic abstraction. Imprisonments drag deep into the eighth year, doubling the detentionis of real enemies in past conflicts. The calendar rebukes the ancient boast of the Judicial Branch that habeas is a 'swift and imperative' remedy.”

Life in the prison on the island of Cuba, the Uighurs' counsel asserted, "is unperturbed by this Court’s decrees."

In essence, they contended, the government, aided by the D.C. Circuit majority, has succeeded in compromising any effort by the judiciary to enforce habeas rights so that actual release becomes a reality. As a result, the brief commented, the District Court judges who have ruled in favor of the detainees are left with power only to "encourage" the Executive Branch to engage in diplomacy to try to win a resettled place for detainees in other countries.

Another recent article described a challenge to the military trials authorized by Congress in the wake of the Court's Hamdan decision:

The core theory of the challenge is that Congress did not have the authority to create the military commissions as they now exist, under a 2006 law and amendments to it this year. The commissions could only have been set up under the Constitution’s grant of power to “define and punish offenses against the law of nations,” the petition noted. But the commission system that Congress created itself violates the law of nations, including the law of war recognized as a part of international law, it argued. It does so, in the main, because it allows for prosecution only of aliens, and not U.S. citizens, too, and that inequality violates international law as well as the U.S. Constitution’s guarantee of legal equality, according to the filing.

“Because the law of war applies equally to United States and foreign nationals, there has never been a principled basis for distinguishing between war crime trial procedures for alien enemy belligerents and citizen enemy belligerents,” Kamin’s lawyers asserted. “Since before the Founding, the American military has consistently tried both alien and citizen enemy belligerents before the same law of war military commissions.”

It added: “Ironically, it is now the international community that embraces the traditional American position and requires equal treatment of aliens and citizens in military tribunals as a fundamental and customary principle of the law of war, while it is the United States that, against its own military tradition and legal precedent, has adopted the opposite view” in the Military Commissions Act of 2006.

Of course, the war on terror is not being contested only in Afghanistan and Iraq, or even at the Guantanamo facility in Cuba, but can also be seen in any number of criminal laws and in many day-to-day law enforcement activities. Scott Greenfield discussed the case of a college student who, in a fit of pique, chose to pay his parking fines by leaving the payment in a wrapped package outside a college office; he now finds himself facing a charge of "terroristic mischief" for placing the "suspicious package". Greenfield is critical of the current tendency to inflate every incident into something involving the threat of terrorism:

It takes little effort to stick the word "terrorism" in front of any other word in the language of crime, but that doesn't make it real. Nor does the fact that some unduly sensitive receiver of congressional terrorism funding finally finds a use for its anti-terrorism weaponry give rise to an offense that somehow makes it an actual threat. The problem is mathematical, with two competing equations:

Box + Unknown Contents = Bomb
Terrorist Funding + No Real Threat = Creating Threat Where None Exists

There was no threat here. Whether there was even a purpose close to suggesting a threat is unclear, since Sun could just as well have decided that leaving his package in the hallway to be found by the clerk, rather than confronting the clerk, was the better choice.

But using fear of terrorism as the wedge to take any claimed offense and turn it into a potential terrorist threat is almost as goofy as making a billion people remove their shoes in airports because one nutjob tried (and failed) to put an explosive in his heel. Not everything that potentially scares someone turns an act of mischief (at most) into an act of terrorism. Let's save the accusations for something real, and let's remember that college kids do dumb stuff because they're, well, college kids.

By deliberately phrasing his "Day of Infamy" speech as his did, portraying the United States as a passive victim of duplicitous, unprovoked aggressors, President Roosevelt chose to make an emotional appeal — to call out to (some would say manipulate) the outrage felt by nearly every American after the Pearl Harbor attacks. Without resorting to excessively angry language or gratuitous characterizations, the President nonetheless hoped to leverage the emotions of his audience, rather than appeal to their intellects.

In a widely-acclaimed series of posts this week, Mark Bennett discussed a personal injury attorney's advice to appeal to jurors' "reptile brains". Bennett explains that "The reptile brain is a survival engine, concerned only with survival: kill, eat, mate, flee. To get through to the reptile brain, you show it a threat, a way to mitigate or resolve that threat, and a greater threat that could otherwise result." He notes that appeals to the reptile brain are not peculiar to personal injury work, but are commonplace in criminal prosecutions. Bennett explains how — and why — defense attorneys need to cause jurors to use more than their reptile brain:

Fortunately, our higher brains have a mechanism for taking control back from the reptilian brain. We even have a universal signal to tell our fellow humans when this has been done.

The mechanism is incongruity. The reptile brain is simple, one-tracked and without nuance. It can’t handle incongruity or surprise. When the reptile brain encounters something unexpected, it hands the job off to more complicated parts of the brain (”okay, mammalian brain: I’ve never seen one of these before. Should we flee it or mate with it?”).

So the criminal defense lawyer can destroy the government’s reptilian argument by revealing a surprise that doesn’t fit in with the government’s reptilian story (an argument for maintaining Nasty Little Surprises until trial). In the words of trial consultant Dennis Elias, “Suspending disbelief & creating doubt that leads to curiosity and surprise is the art of the criminal defense attorney.”

And what’s the universal signal that tells us when our lizard brains have handed off to our mammalian and simian brains? It’s laughter. According to both the incongruity and relief theories of laughter, the surprise that gets us out of our reptilian brains is a trigger for laughter, either because the incongruous is inherently funny or because we are relieved to discover that we are out of danger. Find the surprises in the case, and reveal them to the jury, and you can get them using their higher brains. Do it in jury selection, if you can—take some part of the case that the government hammered on in its jury selection, and show the jury why things aren’t as they expect. Make them laugh, and make it a Simian Trial.

Once you’ve got the jury using their more complex brains, you want to keep them there. How? Two ideas.

First, the government’s Reptile Trial is a Things-That-Go-Bump-In-The-Night Trial. Things that go bump in the night can seem silly in the light of day, and the government’s perceived threat can seem silly to the mammalian brain.

Second, the rule of Reptile Trials is “simplify, simplify, simplify.” Since the lizard brain doesn’t deal with complexity, the rule of Simian Trials is the opposite.

Complexify, complexify, complexify.

After Walter Olson wondered whether it was ethical and just for lawyers to target the unthinking, fearful reptile brain, Bennett explored the issue further:

If we ask the ethical question about Reptile Trials, we should ask the same question about all other emotional appeals to juries—a Reptile Trial is just a more scientific application of pathos to the facts of the case.

Is there any serious contention that it is unethical to appeal to juries with anything other than reasoning (logos)? University of Maine at Presque Isle Professor Emeritus of Communication Ken Petress asserts that persuasion using pathos alone is unethical:

Using emotions to persuade others is ethical as long as the persuader allows, encourages, and facilitates rational decision-making on the part of the persuadee.

Short-circuiting rationality on the part of those being persuaded by the sole use of or hyper use of emotional appeals is unethical.

Ultimately, Bennett concludes that using "even the darkest of persuasive arts" is not unethical:

A jury comes into the courtroom to be persuaded. The process of jury selection, properly conducted, ensures that those jurors who have inflexibly made up their minds will be excused. Those who remain are willing to be convinced either way. More than that, they expect to be persuaded. The lawyers have a duty to the jury to give it what it expects, and to do whatever the law and ethics allow to persuade the jurors.

Not that it matters to me, since “giving a sucker an even break” is not part of my job description, but the science of persuasion is equally accessible to both sides of a lawsuit. So if I apply neuroscience, or neurolinguistic programming, or hypnosis, or psychodrama in trial I’m not doing anything that my adversary wouldn’t be able to do (at least after a few hundred hours of study). A lawyer doesn’t have an ethical duty to refrain from doing something just because his adversary chooses not to.

Police interactions are all about authority — the exercise of authority by police and restraints on that authority imposed by law and (hopefully) enforced by the courts. Police are trained to work to the limits of their authority and are often encouraged, if necessary, to exceed that authority. Discussing "consent" searches, Rick Horowitz advises us to be vigilant about our rights if police authority is to be limited:

[M]aybe people being stopped by the police will be more clear, from the very start, that they don’t agree with the officer’s assertion that he has a right to search their car. If there are others present, try to remember who they were, so your defense attorney can have them questioned and possibly subpoenaed to testify. But be crystal clear that you are not consenting to a search.

It does not matter if you think you have nothing to hide. An officer who will lie may also be an officer who will plant evidence. Don’t say, “Well, just do what you’ve gotta do,” or “whatever,” or in any other way indicate that you are not continuing to object to a search. OBJECT!

In the end, so long as the judges without a conscience are going to pretend police officers aren’t lying, even when they realize that they are, this may not do much good.

But there’s no reason to make it easy for them.

A counterpart of sorts to the cop who never, ever lies is the prison informant who provides information to prosecutors without any expectation of reward. Gideon discusses "the fallacy of the good-hearted informant":

Does anyone seriously believe that an inmate would testify without any expectation of a reward? Is there any inmate foolish enough to testify without an expectation?

Consider this: information is power in the criminal justice system. Not the truth. Information. When an inmate obtains information, there is but one thought on his mind: how do I use this to my advantage? How do I translate this into a lower sentence?

Sure, the prosecutor and the inmate may never actually utter the words “sentence modification”, but it is an unwritten understanding. That’s part of the game. The State knows it, the inmate knows it. If he cooperates, he will get some consideration. No one wants to be in jail, whether it is for 6 months or 60 years, and any little advantage that can be obtained, will be used. And the State has an incentive to offer modifications, too. If they really do stiff an informant and don’t reduce his sentence, the next guy will hear about it and will be more hesitant to come forward.

Confession is king and a confession to someone who is not law enforcement is even better. So you can bet every penny left in your 401K that three weeks after a conviction in this hypothetical trial, a motion for modification of sentence will be filed and the sentence of the informant will be reduced.

A chilling confession to a heinous crime is worth its weight in years. So, the next time you’re a juror in a criminal case and an informant testifies that he has no expectation of a reduction in his sentence, join the defendant in rolling your eyes and then tell the rest of the panel that he’s full of it during deliberations.

Dedicated public defenders like Gideon may soon be obsolete, however (don't feel bad for him — he'll soon be governor of Connecticut), as at the Right Intention blog, GaiusJulius has stumbled upon the ultimate defense to criminal charges:

Steve Hagen wrote in "Buddhism: Plain and Simple" that when we are awake (i.e. enlightened), we are without intention. Thus, Buddhas cannot be convicted of a criminal offence unless it is one of strict liability. Now that I have discovered this, I do hope to see plenty of pretend Buddhas clogging our courts claiming they couldn't have had the necessary mens rea because they had achieved enlightenment.

Following the conclusion of the Second World War, many leaders of the defeated Axis powers were tried for war crimes and because no one had yet conceived of the enlightenment defense, these trials did not go well for those defendants. Currently, the former Bosnian Serb leader Radovan Karadžić is on trial before the International Criminal Tribunal for war crimes committed during the civil war in the former Yugoslavia. Kevin Jon Heller, who is participating in Karadžić's defense, reports that the defense has challenged a requirement that the defendant choose his stand-by counsel from a registrar's list of five names, rather than the 150 or so which are on the complete "Rule 44" list:

Dr. Karadzic specifically told the Registrar when he asked for the complete Rule 44 list that “all of them made an excellent impression on me, including their extraordinary high ethical standards in relation to the possibility [of being] sufficiently prepared for the case by 1 March 2010.” The fact remains, however, that selecting stand-by counsel is Dr. Karadzic’s right, not the Registry’s.

I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December seventh, a state of war has existed between the United States and the Japanese Empire.

After the devastation at Pearl Harbor, a declaration of war may have been a foregone conclusion on 8 December (that afternoon, only Jeannette Rankin, who also voted against a declaration of war in 1917, voted against the authorization of war against Japan); nonetheless, securing that declaration from Congress was President Roosevelt's primary purpose in making the "Day of Infamy" speech. It's a good reminder that no matter how great or small the matter, we still need attorneys to draw something up and make everything all nice and legal. It's also a good reminder that these Blawg Review themes can only be stretched so far; sometimes, we hosts just need a spot to throw in a few worthy links which don't fit easily somewhere else.

Ilya Somin notes that the city of New Ulm, Minnesota wants to use its eminent domain authority for an unusual, perhaps unprecedented, purpose — to condemn the airspace around a proposed windfarm:

This proposed use of eminent domain is unusual in two ways. First, it will be utilized to promote wind power, which may be the first example of its kind. Second, the property rights condemned are rights to wind rather than land, which is fairly unusual (I’m not sure if it’s completely unprecedented, however). Despite these novelties, the taking would probably be constitutional even under a narrow interpretation of the “public use” requirements in the federal and state constitutions. After all, the new owner of the condemned wind rights would be a government-owned public utility. Minnesota has enacted a relatively strong post-Kelo reform law... but it clearly permits takings for “direct public use” (i.e. — government ownership of the condemned land).

Despite its legality, I’m not convinced that this use of eminent domain is a good idea. As the linked article points out, wind farms have been successfully built and operated by private firms without using eminent domain. If the government wants to increase the use of wind power for environmental reasons, the best way to do so is simply to subsidize its production or consumption directly. There is no need to take the land of unwilling property owners. Better still, the government can simply tax the dirtier energy sources that compete with wind. That would make wind power more attractive to consumers, thereby also increasing private sector incentives for its production.

Sandy Levinson noted a recent case in which a veteran of the Korean War was spared the death penalty for a brutal murder he committed, primarily based on the court's appreciation of his veteran status. The case caused Levinson to speculate whether an unusual form of "affirmative action" would pass legal muster:

Would it be constitutional for a state simply to exempt any and all honorably discharged veterans--or at last those "who fought on the front lines"--from the possibility of receiving the death penalty, while keeping that possibility open for all the rest of us who did not serve in the armed forces (or served but received less than honorable discharges)? If not, then is the point that we rely on low-visibility and unaccountable juries, with the imprimatur of the United States Supreme Court, to administer such an affirmative action program? I leave open that perhaps the answer to my question is yes, since the Court upheld permanent veterans' preferences for civil service jobs money years ago in spite of the evidence that men were the overwhelming beneficiaries inasmuch as women had had very little opportunity to serve in the armed forces until quite recently. And the Court also upheld the right of Congress to treat veterans' groups uniquely by exempting contributions to them from certain tax treatment even if similar contributions to other groups engaging in similar lobbying would make it impossible for the contributor to deduct the contribution as a charitable contribution. So perhaps the next step is indeed to exempt veterans from the death penalty. That's cheaper, after all, than making sure that our veterans enjoy jobs and a full measure of food, clothing, and shelter on their return to civilian life.

On occasion, Scott Greenfield has chided academic legal bloggers for their lack of practical legal experience or desire to connect with practitioners; this week, he had occasion to praise one academic — Eugene Volokh — for stepping into the trenches to argue a recent appellate case and posting his argument for all to hear:

Eugene took an enormous risk by posting a link to his oral argument... before the Nebraska Supreme Court, where he represented the defendant, pro bono, in a criminal/First Amendment case, State v, Drahota. Why was this a risk, rather than some lawprof showing off his pedantic genius? For all that Eugene has written on First Amendment issues as well as others, this was only his second oral argument.

....

Eugene didn't have to do any of this. He could just as easily have noted the case, the issues, and, when the decision issues, his win (or why the court was wrong). No one would have asked why he didn't link to a video of his argument. No one would have asked whether he afraid as he stepped to the podium. No one would have questioned whether Eugene Volokh, scholar, was up to the task.

For those who, like Eugene, feel the butterflies as you approach, it's got to make you feel better to know that someone as accomplished as Eugene in the law feels the same way. Granted, the choices aren't limited to nervous or a glib know-it-all, but everyone has to work their way up to calm, professional and knowledgeable in their presentation. We all start somewhere.

I decline to comment on Eugene's presentation, except to say that it appears to be very effective with the court. At the end of the day, substance always trumps form when it comes to an effective presentation. That said, I am incredibly impressed with Eugene's bravery and humility in being so transparent with his own work. There was no need to put his professional reputation at risk, yet he did.

Ken Adams explained why he believes that license-granting language is just another contract provision and why the issue is worth considering:

When you can convey the same meaning in different ways yet you accord a special significance to one of those ways, then—Hey presto!—you have magic-wordery, the enemy of rational drafting. In terms of the semantics, granting a license is just one way to accord a party discretion under a contract. Debating whether a license arises independently of the contract, or instead is covenant not to sue and therefore part of the contract, is to miss the point.

Jodie Hill explains an Eighth Circuit decision holding that the neither the Food, Drugs, and Cosmetic Act nor the amendments to the Act preempt state law claims for failure to warn against generic drugs:

Because the FDCA, which has existed for 70 years, and the Hatch-Waxman Amendments, which occurred in 1984, do not contain an express preemption provision, Congress did not intend to grant drug manufacturers immunity from state law claims.

The Electronic Frontier Foundation has launched a "Terms of Abuse" series of white papers concerning the enforceability of "clickwrap" and "browserwrap" adhesion agreements and terms of service; as Ed Bayley explains, the second of the series:

examines both clickwrap agreements—whereby service providers require the user to click an “I Agree” button next to the terms—and browsewrap agreements—whereby service providers try to characterize one's continued use of the website as constituting “agreement” to a posted set of terms. While neither method automatically creates enforceable contracts, some presentations may still be upheld even if the user never actually reads and understands the terms. The key is whether the service provider allows the user reasonable notice and opportunity to review the terms before using the website or service.

The Namby Pamby shares his experience with a plaintiff's attorney who, to put things mildly, has some trouble moving his case forward or, indeed, even making required court dates, prompting the Namby Pamby to take matters in hand:

In order to trigger a response, hopefully just a simple phone call, I filed a motion asking the court to compel a response or to deem the counterclaim admitted.

The Court hearing starts and the opposing counsel is a no show. [Big. Surprise.] The judge asked what I wanted and I figured that this is no time to undersell. I asked that my counterclaim be deemed admitted. The judge smiled at me and said no. She went a step better and entered a judgment in favor of my client. Game over. I win. Back to the office I go and send off a copy of the order to the other side hoping that the other attorney will finally reach out to me.

Time flies by and I hear nothing. Until today.

Paralegal: I’m calling regarding a deposition we have scheduled tomorrow.
Me: Ok?
Paralegal: In the Smith v. Jones case?
Me: Um...
Paralegal: We need to reschedule.
Me: ...
Paralegal: Is that ok?
Me: You realize that the court entered a judgment in our favor.
Paralegal: I know. But what about the deposition?

'Tis the season for the pointless destruction of forests to make attorney holiday cards which will never be read by their clients. Roy Ginsburg is not a fan and suggests an alternative to the usual holiday card:

If you insist on sending cards, do it at a time of the year when it will not be received with ten other cards on the same day. More importantly, make it memorable. Every year I receive a card from a lawyer I know who practices in Memphis, Tennessee. He is a huge Elvis Presley fan. Around the time of Elvis’ birthday (January 8th), I always receive a New Year’s card which has an Elvis theme photo and a short greeting. One year it was a picture of President Bush and the Prime Minister of Japan (a big Elvis fan himself) during a visit to Graceland. It certainly was memorable; I’m blogging about it five years later.

The purpose of the holiday card, as well as every marketing activity attorneys do, is to remind your clients that you are still around to perform legal services. You want to stay top of mind. Traditional holiday cards simply do not do it.

If you'd like to hear President Roosevelt's speech in its entirety, I recommend the Radio Chemistry site's archive.

Those who have been keeping score at home have noted that this post contains exactly fifty-six substantive links (assuming that I've managed to count correctly). Why fifty-six? Well, I started this Blawg Review with a Pearl Harbor trivia miscue; I'd like to end it with a more interesting (and true!) bit of Pearl Harbor trivia: Mentioned above as the architect of the attack strategy, Admiral Isoroku Yamamoto's given name translates as "fifty-six", his father's age when he was born. It seems that more than a century before the development of Viagra and Cialis, dad wanted everyone to know that he could still... um, you know.

The images in this post were obtained from Wikimedia Commons (portrait of Cordell Hull, Japanese view of attack on Battleship Row, explosion of USS Arizona, "Avenge December 7" poster, Roosevelt signing war resolution, and USS Arizona Memorial), the Franklin D. Roosevelt Presidential Library and Museum (edited typewritten draft of speech [page one, page two, and page three]), Heritage Collectors Society (press release of speech [pages one and two]), and Mike Semple Piggot (Fuckerflies III painting).

I'd like to thank the Editor of Blawg Review and Blawg Review Sherpa Victoria Pynchon for their sourcing assistance this week. My thanks also to my friend and occasional co-blogger Mike Semple Piggot for giving me Fuckerflies III; these foul-mouthed butterflies' battle cries of "Tora! Tora! Tora!" were a source of inspiration as Blawg Review #241 took shape.

Blawg Review will be notably less infamous next week when Ron Coleman (who should've won Blawg Review of the Year last year for his Chanukah-themed Blawg Review #191) will host the carnival of legal blogging at his Likelihood of Confusion blog.

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