Publisher's Notebook

It’s Cyber Monday, the day when retailers hope to rake in the bucks online. It serves as a bookend to Black Friday, the day after Thanksgiving filled with bargains and sales. Hopefully no one will get pepper-sprayed while rushing to the keyboard today.

Does your law firm allow employees to shop from their work computers?

If you say no, you’re not alone. According to a new survey from Robert Half Technology, 60 percent of the businesses surveyed forbid workers to shop from their desks.

And another 23 percent allow some shopping but monitor usage.

Robert Haft hired an independent research firm to do the study; they interviewed more than 1,400 chief information officers at companies with 100 or more employees.

The number of companies that bar at-work shopping is going up. Last year, 48 percent said they did not allow shopping at work.

But savvy shoppers may have a way around the restrictions. John Reed, executive director of Robert Half Technology, said in a statement,” With an increasing number of firms blocking access to shopping sites, many employees may turn to mobile devices to shop at the office.”

Warning: Employees who phone-shop may want to stay on the alert for the HR equivalent of pepper spray.

Actor Corbin Bernsen sued a Virginia Beach-based legal marketing firm in Norfolk federal court last month, claiming it owed him more than $600 grand on a million-dollar contract he signed to represent them in a marketing campaign aimed at lawyers.

Their answer: You were the one who broke the deal, pal. And now you owe us $600,000.

Sounds like a plot from “L.A. Law,” the show in which Bernsen played Arnold Becker, a high-rent divorce lawyer.

The Virginian-Pilot reports that in a counterclaim against Bernsen, Innovative Legal Marketing says that the contract with Bernsen includes what one could call a “good behavior” clause. Bernsen agreed not to commit “any act or do anything which may tend to bring Bernsen into public disrepute, contempt, scandal, or ridicule or which might tend to reflect unfavorably” on Innovative or its clients.

Bernsen broke the deal, Innovative alleges, by, among other things:
• Appearing on a Cartoon Network comedy sketch that made fun of personal injury lawyers.
• Talking about youthful drug use and sex life in an interview on “Celebrity Ghost Stories.”
• Getting into a bar fight on a film shoot in Ohio in August 2010. A local starting admiring one of Bernsen’s female assistants; the matter ended up outside a diner with Bernsen throwing gravel and telling the local man “If I had a gun, you’d be dead,” according to contemporary news reports.

Stay tuned.

A Fairfax judge has been found guilty of one of the most elementary computer security blunders. Read on.

Fairfax lawyer Sharon Nelson reports on her blog, Ride the Lightning, that she and her partner and husband, John Simek, were in one of the courtrooms at the Fairfax courthouse the other night giving a CLE session.

Simek was helping someone with a technology question, then he walked up to the bench. On the bench was the judge’s computer. And there it was: Attached to the judge’s monitor, for all to see, was a sticky note. With the judge’s user name. And the judge’s password.

Nelson’s response: “C’mon guys!” There is no rule of information security so fundamental, she said. You just don’t put a sticky note “with the keys to the castle” on your monitor, under your keyboard or in an easily accessible drawer, she added.

Wonder if the password was “123456.” As we have reported previously, that’s the most commonly used, and therefore most easily cracked, password.

Discretion being the better part of valor, Nelson didn’t name the errant judge or provide his/her courtroom number.

She did ask the rhetorical question, “Maybe we need to have a data security CLE for the judges?”

FAIRFAX—Last Friday, 11/11/11, was the day of the 10th annual “Jazz 4 Justice” concert at George Mason University. It also was Veterans Day, which gave this year’s performance its theme.

The GMU Jazz Ensemble played “The Music of World War II,” tunes from an era when bandleaders Benny Goodman, Glenn Miller and Woody Herman, among others, took the jazz genre to its “high point,” said Jim Carroll, ensemble director. Jazz was at its most popular during the war years.

Carroll told the audience that he really didn’t know how to say thank you enough to veterans, except through the music.

The GMU Jazz Ensemble did all vets in the audience proud – and there were quite a few at the GMU Center for the Arts, judging from the number of people who stood during an “Armed Service Medley” of all the service branch themes.

A trio of students channeled the Andrews Sisters in a rendition of the classic, “Boogie Woogie Bugle Boy.” Other top tunes of the era included, Carroll said, a “song that needs no introduction,” Miller’s “In the Mood.”

Fairfax lawyer Ed Weiner, the founder of Jazz 4 Justice and past president of the Fairfax Law Foundation, took a turn at conducting the ensemble. The GMU music department honored Weiner with the Director’s Award, thanking him for 10 years of work on the concert, which raises money for the foundation and for the music programs at Mason.

Members of the ensemble bore gifts, too, presenting Weiner with a framed photograph of the group and their leaders in China during their recent visit. Weiner and his wife Maura were able to accompany the GMU students to the Far East.

At the concert, Weiner also announced the results of the Jazz 4 Justice hat contest – an annual exercise to see who can take a hat with the J4J logo the farthest from Fairfax. This year’s winners were Linda and Paul Hammack, who sported their hats in a snap in front of the Sydney Opera House in Australia, some 9,758 miles away.

Tortfeasor. I never had heard that word until September 1982, when it cropped up in my first-semester Torts class.

The guy who commits a civil wrong isn’t a wrongdoer, or a miscreant, or even a bad guy. He is a tortfeasor, a term that sounds shameful, possibly heinous. A guy to be avoided at all costs, unless perhaps when you are accepting his settlement check for your client.

I went to law school at Washington & Lee after a brief career as a high school English teacher. Part of that job was helping high school juniors gear up for the verbal portion of the SAT exam. Each week my colleague and I would review the books we were teaching and pull out 20-30 vocabulary words. Then we’d go over those words, give definitions and discuss synonyms and antonyms. We’d cover word families, origins and patterns.

So I went to W&L with a well-developed ear, and I wasn’t disappointed. The first year law student hears an array of strange new words and phrases, some in Latin. Tortfeasor. Res judicata. Metes and bounds. Quash. Caveat. Sua Sponte. Mens Rea.

I developed a group of friends who also were having fun with all the new language, one of whom went to the local office shop and got a sign made up, “Mens Rea.” He posted it on the door of the “Mens Room” at Lewis Hall. The sign stayed there our entire first year.

Despite our excitement over all these great new linguistic discoveries, at some point during the second semester, the reality hit us that most of what you do in law school is just read a lot words. Thousands upon thousands of them, often in cases written by people who use too many.

Once I was out of school and practicing law in Southwest Virginia, I ran into a similar problem. Howard McElroy, with whom I worked in Abingdon, said it best. Why, he asked, do lawyers insist on writing like this: “The vehicle was proceeding in a northerly direction.”

It’s so much simpler to say, “The car was headed north,” he said.

The reason is, frankly, it’s more work. It’s harder to write a short and direct paragraph than to dash off a meandering half-page, throwing in all the information you have. When I’ve schooled writers at Virginia Lawyers Weekly, that’s one of the first things they hear.

And the courts in Virginia cough up thousands of words every week, in new decisions, and they don’t always follow the rule that less-is-more. Finding a way to make sense of all that verbiage is what has made our newspaper successful: we turn them into an accessible package of case digests, so lawyers in the commonwealth know what happened and how, quickly and easily.

Lawyers can be a tough audience. Periodically we hear from the wordsmiths in the bar who keep us on our toes.

There once was a Henrico lawyer who railed when we wrote the phrase, “an Henrico judge,” on several occasions. Ultimately we decided we don’t write in Cockney and therefore he was right.

And several people have squealed when we’ve tripped on “more than/over” and “less/fewer,” things we really should have looked up in the AP Stylebook.

As an aside, proofing galleys of the newspaper can be an adventure, too, as any number of language gaffes have died in a puddle of red ink. Just be aware that there is a thin line between “inducted” and “indicted.” The same is true for “Hanover” and “hangover.”

I won’t say I’ve always liked hearing we’ve made a mistake, but I’ve always welcomed corrections, when they’re warranted. We want to get it right and use less – strike that – fewer words whenever possible.

Editor’s note: This article originally was written last year for the “Reflections” series collected by Jon Huddleston when he was president of the Virginia State Bar. A revised version was published in the Virginia Lawyer in October.

Here’s an item in honor of Veterans Day tomorrow.

It’s Veteran Legal Services Month, and the Virginia Bar Association is once again at work recruiting pro bono volunteers to help veterans with legal issues and raising money for projects that help them.

Volunteer response was strong last November, during the bar group’s first push for help for veterans. But pro bono lawyers are still needed, particularly to take domestic relations cases, said Robert Barrett, co-chair of the VBA Veterans Issues Task Force.

America has been at war for 10 years now, he said, and if a servicemember has been in the service during all that time, he or she likely has had more than one deployment. The situation puts great strains on families. The task force needs volunteers who can help with divorce, custody and no-fault separation.

In terms of geography, Hampton Roads is a particular area in need. Norfolk has the world’s largest naval base, and Ft. Monroe, the Joint Forces Command and other outposts are in the area at large.

Barrett said domestic cases make up 60 percent of the cases the VBA task force takes in, but the needs don’t end there. Attorneys can assist with issues involving landlord/tenant disputes and employment law.

The other task force initiative this month is fundraising. Barrett said that Matt Kapinos, the other task force co-chair, last year thought up a fundraising drive for the Veterans Benefits Clinic at the William and Mary law school.

The drive got under way without as much time as the two men would have liked, but they still raised more than $25,000, mostly from Central Virginia law firms, Barrett said.

This year, the task force hopes to double that figure, and the beneficiary will be Helping Military Veterans through Higher Education (HMVHE), a consortium of colleges and universities that are coordinating their schools’ resources to assist veterans and military servicemembers with legal, medical and benefits needs.

Schools supporting HMVHE so far include: Eastern Virginia Medical School, James Madison University, Lynchburg College, Old Dominion University, Radford University, Shenandoah University, the University of Virginia, the College of William & Mary and Virginia Commonwealth University.

Barrett said that the organizers are including law firms again, but they hope to tap government offices, the Attorney General’s office and private companies. Barrett said that he went in-house about a year ago, and he has been working with WMACCA, the group of in-house lawyes based in Washington.

Anyone who is interested in volunteering their time or donating to the cause can do so at the VBA website – www.vba.org/veterans.

The task force hosted a kick-off last Friday in Richmond, with Gov. Bob McDonnell as keynote speaker. McDonnell, a former lieutenant colonel in the U.S. Army with a daughter who served in Iraq, called the VBA’s work “a critically important initiative.”

Veterans are “American heroes,” McDonnell said, who risk life and limb for the nation. “We need to treat veterans well.”

If you heard that a lawyer prepared a document and used cut-and-paste to include opposing counsel’s signature (without her permission), then submitted it to the court, what do you think the bar sanction should be?

A tut-tut and an admonition to go and cut-and-paste no more?

Disbarment?

Somewhere in between?

In Maryland, the answer is pretty close to the simple tut-tut. Our sister paper in Baltimore, The Daily Record, reports that Dana A. Paul of Edgewater, Md., took the signature of Annapolis lawyer Laura Penn Shanley from one document, used a photocopier to copy her signature, then affixed to a document he filed with the court.

The Maryland Court of Appeals, in Attorney Grievance Commission v. Paul, noted that there was a history of “bad blood” between the two lawyers.

The Maryland bar counsel who pursued the ethics charges wanted a suspension, and the Attorney Grievance Commission agreed, suspending Paul’s license for 90 days. On appeal to Maryland’s highest court, Paul came out ahead. The court, 4-3, reversed the suspension, writing that a reprimand was sanction enough.

A vigorous dissent charged that the majority had “trivialized” the misconduct.

GOP presidential candidate Herman Cain has had a difficult week, as he has fielded accusations of harassment of women.

TIME’s blog Swampland covers politics in DC and beyond. Regardless of your politics, you have to tip your hat to the headline writer who coined the hedder for this piece mulling whether Cain’s campaign can survive the harassment claims:

“Cain Unable”

WILLIAMSBURG–Virginia Beach lawyer Steve Emmert knows a thing or two about taking a case up on appeal.

He’s one of the lawyers who has built appellate law into a recognized and well-respected area of practice in Virginia.

He’s served as chair of the appellate practice sections of both the Virginia State Bar and the Virginia Bar Association.

Emmert was asked to speak to the Virginia Association of Defense Attorneys’ annual meeting in Williamsburg Oct. 28. He told me before his talk that he had to dig deep into the past to the time he regularly tried cases; he knew his crowd was more interested in the courtroom than the appellate chamber.

For a guy who is a member of the Virginia Trial Lawyers Association’s board of governors, his talk to the VADA was a trip to or from the dark side, depending upon your perspective.

Instead of droning on through 45 minutes of “how to preserve this point,” Emmert did a reverse flip and presented the “Top Ten Ways to Sabotage Your Appeal.” In other words, be sure to do these things if you want to guarantee your appeal is a failure. As for his format, Emmert joked that “people told me I looked like David Letterman before I grew a beard.”

Herewith, Emmert’s list:

10. Make nice fuzzy, vague objections. Don’t give any reasons for objections, just say, “I object.” This “speeds up” the trial, Emmert said.

9. Rely on the “plain error” doctrine. This catch-all rationale lets an appellate panel fix a problem that is just plain wrong. It also allows the appellate lawyer you hire to “ride to the rescue,” he said. The only problem here is that “plain error” is defined narrowly in the Rules of Court.

8. Accept the judge’s ruling and just move along. You might risk the judge’s wrath, but there are times when you need to insist on a line of questioning. Also, there are times to insist on proffering evidence, even in the face of an adverse ruling, Emmert said. If the proffer isn’t part of your record, the appellate judges can’t see what you were trying to do and whether you were right.

7. Get the trial over with, already! As jury instructions are being read, don’t follow along to see if there is a mistake.

6. File a motion in limine, then relax. Some questions need to be taken care before you start swearing in witnesses, and pre-trial motions will help you, the other side and the judge to sort things out. If you don’t push these and wait until all those issues come up in trial while the jury is sitting in the box, you don’t have to worry about victory.

5. Let sleeping judges lie. Judges take issues under advisement during a trial, then forget about them. If you don’t bring them back up or press for a ruling, the issues stay forgotten and lost as potential points of appeal. There might be a time to go for the nuclear option: “Your honor, I object to your failure to rule on my objection.” The judge may not like it, but the Supreme Court of Virginia has said “it’s what you have to do,” Emmert noted.

4. Test your memory. You can save space in your trial notebook if you just plan to remember everything. If you don’t bother with writing down a list of unresolved motions or objections, or you don’t list exhibits that need to be included, you won’t have to deal with them later, he said.

3. Renew your motion to strike. This once-clear practice has turned into a tricky appellate trap, thanks to a pair of cases from last year – Murillo-Rodriguez v. Commonwealth, 279 Va. 74 (VLW 010-6-008), and United Leasing v. The Lehner Family Business Trust, 279 Va. 570 (VLW 010-6-031). The bottom line – if you don’t restate your reasons behind the motion to strike when you renew the motion, you’re cooked. A mere renewal isn’t enough, Emmert said.

2. Go placidly off the record. If you approach the bench at the judge’s invitation or go back to chambers to resolve issues out of the presence of the court reporter, you have forfeited them as appeal points because you “make sure nothing happened.” One alternative – once you’re back on the record, you make a statement reiterating the pertinent issue, including what was ruled and even why.

1. Be relentlessly polite. You’re taught as a child never to interrupt anyone, but impeccable manners in a trial might insure your loss. You need to be ready to jump in and object, even if the judge “takes the wheel” and starts asking questions of a witness.

“Your honor, I object to what you’re doing” is a statement that might require some guts, but ultimately, your client – either the plaintiff or the defendant – didn’t hire you to be milquetoast.

You might have missed this item last week. But the Justice Department has proposed new regulations to interpret the Freedom of Information Act that are logic-bending.

In cases involving national security or law enforcement, some agencies now are allowed to respond to a FOIA request by stating they “can neither confirm nor deny the existence of records.”

Under the new Justice regulations (provided here by Pro Publica, an public-interest journalism outfit), the government agency would “respond to the request as if the excluded records did not exist.”

In other words, this regs would direct the government employee to lie. Falsehood would be the official policy.

Open-government and journalist groups, needless to say, objected loudly. But the comment period allowed by Justice closed Oct. 19. Stay turned.