The Best Way to Hire a Lawyer: How It Feels to Be a Judge
Should you wait until you’re sued to hire a lawyer? At that point, the answer is obviously yes – but what if you haven’t been sued? Do you still need a lawyer? How do you find one?
The best way to hire a lawyer is like everything else – by referral. You more than likely know someone who has been sued. Ask them if they’re satisfied with their lawyer. When you’re asking for a referral, you will want to know the answers to several questions.
Does the lawyer communicate on a frequent basis? Do you get copies of all filings and letters? Does your friend or acquaintance have the lawyer’s home telephone number? Does the lawyer promptly return telephone calls? Does the lawyer send a bill each month? Does the lawyer tell you when hearings are scheduled to allow you to attend and watch the lawyer in action?
You should check to see if your lawyer is licensed by checking your local state bar. That site will also tell you whether the attorney has a public record of discipline. Find more about your lawyer’s background information. Assuming all is well and you’re hearing the right responses to your questions, go ahead. But first, set up an appointment for a free consultation, and do your own face-to-face evaluation.
If you’re not engaged in a lawsuit, it’s an even better time to hire a lawyer. With the right advice, you can work to avoid being sued, and spending legal fees and costs to defend yourself.
The truth is that the view from behind the bench is decidedly different than from in front of it. Sitting as a pro tem judge (which I had the opportunity to do today) presents an interesting perspective – how a judge looks at both sides of a case. There’s quite a difference than advocating one side of a case.
As a judge, you look dispassionately at both sides of the case before forming an opinion about the possible outcome. As a lawyer, advocating one position requires you to counter and discount the other side’s argument. The judge’s view is subtly different. As a judge, you have to evaluate which side is believable, which side has the more solid evidence, and what fairness dictates. You can, and must, ignore some of those things as a lawyer to advocate your client’s case.
Lawyers that can evaluate believability, evidence and fairness give their clients an edge, because they tend to look at the end result of the case. That lawyer can also give you better advice about the ultimate outcome of your case. Clients can accomplish the same thing by stepping back and listening – really listening – to the other lawyer. That’s what the judge and the jury have to do.
[thanks to matt from london and j. craig williams via cc]
Beckett Teen Sensations Twilight Magazine Loses Injunction
Summit owns copyrights and trademarks associated with Twilight and New Moon, the movies. Beckett sold two “fanzines” (labeled unofficial collectors’ guides, and not corresponding to my idea of a fanzine, but ok) reproducing numerous images from the films, along with trademarks and promotional images related to the films. In particular, Summit alleged that the fanzines used Summit’s stylized Twilight trademark on their covers; contained unauthorized reproductions of photos, including photos not available from Summit’s website and photos altered in violation of the site’s terms of use; contained removable posters and images of trading cards that were also unauthorized reproductions of Summit’s works. Covering the internet bases, Beckett also featured one of the fanzine covers on its Facebook pages and attempted to auction the printing plates for the covers on eBay.
Summit had little trouble with its copyright and trademark claims, apparently with little dispute from Beckett. Of note: the court rejected Beckett’s argument that Summit’s website gave Beckett permission to use many of the images. Beckett didn’t show likely success on that defense, as was its burden, most notably because it couldn’t explain the use of photos not present on the website. Moreover, the license here didn’t allow alterations of the photos (the terms of use said that users “will not edit, alter or modify any of the Content without Summit’s prior written approval”), and Beckett altered them, exceeding the scope of the license.
On trademark, the court accepted Summit’s argument that it owned a valid, protectable mark in a stylized, block-lettered TWILIGHT, and Beckett displayed a virtually identical mark in the fanzines, including on the outside front covers and pull-out posters. Moreover, Summit has licensed its mark for a “seemingly endless” list of goods, including posters, which both indicated the strength of the mark and the relatedness of the goods. In the absence of opposing evidence or argument, the court found likely success on the merits.
The court then presumed irreparable injury for both causes of action, despite Beckett’s argument that it had voluntarily ceased the troublesome activities, recalling the fanzines, terminating the eBay auction, and removing the offending cover image from its Facebook page. But as of the day Beckett’s opposition was filed, the fanzines were still “widely available” in retail stores and over the internet. Thus the dispute was not moot. Then, the balance of hardships followed: if an injunction was wrongly denied, Summit’s copyrights and trademarks are “at risk of being devalued,” while granting an injunction would just force Beckett to keep doing what it said it would (cease all offending activity). And there’s a public interest in vindicating copyright rights and avoiding confusion.
The court did agree with Beckett’s objection to the scope of the requested injunction, which would cover fair use as well as foul. Thus, any injunction needed to make express allowance for §107 fair use, and also needed to define Summit’s marks expressly, especially if any marks other than the stylized TWILIGHT were to be covered.
The following is the official statement from Summit Entertainment:
“Summit Entertainment acted to protect its rights in a situation which found Beckett Media using copyrighted and trademarked images and materials relating to the Twilight films for Beckett’s financial gain without an agreement in place with Summit to legally license the right to produce materials based on its film franchise. Beckett’s sale of standalone magazines under the name Twilight, and wholesale use of Summit’s copyrighted material in a commercial product, went well beyond the intended purpose of Summit’s publicity site. We applaud the court for its judgment in this matter.”
(Summit Entertainment, LLC v. Beckett Media, LLC, 2010 WL 147958 (C.D. Cal.))
[thanks to xploitme and rebecca tushnet via cc]
Trying a Case and Winning It: The Jury Perspective Method
We generally win cases, and many have asked how it’s done. While this advice may appear to be directed to attorneys, it’s actually for our clients. Everyone gets emotionally involved in a case, and that’s one of the main reasons to hire a lawyer. Plus, lawyers know the Court’s procedures, and they can take the day-to-day worries of litigation off your hands. But every client, at one time or another, wants to do it on their own. In a nutshell, here’s how:
Framing the issue is perhaps the most important aspect of trying a case. Try not to accept the other party’s version of the lawsuit, and instead look at it not from your perspective, but the way the jury is going to look at it. Before we start a case, we pull the jury instructions we expect the judge to give. Since that’s what you have to prove at the end of the case at trial, that’s what guides us throughout the case – through discovery and depositions, motions and ultimately trying the case.
Match up the documents and testimony you have on your side of the case to the elements of proof in the jury instructions. Since jury instructions are written for everyday people to understand, there’s not a lot of “legal-ese” in them. Once you have your proof lined up, you’re ready to go to trial. Now, you have to learn the evidence rules. Matlock, LA Law and Perry Mason are not good guides for how it’s really done. Take a class or go to court and watch – the latter is the fastest way to learn, and while you won’t understand everything, you’ll see how the most common objections are handled and argued.
Finally, once you win your case, you’ve got to collect on your judgment. That’s the really hard part. Enforcing a judgment is a procedural nightmare. If you haven’t hired a lawyer yet, now’s the time. Unless you can get the other party to just write you a check, you’ll have lots of paperwork to fill out.
Of course, over 95% of all cases settle, so hopefully you won’t have to go though the trial and judgment collection portions of litigation. Remember, though, that settlements are compromises, and compromises means everyone goes away with less than they really wanted.
[thanks to ell brown and j. craig williams via cc]
