Geek/Lawyers | My other t-shirt is a pin-stripe suit.

03/08/2012
by Justin D. Jacobson
2 Comments

The DIY Contract: Caveat Emptor

A little while back I posted a DIY Contract for freelancers. Unsurprisingly, I’m not the only one with this idea. The Freelancers Union has a contract creator on their website too. It’s flawed.

On the “Disputes” tab in the widget, you will note that the contract uses the client’s, i.e., not the freelancer’s, home state for the choice of law. That’s a bad idea. These days, it’s common for a freelancer to do work for client’s in other states. The freelancer does not want to be subject to the vagaries of every jurisdiction. One of the boilerplate provisions might be valid in one state but not in another. One state might provide for reciprocal attorneys’ fees; one might not.

It provides for arbitration. Seriously? Arbitration? Because the freelancer wants to pay thousands of dollars to get their dispute resolved. I don’t even….

And it provides for jurisdiction in the client’s home state as well.

So, the freelancer who uses this contract and gets screwed out of a fee has agreed to do arbitration in another state under that state’s law, say, Alaska.

I cant’ recommend it.

02/24/2012
by Justin D. Jacobson
0 comments

Meeple’s Rights!

Friend-of-the-Blog, Megan Raley, is a supremely talented artist. Among other things, she makes jewelry and, yesterday, announced that she was going to be making meeple earrings. (If you don’t know what “meeples” are, go run and play a game of the classic Carcassonne.) Well, that’s just cool. Unfortunately, I off-handedly ruminated as to whether or not that would be some sort of trademark violation. This followed with some discussion on the matter. Daniel pointed out that it’s a colloquial term; Fred noted Scrabble-tile earrings on the market…. I didn’t mean to set off a panic, but it is worth thinking about.

What’s at play here? A game piece is a physical expression of an idea and might fall under the purview of various forms of intellectual property, depending on the specific piece. For example, a Magic: The Gathering card contains art and flavor text that is copyrighted, the M:tG logo which is trademarked, and even certain process terms and icons, e.g., tapping, that are patented. So, could I make, say, business cards for my game store glued to M:tG cards? This is the sort of trick question lawyers love. Of course you can? You own the cards; you can cut them up and glue them into porno mags if it strikes you. The real question is: Could you turn around and sell those creations? Yes, under the first-sale doctrine. You can sell your unopened case of Legends booster packs; you can sell individual cards from your collection; and you can sell your Civil War diorama created from them. But, here’s what you can’t do: You can’t post images of your creation for purposes of advertising them for sale because that would constitute an impermissible publication of the protected material.

Fear not though, Megan. For, as best I can tell, meeples are indeed entirely generic or, to use the correct term, in the public domain. I can’t find anyone who asserts any sort of intellectual property right over them. There is no reference to any such claim in the Carcassonne rules. Indeed, though Carcassonne made them famous, many games use these generic pieces. In this way, they are more like a standard 6-sided die than a M:tG card. Now, Writer’s dice and Fudge dice on the other hand….

02/16/2012
by Justin D. Jacobson
0 comments

5 Things Dumber than Groupon for Lawyers

Last year, a St. Louis estate attorney ran a Groupon for a will and durable power of attorney for the low, low price of $99. (Debra Bruce as a good article on it here.) Despite the inflammatory title of this post, I understand why this attorney did it. Essentially, he did it for fun. As he said in Debra’s article:

I didn’t even think in terms of ‘loss leader’ when I decided to do a Groupon deal. I love Groupons and wanted to be part of it. I use them personally.

There’s nothing wrong with that. What I do find remarkable is that he didn’t like the outcome because of all the “brouhaha” it generated. We have another word for “brouhaha”–it’s called “marketing”. Buzz would precisely be the one likely and desirable outcome of doing the Groupon in the first place. The idea of generating new customers is pretty minimal, particularly for an estate practice. After all, people don’t often need more than one will. Yes, you can upsell to other services or get some future work based on modifications or referrals, but that seems tenuous at best. What you really get out of the experience is the title of being “that attorney who did the Groupon”. For good or ill, he’ll always be that guy.

But my biggest issue with the Groupon for lawyers generally is this: time. The structure of Groupon is such that the vendor gets a huge wave of customers all at once. In a typical setting, a lawyer must take into consideration his availability to take on a new client. Can he properly service the client’s needs in the time required? An attorney is required to turn down a new client or a new case if he cannot perform the duties required of him. In the Groupon model, he cannot do so. We know it takes him on average 4 hours to do the estate package, and we know he sold more than 50 of the Groupons (perhaps many more). Hypothetical: What if customer #50 dies before you can get around to doing his will?

So I don’t think Groupon is inherently dumb for lawyers … but it could be. I’d be extra careful before dipping my toe in those waters. I did think it would be fun to come up with some social media efforts dumber than that:

5) Foursquare for people in Witness Protection

4) Yelp for cannibals

3) Slashdot for the Amish

2) Ebay for hoarders

1) Fark for people with lives (I kid, I kid!)

What can you come up with?

01/26/2012
by Justin D. Jacobson
0 comments

BREAKING: Judge Rules Lawyers Are Human

Steve Sather posted a snippet from a recent opinion handed down by the Texas Bankruptcy Court, O’Brien v. Harnett, Adv. No. 11-5010 (Bankr. W.D. Tex. 1/19/12). It is a remarkable opinion because the judge had the temerity to acknowledge that a lawyer just screwed up and that’s okay. The technical legal term for this is “excusable neglect”, but it might as well be “fool’s errand”. Unlike the judge in this case, most judges lose sight of the fact that the excusable neglect rule exists precisely because attorneys are human and occasionally make mistakes. Kudos to Judge Leif M. Clark.

Full copy of the order available here.

01/18/2012
by Justin D. Jacobson
0 comments

Why I’m Not That Worried About SOPA/PIPA

If you’re reading this, you’ve almost certainly at least heard about SOPA/PIPA. If you haven’t or just want to learn more, Reddit has an excellent primer that’s well worth reading. Today, a lot of people are engaging in a form of protest over the possible passage of the bills, a blackout from the likes of Google, Wikipedia, xkcd, and my favorite from the Oatmeal. Friend-of-the-Blog, Daniel Solis has a great line on his site today: Is the best way to fight piracy to destroy your own boats?

Let me add my voice to the chorus: SOPA and PIPA are bad pieces of legislation. I don’t merely mean that they are wrong-headed (which they are). People can have reasonable disagreements over the proper place to draw the line between protection and usage of intellectual property. More bluntly, they’re poorly conceived and poorly written. They are an inefficient method of dealing with an otherwise legitimate problem, summed up rather nicely in Daniel’s koan.

But I’ll let you in on a little secret: I’m not that worried about them, and here’s why….

Continue Reading →

01/17/2012
by Justin D. Jacobson
0 comments

Typography for Lawyers

I just stumbled on this website for a book that really hits my sweet spot. Tempted to get the book. I’ll have to see if it’s too basic for my needs, but I’m optimistic. There’s a lot of material on the website, including font recommendations, suggestions for interpreting court typography rules, and even some commentary on topics I’ve covered previously.

01/10/2012
by Justin D. Jacobson
0 comments

Evil Hat, Atomic Robo & Me

Today, friend-of-the-blog, Fred Hicks, announced the forthcoming publication of a role-playing game based on the thrilling Atomic Robo comics, created by Brian Clevinger and Scott Wegener–yes, an RPG based on a comic book. In what must be the quintessential expression of being a Geek/Lawyer, I drafted the licensing agreement for the deal. It’s a match made in pulp heaven. Can’t wait.

12/01/2011
by Justin D. Jacobson
3 Comments

The DIY Contract

Friend-of-the-blog, Ryan Macklin, scolded his prior self: “Don’t Work Without a Contract”. Among my comments over there, I noted that you don’t have to rely on the company you are working for to supply your contract. “Use your own,” I said.

As with many things in the law, a contract serves two purposes. It serves a legal purpose, the function most people think of. It is an enforceable agreement. In that capacity, the legal intricacies of the document are relevant and, often, critically important. A single word out of place might spell the difference between victory and defeat in the courtroom. But a contract also serves a practical purpose, the function most people take for granted. In that capacity, legal expertise is not relevant. The attorney holds no greater ability to draft a contract for practical purposes than the lay person (other than the experience of drafting tons of contracts). So, if you can’t or won’t employ an attorney to draft a contract, you can still do it yourself. To that end, I offer the following sample, annotated contract:

Contract for the Commission of Artistic Work (pdf)

Contract for the Commission of Artistic Work (rtf)

Disclaimer, in case it isn’t obvious: This is not legal advice; this is for educational purposes only. I’m not your attorney; I’m just dropping some knowledge on you. If you want advice on how to draft a proper legal contract, you should consult an attorney.

11/15/2011
by Justin D. Jacobson
0 comments

Why Matt Taibbi Is Wrong

Let me start by saying: Matt Taibbi is a great writer. Moreover, while it’s not relevant to this post, I generally agree with his positions on many subjects. However, he recently penned an article that hits close to home and, more importantly, perpetuates a false meme about banking in general and debt collection in particular. The article is “How I Stopped Worrying and Learned to Love the OWS Protests” and appeared at RollingStone.com on November 10, 2011. Among some good points, Matt writes:

There’s no better symbol of the gloom and psychological repression of modern America than the banking system, a huge heartless machine that attaches itself to you at an early age, and from which there is no escape. You fail to receive a few past-due notices about a $19 payment you missed on that TV you bought at Circuit City, and next thing you know a collector has filed a judgment against you for $3,000 in fees and interest. Or maybe you wake up one morning and your car is gone, legally repossessed by Vulture Inc., the debt-buying firm that bought your loan on the Internet from Chase for two cents on the dollar. This is why people hate Wall Street. They hate it because the banks have made life for ordinary people a vicious tightrope act; you slip anywhere along the way, it’s 10,000 feet down into a vat of razor blades that you can never climb out of.

But Matt is wrong on this point, and here’s why. Continue Reading →

11/02/2011
by Justin D. Jacobson
2 Comments

EXTERMINATE: Double Digits

In the constant battle against legalese, I have many enemies. For many, I understand why they exist. But there’s at least one (1) nettlesome imp I just can’t comprehend. That one (1). Right there (1). The one (1) I just did. Where did this inexplicable need to write numbers as both words and numerals come from? What function does it serve? Someone please explain.

Are you worried that someone signing the contract can’t read the words? Or the numerals? Have you forgotten the rules on when numbers should be written out as words or numerals? Are you just trying to up your page count? Getting paid by the hour? Trying to make it look fancy and formal? (That probably hits close to the mark.)

So stop it. Right now. Not one (1) more time.

[EXTERMINATE is a regular feature. It is a part of my never-ending war against legalese. I target one phrase at a time for extermination.]