Comments on: From the Editor: Commentary on Active Lawsuits and Unsettled Issues in Virtual Law

By: Benjamin Duranske

Benjamin Duranske — Fri, 24 Aug 2007 20:02:10 +0000

@4 – Ashcroft, U.S. court local rules often require that attorneys “meet and confer” before bringing certain motions (usually discovery motions like motions to compel) to the court. The moving party sometimes has to certify that he or she attempted to “meet and confer” when filing these motions. A M&C call is typically between attorneys, with no judge on the line. Then afterward, one or both sides write letters to each other summarizing the call, and then, often, get in further arguments about the contents of these letters. It’s ridiculously inefficient, but it at least keeps the lawyers out of the judge’s hair for a while, and it not infrequently results in a compromise that doesn’t involve the court.

By: Ashcroft Burnham

Ashcroft Burnham — Fri, 24 Aug 2007 19:36:32 +0000

What’s a “meet and confer” call? Is that anything like what we call a “case management conference” over here (a relatively informal hearing before a junior level judge at which the progression of the case is discussed, and things like the timetables for submitting evidence, etc., are set)?

By: Benjamin Duranske

Benjamin Duranske — Thu, 23 Aug 2007 19:46:21 +0000

No similar rule keeps attorney commentary out over here — I wish we had one! It would not be considered evidence at trial, of course, but there’s nothing preventing somebody from putting it in a letter or a brief or bringing it up during a “meet and confer” call except class, and well… we are talking about American lawyers here.

For me, it is just a practical question. If I wanted to, I could say whatever I felt like about live filings. But if I get too detailed (e.g. I say something like, “It’s very odd that he did this, because you shouldn’t do that at this point in a case”) it would make it much harder to take the opposite position later. It’d definitely be quoted in letters and phone calls, and probably in filings too.

Since sometimes the facts put you in a position where you have to make apparently lousy arguments in litigation, I don’t want to jeopardize future clients’ cases just to make a point about tactics in a live lawsuit. So I’m circumspect on these. Also, the excerpts are sometimes pretty telling on their own anyway.

By: Ashcroft Burnham

Ashcroft Burnham — Thu, 23 Aug 2007 19:36:54 +0000

Hmm, that’s a very interesting approach to professional ethics. I’m assuming that that’s fairly standard in the US, although that approach would be considered very unusual here, where barristers regularly write articles in academic or semi-academic journals or express their opinions on abstract questions of law. There is even a special provision in the Code of Conduct for the Bar of England and Wales permitting barristers to express their opinions on cases in which they have been involved (which is otherwise prohibited) in academic contexts.

In the UK, at least, the firm rule is that the barrister’s personal opinion of the case is irrelevant, and he or she is never allowed to refer to her or his opinion of the matter when addressing the court: he or she must instead make “submissions” on behalf of the client. From my understanding, litigation in the US is far less impersonal as far as the lawyers conducting the litigation are concerned. I rather prefer our culture, I think: it prevents problems such as you describe from arising.

By: Virtually Blind - Virtual Law | Legal Issues That Impact Virtual Worlds » Blog Archive » Bragg v. Linden Lab Update: Bragg Serves Two Sets of Document Requests on Linden Lab

Thu, 23 Aug 2007 18:53:25 +0000

[...] Discovery proceeds in the Bragg v. Linden Lab case. Bragg recently served two sets of document requests on Linden Lab, and has made them available. As is my policy on live lawsuits, I’ll run the excerpts without significant commentary. I expect, however, that these excerpts will raise some interesting questions for readers. [...]