Redskins in the Supreme Court

The Redskins’ day in court is soon to come — will the Court determine that the name is racist and offensive, and thus not entitled to trademark protection under the Lanham Act?  If so, what’s a Skins fan (or its Napoleonic owner, Dan Snyder) to do? Frankly, I’m amazed the ‘Skins have held on to the name this long, and I am a lifelong fan.  Part of me says it is a testament to the warrior spirit, and thus a compliment, that a football team would choose to name itself after your race or ethnic group — the Fightin’ Irish come to mind.  But “Redskin” is universally seen as a very derogatory term for a Native American, so the “testament to the warrior spirit” argument breaks down, big time. It is interesting to note that the previous attack on the Redskins’ trademark was thrown out as being time-barred under the doctrine of Laches, but the current assault cites Marshak v. Treadwell, a 2001 3rd Circuit opinion which held that the law allows for trademark cancellation “at any time.”  The author of Marshak?  None other than current Supreme Court Justice Samuel Alito, Jr. Could be interesting . . . http://www.nbcwashington.com/news/sports/Redskins-Trademark-Battle-Goes-to-Supreme-Court-59323632.html and http://legaltimes.typepad.com/blt/2009/09/challenge-to-redskins-name-reaches-supreme-court.html

The Power of Twitter (and other social networking fears)

After their narrow, and somewhat uninspiring, win yesterday, Robert Henson, a virtually unknown Redskin, had some choice words for the fickle Redskin fans who were booing their team on Sunday:

http://voices.washingtonpost.com/dcsportsbog/2009/09/robert_henson_apologizes.html?hpid=news-col-blog

In and of itself, this is not a surprising story, but it is a good object lesson on the “Power of Twitter” (and Facebook, friendfeed, myspace, etc.) For every Robert Henson, there is a college kid who gets rejected from law school because of the racy pictures he chose to post from spring break, or a high school senior who gets rejection letters by the bushel because she thought those pics she posted on myspace  of her getting high with her friends were hilarious.

Even worse are the police officers, firefighters, or other public servants that face suspension, public ridicule, or worse for the racist, sexist, or otherwise totally tasteless comments they chose to share with their facebook “friends”.

Facebook, twitter, and all of these social media outlets (including wordpress blogs such as this) are manna from Heaven for a diligent adversary.  In my practice, one of the first things I do is check out my clients, opposing parties, and their counsel on the internet.  I am finding with increasing regularity that the trails of digital breadcrumbs are becoming both easier to find, and, quite often, very rewarding to follow.  Particularly in the case of social media, such as twitter or facebook, one finds unvarnished statements and opinions that the same person would never write in a letter.  Such statements are written with all of the informality of the spoken word, but with all of the permanence of the written word, and all of the exposure of the broadcast word.

My rule of thumb (which I have certainly broken) is if I don’t want my mother or my stodgiest client to read it, then I shouldn’t post it.  Mom has a sense of humor (and can’t work a computer), but I always assume that clients, judges, and opposing counsel are always watching.  I might sound paranoid, but, as Robert Henson has now learned, being a little paranoid in this digital age isn’t such a bad thing!

Breaking bread and civility

Here’s an interesting article about civility in the practice of law.  It reminds me of a patent infringement lawsuit I was involved in 5 or 6 years ago.  Opposing counsel was quick witted and tough as nails.  Nothing was a “gimme.”  There were battles about deposition locations, discovery deadlines, confidentiality designations, etc.  After a rather meaningless day of depositions, I offered to drive him back to his hotel, and we had a drink together.  There was some discussion of the case, but it was mostly just two lawyers sharing a drink and telling tales.

We got up the next day and did our jobs, and we continued to bang each other around, but it was never personal. Too often, lawyers let it “get personal.”  Next time things head in that direction, consider breaking bread with opposing counsel.

That case settled (favorably, both parties would say) and a friendship, and source of referrals, was born.

The next time you are considering sending a incendiary letter to opposing counsel, or losing your temper “on the record” (or off), consider your professional reputation, your duty to your client, and the fact that the Court will almost certainly hear about it, and then set the letter aside overnight, or hold your tongue for 10 seconds.  99% of the time, your restraint will pay a healthy dividend.

(tip o’ the hat to WSJLawBlog).

WSJLawBlogPhilly Judge Orders Taming of the Lawyershttp://bit.ly/4E0Mv