On the Record

DLA Piper gets love from the American Lawyer annual rankings issue today. The magazine points to Piper as one of the few firms for whom a major merger has actually panned out:

The firm has yet to come back down to earth. It has quadruple the number of lawyers of either of its original predecessors. Per-partner profits kept up double-digit growth for five of the last eight years and are up nearly 150 percent since 1999. DLA significantly outpaced The Am Law 100 in average year-on-year growth in revenue per lawyer, profits per partner, and average partner compensation postmerger. And, as the chart shows, the firm grew fast enough in eight years to finally beat the Am Law 100 average in revenue per lawyer in 2007 (it has yet to catch up in profits).

However, the magazine also points out that more than 50 partners have departed the firm since late 2005. I wonder if most of this had to do with lawyers being conflicted out of work that they had always handled, or if there were other major reasons.

CARYN TAMBER, Legal Affairs Writer

Law Firm Inc., an ALM publication that bills itself as “The Business Magazine for Law Firm Executives,” will cease publishing with its May/June issue, an employee at the company confirmed.

Originally launched as a quarterly in 2003, the $79-a-year magazine announced it would expand to 10 issues in 2007; it scaled back to bimonthly this year, the employee said. (If there was a March/April issue, though, it hadn’t been posted electronically as of this writing; the “current issue” on the Law Firm Inc. site is from January/February.)

More information is expected on its Web site next week.

BARBARA GRZINCIC, Managing Editor/Law

Somehow, I don’t see this ending well for the good people of Lesbos. (Hat tip: How Appealing.)

CARYN TAMBER, Legal Affairs Writer

Was the appointment of some patent appeals judges unconstitutional?

That is the question raised in a Supreme Court petition (PDF) filed this month by Translogic Technology, a company whose patent was rejected by a three-judge panel of the Board of Patent Appeals and Interferences. (Translogic Technology v. Dudas, No. 07-1303; hat tip to the Law.com/the National Law Journal and patentlyo.com).

The BPAI’s decision was affirmed (PDF) by the U.S. Court of Appeals for the Federal Circuit, which then set aside an $86.5 million infringement verdict for Translogic.

Based on the work (PDF) of intellectual property scholar John Duffy of George Washington Law School, Translogic is arguing that one of the judges on the BPAI panel was appointed in derogation of the U.S. Constitution.

Under reforms made in 1999, the director of the Patent and Trademark Office can appoint BPAI judges. Duffy and Translogic claim that the Constitution’s Appointments Clause reserves that power to the president, courts, or the secretary of the Commerce Department — not the director of the PTO.

According to the NLJ article, the problem could affect nearly two-thirds of the BPAI judges, about 40 of whom have been appointed by the director. What do you think? Were these appointments unconstitutional? And if they were, what is the remedy?

CHRISTINA DORAN, Assistant Legal Editor

From the Department of Good Intentions But Bad Timing:

At 5:10 p.m. Tuesday I received an e-mail from Baltimore County warning me that if I did not have a license for my cat and/or dog after Thursday, May 1, I could receive a $100 fine for violating a new ordinance.

Six minutes later, I received another e-mail from Baltimore County – about a cat and dog adopt-a-thon at the county’s Animal Shelter on Saturday.

Sounds like someone is a little too anxious to test the new law…

DANNY JACOBS, Legal Affairs Writer

Many lawyers in Baltimore County believe retired Judge Frank E. Cicone can see the future. In a half-century at Baltimore County Circuit Court — 18 handling settlement conferences and 35 on the bench — he’s seen and heard it all, so his opinion on the potential outcome of a trial is highly valued.

I learned this Tuesday morning, having arrived unannounced at the courthouse settlement office to find out if I could sit in on a conference. I was surprised when Cicone invited me into the room and we chatted for a minute before the conference began. As long as the lawyers don’t mind you here, he said, I’m fine with it. (They did not.)

The case ended up being about a woman who injured herself three years ago when she fell in a county shopping center. Lawyers on both sides outlined the basic facts and previewed their arguments.

Cicone then talked with each side separately, estimating a dollar figure he felt was a fair compromise, giving an opinion on how the jury might rule and answering questions. But he also took the time to praise both lawyers, tell stories and chat with a young defense lawyer about how he liked his job. The whole hour was one-half business, one-quarter casual conversation and one-quarter story time.

Neither side appeared ready to settle at the conference’s conclusion, but everyone involved clearly enjoyed their time with Cicone and intended to take his recommendations into consideration.

I’ve seen lawyers deferential to judges, but not like this. “Stay here and learn,” one of the defense lawyers said to me as he left.

Anyone else have a Judge Cicone story?

DANNY JACOBS, Legal Affairs Writer

Oral arguments are over, the transcripts have been scoured and our sister blog, DC Dicta, has figuratively crowned the Supreme Court’s Funniest Justice of the October 2007 Term:

No drumroll needed here: As predicted, the winner by a long, long shot is the ever-amusing Justice Antonin Scalia.

Scalia had the court reporters hitting their (Laughter) keys 74 times this term — 18 in the final two weeks of argument alone, DC Dicta notes. And contrary to what you might have seen on TV, Justice Clarence Thomas managed to go for a second straight year without making a single comment during oral arguments.

The tally:

Justice Antonin Scalia: 74
Chief Justice John G. Roberts, Jr.: 23
Justice Stephen Breyer: 21
Justice David Souter: 17
Justice Anthony Kennedy: 9
Justice John Paul Stevens: 7
Justice Samuel Alito, Jr.: 4
Justice Ruth Bader Ginsburg: 4
Justice Clarence Thomas: 0

BARBARA GRZINCIC, Managing Editor, Law

In a footnote in a recent opinion (PDF), U.S. District Judge J. Fredrick Motz weighs in on one of the big legal issues of our day, something that divides the highest court in the land. Yes, that’s right: the correct possessive form of a proper noun ending in S.

In a case involving a man named Darron Goods, Motz makes Goods’ last name possessive by simply adding an apostrophe, not an apostrophe and an S. In the footnote, he comes down in favor of a “hybrid approach” to the “S or no S” dilemma, adding just an apostrophe when the final S sounds like a Z but an apostrophe and an S when the final S sounds like an S. (I do apologize for the ridiculousness of the previous sentence.) Motz says the hybrid approach “has the virtue of marrying the written word and the spoken tongue and contributes to the growth of English as a living language, unconstrained by archaic and inflexible rules.”

What do you think of the judge’s approach? Is it a sensible way to keep flexibility in the language or a road to utter grammar mayhem? If this case goes to the 4th Circuit and that court’s opinion follows Goods’ name with an apostrophe and an S, does that constitute binding precedent?

I tend to say there should be a consistent no-S approach, but then again, I’m part of the generation(s) that didn’t really learn much grammar in school, so maybe my opinion should be taken with a grain of salt. I just like the way names look without that extra S. It’s more aerodynamic.

For what it’s worth, my Associated Press Stylebook says no S.

CARYN TAMBER, Legal Affairs Writer

Good afternoon!

• Terrapin Run opponents aren’t saying how much they spent in total to fight the giant development, but they do say they owe more than $11,000 in legal fees, the Cumberland Times-News reports.
• Book of Joe links to a Post story from yesterday about Facebook bullying at a Bethesda high school, referencing the fact that the legislature has just added computer bullying to the state’s definition of bullying. I guess with every new technology, kids will figure out how to use it to be mean to each other.
• This law firm is brought to you by the letter V.
• That appearance at UB last week didn’t satisfy your deep craving for all things Scalia? Watch the “brilliant and combative” justice’s 60 Minutes appearance. Thanks to Lawbeat for the link.
• Does your firm have someone in charge of client satisfaction?
• BusinessWeek has a great story from the other day on an Oregon woman fighting the RIAA on what she and her lawyer say is the ridiculous charge that she shared copyrighted music online. Hat tip: Slashdot.

CARYN TAMBER, Legal Affairs Writer

Can lawyer layoffs happen here? Pick one: (a) They already are; (b) Yes, it’s just a matter of time; (c) Maybe, but it won’t be as bad as it is elsewhere; or (d) all of the above.

As Caryn Tamber writes in Maryland Lawyer, the answer depends on whom you ask.

Also in today’s issue, Brendan Kearney previews the death penalty case to be heard by the Court of Appeals. Lawyers for Jody Lee Miles know their argument has failed before, but they hope a 2007 Supreme Court ruling will make a difference — or that Judge Alan M. Wilner’s replacement, Judge Joseph F. Murphy Jr., will.

Then there’s the $2 million verdict in a surgical med-mal case; the latest battle in the war over Piney Run; and the attorneys’ fee award against a Bethesda woman who tried to have her husband killed during their divorce.

Plus:

• Damon’s Grill operator seeks dismissal of fraud action
• Jacobson named to environmental post
• Pro bono: Barbara Bakal Greene used it as a springboard to her own solo practice
• Interrogatory: What’s the strangest answer you’ve heard under oath?
• Briefs
• Opinion and Commentary by our Editorial Advisory Board and Jack L.B. Gohn
• Case digests

Want to blog about any of these topics, or suggest others we should be covering? Fire away…

BARBARA GRZINCIC, Managing Editor/Law