Sixty-five percent of people in need of legal representation begin their search for an attorney on the Internet, according to a 2009 report in the New York State Bar Association Journal. How difficult is it for these potential clients to find a particular firm online and, once they do, are they motivated enough by what they find to take the next step and contact that firm? Some lawyers embrace online marketing and do it well, while others make mistakes that cost them clients, money and time.
Lawyers are highly educated and trained to write for the courts, where complex legal jargon is expected and well understood. Writing for the Web (and for prospective clients) is an entirely different animal. A law firm administrator should consider asking his or her nonattorney friends whether they find the law firm's site content easy to understand and compelling. If the answer is "no," the firm should consider hiring someone with experience writing for the Web. An experienced writer can help the firm communicate with prospective clients more efficiently and effectively, as well as include a strong call to action. Experts can also improve a firm's positioning on search-engine results by incorporating keywords into the copy that are relevant to the firm's practice and that prospective clients are most likely to input into search engines.
A law firm's website is the centerpiece of its online marketing efforts. It tells the world who the firm is, what it does and why it does it well. If a firm builds it right, the website can create a favorable impression of the firm, while generating quality leads. If a firm has developed a website that clearly describes its capabilities in terms of client needs, but no one is calling, it should try a couple of quick fixes that could get the phones ringing. A firm should always put its location and phone number prominently at the top of the website. It should include a strong call to action that will motivate prospective clients to call, such as, "For a free consultation, contact us now." Not fancy, but it works.
Additionally, law firm management should recognize that it can be intimidating to call a law firm, so it should include a contact form right on the site for prospects to fill out so the firm can contact them. Again, the firm should put this high up, above the fold on every page. If a firm has a good message on its website, those three simple steps should provide it with a noticeable lift in response. It shouldn't cost much or take a lot of time.
Search-engine marketing encompasses all efforts to promote a website or business online within search engines like Google, Bing and Yahoo. There are two ways to employ search-engine marketing: through search-engine optimization, which works to improve a website's rankings within the body of search-engine results, and pay-per-click advertising, which allows the site owner to place sponsored messages along the top and right side of the main search-engine results. Lead activity (phone calls or e-mail contacts) increase by 45 percent when search-engine results are coupled with a pay-per-click campaign. See iCrossing Search Synergy Report, March 2007, www.slideshare.net/iCrossingDe/search-synergy-report. A law firm should hire an outside agency with expertise to help it establish a comprehensive strategy; then it should test it relentlessly and measure results.
A law firm administrator might see a few examples of high-ranking websites within an outside agency's portfolio and believe that the search-engine marketing (SEM) agency is good at what it does, but he or she would need to do further research before bringing an agency on board. For example, are the high-ranking websites ranking for the "best" (most traffic/leads) keywords? Are the high-ranking websites ranking for the right keywords for the law firm's marketing strategy? What is the SEM firm doing to drive higher rankings? Is it a breadth of SEM work or is it relying on only one tactic, thus putting the entire firm's SEM eggs in one basket? Finally, and most important: Is the agency employing legitimate and ethical practices to affect ranking? A firm should remember that, if it hires the agency, it is representing the law firm's brand: If the agency uses black hat (shady, unethical) tactics, the firm will have to deal with the fallout.
DON'T EXPECT IMMEDIATE RESULTS
Business owners who are unfamiliar with how search-engine marketing works tend to expect results in a matter of days. Law firm managers shouldn't get discouraged just because the phones aren't ringing off the hook after a couple of weeks. They should consider testing an SEM program on just one area of practice before investing the firm's money in all of them. From there, the firm can adjust and expand as needed. It should set reasonable goals and establish effective processes to track all phone and e-mail inquiries generated from the campaign. If a firm commits itself to the program, it will reap the rewards. Results from search-engine marketing take time; the firm will need to be patient. Typically, it will see results from a search-engine optimization program in approximately three to six months, during which time performance is monitored and the program is tweaked for optimal results. Although one can see immediate results from a pay-per-click program, it takes about one to three months to set it up properly.
In the legal services business, in which people work very closely with their attorneys, it is crucial for a firm to incorporate a video on its website so that potential clients can see who they might be hiring. The vast majority of U.S. citizens are accustomed to viewing online video, and including at least one video on the site can help bring a firm to life for prospective clients. An effective online video can also increase a firm's exposure on search engines, and adding the video to YouTube, legal directories and other video distribution sites can extend that reach. A firm should create a professionally produced video that runs up to two minutes and includes an actionable invitation to connect with the firm by phone or e-mail. It should include three key messages within the first 30 seconds, as viewers might not retain any more than that. A firm should measure pre- and post-publish statistics to identify page views, downloads and other metrics to determine how well the video is performing.
Each month, millions of people visit online legal directory sites to find information and local lawyers who can help them confront a pressing legal concern. That's why a paid profile on one of these sites should be part of a law firm's marketing strategy. The more information a firm includes about its expertise, the better. The firm should make sure to include information that is critical to prospective clients, such as years of experience, areas of practice, languages spoken, office hours and payment options. A firm should include a compelling tagline that can set it apart from others. Establishing a profile on one of these sites will drive more qualified leads to the firm.
A firm should make sure to tailor its tagline associated with search-engine sponsored results and sponsored links to the area of practice and geographic region the ad is targeting. For example, an ad for bankruptcy in Chicago should have a different tagline than an ad for personal injury in Dallas. Likewise, for sponsored results, the landing-page URL for the "view website" link should also be tailored to each specific ad. Ensuring that the taglines and landing-page URLs are distinctly relevant to the ad will present a better experience for the user and will increase the potential for more leads -- and better-quality leads.
LEVERAGING RATINGS AND RANKINGS
Ratings are critical to driving new business in the digital age. Lawyers need to understand that "buyers" of legal services are turning to the Web in record numbers to research lawyers and read online ratings and reviews that include peer assessments, as well as client feedback regarding a lawyer's legal ability, cost, perceived value, ability to communicate and other factors. If a firm has established a favorable peer-based rating through a credible, third-party ratings resource, it should make sure that rating is featured prominently on its website and encourage satisfied clients to post reviews of the firm's performance on matters no longer before the courts. If the firm gets negative feedback through one or more of these sources, it should use that as an opportunity to assess weaknesses in its approach and as an opportunity to address the concerns of potentially unhappy clients. A firm is going to get reviewed, rated and ranked whether or not it actively pursues these assessments, so it's better to engage and leverage positive reviews to the fullest.
Lawyers are notoriously slow adopters of new technologies, but the general population is blogging, tweeting and flocking to sites like Facebook and LinkedIn by the millions. Limited time and resources make in-person networking more difficult than ever. However, involvement in social media offers limitless opportunities to find, connect and engage with prospective clients. If a law firm administrator is unsure how to start or needs help refining an approach, he or she should talk to an expert with a proven track record in helping lawyers leverage social media for business development. Then he or she should spend the necessary time up-front establishing concrete and reasonable goals.
A social-media expert can help a firm decide whether it should devote time to creating a blog, establishing a presence on one or more professional networking sites, setting up a Twitter account or all of the above and more. Social media are collections of "communities," each with its own culture and rules of conduct. A law firm administrator should take some time to observe and learn before throwing the firm into the mix. Once a firm does jump in, it should do so in the spirit of connecting with and helping others in the community by providing useful information. It should avoid any overt sales pitches. Business inquiries will come as the firm establishes trust and credibility in various online forums.
Debra Regan is a vice president at LexisNexis -- parent company of Martindale-Hubbell and Lawyers.com -- where she helps lawyers attract new clients with website development and search-engine marketing/optimization services.
http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202459200700
Ankit Rawal
Closure of McDonough Holland & Allen Puts Lawyers in Play -- By: Cheryl Miller
Attorneys scrambled behind the scenes in the wake of Friday's announcement that McDonough Holland & Allen,
Firm leaders have not spoken publicly about the closure other than to issue a three-paragraph statement saying that a "variety of reasons," including attorney departures, had led to a decision to "wind down ... operations" with a Labor Day target date.
The 80-attorney firm, with a branch office in
"Going forward, individual and small group announcements will be made as transition plans are finalized," the statement read.
Industry observers said Monday that the
Sources were also eyeing the
"Obviously, to bring them all in and integrate them with [Stoel Rives], the numbers didn't work out," said Tom Chase, a
McDonough Holland maintains a large public law practice; its attorneys represent dozens of municipalities, including numerous redevelopment agencies. That group could be enticing to other firms, Chase said.
Donald Oppenheim, chief operating officer of Meyers Nave Riback Silver & Wilson, said his Oakland, Calif.-based firm, with its emphasis on public law practice, is "always" in the market for talented attorneys, but he declined to say if conversations had taken place with McDonough Holland partners.
Much of the debate on the reasons behind McDonough Holland's demise has focused on the March departure of the firm's 10-person health care group to DLA Piper. For years, McDonough Holland had been tied to regional health care groups and hospitals, including
"That was a huge hit for the firm," said Chase. "They were a very, very profitable group."
The group's leader, Stephen Goff, said Monday that he did not know about the firm's impending closure until after Friday's announcement and added that he had not spoken with anyone at the firm. He declined further comment.
Goff's departure followed the firm's May 2009 move to high-end office space on three floors of a newly constructed downtown
"That put a lot of pressure on the partners who were still at the firm," said Chase.
http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202462917757&Closure_of_McDonough_Holland__Allen_Puts_Lawyers_in_Play
N.J. Disciplinary Review Board Rejects Sanction Recommendation for Estate Lawyer -- By: Charles Toutant
It's rare indeed that a New Jersey district ethics committee recommends a sanction and the state Disciplinary Review Board disagrees, but it happened June 18 in the case of a Rockaway solo accused of dragging his feet in an estate case and then refusing to cooperate with substituted counsel.
Not only had Jeffrey Grow not neglected the case, but he actively tried to assist the client even after being discharged, the DRB found.
"In sum, we find no clear and convincing evidence that respondent's actions failed to protect the estate in any way," the board held, dismissing all charges.
Arthur Hoffman died on Feb. 22, 2007, leaving his estate in equal shares to his four sisters, including his executrix, Helen Mantooth. She retained Grow.
In April 2007, Grow supervised the sale of Hoffman's house for $425,000. The buyer's attorney held $67,000 of the proceeds in escrow, pending receipt of an inheritance tax waiver. In May, Grow filed an inheritance tax return. That November, after receiving the tax waiver, Grow asked the buyer's attorney to return the $67,000, but the funds were not received until February 2008.
On April 28, 2008, Grow received a letter from New Providence solo Juan Ryan, who said he was hired by the estate to recover the proceeds from the home sale. Ryan accused Grow of "inexcusable delay," asserting that he had ignored requests by Mantooth for an accounting and distribution of the proceeds. Ryan threatened to sue Grow and to report him to disciplinary authorities.
Grow replied on April 30 that he had not yet distributed the proceeds because of the late discovery of a second bank account belonging to Hoffman -- necessitating the filing of an amended tax return -- and the belated receipt of the buyer's escrow.
On June 30, sister Evelyn Whitley filed a grievance, accusing Grow of not complying with numerous written requests for information, and in July, Mantooth terminated him.
On July 15, Ryan wrote Grow to ask about what he saw as errors in a proposed final accounting sent to Mantooth. On Sept. 23, Grow sent Ryan an amended version of the accounting. On Nov. 24, Ryan wrote to Grow about checks from a pension plan and a life insurance company that did not appear in the final accounting, and on Dec. 18, complained to the District XB Ethics Committee investigator that Grow did not respond to his inquiry about the checks.
In testimony before the committee, Ryan said Grow overreported the estate's income by $100,000 on a tax return by failing to use a $25,000 deduction for each sister and overpaid estate taxes by $9,000. In addition, Grow's accounting lumped together assets, liabilities and expenses, Ryan said.
During his testimony, Grow, who appeared pro se, admitted he made the tax return error but said it was rectified when he obtained a refund.
He disputed the characterization of his accounting methods as improper and said he had sent Mantooth copies of all relevant documents. He also said he eventually realized that the sisters were not on speaking terms with each other and that was hampering communication in the case.
In addition, he said that before he was contacted by Ryan, he heard from at least two other attorneys on behalf of the sisters, but those attorneys were never heard from again and he assumed Ryan would "disappear" as well.
He said after Ryan contacted him, he called Mantooth to find out whether his representation was terminated, but was unable to reach her, Grow said.
The committee found Grow made "numerous mistakes" in his accounting and stuck his "head in the sand" when avoiding Ryan. The committee alleged that he violated New Jersey Rule of Professional Conduct 1.1(a), gross neglect, and RPC 1.16(d), failure to turn over a client's file to subsequent counsel, and it recommended censure.
But despite Grow's failure to respond to many of Ryan's requests for information, he performed the job expected of an attorney administering a will, the DRB concluded.
Grow did not neglect the case, "as evidenced by all that he accomplished during his tenure for the estate," the DRB wrote.
Grow presided over the sale of Hoffman's house, probated the will, prepared and filed numerous documents for tax purposes and "generally marshaled the assets of the estate," the DRB said.
While Grow should have replied to Ryan's November 2008 letter about the checks not included in the estate accounting, Ryan also could have investigated that matter with his client or the bank, the DRB said.
Grow says the committee members could have seen that the allegations were unfounded "but they chose not to. Thank God the central ethics committee saw it for what it is," Grow says.
"One thing is very clear -- in this day and age, people are way too aware that the way to control their attorney's behavior or to keep from paying them is to simply file an ethics charge," says Grow.
Ryan says he is not surprised that the charges were dismissed. He says Grow's acts were "clumsy" but "not particularly egregious."
http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202462918536&NJ_Disciplinary_Review_Board_Rejects_Sanction_Recommendation_for_Estate_Lawyer
Not only had Jeffrey Grow not neglected the case, but he actively tried to assist the client even after being discharged, the DRB found.
"In sum, we find no clear and convincing evidence that respondent's actions failed to protect the estate in any way," the board held, dismissing all charges.
Arthur Hoffman died on Feb. 22, 2007, leaving his estate in equal shares to his four sisters, including his executrix, Helen Mantooth. She retained Grow.
In April 2007, Grow supervised the sale of Hoffman's house for $425,000. The buyer's attorney held $67,000 of the proceeds in escrow, pending receipt of an inheritance tax waiver. In May, Grow filed an inheritance tax return. That November, after receiving the tax waiver, Grow asked the buyer's attorney to return the $67,000, but the funds were not received until February 2008.
On April 28, 2008, Grow received a letter from New Providence solo Juan Ryan, who said he was hired by the estate to recover the proceeds from the home sale. Ryan accused Grow of "inexcusable delay," asserting that he had ignored requests by Mantooth for an accounting and distribution of the proceeds. Ryan threatened to sue Grow and to report him to disciplinary authorities.
Grow replied on April 30 that he had not yet distributed the proceeds because of the late discovery of a second bank account belonging to Hoffman -- necessitating the filing of an amended tax return -- and the belated receipt of the buyer's escrow.
On June 30, sister Evelyn Whitley filed a grievance, accusing Grow of not complying with numerous written requests for information, and in July, Mantooth terminated him.
On July 15, Ryan wrote Grow to ask about what he saw as errors in a proposed final accounting sent to Mantooth. On Sept. 23, Grow sent Ryan an amended version of the accounting. On Nov. 24, Ryan wrote to Grow about checks from a pension plan and a life insurance company that did not appear in the final accounting, and on Dec. 18, complained to the District XB Ethics Committee investigator that Grow did not respond to his inquiry about the checks.
In testimony before the committee, Ryan said Grow overreported the estate's income by $100,000 on a tax return by failing to use a $25,000 deduction for each sister and overpaid estate taxes by $9,000. In addition, Grow's accounting lumped together assets, liabilities and expenses, Ryan said.
During his testimony, Grow, who appeared pro se, admitted he made the tax return error but said it was rectified when he obtained a refund.
He disputed the characterization of his accounting methods as improper and said he had sent Mantooth copies of all relevant documents. He also said he eventually realized that the sisters were not on speaking terms with each other and that was hampering communication in the case.
In addition, he said that before he was contacted by Ryan, he heard from at least two other attorneys on behalf of the sisters, but those attorneys were never heard from again and he assumed Ryan would "disappear" as well.
He said after Ryan contacted him, he called Mantooth to find out whether his representation was terminated, but was unable to reach her, Grow said.
The committee found Grow made "numerous mistakes" in his accounting and stuck his "head in the sand" when avoiding Ryan. The committee alleged that he violated New Jersey Rule of Professional Conduct 1.1(a), gross neglect, and RPC 1.16(d), failure to turn over a client's file to subsequent counsel, and it recommended censure.
But despite Grow's failure to respond to many of Ryan's requests for information, he performed the job expected of an attorney administering a will, the DRB concluded.
Grow did not neglect the case, "as evidenced by all that he accomplished during his tenure for the estate," the DRB wrote.
Grow presided over the sale of Hoffman's house, probated the will, prepared and filed numerous documents for tax purposes and "generally marshaled the assets of the estate," the DRB said.
While Grow should have replied to Ryan's November 2008 letter about the checks not included in the estate accounting, Ryan also could have investigated that matter with his client or the bank, the DRB said.
Grow says the committee members could have seen that the allegations were unfounded "but they chose not to. Thank God the central ethics committee saw it for what it is," Grow says.
"One thing is very clear -- in this day and age, people are way too aware that the way to control their attorney's behavior or to keep from paying them is to simply file an ethics charge," says Grow.
Ryan says he is not surprised that the charges were dismissed. He says Grow's acts were "clumsy" but "not particularly egregious."
http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202462918536&NJ_Disciplinary_Review_Board_Rejects_Sanction_Recommendation_for_Estate_Lawyer
Calif. Trial Lawyers Welcome Latest Ruling on Recovery of Medical Expenses -- By: Mike McKee
The Recorder
The ruling by
The fact that both rulings favor plaintiffs didn't worry David Ettinger, a partner with Encino's Horvitz & Levy who was on the losing side of Thursday's opinion.
"Really," he said, "until the Supreme Court speaks I don't think we can make any judgments."
In Thursday's ruling in Yanez v. SOMA Environmental Engineering Inc., A123893, the 1st District held that an Alameda County judge erred by reducing a negligence award from $150,000 in damages -- including more than $44,500 for past medical expenses -- to about $18,000. The lower amount represented the actual payment plaintiff Ana Yanez's doctors accepted under their contracts with the woman's insurers.
The appeal court invoked the collateral source rule, which says damages shouldn't be reduced simply because the victim receives benefits from other sources, such as insurance companies.
"The rule," Justice Sandra Margulies wrote, "reflects a policy preference favoring the tort victim over the wrongdoer since not applying the rule allows the wrongdoer to profit from the victim's investment in purchasing insurance or from the generosity of those who come to the victim's aid."
The 4th District came to a similar conclusion in Howell v. Hamilton Meats & Provisions Inc., 179 Cal.App.4th 686.
"[Rebecca] Howell, as a person who has invested insurance premiums to assure her medical care, should receive the benefits of her thrift," Justice Gilbert Nares wrote. "And
Both Yanez and Howell were injured in traffic accidents.
Defense lawyers had argued that basing damages on the full cost of medical services -- rather than just for the amount actually accepted by doctors -- would give plaintiffs an undue windfall.
Margulies noted, however, that the collateral source rule applies "even when it unquestionably does confer a windfall benefit on the tort plaintiff."
In a concurrence in Yanez, Justice Kathleen Banke stated it might be wise to re-examine the evidentiary aspect of the collateral source rule.
"It is time, therefore," she wrote, "to trust juries to heed limiting instructions in this context, as in others, and to let juries hear all the relevant evidence on the 'reasonable value' of medical services."
Scott Sumner, a partner with Walnut Creek, Calif.'s Hinton, Alfert & Sumner who represents Yanez, warned, though, that Banke's proposal "would turn every run-of-the-mill rear-end auto collision case into a graduate-level medical financing and insurance exposition."
If that logic is followed, he added, jurors should also be told that defense lawyers have been paid by the hour "and that the plaintiff's lawyer has not been paid, and will not be paid ... unless and until the jury compensates plaintiff for all the harm the defendant's carelessness inflicted on them."
Ettinger called the ruling a "big deal" because the number of personal injury claims filed in
http://www.law.com/jsp/article.jsp?id=1202463110835&Calif_Trial_Lawyers_Welcome_Latest_Ruling_on_Recovery_of_Medical_Expenses
Justices Expand Second Amendment Gun Rights to States -- By: Mike Scarcella
The National Law Journal
The U.S. Supreme Court on Monday expanded the reach of the Second Amendment to the states, opening the door to challenges of local handgun laws across the country.
In McDonald v. Chicago, a 5-4 majority said that a handgun ban in Chicago may have violated Second Amendment rights established in the Court's landmark 2008 decision in District of Columbia v. Heller. Justice Samuel Alito Jr., who delivered the majority opinion for the Court in McDonald v. Chicago, wrote that the right to keep and bear arms is "among those fundamental rights necessary to our system of liberty." Alito's 45-page opinion said the right is fully binding on the states -- a move limiting, but not eliminating, local and state efforts to craft measures to combat social problems.
"Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right," Alito wrote. Joining Alito were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. The decision in Heller, which struck down a District of Columbia law that prohibited the possession of handguns in the home, did not universally mean a person can keep and carry any weapon in any manner. Alito adopted that language, providing some level of reassurance to anti-gun-violence advocates.
The Court's ruling in McDonald does not expressly void Chicago's handgun ban. Instead, the Court reversed and remanded for additional proceedings.
Lead plaintiff Otis McDonald, a community activist in Chicago, filed suit in the U.S. District Court for the Northern District of Illinois following the Supreme Court's ruling in Heller. The suit sought a declaration that Chicago's handgun ban violates the Second and 14th amendments. In June 2009, the 7th U.S. Circuit Court of Appeals affirmed the dismissal of the suit.
Alan Gura, a lead attorney for the plaintiffs in the Heller and McDonald cases, predicted subsequent handgun challenges based on the Court's ruling Monday. "This is not going to be the end of gun laws, of course, as states and localities continue to regulate guns in the interest of public safety," said Gura of Alexandria, Va.'s Gura & Possessky, after Monday's ruling. "However, there are, unfortunately, laws that have no public benefit whatsoever and exist merely to harass and annoy gun owners to make gun ownership difficult, expensive and burdensome. Those laws are going to get struck down after today's ruling."
Gura declined to say whether -- and where -- he was planning to bring additional challenges.
Justice John Paul Stevens wrote a 57-page dissent in which he said the 14th Amendment's guarantee of "substantive due process" does not mean an individual has a right to keep a firearm for self-defense. "The costs of federal courts' imposing a uniform national standard may be especially high when the relevant regulatory interests vary significantly across localities, and when the ruling implicates the States' core police powers," Stevens wrote.
Justice Stephen Breyer's 31-page dissent was joined by justices Ruth Bader Ginsburg and Sonia Sotomayor. "[T]here is no popular consensus that the private self-defense right described in Heller is fundamental," Breyer wrote. Public opinion, he said, is divided over the level of firearm regulation, which Breyer called "a hotly contested matter of political debate."
"The fact is that judges do not know the answers to the kinds of empirically based questions that will often determine the need for particular forms of gun regulation," Breyer wrote. "Nor do they have readily available ‘tools' for finding and evaluation the technical material submitted by others."
Breyer said there is no need to send judges off on what he called "mission-almost-impossible" when legislators are best suited for such a fact-intensive examination.
Nixon Peabody partner Charles Dyke in San Francisco, an attorney for the Chicago Board of Education, which participated as a friend-of-the court in support of upholding the handgun ban, told reporters he expects the "vast majority" of gun restrictions in the country will be "just as valid today as they were yesterday."
In an interview, Gura praised the lawyers for Chicago, whom he called "professional and easy to work with." He was drawing a sharp contrast to District of Columbia attorneys in the Heller case -- attorneys that Gura has accused of unnecessarily prolonging the litigation.
Gura remains in a fee dispute with the District of Columbia. Earlier this month, he filed an amended fee petition in the U.S. District Court for the District of Columbia seeking more than $3.1 million. "Having vindicated the constitutional rights of the people of Chicago, the city of Chicago should be aware that the meter is on," Gura said.
http://www.law.com/jsp/article.jsp?id=1202463104231&Justices_Expand_Second_Amendment_Gun_Rights_to_States
The U.S. Supreme Court on Monday expanded the reach of the Second Amendment to the states, opening the door to challenges of local handgun laws across the country.
In McDonald v. Chicago, a 5-4 majority said that a handgun ban in Chicago may have violated Second Amendment rights established in the Court's landmark 2008 decision in District of Columbia v. Heller. Justice Samuel Alito Jr., who delivered the majority opinion for the Court in McDonald v. Chicago, wrote that the right to keep and bear arms is "among those fundamental rights necessary to our system of liberty." Alito's 45-page opinion said the right is fully binding on the states -- a move limiting, but not eliminating, local and state efforts to craft measures to combat social problems.
"Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right," Alito wrote. Joining Alito were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas. The decision in Heller, which struck down a District of Columbia law that prohibited the possession of handguns in the home, did not universally mean a person can keep and carry any weapon in any manner. Alito adopted that language, providing some level of reassurance to anti-gun-violence advocates.
The Court's ruling in McDonald does not expressly void Chicago's handgun ban. Instead, the Court reversed and remanded for additional proceedings.
Lead plaintiff Otis McDonald, a community activist in Chicago, filed suit in the U.S. District Court for the Northern District of Illinois following the Supreme Court's ruling in Heller. The suit sought a declaration that Chicago's handgun ban violates the Second and 14th amendments. In June 2009, the 7th U.S. Circuit Court of Appeals affirmed the dismissal of the suit.
Alan Gura, a lead attorney for the plaintiffs in the Heller and McDonald cases, predicted subsequent handgun challenges based on the Court's ruling Monday. "This is not going to be the end of gun laws, of course, as states and localities continue to regulate guns in the interest of public safety," said Gura of Alexandria, Va.'s Gura & Possessky, after Monday's ruling. "However, there are, unfortunately, laws that have no public benefit whatsoever and exist merely to harass and annoy gun owners to make gun ownership difficult, expensive and burdensome. Those laws are going to get struck down after today's ruling."
Gura declined to say whether -- and where -- he was planning to bring additional challenges.
Justice John Paul Stevens wrote a 57-page dissent in which he said the 14th Amendment's guarantee of "substantive due process" does not mean an individual has a right to keep a firearm for self-defense. "The costs of federal courts' imposing a uniform national standard may be especially high when the relevant regulatory interests vary significantly across localities, and when the ruling implicates the States' core police powers," Stevens wrote.
Justice Stephen Breyer's 31-page dissent was joined by justices Ruth Bader Ginsburg and Sonia Sotomayor. "[T]here is no popular consensus that the private self-defense right described in Heller is fundamental," Breyer wrote. Public opinion, he said, is divided over the level of firearm regulation, which Breyer called "a hotly contested matter of political debate."
"The fact is that judges do not know the answers to the kinds of empirically based questions that will often determine the need for particular forms of gun regulation," Breyer wrote. "Nor do they have readily available ‘tools' for finding and evaluation the technical material submitted by others."
Breyer said there is no need to send judges off on what he called "mission-almost-impossible" when legislators are best suited for such a fact-intensive examination.
Nixon Peabody partner Charles Dyke in San Francisco, an attorney for the Chicago Board of Education, which participated as a friend-of-the court in support of upholding the handgun ban, told reporters he expects the "vast majority" of gun restrictions in the country will be "just as valid today as they were yesterday."
In an interview, Gura praised the lawyers for Chicago, whom he called "professional and easy to work with." He was drawing a sharp contrast to District of Columbia attorneys in the Heller case -- attorneys that Gura has accused of unnecessarily prolonging the litigation.
Gura remains in a fee dispute with the District of Columbia. Earlier this month, he filed an amended fee petition in the U.S. District Court for the District of Columbia seeking more than $3.1 million. "Having vindicated the constitutional rights of the people of Chicago, the city of Chicago should be aware that the meter is on," Gura said.
http://www.law.com/jsp/article.jsp?id=1202463104231&Justices_Expand_Second_Amendment_Gun_Rights_to_States
High Court All Over the Map in 'Bilski' -- By: Tony Mauro
In the end, Bilski may have been a bust.
After more than 60 briefs on both sides, oral arguments last November and an eight-month vigil for the ruling among patent lawyers, the decision in Bilski v. Kappos issued Monday may have done little to end the debate over what kinds of innovations are or are not eligible for patents.
The long-awaited decision was supposed to resolve the patent eligibility of business methods or processes that are not tied to a new machine or don't transform anything. But while rejecting one such patent, it did not rule out method patents in general, underlining that it "need not define further what constitutes a patentable process" beyond looking to guideposts provided by past U.S. Supreme Court decisions.
Justice Anthony Kennedy's majority decision agreed with the U.S. Court of Appeals for the Federal Circuit that the specific patent at issue -- a way of hedging against weather-related losses in the energy industry -- should not have been granted. All nine justices agreed that it was too abstract for patentability.
But for a smaller majority, Kennedy did not rule out all business methods patents and invited the Federal Circuit to keep trying to find a better test than the "machine or transformation" test, which he relegated to the status of a "clue" but not the only test.
Stevens' concurrence, one day before he retired from the high court, had the look of a writing that could have started out as a majority opinion but lost its fifth vote. Stevens, who was joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, called the majority a "tepid disposition" of the case.
It was tepid enough, apparently, that even the lawyer for patent holders Bernard Bilski and Rand Warsaw did not concede defeat. Finnegan, Henderson, Farabow, Garrett & Dunner partner J. Michael Jakes, who argued the case for the patent holders, said, "We are disappointed by today's decision because we believed the Bilski/Warsaw claims should be patentable under the broad language of the Patent Act." But Jakes said he would work with his clients to revive their patent claim to meet the new guidance provided by the Court.
"The Supreme Court's narrow decision today in Bilski v. Kappos means that the game of 'hot potato' being played between the Federal Circuit and the Supreme Court will continue," said Dechert's Joshua Rawson.
"Business method patents are still alive and well -- or at least have survived this latest test," said Martin Raskin of Cozen O'Connor. "This decision is a win for financial institutions and software companies, but clearly not what companies like Google and Yahoo! would have liked."
"The long-anticipated Bilski opinion was released today with more of a thud than a splash," said Keith McWha of Day Pitney. "The Supreme Court left open the question of what would be needed for a business method to be considered patentable subject matter. Also left open are the questions of patentable subject matter for software patents and medical diagnostic methods."
"In the short run, there may be fewer claims for patent infringement," said Cynthia Kernick of Reed Smith. "At the end of the day, though, smart people will still figure out how to make money from the patent system and business methods no matter what the Supreme Court rules."
The case involved a patent application filed by Bilski and
Bilski and
The circuit ruling sent shock waves through the patent law world, with critics saying the decision would slow innovation in the areas of information technology and financial services, in which patents are sought -- and have been granted -- for new processes that are less tangible than a physical invention. Critics of the Federal Circuit decision warned in amicus curiae briefs that, if its test is upheld, thousands of existing, pending or future patents would be threatened.
During oral argument last November, most justices appeared deeply skeptical of the patent claim. But the long period between argument and decision -- it was the oldest pending case on the argument docket this term -- left lawyers wondering whether the Court was so divided that it would rule narrowly with numerous concurrences and dissents.
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