My Thoughts On Techcrunch And Daniel Brusilovsky

It can be difficult to guess judicial decisions based on the judge's oral questioning of the lawyers, but it's certainly possible to see where judges are having trouble with an argument. In today's case, judges repeatedly went after the FCC's contention that it was acting legally in the Comcast case. Because Comcast's behavior ran afoul of an "Internet Policy Statement" rather than an official rule, the company claims that the FCC had no grounds for action until it made the Policy Statement into actual policy (which FCC Chair Julius Genachowski is trying to do right now).

Judges questioning the FCC's legal team said that the Policy Statement was "aspirational, not operational," that the FCC had not identified a "specific statute" Comcast violated, and that the FCC "can't get an unbridled, roving commission to go about doing good."

What difference would a pro-Comcast ruling make, given that the company has already changed its traffic management practices? It would "free us of this black mark on our record," said a Comcast attorney, according to the Wall Street Journal. That attorney, Helgi Walker, comes from the high-powered Wiley Rein law firm in DC. Ironically, former FCC Chair Kevin Martin, the Republican appointee who sided with the two Democrats on the FCC in the Comcast ruling, was himself a former Wiley Rein lawyer.

In a statement after today's hearing, current FCC Chair Genachowski said, "This case underscores the importance of the FCC's ongoing rulemaking to preserve the free and open Internet. I remain confident the Commission possesses the legal authority it needs and look forward to reviewing the court's decision when it issues."

That decision should come in the next several months.

King Pharmaceuticals, Inc., v ZymoGenetics, Inc., 2009 WL 4931238 (E.D. Tenn. Dec. 10, 2009). Seattle Trademark Lawyer has some background.

This case involves the cutthroat (sorry) world of blood clotting drugs. King Pharmaceuticals sells bovine (cow) thrombin, a clotting agent. ZymoGenetics sells thrombin made from hamster ovaries and snake venom. ZymoGenetics' version has been making inroads on the thrombin market, and King isn't too pleased about that. King claims that its dropping market share is due to several bad acts on ZymoGenetics's part, including ZymoGenetics' AdWords campaign that included the King trademark "Thrombin-JM" as a keyword.

Blaming illegitimate AdWords for King's dropping market share seemed particularly implausible for two reasons. First, the product is purely B2B and has no consumer-facing side. It's used for post-surgery recuperation, so doctors/hospitals are the target customers--and for professional and liability reasons, they are pretty careful about what they prescribe to patients. So if the AdWords ads have helped facilitate doctor switching, it's more likely due to doctors learning of a new drug that doesn't have some of cow thrombin's negative side effects than any marketplace mistake over brands or other "unfair" diversion.

Second, the AdWords ads produced a trivial number of clicks. ZymoGenetics reports that it got 84 clicks on "Thrombin-JM" (and only 803 on the generic term "thrombin"). The court doesn't expressly guffaw at King for fighting over 84 clicks, but I can hear a snicker or two in the opinion. Not surprisingly given the minuscule volume of clicks, ZymoGenetics voluntarily dropped the competitive keyword purchase when it learned of King's lawsuit (it wasn't giving up much), and it agreed not to buy the keyword again. King pressed for a preliminary injunction to forcibly hold ZymoGenetics to its word, which many courts will issue in these situations, but this court decides that ZymoGenetics' promise is good enough and denied the preliminary injunction.

Now, King was going to court to redress ZymoGenetics' perceived transgressions no matter what, so it would be a little unfair to beat up on them for litigating over 84 clicks. However, this case is yet another example of how competitive AdWord lawsuits often are ridiculous overkill given the economic value at issue. (Related examples are 1-800 JR Cigar, which involved $345 of revenue, and Storus, which involved 1,374 clicks over an 11 month period). It's a good reminder to trademark owners to be smart with their litigation dollars!

The Florida Judicial Ethics Advisory Committee issued an (advisory) opinion [link] which included the following question and answer:

[May] a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

[h/t WSJ Law Blog] I thought this conclusion was off base, even after you discount for the fact that Florida has some wacky rules governing advertising by lawyers. My question to the advisory committee is whether this means that it's now inappropriate for a judge to have lunch with a lawyer friend, or engage in email banter with lawyer friends? Is attending the same party now off limits? I assume these actions would still be viewed as appropriate, given that lawyers and judges interact socially (and publicly) all the time. What's so special about Facebook friendship? In the end, the advisory committee should heed the words of one district court

[T]he Court assigns no significance to the Facebook "friends" reference. Facebook reportedly has more than 200 million active users, and the average user has 120 "friends" on the site. . . . Indeed, "friendships" on Facebook may be as fleeting as the flick of a delete button.

Quigley Corp. v. Karkus, No. 09-1725, 2009 U.S. Dist. LEXIS 41296, at *16, n.3 (E.D. Pa. May 19, 2009) (mentioned here and here). With this said, judges and lawyers may want to be careful (driven by common sense), and in any event, minimize their Facebook friending activity while a case is ongoing. [See Techdirt's discussion of a judge-lawyer Facebook friending snafu here.]

[Added: see additional coverage in Silicon Alley's Business Insider: "Florida Judges May not Friend Local Lawyers on Facebook".]

I'm a huge believer in focusing on a single area of practice. I'm convinced that being focused, early, was the principal factor in my initial success.

We all need to be known, liked and trusted. Narrowing the focus of your practice will rocket you forward on the known front. It sure did for me.

Last week I was a guest on the premiere episode of The Un-Billable Hour with Rodney Dowell. We started talking about the reluctance of new lawyers to focus on a niche. They get nervous about turning away business, any kind of business, and they take cases that fall outside of their chosen area of focus.

Why do they do it? The money, of course.

I understand being scared about income. It's tough out there and it's incredibly tempting to take work outside of your niche when you're having a slow month.

But, it's important to let it go. It's important to stay focused and build your practice by doing the work in the niche you've selected.

Why?

A bunch of things happen when you stay focused -

First, you have free time to dig deeper into your area of focus. You can spend more time on the matters you have and keep learning. When you learn more you (1) can charge more, (2) you become more efficient, (3) you can delve more deeply into sophisticated issues and cases within your niche by earning the opportunity to take on higher value projects.

Second, you keep building your reputation in the niche. The client's you're working with are spreading the word. You've got time to meet with referral sources. Everyone comes to know you as the go to person for your area of practice.

Third, you get the opportunity, with every case, to meet people that might refer to your practice. Even if you're taking the cases at a lower fee than you'd like, you'll be meeting judges, lawyers, clerks, experts and others that will refer business to you. They'll know what kind of law you practice and they'll likely remember you.

Finally, every time you turn away business you create a grateful person in your marketplace. Here's what I mean. Let's say someone calls you and asks you to handle a traffic ticket case. You respond by telling the caller that you aren't really expert in that area of law, that you appreciate the call, but that your practice is limited to family law. You, of course, refer them to someone that can help.

The caller now gets that you're the family law expert. They appreciate that you weren't willing to take their money to do something you aren't qualified to do. They appreciate your help in finding the right lawyer. They tell their friends about you because you did something remarkable you put their interests above your own. You also generate goodwill with the attorney you referred the traffic ticket to. Win-win-win.

Bottom line turn down the money. That's how you make more money over the long haul.

Post from: Divorce Discourse - for family law professionals

Why Turning Away Clients Gets You More Clients

Picture by: willtrox. Submitted by: dunno source via Fail Uploader

In a cease-and-desist letter Williams sent to Hachette Book Group, he provided comparisons from the two books of a wedding, a sex-on-the-beach episode and a passage where a human-turned-vampire describes the wrenching change.

As another instance of similarities, Williams pointed out that characters in both books call their wives "love."

"I think the fans have to read both books and make up their own mind, like a judge is going to have to," Williams said.

Background

The most interesting area of new development on the web is the innovation happening around realtime messaging, the ability to deliver updates to a website or application in one or two seconds. While various systems like Yahoo News Alerts or feed readers like Google Reader have offered some simple ways of delivering fairly fast notifications, they are still built on an infrastructure that relies upon requesting a web page repeatedly. These systems do the equivalent of hitting the "reload" button in your web browser over and over.

While those systems have been using these inefficient methods to deliver updates, newer platforms like Twitter, Facebook and FriendFeed have focused on building the infrastructure for efficient large-scale delivery of updates using their own proprietary networks. A lot of attention has been paid to Twitter's 140-character limit, or Facebook's News Feed, but the compelling technology that enables the user experience on these platforms is the immediacy with which updates are delivered. Earlier systems like instant messaging or chat allowed realtime messaging on a one-to-one or small group basis, but it's been harder to deliver those realtime messages to anyone in the world who wanted to receive them unless you had a lot of money, expertise and infrastructure.

Another barrier is that, while there are many different programs and clients that let you connect to Twitter or Facebook with your own applications, there haven't been any free and open options for delivering realtime messages to a large audience if you couldn't, or didn't want to, rely on those companies.

But recently, a few key pieces have fallen into place that make it inexpensive and relatively easy to add realtime messaging as an incremental upgrade to existing websites and web applications. This set of related technologies, which I'm calling the Pushbutton platform, will yield a broad new set of capabilities for users, publishers and developers on the web. Best of all, Pushbutton technologies are free, open and decentralized, meaning that the arrival of realtime on the web will not be owned or controlled by any single company.

Defining Pushbutton

The concept and potential of Pushbutton is a lot like Ajax it's not a single technology or invention, it's a whole family of technologies, some of which have been in development or deployment for nearly a decade, that together enable this new realtime web. Pushbutton's foundation is built on these systems:

• Atom and RSS: The most common feed formats, for syndication on the web
• PubSubHubBub and RSSCloud: Powerful new "hubs" for distributing messages
• Web Hooks: Simple web services for receiving messages, rather than sending them

Pushbutton systems rely on the web's fundamental HTTP protocol for communication between these component parts. The architecture of Pushbutton message delivery is also simple to understand. Before Pushbutton, in today's systems, when you create a message (a blog post, tweet or other update) that's published in your RSS or Atom feed, every application or site that wants updates from you has to repeatedly request your feed to know when it's updated. You can optionally notify ("ping") some applications to tell them it's time to come collect your new updates, but this is time-consuming and resource-intensive on both sides, especially if you want to notify a lot of people.

In the best case, the system we have now is analogous to a person coming by your house and saying "Hey, there's a new edition of your favorite newspaper today. You should go get it." And then you have to go to the newspaper's printing plant to pick it up. In a Pushbutton web, that person is delivering each story to your house the moment it's complete.

That's because Pushbutton-enabled applications will improve upon the current state of affairs by proactively delivering not just the notification that there's a new message, but the content of the message itself. And instead of requiring all those applications to come to your site to read the update, it uses a hub server in the cloud to pass along the message directly to all the receivers that are interested in it.

1. You, the Sender, create a message to be delivered via RSS or Atom
2. Your application gives the messsage to one or more PubSubHubBub or RSSCloud hubs, which reside in the Cloud
3. The PubSubHubBub or RSSCloud hubs deliver the message to any Receivers, the applications or sites that have requested updates from you

In this way, each time you create a new message, a large number of Receivers can consume that message in near realtime (usually less than a second) without a lot of complexity. This kind of messaging has been possible with custom-built or more obscure technologies in the past, but the Pushbutton ecosystem is a breakthrough for a few reasons:

• Sending messages just requires a minor change to an RSS or Atom feed, and a simple, well-defined update notification, instead of major changes to the application where you create your messages.
• Receiving messages is also very simple, only requiring a developer to handle incoming notifications of updates.
• Most of the system's complexity is handled in the hub servers, which are well-documented, implementable in a variety of programming languages, and built around open code that will likely attract a large developer community.
• Most of the scaling effort and expense happens at the hub level, and all current hubs are designed to run on inexpensive cloud systems like Google App Engine or Amazon's EC2.
• The software for Sending, Receiving or running a hub is free, open source and available on almost any platform.
• Messages sent on Pushbutton platforms are delivered via HTTP, which is familiar to any web developer and runs well on any hosting environment. All requests between the different layers of a Pushbutton system can be made as simple REST calls.
• Pushbutton technologies can be adopted incrementally, so that features can be added piecemeal on either the sender or receiver side, without requiring a wholesale upgrade to infrastructure or application architecture.

Who's Behind Pushbutton?

Pushbutton technologies have been created and advocated by some of the most credible and experienced developers of social web technologies. Here's a brief overview of the impressive pedigree of these components:

• PubSubHubBub was co-created by Brad Fitzpatrick and Brett Slatkin of Google. Brad was founder of LiveJournal, and created or co-created fundamental social web technologies like Memcached, OpenID and more.
• XML-RPC update pings, RSS and the RSS Cloud ideas were pioneered by Dave Winer, who has been actively developing open implementations of each of these technologies.
• Web Hooks have been evangelized by Jeff Lindsay, and have been deployed by a variety of different companies and platforms which all independently developed the technique.

In addition, Google has supported Brad and Brett's development of PubSubHubBub, and enabled it on the Google FeedBurner service. A number of smaller companies are deploying large parts of this infrastructure as well. In short, some of the best reputations in developing open web systems have made Pushbutton possible, from the biggest tech companies to the most steadfastly independent developers on the web.

Related Ideas and Prior Art

There are a lot of existing technologies that have influenced the creation and evolution of Pushbutton technologies; If you're familiar with any of these systems, you're probably already ahead of the curve in understanding part of what Pushbutton is trying to enable.

• Twitter Firehose, FriendFeed SUP, TypePad Update Stream: These realtime delivery systems offer up the content of their respective platforms as an unending stream that developers can consume and use in their applications. At the present time, they all have varying licenses and degrees of openness, and slightly different formats for delivering updates, but have proven the utility of the "sending" part of Pushbutton's realtime functionality.
• XMPP (Jabber), NNTP (Usenet), IRC: These older internet protocols all delivered various degrees of realtime messaging and distributed messaging capabilities, and can form a very useful base of experience for Pushbutton developers to learn from. In some cases, fundamental architectural choices about security, authentication or architecture were made when the Internet was less populated and less complex, making them inappropriate for today's applications. In all cases, these protocols are less-known by most contemporary web developers, and thus lack familiar toolkits and development resources, which make them quite challenging to deploy in common, inexpensive environments.
• TrackBack and Pingback: These systems for delivering updates between blogging systems were very effective in enabling rich distributed conversations in the early days of the blogosphere. These have declined in usefulness due to poor or missing implementations of authentication, which led to spam problems, and a general lack of understanding of their utility by a lot of newer bloggers. Pushbutton may offer an opportunity to restore some of the value of the idea behind these systems.
• Reverse HTTP may end up being a useful component of some Pushbutton deployments, as a complement or companion to Comet and related techniques.

What should we worry about?

• A format war? If you're familiar with the communities around technologies like feeds, you may know they have a deserved reputation for being contentious and even breaking into heated disputes over arcane details. I don't think that's likely to happen this time, because there are only one or two viable formats for each layer of the platform, and the creators of each part have shown some consistent good-faith efforts to promote interoperability where possible and peaceful coexistence where necessary. In the Ajax community, for example, the "X" in Ajax often stands for JSON instead of XML, but this hasn't hindered its broad adoption at all. I'm also willing to personally commit to try to prevent any kind of interpersonal conflict that would inhibit the adoption of Pushbutton technologies. Worry? No.
• Scaling issues? There will inevitably be some learning to do about how to scale the resource-intensive hub layer of a Pushbutton system. But because the hubs live on cloud systems that make enormous amounts of computing resources easily available, because the coders creating the reference implementations of the hub software have great experience making web-scale systems, and because it's relatively simple to introduce new hubs as needed, this will likely not be a gating factor for adoption of Pushbutton. Worry? No.
• Intellectual Property Concerns? I'm not a lawyer, and this isn't legal advice. But there has already been a great deal of interest in these systems, and it's likely that any bad actors who were interested in throwing their patent lawyers at this sort of system would probably already be suing people left and right. And the main players who are already involved have shown a consistent desire to make truly open systems that don't have IP encumbrances. Put simply, I think anybody smart enough to invent these kinds of technologies is smart enough to not want to look like jerks by suing somebody for using them. Worry? Probably not.
• Competition from centralized systems? Pushbutton technologies are not just free and open, they're decentralized, which is a serious threat to the "lobster trap" model of social software. We can expect serious competition from the centralized networks that are currently building these sorts of systems. If a threat arises to Pushbutton's adoption, this is the most likely source. Worry? Definitely.
• Bad user experience? One of the worst things we can do in making use of new technologies is to ignore the social, personal or even political implications of their use. Messages that are immediately delivered can't, by their nature, be erased from all the places they appear. The idea of permanently archiving these types of messages is unfamiliar to a lot of less technically-savvy users. And whenever we see something shiny and new, we have the temptation to use technology for technology's sake, whether or not we're solving a real problem or providing a real value. If Pushbutton gets a bad rap early on despite having tremendous potential, this will be why. Worry? Hell, yes.

Conclusion

I have tremendous excitement about the new realtime era of web applications. While I'm fundamentally an optimistic person, I have great skepticism when it comes to mindless hype about new technologies, so it's with a bit of reluctance that I indulge in some hype myself. But I think the Pushbutton web has the opportunity to give individuals and organizations with distinct and passionate voices the ability to be even more immediate and expressive on the web, and after ten years of publishing on the web, that's the part I love the most.

I have no doubt that some skeptics will say "Pushbutton is just PubSubHubBub by another name", just like they said "Ajax is XMLHttpRequest by another name", and if that's what the super-geeky guys want to believe, I'm fine with that. And I'm sure there will still be some significant technical details to resolve. But I think by giving the overall concept an approachable, understandable name and (hopefully!) an explanation that can be understood by anyone with an interest, it can catalyze interest in a whole new area of innovation on the web. And to be honest, when I see folks like Brad Fitzpatrick and Dave Winer hacking on the same set of problems, I can't help but think something interesting will come of it.

Over the next few days, I'll be outlining some of the opportunties around Pushbutton, espousing more of the philosophy that has the potential to imbue Pushbutton with a bit more meaning than most new web tech, and providing some simple explanations of how you can get started both learning about and taking advantage of these technologies. Most of all, I hope you'll offer your pointed criticisms, thoughtful critiques, detailed corrections and even better ideas. I'll be following the conversation here in the comments, across the blogosphere, and on Twitter using the tag #pshb.

I am genuinely baffled by the journalistic ethics debate over TechCrunch's decision to publish Twitter corporate documents that were apparently obtained through "hacking" and then forwarded to the Silicon Valley business blog.

TechCrunch appears to have played no role whatsoever in the alleged hacking. According to TechCrunch, it was simply sent 310 documents, unsolicited. It then decided to print "financial projections, product plans and notes from executive strategy meetings," as well as "the original pitch document for the Twitter TV show that hit the news in May." Why? "[M]ostly because it's awesome." TechCrunch voluntarily refrained from publishing other information contained in the documents, including "floorplans and security passcodes to get into the Twitter offices." According to the NY Times, TechCrunch's founder Michael Arrington (a fellow OMM alum) "is working closely with Twitter as it determines which pieces of information to publish," though "[h]e is protecting the identity of his source."

Here's what I don't get: why the ethical hand-wringing here? Why was TechCrunch's decision to publish some of the hacked documents any different from what mainstream publications like the Times and Wall Street Journal do countless times every day: print information and documents leaked from employees to reporters, without company permission? Every company I've ever heard of prefers to keep its business information confidential. Often, they have formal confidentiality policies, or even require employees (and contractors) to enter into strict nondisclosure agreements. Of course business reporters know this. And yet, without giving it a second thought, they ask employees to violate their duties to their employers, and leak confidential documents and spill the beans on company secrets. And their editors don't wring their hands; they praise their reporters for their scoops.

In some ways, what typical reporters do in soliciting confidential documents is ethically worse than what TechCrunch did. Reporters typically ask sources to give them confidential documents knowing full well that the employee is breaking company policy, and possibly civil or even criminal laws (e.g., conversion or theft of trade secrets). But TechCrunch did no such thing; by its account, the hacked documents just showed up unsolicited in its inbox. And assuming that's accurate, I think TechCrunch faces no significant legal risk from publishing the material. See Bartnicki v. Vopper, 532 U.S. 514 (2001) (radio host not liable under wiretapping statutes for broadcasting illegally intercepted conversations, where he played no role in illegal interception).

The hand-wringers can't have it both ways. Either TechCrunch's decision to print was perfectly legitimate journalism or what business reporters do every single day is even more unethical. Am I missing some distinction?

I had drinks the other night with Miles Beckett at the Pink Taco in Century City. After a few Mexican Beers and some great service from some of the friendliest Models/Actresses/Waitresses in Hollywood I was able to get some valuable information out of one of the few producers who is making a living in online video.

Miles Beckett and his business partner Greg Goodfried are the guys behind the Internet phenomenon lonelygirl15. They also gave up professional careers (Miles was a doctor. Greg was a lawyer.) to pursue the creative rewards of online video. The interesting thing about Miles and Greg is that not only are they pioneers in web video with their own projects, they are also guides for hire when it comes to helping other content creators figure out the online video space. With some smart partnering they managed to take the success of LG15 and raise $5 million to start their digital studio EQAL. Now they are helping known brands like CBS, Paula Deen and event Anthony E. Zuiker the creator of the hit TV Show CSI navigate this new digital space. Miles and Greg understand what it takes to build an audience and an emotionally engaged community. Something that everyone in this space will have to learn soon or they won't be able to make a living in online video.

Anthony E. Zuiker,CBS,Century City, Greg Goodfried,lonelygirl15,LG15,making a living in online video, Mexican Beers,Miles Beckett,Paula Deen,Pink Taco,Pink Taco in Century City

Carlo Longino is an expert at the Insight Community. To get insight and analysis from Carlo Longino and other experts on challenges your company faces, click here.

Why is business so hard? (thx, jillian)

You've stuck it out through the lean times with the company even when they weren't funded and now you are on the outside looking in. What gives? It must be the evil venture capitalist (me). He must want one of his guys at the legal helm.

Not so fast. Even ex-lawyers like me who believe we can evaluate the best of legal talent don't take this action lightly. And I never like to have a heavy hand with my CEOs. It's their company to run and I work for them.

I, however, have seen some unbelievably stupid things that company counsel lawyers have pulled that has ruined their credibility with the VC (me) and thus found their way out the door, either by my strong urging, or by agreement of the entire company.

So, today is the list of quick ways to get fired. Before you laugh or go duh EACH of these are real events that I've dealt with personally. And all of these have happened in the last 3 or 4 years, so these are not back in the day events. Furthermore, there is no monopoly on stupidity. The mess ups below happened at small, medium and large firms all over the country.

I've divided them into three categories: 1. Screw ups that get you immediately fired. 2. Actions that get you fired sooner than later. 3. Things that probably get you fired over time. Without further delay (and in order of egregiousness)

Screw ups that get you fired immediately

1. Screw around with redlines. You and my counsel are negotiating the Series A financing. As normal, there are several revisions of the documents. My counsel notices that paragraphs are reverting back to previously rejected ones, but are NOT showing up as redlines. They assume it is a mistake, but when the junior associate is asked what's up he says that you told him to make the changes. You're fired (and you probably get reported to the state bar and the head of your law firm).

2. Endorse the chief competitor. We find a quote made by you on the primary competitor's website extolling the wonders of the competitor. First, it would have been nice to know that you represented our competitor. Secondly, you providing the quote shows amazingly poor judgment. You should never pick sides. (And in hindsight, we kicked the other company's butt, so you chose wrong). You're fired.

3. You provide little leadership and wait for someone else to come up with the answer. The company is in a sticky situation. It's unique and it's dire. There are many phone calls with lots of other partners and associates on the phone billing away. You and your team provide absolutely no thought leadership on how to fix the problem. Instead, the CEO, another executive or I come up with the solution, but you (probably in order to save face) tell us that we are idiots and that it will never work. We have to hire another law firm to vet our idea and they say great idea - it works. Company survives. You don't. You're fired.

4. You provide advice to the CEO adverse to the company's interest. Things aren't going well at the company. The board is mulling around thinking about replacing the CEO. In contentious discussions to remove the CEO, it becomes apparent that you and the CEO have been having side discussions. Specifically you have advised him regarding his leverage that he has against the company in order to either keep his job or extort a larger settlement agreement. Guess what? You're Fired. (But not by the CEO, the board makes it a two-fer and you and the CEO are out).

Actions that get you fired sooner than later

1. Be lax in your advice and get it wrong. Yeah, we all make mistakes, but being lazy and riffing off the cuff about legal issues and then being proved wrong is something that can doom your relationship. If you come to the board meetings, sit back and offer opinions that later turn out wrong, you will have a short stay as company counsel. Specifically what annoys me the most is when lawyers riff about subject areas that they aren't experts (e.g. corporate guy guessing about litigation issues) and don't bother to check their own advice with their own firm after the board meeting. Let's call this: You're fired over time

2. Being inefficient, getting lost in the woods, billing for small stuff that doesn't matter. You are the epitome of Why Startup Lawyers Frustrate Me. Despite how stupid it is to negotiate crap like registration rights, you waste your time, my time, my counsel's time and your client's bank account doing so. Again, you're fired (over time).

3. Bait and switch. You bring in the client, but you never show for board meetings, phone calls, etc. and send junior folks in your stead. Or worse yet, the company hires you to run an important litigation matter and you don't show for court, rather your less skilled colleague does. You're fired (over time).

4. Not knowing who your client is. You have trouble figuring out that you represent the company, not the CEO. Nothing as heinous as the above example, but you seem to have a what's good for the CEO filter on all of our advice. You're fired (over time).

5. Letting summer associates run wild on the account. You let a dozen different summer associates bill out (at first year rates, no less) to the client during a 3 month stint. You're fired (over time).

Things that probably get you fired over time

1. Being annoying. There are a ton of them, but some that come to immediate mind are talking too much at board meetings and trying to prove how smart you are, spending the entire board meeting on your blackberry or constantly complaining about my counsel choice during a financing. (Don't you understand that you are just insulting me and that I probably use these guys all the time?). Additionally, you make grand promises of VC intros or other introductions into your vast network and you never come through. You probably don't get fired for any of these, but if the CEO decides that they want to make a switch, I'm certainly not going to stick up for you.

All of these actions seem to suggest that you don't realize that as soon as the financing is done that you are representing me as a board member, or that you don't understand that I have many different investments and have a long memory.

Then again, if these aren't obvious to you, then you are probably one of the folks who committed one (or more) of these acts. To the rest of you, hopefully you got a sick chuckle out of these real-life events.

Many people pointed out the double taxation issue involved with C corporations. C Corporations pay taxes and then when money is removed from the corporation to the investors or founders, another round of taxes is imposed. On the surface, this is a good argument for an LLC but it turns out to not have much of an impact in reality much of the time.

The other issue that people pointed out is that valuable losses can be passed through to the personal taxes of the investors and founders with an LLC. While this is also true under ideal circumstances, it turns out to not be true at all in most common cases.

Victor Fleischer reached out to me by email with a thorough research paper called The Rational Exuberance of Structuring Venture Capital Startups he had written on this very topic in 2003. I found it to be very educational and I think you will too. It's absolutely worth a full read (10 minutes or so) - and it's not as long as it looks because there are many detailed footnotes and supporting references.

Here's the gist of his paper as I read it. Many observers of the venture capital industry believe that VCs ignore LLCs primarily because C corporations are the devil they know, and secondarily because they're focused on gains only and are not typically major participants in losses (since they are investing other peoples money and not their own, primarily). This paper goes a long way towards showing why professional investors prefer C corporations and includes many potential surprises such as:

• Tax losses are often not as valuable as they seem on paper as tax rules prohibit many investors (and entrepreneurs) from capturing the full benefit of the losses.
• Corporations are less complex than partnerships. Friction costs associated with LLCs may make legal costs substantially higher over time for LLCs.
• Gains are taxed more favorably when companies are organized as C corporations from the beginning (vs converting late, if that is even legally possible).
• Employee compensation issues are much more complex with an LLC than a corporation. This can cost more and can devalue options equivalents coming from LLCs.

In short, at least in my mind, much of the argument for LLCs as being more tax efficient ends up being an illusion and only true on paper.

I hope that this starts another big argument. Blogging is for learning, and your comments and participation are really helping me learn. I thank you for that.

Keep in mind the paper is a little old and some tax laws may have changed in the interim. As always, consult your attorney and accountant as I'm no tax lawyer.

Incidentally, Victor is returning to CU as an Associate Professor at the law school this June! I'm glad to welcome him back to Boulder after he spent the last few years at the University of Illinois College of Law. I'm excited that he'll be an asset to the local entrepreneurial community once again.

Related articles

• Why Don't Venture Capitalists Like Investing in LLC's? (dividendsandpreferences.blogspot.com)
• S Corp's vs LLCs (Feld Thoughts)
• Forming an LLC May Be a Wise Choice For Your Small Business (stepbysteptips.com)

As a venture capitalist, I've seen the advantages of outsourcing. One of our largest success stories, Stratify, controlled costs and provided 24/7 support through a well-managed outsourcing strategy. Most professions are outsourcing at least part of their work, why not lawyers?

I can see two potential ways outsourcing can work in the legal setting .

The first way is simply outsourcing outside of metropolitan areas that are expensive to live in. Why make all of your lawyers commute to New York City or the Silicon Valley to work in an office where they never see their clients? In fact, many of these lawyers would prefer to live outside the city centers to avoid the higher costs of living. I would posit that after some type of apprenticeship program at the law firm, well-trained associates could move anywhere in the country and work effectively. I know for a fact that most law firms have some lawyers working from home in locations where offices aren't located and no one knows the difference. Maybe now it's time to do that wide scale. Law offices could start to look like consulting offices in that most of their now smaller and cheaper office space is for visiting professionals. Salaries could be adjusted on cost of living analysis. The law firm could increase margins and pass some of the savings onto their clients. As an example of one firm thinking outside the box, Orrick has outsourced its entire back office to West Virginia. Why not some of the lawyers? Wouldn't many Silicon Valley lawyer prefer to practice from home in San Francisco or Marin? Who says all the good lawyer want to live in expensive places to live? Who says that good lawyers don't exists in secondary or tertiary markets today?

The second way would be to actually outsource work to other countries. This clearly works better for some practice areas than others, but if it works for processes as complicated as software development, it will work for the legal process. I think patent drafting, licensing / contract drafting, diligence and some other non-client facing tasks can easily be outsourced. I'm sure most lawyers reading this will brush it off saying it's too hard, but nearly every other industry has figured out outsourcing. One reader of this blog suggested the following:

Although the model did not work well in the airline industry, I think that smart law firms should develop budget line practices for routine work. These could be staffed with Indian attorneys, part-time stay at home attorneys and maybe attorneys in smaller markets with lower costs of living in all cases, non partnership track attorneys. They would be supervised by the higher paid, partnership track attorneys with a roughly 10%/90% split of time between the supervising attorney and these lower cost attorneys. These groups would not handle things like general client counseling, high stakes litigations or large scale M&A. The managing attorney would manage the allocation of work between the value line and the main line of the firm. Given the lower cost of labor and the increased possibility of leverage, assuming a reasonable mark-up, this proposal still might maintain per-partner profits

I actually think he's got a good point.

Something to consider. As always, fire away

Sojitz Corporation fired its employee Schanfield. Six months later, Schanfield sued for wrongful termination. As many litigants do prior to filing suit, Schanfield sought the advice via email of two attorneys in his family. These communications discussed the facts of the case, underlying strategy, and thoughts on retaining counsel. Schanfield copied his non-lawyer sister on these messages.

Schanfield withheld these emails from production. Sojits moved to compel. Schanfield argued that the messages were protected by the attorney-client privilege because they were confidential and explicitly for the purpose of procuring legal advice about his claims in [the] litigation and the retention of counsel.

The court found that by copying his non-lawyer sister on these communications, Schanfield forfeited the attorney-client privilege. However, the court also found that the emails were protected by the work product doctrine. The messages were clearly prepared in anticipation of litigation, and by sending them to his close relatives, Schanfield did not significantly increase the likelihood that Sojitz would obtain the information. Absent a showing of substantial need for the messages, the court denied Sojitz's motion to compel.

The obvious lesson to be learned from the case is that one must use discretion in deciding who to copy on email messages. Lawyers are expected to understand the contours of the attorney-client privilege and avoid unnecessary cc-ing. But prudent counsel will instruct and remind his or her clients of how easy the protection of the attorney-client privilege can be destroyed, as this case demonstrates. This is an issue which should be included in any corporate email risk management training or program.

In Williamson v. Delsener, NY Slip Op 01333 (1st Dept. 2009), the Appellate Division, First Department held, in a dispute over the terms of a settlement, that e-mails exhanged between counsel, which contained their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds (citations omitted) and entitle plaintiff to judgment (CPLR 5003-a[e]).

Therefore, if you, in a legal context, agree to something in an email which you send with your standard, printed signature at its end, courts will consider the agreement to have been reduced to writing, and it may well be viewed as part of an enforceable contract. So, add this to the myriad reasons why you must be careful before pressing your send button.

A man walks into a bar, and orders a drink.

A few minutes later, he says to no one in particular, All lawyers are assholes.

The fellow next to him lit into him. How dare you just stereotypically categorize all lawyers as assholes? How have you missed that it's just not okay to cast aspersions on an entire group of people? You just try saying something like that about any other group of people and you'd get slugged. And you should! If you weren't such a jerk, I'd pour my drink all over you, but you're not worth the cost of my drink.

The fellow was properly abashed, and apologized. Look, I'm really sorry, I didn't mean to offend you, he says, By the way, what kind of lawyer are you?

Lawyer? I'm no lawyer, you idiot. I'm an asshole!

This local case caught my eye because of the unusual result: preliminary relief denied despite the court's conclusion that consumer confusion was fairly likely.

Plaintiff, a law firm specializing in patents and trademarks, registered spiegelaw.com in 1999. The domain name was registered on the Supplemental Register in 2000, and plaintiff applied for registration on the Principal Register after five consecutive years of use; that registration issued in 2006.

In 2008, defendant, an attorney with a sole practice focusing on employment law, created a website at spiegellaw.com. Plaintiff sued and asked for a preliminary injunction shutting down the website.

You know the plaintiff has an uphill climb when the court starts out with a reminder that preliminary injunctions are extraordinary remedies, to be granted only sparingly and in limited circumstances. In trademark infringement cases, a presumption of irreparable injury is generally used when a plaintiff shows likely confusion. However, the balance of harms here favored the defendant, and the other elements of the preliminary injunction standard were uncertain. Even with irreparable injury, a court must still balance the harm to the defendant. An irreparable harm may be small.

The court assumed a likelihood of confusion, triggering a presumption of irreparable harm. Plaintiff argued that the harm was significant here because many people, including foreign clients, seek to reach it through its website, and defendant's use threatened its goodwill. The court agreed that there was some threat to plaintiff's goodwill, given that the names are nearly identical and that people searching for plaintiff could be misled or diverted to defendant's site, especially if they were working from oral instructions to visit the site. There was evidence that at least one person was confused by defendant's site, though that person was a fellow lawyer and not a potential client (apparently the lawyer cc'd defendant and plaintiff both, suggesting at least one typo).

However, the court determined that harm during the pendency of the litigation was not likely to be significant. Plaintiff's practice is specialized; a search for a patent lawyer named Spiegel would not end with defendant's site. And someone who heard the address given orally might just as easily visit spiegel-law.com, another website in use by a solo practitioner named Spiegel. In other words, the online presence of Defendant does not pose a wholly novel threat to the ability of potential clients to locate Plaintiff's Website. There may well be a likelihood of confusion, but not of serious harm. There was no evidence of any attempt to poach clients, which would be counterproductive for an employment lawyer. The single misdirected email was an isolated instance, not large-scale confusion among clients.

On the other side, enjoining spiegellaw.com would significantly harm defendant, who uses the site primarily in his capacity as class counsel in a civil rights class action lawsuit. Shutting the site down would disrupt defendant's law practice and harm the interests of his clients. The nature of a class action lawsuit puts a premium on the ability of counsel to communicate with individuals who may be geographically diverse and, indeed, may never meet their attorney in person. Disrupting a major line of communication and information sharing between class counsel and a class of plaintiffs poses a real threat to the ability of counsel to advocate in an effective and efficient manner. Thus, the balance of harms favored defendant, requiring a stronger showing of likely success on the merits before a preliminary injunction could issue.

The court was uncertain whether plaintiff's mark was protectable, making overall likelihood of success uncertain. Plaintiff argued that its mark was stronger than merely descriptive and more likely than not suggestive, given that spiegelaw.com could connote the provision of a variety of legal services via the internet. You know, I wouldn't give a student much credit for making that argument on an exam: the mark, describing the provision of legal services by somebody named Spiegel, is descriptive. Deal with it.

The real argument here is acquired distinctiveness. The registration was prima facie evidence of validity, but defendant could challenge this. The evidence of secondary meaning was unclear at this stage. (Defendant also argued that any secondary meaning wouldn't extend beyond IP lawyering, but that's not an argument for unprotectability; that's just an infringement consideration.) It's not clear from the opinion what evidence, if any, defendant submitted here: it doesn't seem likely that he could have overcome the prima facie validity of the registration from argument alone, but I'd have pointed to that spiegel-law.com site at least as evidence that plaintiff's use wasn't exclusive.

The public interest favors protecting valid trademarks, but also communication between lawyers and clients. It wasn't any help here. On balance, plaintiff wasn't entitled to a preliminary injunction.

I found it interesting how this issue was resolved without any overt reference to something that the common law would have considered quite important: defendant's name really is Spiegel. Of course that factors into the mark's descriptiveness, its protectability, and probably the likelihood of confusion, but that just shows that the law of personal names has been basically submerged into broader trademark doctrines.

• Managing Your Writing has a great post focused on using parallel language in lists -- click here to read it and here to read the cited Writing Matters post. I love bulleted lists in briefs and letters, but if you do not make them parallel, you really harm the effectiveness of the list. My additional thought is that you also must pay attention to the visual layout of the list, going for approximately equally sized bullets whenever possible (as you can see from this list, it does not always work.
  
• Trial Practice Tips Weblog discussed the dangers of overstating your positions -- click here to read it and here to read the cited Robust Writing post. Zealous advocacy puts litigators in danger of overstating their positions. The overstatement often reads well in a vacuum, but rarely fares well with the court. Few things are as detrimental to a lawyer or litigant's credibility than overstatements in pleadings. Practice tip: When team-editing a brief you have to be especially careful to do a final edit to remove accidental overstatements.

Picking five out of the sea of electronic discovery cases isn't as easy as it sounds. Sure, a few, like our Case of the Year will be no-brainers, but others aren't as clear cut. And, they're certainly open to debate. But, in my humble opinion here's THE list, counting down David Letterman style:

5) Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008)

If there ever was an opinion written by a judge to make a larger societal point, Mancia was certainly it. Judge Paul Grimm, who'll appear on this list in another slot as well, has clearly taken the mantle from Judge Scheindlin as the leading electronic discovery jurist. He'd heretofore authored a number of significant opinions in this area, including Hobson and Thompson. Now, in Mancia he used a garden variety discovery dispute, which was typically rife with boilerplate objections and other obstreperous tactics, to highlight the Sedona Conference's Cooperation Proclamation.

The lasting takeaway from the opinion is the notion that [c]ourts repeatedly have noted the need for attorneys to work cooperatively to conduct electronic discovery, and sanctioned lawyers and parties for failing to do so. To support this notion he cites the Sedona Conference Proclamation and the little used FRCP 26(g). This opinion is noteworthy because it gives precedent to bolster the Sedona initiative and should provide a ready citation for all those counsel who aren't getting the level of cooperation they need from the opposition. It remains to be seen if other judges will follow suit, but this could be the beachhead for a more cooperative electronic discovery process in 2009 and beyond.

4) Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008)

Flagg highlights the growing need to reconcile the electronic discovery landscape, which typically focuses somewhat myopically on email, with the larger informational trends which are now categorized by the use of blogs, social networking sites, instant messaging, and text messaging. Flagg was one of the first to determine text messages (e.g., messages exchanged among certain officials and employees of the City of Detroit via city-issued text messaging devices) were discoverable under the standards of FRCP 26(b)(1). The holding further demonstrated the challenges of conducting electronic discovery across information systems that mix personal information with business communications. This type of information commingling will continue to escalate, causing significant long term electronic discovery challenges due to thorny privacy, privilege and policy implications.

3) Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008)

Rhoads is one of the first cases post Federal Rule of Evidence (FRE) 502, which recently created a national standard (versus the previous split in jurisdictions) and now states a middle ground for the determining of inadvertent disclosure during electronic discovery. The key provision is (b)(2) which provides protection only if the holder of the privilege or protection took reasonable steps to prevent disclosure. So, Rhoads took that reasonableness question head on in a scenario where the plaintiff Rhoads admittedly (yet inadvertently) produced over eight hundred privileged, electronic documents. The decision is significant because it used the five-factor test stated in Fidelity, but put an undue weighting on the final test which was: whether the overriding interests of justice would be served by relieving the party of its errors. This approach potentially threatens the development of sound case law that will be necessary to help the deployment of FRE 502 into practice because it casts too much uncertainty with its weighting of fairness (a problematically vague notion) in the analysis. It will be interesting to see if/how this approach is subsequently adopted as we enter the New Year.

2) Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008)

This for many was the case of the year given it's far reaching implications for the legal community. Some have argued that this isn't an e-discovery abuse case per se, but more of an example of discovery abuses that just so happened to be centered around ESI. In either case, the fraud, resulting cover-up, sanctions, ethical issues and privilege discussions made for insightful and thought provoking reading throughout 2008. The lasting takeaway from Qualcomm appears to be the implications of not just committing discovery abuses, but the failure of having a well thought out e-discovery plan that is actively executed/monitored by outside counsel. The resulting tension between outside counsel, inside counsel and the internal IT department may continue to escalate if more cases like this make the headlines in 2009.

1) E-Discovery Case of the Year: Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008)

Judge Grimm's hallmark opinion has had the legal community buzzing over the past several months and the reason appears pretty straight forward. In Victor Stanley Grimm builds on the holdings in Seroquel, O'Keefe and Equity Analytics, to boldly cast doubt on a practice so routine that it's literally shocked the legal community into reevaluation:

([D]etermining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) . . . .

The notion that electronic discovery search is beyond the ability of most attorneys has caused tremors within the litigation support community who had a long history of blindly receiving keywords from counsel, running them and turning back over the results - often blissfully unaware of the extent to which those keyword searches actually located relevant information. Victor Stanley's analysis of the reasonableness of search protocols also has impact on the FRE 502 and therefore cements its place alongside other e-discovery must reads such as Zubulake and Morgan Stanley.

The cases above are my Top 5. What additional cases do you think were important? Please let me know by commenting on the cases you think shaped electronic discovery in 2008 and why.

In August, I blogged about the SEC's most recent guidance regarding companies' liability for linking to third party content. Today, I submitted comments to the SEC pointing out that their general position regarding linking contravenes 47 USC 230 with respect to civil lliability. (I believe the SEC guidance also pertains to SEC criminal enforcement actions, and those would not be preempted by 230). Unfortunately, I ran out of time to attack the overall illogic of trying to treat outlinks as the basis of liability in any circumstance. That will have to wait for another day. You can read my comments in PDF (that's the best because of the formatting and footnotes). Or, you can read the comments below.
_________________

November 5, 2008

Secretary
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549-1090

Re: File No. S7-23-08, Commission Guidance on the Use of Company Web Sites

I am an Associate Professor at Santa Clara University School of Law and Director of the school's High Tech Law Institute.[FN1] My research focuses on Internet law, especially Internet marketing law and search engine law. I have taught an Internet law course every year since 1995-96, and I practiced as an Internet lawyer in the Silicon Valley for 8 years before becoming a full-time professor.

My comments pertain to Section II(B)(2) of Release No. 34-58288. I write to point out that 47 U.S.C. 230 preempts the SEC's imposition of civil liability for hyperlinked material.

In 1996, Congress enacted 47 U.S.C. 230 to immunize websites and other online entities from liability for third party content. 230(c)(1) says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

As the statute's plain language indicates, the SEC cannot treat a company as the publisher or speaker of third party online content under any circumstance. As applied to the SEC's proposed guidance, 230 means that the SEC cannot hold companies responsible for any content they hyperlink to.[FN2] Although I am not aware of a 230 case that specifically addressed hyperlinked content,[FN3] the case law has been virtually unanimous that websites are not responsible for third party content even when they exercise significant editorial control over the content. For example:

In D'Alonzo v. Truscello, 2006 Phila. Ct. Com. Pl. LEXIS 244 (Phila. Ct. C.P. 2006), a blogger copied the entire contents of a newspaper article and republished those contents, apparently without authorization, on his blog. The newspaper article was allegedly defamatory (and the newspaper retracted it), but 230 immunized the blogger from any defamation liability even though the blogger affirmatively republished the article.

In Barrett v. Rosenthal, 40 Cal. 4th 33 (2006), an email list operator made the editorial decision to forward a third party's allegedly defamatory email to the entire email list. The California Supreme Court held that the email list operator was not liable for defamation for forwarding the email.

In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), AOL was not liable for republishing a contractor's allegedly defamatory content even though AOL had the express contractual right to exercise editorial control over the content.

Although these cases all involved defamation claims, the statute is not limited to those. Instead, 230 preempts all civil causes of action based on third party online content[FN4] even causes of action enforced by the SECunless otherwise specified in 230(e).[FN5]

Further, the immunization applies even when a website explicitly or implicitly adopts the third party content. For example, in Global Royalties, Ltd. v. Xcentric Ventures, LLC, 2007 WL 2949002 (D. Ariz. 2007), a website was not liable for continuing to publish third party content that the author had asked the website to withdraw, even if the website had adopted the content as its own.;[FN6] Accordingly, the SEC's standards for adoption of third party content may need some revamping for the online context.

Finally, 230 may protect websites' self-authored characterizations when third parties cause those statements to become untrue. For example, in Doe v. SexSearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007), 230 immunized a website's marketing representation that all of its users were over 18 when a user rendered that statement false by lying about her age.[FN7]

Therefore, the SEC's proposed guidance may contravene 230 to the extent that it tries to establish civil liability based on a company linking to third party content or for the company's characterizations of that content. I encourage the SEC to consider revising Section II(B)(2) to reflect 230 and, as appropriate, acknowledge that companies do not face civil liability for hyperlinking to third party content.

I appreciate the opportunity to submit these comments, and I would be happy to elaborate on them further if that would be helpful. Thank you for your consideration.

Respectfully submitted,

Eric Goldman
Associate Professor, Santa Clara University School of Law
Director, High Tech Law Institute
500 El Camino Real
Santa Clara, CA 95053
(408) 554-4369
egoldman@gmail.com
http://www.ericgoldman.org

FOOTNOTES

1. I am speaking only for myself. I provide my affiliation for identification purposes only.
2. See, e.g., Christopher J. Volkmer, HyperLinks to and from Commercial Websites, 7 COMP. L. REV. & TECH. J. 65, 67-68 (2002).
3. The most analogous precedent that came to mind is Smith v. Intercosmos Media Group, Inc., 2002 U.S. Dist. LEXIS 24251 (E.D. La. 2002), which held that a domain name registrar was not liable for an allegedly defamatory website hosted at a domain name registered by its customer. Also analogous is Doe v. MySpace Inc., 528 F.3d 413 (5th Cir. 2008), which held that MySpace was not liable for tortious conduct (sexual abuse) that took place beyond its premises, even though the parties had met each other and communicated via the website.
4. See, e.g., Ben Ezra Weinstein & Co. v. Am. Online Inc., 206 F.3d 980 (10th Cir. 2000) (AOL was not liable for publishing inaccurate stock information provided by third parties).
5. 230(e) excludes federal criminal law from the 230(c) immunizations, so 230 does not preempt the SEC's criminal laws. However, civil claims based on those laws are preempted. See Doe v. Bates, 2006 WL 3813758 (E.D. Tex. 2006); cf. Voicenet Commc'ns, Inc. v. Corbett, 2006 WL 2506318 (E.D. Pa. 2006).
6. However, I should note that the recent Roommates.com en banc opinion, which addressed facts the SEC is unlikely to encounter, has some ambiguous but arguably contrary discussion regarding adoption of third party content. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). Similarly, I am not addressing the application of 47 U.S.C. 230 to the SEC's entanglement discussion.
7. See also Prickett v. infoUSA, Inc., 561 F. Supp. 2d 646 (E.D. Tex. 2006) ( 230 immunized information syndicator for its representation that it had verified the syndicated information); Mazur v. eBay Inc., 2008 WL 618988 (N.D. Cal. 2008) ( 230 immunized eBay for its representation that its live auction service vendors were screened). But see Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257 (N.D. Cal. 2006) ( 230 does not immunize the dissemination of expired dating profiles with the implicit representation that they were still active); Mazur v. eBay Inc., 2008 WL 618988 (N.D. Cal. 2008) ( 230 does not immunize marketing representations that live bidding is safe, is conducted against floor bidders and involves international auction houses).

McDonough, who proudly boasts he's not even registered to use Twitter, describes Twitter for Cal Law readers as the mutant stepchild of text messages and blogging.

You get the 140-character limit and cr8tv abbreviations of text messaging genetically spliced to the sheer inanity of most personal blogs, meaning that at any moment of the day, any of the dozen or hundreds of Twitter-ers (twits?) you follow will tell you things like, Leaving work to watch Series.' I'm sleepy.' Traffic sux.' I want a ham sandwich.' Puppies!'

From the likes of the responses from lawyers and legal professionals, this is a classic 'Better to keep your mouth closed and be thought a fool than to open it and remove all doubt.'

From the Director of Media Relations at an AmLaw 200 law firm:

I do use Twitter in several ways. 1) listening. I listen or follow the coversations of others around subjects or topics relative to my attorneys' practice areas. Trademarks, Bio-pharma, lawsuits, etc. I then engage in online discussions through Twitter with those having those discussions. 2) I build relationships with key media people and outlets. Many of both are on Twitter. Our firm pays for a media relations service, which is one tool that keeps me up to date on reporters and media opportunities. Twitter is simply another tool that I use alongside the many other tools we have.

From a solo practitioner in the Midwest:

...I don't think... Twitter clogs my inbox with time-wasting clutter. In fact, I use and love Twitter, and it has helped me forge very important connections.

There is no inbox to clog, just a Twitter homepage to check on every now and then.

There are, however, a lot of people posting time-wasting clutter on Twitter. I do not subscribe to those people's feeds.

From a West Coast solo practitioner doing sophisticated IP work:

I was fairly skeptical, but I think it's a good place to be exposed to people and connect with people or ideas that you are drawn to. The majority of people are forward thinking in some respect. There are a ton of journalists, entrepreneurs, and CEOs, etc. I don't know that Quinn Emanuel is going to bag bet the company litigation solely by being on twitter, but lawyers from that firm (and any other firm) will be exposed to people and ideas on twitter and probably make connections. Those connections will likely lead to business down the road.

From an East Coast bankruptcy lawyer:

Absolutely agree with previous comments - Twitter expands your reach, and the people who hear your voice. Cut through the clutter and learn how to use social media effectively, and you will end up with a significantly larger circle of influence.

I've met a number of high-profile fellow consumer lawyers, interact with former and current clients, and have learned a fair amount from the people I follow.

Like any other tool, you need to learn how to use it wisely. Same goes for instant messaging, email, Facebook, blogging, and the like.

Remember when "they" said blogging was a waste of time and energy, and that blogs were useful only for the idle ramblings of teenage angst?

From a Midwest business lawyer:

Geographic search capability and the ability to witness local business development are two of the primary benefits of twitter. I completely disagree with the apparent (and very false) perception that twitter is full of teeny-boppers. Entrepreneurs and growing companies hopped on twitter to share and learn, not to gossip and fritter away time - Guy Kawasaki and Seth Godin get it and they represent the more visible end of the spectrum? Twitter = one more tool for the attorney devoted to growing a modern firm through modern tools to help modern clients; to think otherwise is reminiscent of "the internet is a fad" thinking.

...[P]eople on twitter are looking for lawyers who "get them." As I said, many are professionals and business owners. It just makes sense to use twitter if folks of that stripe are your target market (which is the case for me).

Lots of lawyers thought email and websites were counter-productive. And before that most all lawyers agreed that phones would never be used by lawyers in productive ways.

You can practice without Twitter. We've done it for decades. The question is why would an innovative lawyer looking to enhance his or her reputation and grow their business want to practice without Twitter today?

Ah, lawyers. It's a love-hate relationship.

Just this week alone, I'm working with a literary attorney (publishing), an entertainment attorney (TV), and a corporate financing attorney (angel investments). All three are great.

Yesterday, though, I received the threatening letter below from Protocol Integrated Direct Marketing, whose call centers I recommend in the 4HWW. WTF?

Click to enlarge

But what did I say about Protocol specifically? Here it is, after an group intro where I indicate providers can also be compensated per-minute:

Protocol Marketing: One of classic sales-oriented call centers. I've used them for years.

I used them as a start-up CEO and felt the recommendation was valuable to readers. Blasphemer! Even if a correction were needed somewhere, the legal bitch slap isn't needed.

My response was simple: I called the lawyer and told him I would both have the mention removed and also announce the correction to readers (that's this blog post).

I suspect the CEO, Don Norsworthy, is not aware of this letter, as he would have no doubt approached it differently after recognizing a few things:

1. How you say something IS what you say.

Ever heard it's not just what you say, it's how you say it? I would go further: how you say something is what you say. A simple call or e-mail to Random House with we're getting too many calls for the wrong services; would you mind changing it to the following? would have sufficed. Have a normal human conversation and don't come off sounding like Robocop (video above).

But what if you need to be forceful? If someone's motives are clearly bad? I've dealt with this as well. First of all, if their actions are done with obvious malevolent-intent or law-breaking, you can be more forceful. Second, for those cases that fall in the middle, it's possible to be forceful and clear without being rude. For example:

It's come to our attention that [action your want them to cease in neutral terms]. I'm sure you are unaware, but this causes [negative consequences for you], which results in [other problems]. We thank you in advance for removing/stopping/correcting X as soon as possible [notice how less abrasive this is than 'immediately', but it achieves the same effect] and confirming when this has been done. Legal action is always a last resort, but if we do not receive confirmation within one business week, we'll be compelled to take appropriate next steps. Your fastest correction and confirmation is both important and appreciated.

2. It's counterproductive to threaten someone until you determine their incentives to refuse compliance.

In other words, what do I gain by refusing to remove them? Nothing. In fact, it's in my readers' best interest to make it accurate or remove it. Threatening me with Darth Vader-speak like compel compliance with [our] demand just pisses people off, and I could have still been a strong proponent of theirs. Too bad, so sad.

3. It's better to steer the golden goose rather than kill it.

If I'm sending them enough calls to inundate their phone lines (ironic in itself, since they're offering call center services), it would be in their best interest to just make the description more accurate, no? It's free advertising in a #1 NY Times bestseller to be published in 33 languages. How much advertising cost or cost-per-acquisition (CPA) does that save them if it's accurate? Knowing the revenue model and having worked with call centers, I'd guess hundreds of thousands of dollars at a minimum. To save what? A few thousand dollars in filtering out mom-and-pop callers at $.90 per minute? That's just penny-wise and pound-foolish.

4. Don't mistake symptoms with root problems, or confuse correlation with causation.

There are no income investment requirements that I can find listed anywhere on their call center site. It strikes me that their main problem relates to a system-wide issue with pre-qualification. The blurb in the 4HWW is just a symptom any successful PR or marketing that brings people to them will produce the same filtering bottleneck. Fixing the root cause instead of threatening the person who makes the root cause come to the surface.

If they have a problem with closer, Protocol might also consider removing the following from the second paragraph of their main call center page:

Whether you need a salesperson to close deals or specialized technical support services, Protocol's contact center services can help.

Confused? Me too.

5. If you threaten someone in a digital world, it might become what your prospective customers see first.

Principle one: Better not to threaten people whenever possible. Principle two: Google someone before you threaten them. If their PageRank and SEO beats yours, recognize that the public will see what they say first and foremost. Principle three: if someone is sending you business, and you threaten them because of a positive description (even containing inaccuracies), you are disincentivizing all partners, journalists, and customers from evangelizing for you if it becomes public. Given the new dynamics of personal branding in a digital age, being nice should be company policy, if not for cheap Google insurance.

Oh, and being rude sucks.

Be firm when necessary, but be nice whenever possible. Long-term, it doesn't pay to do otherwise.

In conclusion: Protocol, I'm sorry for endorsing you and reflecting my experience in a positive description. I was wrong and you are right. Readers, please pull out your Sharpie and strike Protocol from pg. 201.

Ah, lawyers. Use them wisely or the problem you create could be bigger than the one you solve.

Anyone have suggestions for good call centers that won't threaten me for recommending them?


To lighten the mood, a photo from the American Apparel factory, which I visited last Saturday. More pics here.

Jon Dahl of Slantwise Design presented at Minnebar on "Consulting for fun and profit"

Dahl provided a Jeopardy style list of topics to choose from. The thoughts below come from a combination of Dahl and audience participation.

Hiring

Pitfalls to avoid with hiring employees. Should you fire friends? The audience differed on the value of this. Don't hurt your business by hiring someone just because they're a friend, but do hire those who are truly valuable.

90% of working with people is chemistry. But it's hard to know whether someone will have the right chemistry based on interviews. Try to find people with complimentary skills. Don't mistake the effectiveness of your personal relationship for a relationship that would work in a business setting.

You may like the people you work with but not hang out with them. That's fine.

We have found all of our developers through Craigslist and the community (events like Minnebar).

Finding Customers

Look for small projects first. Easier to complete some projects and build a portfolio.

Consider partnering with other small firms to build relationships.

Have a blog. Prove that you're well-spoken, smart, and thing about interesting things.

Have your principles do sales. Customers want to talk to the people who are ultimately responsible for the success of the project on your end.

Placement agencies can help to find projects.

Rates & Prices

"Everyone does work hourly, but it doesn't make sense to me." explained an audience member. Reusable work seems to make more sense to sell on a project basis.

User-interactivity: Better off billing hourly since people generally don't know what they want when they're starting.

If you're "a person on the team" consulting, hourly works well.

Fixed bids seem to work better with government and large companies who are used to bidding. But be sure to contractually lock down the deliverables.

Fixed bid requires a closer eye on the scope / more project management.

Hybrid: Do an hourly project to determine requirements. Then put together an estimate for a fixed-bid project.

Scope Creep

What to do? Get new customers if you're doing fixed-bid work. For hourly, keep billing them.

Determine the customer's budget when determining an appropriate scope/bid.

Don't change features during each iteration. Write down and hold features until the next round.

Fire them.

Raise prices until they fire you.

Do a bad job until they fire you?

You can fire customers, and you can find new work. However, even difficult customers can be dealt with if you work with them.

Tools and Work Environment

Coffee

Good Accountant

Good Lawyer - Dahl uses NewCouncil.com

IRC or Campfire - Especially great when working contractors.

Basecamp for Development - Audience member: "Where programming project go to die."

Bug Tracker

Location: Spare bedroom? Basement? Office? Whatever works for you and your team. Some developers can't stand an office setting. Others work much better face to face.

"If you really need to know something from a client, pick up a phone."

Consulting vs Products

"I find myself wanting to work on my own projects, but need to focus on paying the bills [through consulting]." Audience member.

Product development is really alluring. Tough to balance with consulting.

Find some efficiencies through reuse of code (almost a product) with similar clients.

Cash Flow

"Consulting makes me bipolar." Audience member.

Checks don't come in on a steady basis.

Figure out your baseline expense and cover that. Then aim for a huge padding above that.

Selection is important. Find clients who pay and pay on time.

Get some money up front. Discounts for early payment is mixed.

Winning Contracts

Clients are most concerned about whether they can trust you.

Improving Customers

Bill appropriate prices for your value.

Building a Reputation

Do good work.

Have a blog.

Be known in the developer community.

Establish a niche. (Ex. Ruby on Rails)

Size

How big do you want to be?

Each person makes the team different and dynamics more difficult.

Quality vs Profits

Important question. You can't compromise.

To be an excellent firm, you have to do excellent work.

Orion Bancorp Inc. v. Orion Residential Finance LLC, 2008 WL 816794 (M.D. Fla. March 25, 2008).

It looks like courts/lawyers are finally getting savvier about broad matching (see my previous blogging on the legal understanding of broad matching in the Rhino Sports, Hamzik and Picture It Sold cases). In a default judgment over trademark infringement using the term "Orion," the plaintiff's lawyer got the judge to order a restriction on the defendant:

from purchasing or using any form of advertising including keywords or adwords in internet advertising containing any mark incorporating Plaintiff's Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term ORION as negative keywords or negative adwords1 in any internet advertising purchased or used.

According to this injunction, then, if the defendant buys the keyword 'bank" and broad matches it, the ads still should not show up for a search on the term "Orion Bank." Perhaps there have been other injunctions with similar requirements to use negative keywords, but this is the first I've seen. (I did a search in Westlaw on the term "negative keyword" and this was the only injunction I found). Going forward, I think it's a logical addition to any injunctive relief request in a trademark infringement case.

HT: Tom O'Toole

Storus Corp. v. Aroa Marketing Inc., No. C-06-2454 (N.D. Cal. Feb. 15, 2008).

(Sorry for my delay blogging this one).

A federal district court has held that displaying a competitor's trademark in Adwords ad copy constitutes impermissible initial interest confusion, leading to a summary judgment win for the trademark owner. This is one of the first competitor-vs.-competitor search advertising cases where the plaintiff has won the trademark claims. This case also has an interesting and rare discussion about the trademark implications of a retailer's internal search engine.

Claims Against Aroa

Storus distributes money clips under the trademark "smart money clips." Storus was able to get a federal registration for the mark, which is interesting because I'd love to see the showing of secondary meaning. Given the registration, Aroa instead tries to knock out "smart" as a laudatory phrase, but the court isn't convinced. Thus, the court permits Storus to proceed with a pathetic descriptive mark.

Aroa sells competitive money clips. Through Adwords, it purchased the keyword "smart money clip" to display the following ad:

Smart Money Clip

www.steinhausenonline.com Elegant Steinhausen accessories. Perfect to add to any collection.

Per Google's standard formatting, the trademark shows up bold and underlined, which the court says overshadows Aroa's display of its own trademarks in the ad copy. The court also invokes initial interest confusion (as part of the Ninth Circuit's inconsistently invoked "Internet trilogy" likelihood of consumer confusion analysis) and notes that "defendants offer no evidence to show a lack of actual initial interest confusion." Summary judgment for plaintiff.

Claims Against Skymall

Skymall is an online retailer of Aroa products. Storus alleges that Skymall included the term "smart money clip" on Aroa product pages, which meant that if a person searched for "smart money clip" in Skymall's internal search engine, Aroa's products would appear in the search results. Storus portrayed this as initial interest confusion, but the court wasn't persuaded enough to grant summary judgment. Instead, the court observes that "a page offering an Aroa money clip will appear as a search result solely because the consumer searches using the phrase money clip, irrespective of whether the consumer adds the word smart to the search term and irrespective of whether the page contains the word smart." Isn't it amazing that a page containing the phrase "smart money clip" would also appear for a search on "money clip"?!

Implications

On the surface, this case looks problematic for the search advertising industry. Any time a search advertising practice is deemed infringing, it should promptly eliminate all similar ads from other advertisers, taking a chunk of revenues out of search engine pockets. Further, when advertisers are liable for trademark infringement, it increases the risk that search engines will be contributorily liable for those infringing ads.

Yet, Aroa's practices here (displaying a competitor's trademark in the ad copy) are already restricted by all of the search engine trademark policies. Therefore, this ruling shouldn't reduce much ad revenue for search engines.

But that raises the obvious question: why didn't Storus just invoke these search engine policies to shut down Aroa? As Dennis Toeppen might have said, perhaps Storus' lawyer wanted a new boat, because this trademark lawsuit made absolutely no financial sense for Storus. The court determines that over 11 months Aroa got 1,374 clicks on its ads (from 36,164 ad impressions, yielding a 3.7% clickthrough rate--not bad). If we value each click at $1/click (a generous amount given that Aroa sells its money clip for $30), Storus could have acquired the "diverted" clicks for $1,374--an amount that is surely no more than 5% (and perhaps even less than 1%) of what Storus spent in this lawsuit. Smart business decision there, guys.

Doctrinally, this case is a textbook example of how the initial interest confusion doctrine is completely bogus. As I've said before, a defendant cannot mount an adequate defense against the initial interest confusion doctrine because the doctrine lacks any rigorous definition or normative support in the first place. The defense challenge is especially problematic where, as here, a court improperly puts the burden on the defendant to disprove that consumers experienced initial interest confusion. Exactly what proof would satisfy the court here? I can't answer this and I bet the court couldn't either, and I can go further and assert that evidence to disprove initial interest confusion simply does not exist at all.

This court also unfortunately buys into the tired and outdated syllogism that every click on Aroa's ad was a diverted consumer. As I've explained here, this massively overstates the quantum of diversion (whatever that means) because we don't know what consumers expected to find when they entered the search term smart money clip. The low general risk of diversion is even lower here because consumers saw Aroa's trademarks in the ad copy, further reducing the risk that anyone was confused by the time they decided to click on the ad.

Other comments on this case:
* Thomas O'Toole
* Tech LawForum
* IP Law Observer
* Las Vegas Trademark Attorney

If It's on Super Wall, It May As Well Be Public Record

What You Say Online is Not Private

So What's a Social Networker To Do?

Note that unless you're superhuman, you probably can't do all seven of these in one day, but you can certainly get started on them!

1. Create a Name and Logo

One of the most fun things about going freelance is coming up with a business name for yourself. I chose my business name and designed myself a logo when I still had a fulltime job, and wanted to daydream about working for myself.

There are a few important things to keep in mind when choosing a name:

1. It should be memorable Almost anything can become memorable with repetition, but some names are just more boring than others. For example I would stay away from acronyms RBC design, HSL programming it all kind of sounds the same after a while.
2. It should be (relatively) distinct It's difficult to find anything totally unique, but try to make sure there isn't already a company with your exact name doing the same thing as you. You can do this by Googling the name to see what shows up and checking government company registration records in your country. Here in Australia you can do this online and I'd guess most other countries offer the same service.
3. It should be you! This is your freelance business after all, so make it personal. My freelance business is/was called Good because my partner and I wanted to do good things for the world! Alas the government here wouldn't let us register an adjective so technically it was Good Creative.

One choice that you will need to make is whether your business name should include your own name in it. So for example mine might have been Collis Ta'eed Design or something like that. There are advantages and disadvantages either way, so you may wish to read more on Naming Your Freelancing Business - To Personalize or Not?

Logo design is of course something that you'll need a designer for. If you aren't a designer yourself then you can either hire a freelancer (try posting a job for free on our FreelanceSwitch job boards) or, if you really don't want to spend any money yet, then choose a nice typeface for yourself, a colour palette and just make sure you always write it exactly the same and promise me that when you have the money you'll hire a designer because branding is important and there's more to it than you might think!

2. Register Your Business

Registering your business isn't as fun as coming up with a name and a logo, but it's an essential part of becoming a freelancer. There is also something very satisfying about receiving a letter from the government saying your business is now official.

Registering a business is different in different parts of the world, so the easiest thing to do is to search for register small business your country in Google and read up. The process is usually something like:

1. Choose a business structure
   Common business structures include sole proprietorship, partnership and company. Generally speaking the first two are easier and cheaper to register but offer less legal protection. A company structure will mean more tax and legal requirements but will limit how liable you are personally for anything that goes wrong. In really simple terms if everything was to go pear shaped in your business and you were being sued, having a company would mean that no-one could take your personal possessions your house, your car. However a company, at least here in Australia, will also mean you have to do things like have directors, pay (higher) annual fees, jump through more hoops for your taxes and so on. This is of course an over-simplification, and you need to read up on the choices. It's also a good idea to find an accountant or lawyer to help you particularly if you're not sure what the benefits and drawbacks are.
2. Fill Out Some Forms & Lodge Them
   Once you know what sort of business you want to register, you will have to get a hold of some forms (here in Australia you can download them off the net) and fill them all out and send them off. Like all government forms, they are usually a bit troublesome but reasonably straight forward.
3. Wait for your Certificate of Registration
   Once registered you should receive some sort of certification, often with a business number. Here in Australia the number you receive is then a number you have to quote on all your bills/invoices when you do work.

(Note: If you've already registered your business in your country, I'd be curious to hear if the process is the same as I've outlined, so leave a comment and let us know! Oh and my apologies for making everything a bit Australia-centric)

3. Prepare Your Web Portfolio

When you apply for jobs you're going to need something to show. Although you can get away with just sending samples of your work, it's best to have a web portfolio. Having a portfolio online means you can easily refer people to your work through email, via a business card or in person. Without a web portfolio you are either using a physical portfolio (mostly only designers will do this) or sending samples via email. While both of these can be acceptable, they simply aren't as efficient as having a website.

Caution to Web Designers: Although there is a temptation to produce the be-all, end-all portfolio for yourself, it is better to have something than nothing. So start simple and get it out, then you can always complicate and redesign later.

If you aren't a web designer then fear not because there are plenty of services to help you get a portfolio online without touching code:

• CarbonMade - www.carbonmade.com - Example Portfolio
  It's quick, it's free for a small portfolio (5 projects) and it's cool in a cutesy web way.
• Designer's Toolbox - www.designerstoolbox.com/ - Example Portfolio
  Unlike the other services here you have to pay for this one. It's $30 a month which is not a huge sum to pay if you're getting work from your portfolio, so worth a look.
• Coroflot - www.coroflot.com - Example Portfolio
  I haven't used Coroflot before, but they've been around for a while and have a ton of members so I figure they must be doing something right. The down side appears to be that you have a large Coroflot header on top of your portfolio.
• Behance - www.behance.net - Example Portfolio
  Like Coroflot, Behance is more of a social network with portfolios as the centre piece. Nonetheless
• Wordpress - wordpress.com
  Wordpress offer free blogging accounts on Wordpress.com which can be customised with themes. Why would you want a blog? Well you can turn it into a portfolio fairly easily, particularly if you're a writer. Even if you want to show graphics, just use the posts as portfolio items.

Know some other portfolio services? Leave them in the comments!

You might also like to read our FreelanceSwitch portfolio articles - Build a Killer Online Portfolio in 9 Easy Steps, 5 Reasons Freelancers Should Blog, The Secret to Getting a Lot of Web Design Work and Portfolio Zen.

4. Take Some Work on the Side

You don't need to quit your job to become a freelancer. In fact it's often better to get a taste for freelancing by taking on jobs after-hours. Here are a few of the benefits of taking on side jobs:

1. You get to test the waters
   Freelancing isn't for everyone and you may find that actually you quite like your regular job. Taking on some freelance jobs on the side means you can find this out and still have your job to fall back on should things not pan out. And if you do find you love freelancing, then you can still enjoy saying goodbye to your 9-5, with the satisfaction of knowing it's permanent.
2. You can build a client list
   When you first start freelancing, you are starting from zero. No clients, no income, no experience. Freelancing on the side means you can get a bit of momentum going so that when you do switch to full time you're already in a comfortable position.
3. It's less stressful
   When you're cut off from a regular income source it can be a bit stressful at first, wondering when and if you will get paid. Working on the side removes this stress and lets you get used to freelance income. You can also build up some extra cash to use as a fallback for when you cut off your job.

For many people freelancing on the side is in fact what they want to do. You may find that a few jobs here and there is all you really need for a bit of extra income and a bit more creative freedom. In that case moonlighting is an end in itself.

You can read more about freelancing on the side in our article On the Side or All the Way?

5. Prepare a Mailer

For many freelancers the first question they want answered is where do I find jobs?'

The best place to find your first jobs is through people you know. You can do this by asking around of friends, colleagues, people you used to work with, extended family, and anyone you think might have appropriate connections or work.

A simple way to do this is to create a little mailer to send out, just to let people know you're available for work. This was something I did early on which lead to my first five jobs. Some were direct contacts and others were the result of people I knew passing my name on to something they knew.

It's important to make your mailer:

• Brief Don't bother your friends and colleagues with an epic email. Make it short and sweet.
• Professional If you're a designer, it's not a bad idea to use a graphic. If you're not then a well worded email will suffice.
• Contain a Call to Action Make sure there is a phone number to call, a website to visit or an email to send if the person is interested.

Mailers don't take long to create and are an effective way to kickstart your marketing. For other marketing ideas check out 101 Ideas to Get More Freelance Work and for more information about mailout marketing read our article: Harnessing Mailouts - a Complete How-To Guide to Email Marketing.

6. Scour the Job Boards for some First Jobs

Job boards are a great source of early leads when you don't have that many contacts. As your freelance business develops you will be able to rely increasingly on referrals, but early on, your address book may be a little flat.

You should approach job boards for three types of work:

1. Work to bring in income
   Naturally most jobs you go for are to earn yourself money. Whatever type of job you accept, make sure you are fairly compensated.
2. Work to build your client list
   It's important to develop a wide range of contacts and clients as these people wil