President Bush yesterday backtracked on his pledge to let the legal process for I. Lewis “Scooter” Libby, Jr., run its course, commuting his sentence from 30 months in prison to several days of worrying about how far Mr. Bush would go in granting clemency.

Blawgletter confesses to hoping, forlornly, that Mr. Libby would spend his time in the big house, the hoosegow, the slammer, and the gaol. But we feel a weird sense of relief, too — we imagine because Mr. Libby does seem such a jolly good fellow.

Then we our memory catches on the recollection that quite a lot of bad-doers peg themselves as moral and uprright and their opponents as forces of discord and evil. Yes, Mr. Libby’s story includes elements of tragedy, but he deserves the full measure of punishment as surely as other powerful liars earned theirs.

The only thing worse? The thing that we expect Mr. Bush will do later in his term — grant Mr. Libby a full pardon. Talk about tragedy.

Barry Barnett

In the Latest Issue of Barnett’s Notes on Commercial Litigation

1.  What Makes a Good Law Partner?

2.  Did You Know?  Lee Godfrey Makes Us Proud.

3.  Supreme Court Roundup.  The worst term in memory for commercial plaintiffs.

4.  Thank You for Arguing:  Relevance of Rhetoric.  I beg you not to read it.

5.  Blawgletter Roundup.  Links to favorite Blawgletter posts.

6.  Hot Lunch.  The use and abuse of rhetoric.

7.  Nasdaq Law Firm.  Cartoon.

Barry Barnett

Like Blawgletter?  You’ll love Barnett’s Notes.

I. Lewis "Scooter" Libby today lost a request to the D.C. Court of Appeals to stay his prison sentence pending resolution of his appeal.  LA Times story here; NYT here.

Barry Barnett

Stay with our appealing feed.

William H. Herndon (1818-91).  Law partner to Abraham Lincoln — and later his harshest critic.

Congratulations.  You made partner.  Hooray.  Woo-hoo.

But consider:  does becoming partner really improve your looks?  Does it make you smarter?  Turn you wiser?

Er.  Not really.  Not at all, really.

The big change is a new, kinda sorta mystical, bond between you and your partners.

Guess what? That connection makes you more attractive, brighter, and sager.  Because now you can call on the strengths of the whole partnership and every one of the partners in it.

Got that?  Your strength equals your partners’.

Which realization ought to lead a newbie partner to continue — redouble — cultivating the high opinion of her new sisters and brothers.  The newbie indeed needs more than anything to become a good partner-sibling.

Note the good.  Not great.   Why?  Because greatness sets the bar too high.  A great law partner knows you and loves you as your mother does.  A great law partner wants only the best for you and will sacrifice his own interest to benefit you.  A great law partner will let you keep all the money.  A great law partner, in short, either doesn’t exist or carries the honest title of associate.

So what makes a good law partner?

Do the job.   Doing the job may seem obvious, but plenty of partnerships fall apart because of partners who don’t do their part.  In trial work, that means persuading clients and opponents, judges and juries, and your partners (see Thank You for Arguing:  Relevance of Rhetoric below).  But doing the job only incidentally touches on running the firm.  Let the managers, especially the professional ones, handle that.

Look out for each other.  In About a Boy (2002), the title character realizes that a family needs at least one "backup" in case "someone drops off the edge".  Now, some will say that law partners — unlike fictional movie children — don’t need law firm mommies and daddies.  Fair enough.  But think of your partners as  brothers and sisters, older and bigger ones who’ll watch your back but will also keep you in line.

Accept differences.  The law partnership between Abraham Lincoln and William Herndon endured more than two decades — and yet these two men differed enormously.  As the author of Lincoln and Herndon (1910) wrote:  "No two men were ever more unlike in temper of mind and habits of thought — which was, no doubt, a secret of their long friendship.  Lincoln was a conservative, Herndon a radical . . . ."  Plus Herndon waited until Lincoln died to question his legitimacy and brand him an atheist.

Share.   Lincoln made Herndon a 50-50 partner.  As Herndon later related:  "I was young in the practice and was painfully aware of my want of ability and experience; but when he remarked in his earnest, honest way, ‘Billy, I can trust you, if you can trust me,’ I felt relieved and accepted his generous proposal."  And of course the paternity and atheism stuff came much later. 

"Partner" comes from Middle English parcener — a word signifying "joint heir".  The idea of kinship and common heritage survives.  New partners, more than any other, ought to embrace the meaning.

Barry Barnett

Embrace the Blawgletter feed.

The Ninth Circuit dissolved a preliminary injunction yesterday because the district court clearly erred in finding the "likelihood of confusion" element of a trade dress claim.  The plaintiff sought the injunction to prevent sales of "Freek" energy drinks, which it alleged infringed its trade dress for cans of "Monster" energy drinks.  The court held that an appreciable number of consumers would not likely confuse "Freek" cans with "Monster" cans despite the depiction of a freaky monster on the "Freek" containers.  Hansen Beverage Co. v. Nat’l Beverage Corp., No. 06-56390 (9th Cir. June 29, 2007).

Barry Barnett

Get our monstrously freaky feed.

The D.C. Circuit today required disclosure of some grand jury materials relating to the leak of Valerie Plame’s CIA identity.  The court limited its order to information that the trial of I. Lewis "Scooter" Libby made public.  In re Grand Jury Subpoena, Judith Miller, No. 04-3138 (D.C. Cir. June 29, 2007).

Blawgletter found the following passage most interesting:

[I]t is unclear to us why, as Dow Jones asserts, the Special Counsel’s knowledege that one individual [Richard Armitage] leaked Plame’s identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information . . . .

The court’s tentative view does not, in our opinion, bode well for Mr. Libby’s appeal.

Barry Barnett

View our feed every day.

Today the Federal Circuit affirmed a bench trial judgment that the obviousness doctrine didn’t invalidate patent claims relating to antidiabetic agents.  Although the judgment predated KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007), the court held that it it applied correct principles in analyzing the obviousness question.  Takeda Chemical Industries, Ltd. v. Alphapharm Pty., Ltd., No. 06-1329 (Fed. Cir. June 28, 2007).

Barry Barnett

We used a big one this time.

The Seventh Circuit enforced a forum selection clause despite the plaintiff’s claim that the defendant fraudulently induced the contract containing it.  The court never explained, in a way that Blawgletter at least could understand, why the fraudulent inducement charge didn’t knock out the forum selection clause. 

We would guess that the plaintiff’s decision to "affirm" the contract and sue for damages (instead of trying to rescind it) would have ended the analysis; she can’t enforce part of the contract (and get damages for breach) while disclaiming the forum selection provisions.  But the court didn’t explain things that way.  So we’ll just have to guess at the ratio decidendi.  Kochert v. Adagen Medical Int’l, Inc., No. 05-4483 (7th Cir. June 28, 2007).

Blawgletter detects among Seventh Circuit judges a zest for highlighting what they see as the errors of others.  It comes across as almost pedantic sometimes.  We hope they will lighten up.

Barry Barnett

We like to keep it light.