Labor Day. A day off for working citizens. The end of summer and the beginning of fall. Still the start of the football season and in decades past the last day before school. Barbeque. Fireworks. The whole nine yards.

After my last Blawg Review the anonymous editor assigned me this particular slot for my next BR. Which of the above listed associations with Labor Day could have been his reason? 


Maybe he thought I’d follow a great American tradition of the work day… showing up late? (This Blawg Review is being posted well after the midnight deadline – sorry about that.)


Or did he know that when I’m asked what I believe in, the litany often includes “I’m for labor over capital”?


Ah, wait a minute. I’ve got it. Perhaps our dear ‘Ed.’ has a slightly off center sense of humor. He’s given me this weekend’s assignment because I’m a DWI lawyer. (What can I say? It seemed like such a good idea when he proposed it a year ago.)


Welcome to the Labor Day Edition of Blawg Review. 


Work Related


Res Ipsa Blog gives us some helpful hints for how to use Firefox when we get back to work. And Jordan Furlong’s suggestion that non-lawyers can do the work of lawyers if it’s ‘good enough’ might put some attorneys out of work all together.


Why do you work? Proabably at least in part to get paid. But if there’s no government in Antarctica taxing your paycheck you don’t get the normal benefit of excluding eighty thousand dollars in income as earned in a foreign country.


And speaking of getting paid, how many long time lawyers would have liked Dan Hull’s suggestion that first and second year associates be paid in experience rather than dollars when they were in law school? (Yeah, yeah – I know it sounds like a good idea now that you are partner…)


Every job has its requirements. Dre Cummings writes about the LPGA’s new policy requiring all tour players to speak English proficiently or face suspension.


Off Work Related


Want to see a movie on your day off from work? Quick – go see the newest Bollywood blockbuster Harry Puttar. (Spicy IP tells us Warner Brothers has a legal beef.)



After a lifetime of laboring for the boss, we can all look forward to retirement, that is unless we read Jonathan Rosenfeld’s blog alerting us to all kinds of problems in the nursing home community.



Criminal Law / DWI


Stephen Gustitis starts a series on Texas executive clemency, i.e. how to get a pardon.

Shawn Matlock posits the MADD’s slogan ‘Drink. Drive. Go to Jail.’ is meant to contaminate jury pools, rather than to deter.


Troy Burleson answers the question DWI lawyers hear from their clients: “Why did the officer say I couldn’t talk to a lawyer?


Lawrence Taylor writes again on a topic coming to a community near you: DUI cops with needles. San Diego DUI Blog asks ‘Isn’t it Time to Change DUI Penalties?


To tell or not to tell? Mark Bennett expounds on the theory of what to do with a Nasty Little Surprise in a criminal case. Gideon follows up with his own thoughts on the subject.

Walter Reaves asks ‘Who is Responsible for the Cost of Indigent Defense?


Grits for Breakfast catches Austin Police Department hyping ‘stranger danger’. Mark Draughn at WindyPundit notices we are becoming a police state. A Harris County Lawyer loves to be in trial.


Victoria Pynchon documents the FBI’s latest efforts to overcrowd our jails by arresting bloggers where at best a civil suit would do, and offers us tips on what to do when we see the agents arriving on our own doorsteps. Susan Crawford writes about battle over nondiscriminatory Internet access.


Mike Masnick alerts us that a New Zealand judge has banned the internet publication of the names of two men accused of murdering a child. In the U.S. we’d call that a clash between the right to a free press and the right to a fair trial – and I fell sure in predicting that the press would win such a battle.


Jeremy Richey tells the story of a Kentucky prosecutor who can’t take (or figure out) a joke.

Overlawyered posts about the defendant (or his insurer) suing the city for not properly taking car of his car in the impound in a fatal hit and run case.


QuizLaw posts an oldie but a goodie from the internet DWI archives.


Random (but still included)


As Labor Day precedes the start of the NFL season, Scott Greenfield writes about recently retired New York Giant Michael Strahan’s child support appeal. On a side note, he also takes his approximately 40th consecutive win for Headline-of-the-Week with ‘Three Ponies is Enough for Anybody’.


Professor Randazza suggests that if wearing a jacket that says “Fuck the Draft” was found to be protected speech by the Supremes in 1971, the Department of Homeland Security should have known that the t-shirt slogan “” was A-OK.


Mark Herrmann gets to say “I told you so” to the Volokhs when a terminally ill plaintiff succeeded in getting a judge to issue an injunction ordering a drug company to provide him with an unapproved, experimental drug.


David Harlow writes about an OIG advisory opinion barring a contractual joint venture.


Is it against Google’s terms of service to sell links? The comment section of Kevin O’Keefe’s post about FindLaw lights up. And Paul Ohm writes about the possibility of lawsuits when free wi-fi terms of service are editable by the user.


That’s it for now folks. Blawg Review has information about next week’s host Legal Literacy, and instructions how to get your blawg posts reviewed in upcoming issues.

Frisco DWI Lawyer Hunter Biederman felt some pressure recently when he hadn’t been blogging enough to satisfy his audience. He asked:

So, if anyone out there has some tips on how to keep up better, I’d love to hear them.  How do you manage the time to blog?  Mark, Jamie, LawrenceStephen, Glen, Robert, Scott, Stephen, Shawn, Kevin, What say you?? How about my pal Ken Gibson?  You seemed to give up on the blogging too…

Do you set aside particular days?  Time slots?  My wife says I should have a routine and block off time just as I would for a new client. 

Looking forward to hearing your suggestions.

Simple answer, and the best answer from my perspective? As often as you like, even if that’s not every day, or every week. The flip side – there’s always a flip side, isn’t there? – is that less than once a month or so and your blog won’t amount to much in the long run.

If you practice law for the next 20 years, and only blog once a month or so, that will end up being about 200-250 total posts. Not bad actually. Of course, you’re going to retire, but so what? There’s no magic number.

But much less than that and it’s hard to call it blogging. Twice a year? Four times a year?

I’d also say the answer is “as often as you have something to say and the time to say it”. Keith Lauerman, who practices criminal defense in both Williamson and Travis Counties has posted 17 times since he started in January of 2007. So he’s in that approximately once a month range that I’m talking about.

But most importantly, he writes substantive lengthy thoughtful posts when he feels like it. Every time he pops up in my reader, I’m there.

A good blog is about original content – not just cutting and pasting newspaper clippings.

So, to answer the question you really asked, Hunter? How do I manage the time to blog?

Yes, I set aside some time almost every day to read other blogs. But once a week will do for reading. Any less than that and I don’t know that you’re keeping up with the practical blawgosphere. Get an RSS reader to help with that (or call me if you’re a lawyer thinking about blogging – and I’ll talk you through that – it’ll take 3 to 5 minutes tops.)

And personally, I tend to write and post late at night after my wife and kids have gone to bed. But that’s just me. Hunter, post when you have something to say and the time to say it.

…and sit back and enjoy yourself.

Bear with me. I promise to get back to that.

So, honest to goodness, I’m sitting here skimming through law blogs on my RSS reader reading a Scott Henson comment on a Sentencing Law and Policy post that links to a Texas District and County Attorney Association thread about how to enhance a repeat and habitual DWI offender and I come across none other than this observation by Williamson County District Attorney John Bradley:

Does your reluctance come from thinking he just has a drinking problem? There is nothing in the disease of alcoholism that forces a person to drive after achieving a drunken state. The decision to drive, especially after 11 prior convictions, is a selfish decision to endanger innocent people.

And I say to myself “I should blog about this”. Not because I disagree, but precisely because I agree, at the very least in part. Driving While Intoxicated, especially when it reaches the 3rd offense Felony DWI level in Texas, is highly correlated to the disease of alcoholism.

Yet, many alcoholics have no DWI convictions. Because they don’t drive after drinking.

Most DWI lawyer blogs rant about the unfairness of punishing an alcoholic for being a victim of his disease. I’ve never done that. [A quick search of this site shows no previous hits for the word ‘alcoholism’ – although, after I finish writing this entry will come up.]

Bradley has a point that a lot of ‘DWI bloggers’ ignore: the State is attempting to punish the choice to drive while impaired, not the inevitability of the alcoholic voluntarily intoxicating himself. I’d put it differently than he does – and after all, that’s understandable, I’m a defense attorney not a prosecutor.

It’s a touchy subject at best though for me. I have clients who read my blogs, and obviously when I post something, they’re not completely out of my mind. There’s nuance in this subject too. If I write about Bradley’s comment, should I start proving my defense lawyer bona fides, you know, ‘just in case’. But defense lawyers aren’t pro-crime. I should blog this. Contrarian by nature, I put it on my blogging to do list.

So I postpone a decision on whether or not to riff on this subject, probably out of laziness more than anything else, and move on to one of the next items in my RSS reader. It’s The Adventures of Steanso’s latest post.

The woman indicted for Intoxication Manslaughter in the death of Jeff Wilson passed away of cancer before standing trial.

Jeff was one of the most liked people in the Travis County Courthouse. He was a misdemeanor prosecutor for a few years, and was eventually hired by top notch defense attorney Joe Turner. He was a local Austin blogger as well. And he was a friend.

To heck with it. 

Lots of DWI lawyer websites dispense ‘advice’ on how not to get arrested and/or convicted of DWI (don’t blow in the machine, don’t do the tests, be polite but say as little as possible, etc.). I’ve never written a single word on the subject, mostly because I think it’s plain silliness. For one thing, potential clients don’t need that advice: they have already been arrested. If you’re going to be their lawyer, you’ve got to play the cards you’re dealt.

For those who are trolling the internet, looking for ‘How To’ advice about beating your future DWI… there’s only one good piece of advice: don’t drink and drive. No, it’s not actually against the law in Texas to consume alcohol and get behind the wheel. But never driving after consumption of alcoholic beverages is the only way to ensure that you’ll be safe from arrest.

If you need more reasons, I’ve said it before: it’s cheaper to rent a helicopter to fly you home than to get arrested for DWI – and no, I’m not just talking about my fee.

As for the title of this post that I promised to get back to? Here’s the entry from my other blog last July entitled In Memory: Jeff N. Wilson 3/4/74 – 7/10/06

Thanks to Steans for reminding me of the anniversary.

When I came back from the memorial service last year, for some reason, I set the card that was passed out at the ceremony on the shelf next to my computer. It’s still there. I read it every once in while.

It’s from Blogo-de-Wilson, and I think it might have been his best post ever. On learning of Billy Preston’s death, Jeff wrote (in part):

59 is young, folks. You only get one shot at this life. Don’t waste it. It could be gone any day. Travel. Blow some money. Go see some music. Make some music. Kiss someone on the mouth (preferably someone who won’t sue you).

Read a book. Write a book. Whatever. Just don’t take it for granted. No one lies on their death bed wishing they had spent more time at the office.

Grab Let It Be (preferably on vinyl) tonight, and sit back and enjoy yourself.

Humor. Joie-de-vivre. Totally Jeff.

The twins turn one tomorrow. When it comes time for me to have the father-son(s) talk about Carpe Diem/Seize the Day/Make the Most Out of Life… I’ll tell them about Jeff. Hopefully, I’ll still have the card to show them too.

That card is getting a little dog-eared, and the boys are still more than a decade away from driving, or for that talk. But oddly, their birth is actually inextricably linked to Jeff’s memorial in my mind. I had spent about 36 straight hours at the hospital and came to the ceremony still wearing the ID bracelets on my wrists that would eventually allow me to prove I was the father and take them home.

Steanso said it best already: Jeff, you are missed.

Well, plenty, judging by this week’s Super Bowl themed Blawg Review over at What About Clients:

Your office a little quiet today? Did your prized ex-U.S. Supreme Court clerk Weldon in Boston call in, maybe from the Newton slammer, despondent and too-drunk-to-bill? Or is it just the "cold and flu" season? A useful clue is offered at Strategic HR Lawyer in Super Bowl Monday "Flu" – 1.5 Million to Call in Sick".

Still, Boston as a sports town has really come into its own. What’s up? See for an explanation "Boston Forever", at Jeffrey Standen’s The Sports Law Professor.

No one ever said Super Bowl was pretty–or even legal. Howard Friedman’s Religion Clause points out that Large Church Super Bowl Parties Violate Copyright Law", according to NFL lawyers.

But Super Bowl may be energy-efficient. Anthony Cerminaro at BizzBangBuzz, which focuses on technology startups and emerging growth companies, notes that "Power Use Drops During Super Bowl".

I added my own thoughts on underdogs and criminal defense lawyers as well.

Hunter Biederman has just launched his Frisco DWI Lawyer blog, and he has certainly started it off with a bang. For those of you that don’t know, Frisco is north of Dallas, Texas.

Among other topics, he’s already posted about:

Texas DWI Lawyers, criminal defense lawyers, law bloggers and anyone else interested can subscribe to his blog at this link.  Based on the start, I’m looking forward to reading more of his posts.

Or perhaps… in my corner of the blogosphere, “Why Lawyers Should Read Lawyer Blogs”. (Because they can always improve their skills.)

One of the great things about law blogging is that done correctly, it requires that you read other law blogs. I’ll get to how that potentially helps me as a practicing DWI lawyer in Austin, Texas in a moment, but let me start with the first point.

How do you learn to write a blog? By reading other blogs. Plain and simple, end of story.

This is simply a subset of the well known axiom that the best way to learn to write is to read. And read. And then read some more.

Copyblogger’s Brian Clark recently posted his “10 Steps to Becoming a Better Writer,” suggesting the answer was to write, write, write.

The comments section of the post is the most interesting though, because several responders (who understood his basic point) exhorted others to read as well as write.

Blogs are written differently than novels, short stories, biographies, historical fiction, technical writing, etc. Blogs are written differently than anything else. So the best way to learn to blog is to read blogs.

But there’s more to it than that. At least for lawyers. Blogs provide the perfect medium for an exchange of ideas about, say, criminal defense.

Professionals can learn from others in their field, and those whose egos won’t let them become versed in new techniques and fresh ideas are bound to stagnate and lose their edge.

For example, I recently ran across the Lubbock DWI blog, written by DWI lawyers Stephen Hamilton and Nicky Boatwright

They posted about inaccuracies and problems with the Breath Test Machine used in Texas, and started their post with:

Over the years, the machine used to guess at a person’s blood alcohol concentration has changed.

Breath testing is simply trying to guess what a person’s blood alcohol concentration is at the time the test is administered. The current guesser is called the Intoxilyzer 5000.

I’ve practiced DWI defense in Austin for over ten years, so I’m well aware of the potential for disputing breath test results. But I learned something from the post, not about blogging, but about DWI defense, and a new way of arguing a case to a jury:

…the machine used to guess at a person’s blood alcohol concentration…

Beautiful turn of phrase. One that accurately describes the Intoxilyzer 5000. And a quick and easy way to accurately describe the machine to a jury, if necessary. 

So, to recap: reading blogs is the way to learn to write them. But even if you just want to become a better [fill-in-the-blank], don’t be afraid to soak up ideas from other people, and use them in your practice.

One last point: I could have titled this post “Why Lawyers Should Read Other Law Blogs,” or even more generically, “Why Bloggers Should Read Other Blogs”… because the basic point is the same, no matter what section or niche of the blogosphere you inhabit, want to blog? Start by reading other blogs.

Dallas DWI Lawyer Robert Guest “I donate to MADD”:

Not intentionally… MADD is stealing my tax dollars. The National Highway Traffic Safety Administration gave MADD $400,000 of our money to "monitor drunken driving" proceedings in court.

This is wrong on many levels.

1. Watching court is free. Anyone can watch court. It costs nothing. Why they need $400k is beyond me.
2. MADD has an annual budget of $52,000,000. They don’t need taxpayer money.
3. MADD already received over $700,000 from the Department of Justice. How much tax payer money do they need?

And, uh, I don’t know how else to say this, but… why would they need to ‘watch court’ in the first place? Smacks of intimidation tactics, doesn’t it?

‘Hey Judge, never mind the Constitution, due process, reasonable doubt, etc., we are a powerful lobby, and we donate.” 

Or perhaps, if you’re feeling a little more cynical/sinister, ‘Don’t make us donate to your opponent in the next election!” (Anyone else having flashbacks to the Sopranos episode where one of Tony’s enforcers ‘bumped into’ a sitting juror in a corner store?)

Houston DWI Lawyer Mark Bennett follows up with the text of the New Mexico governor’s press release bragging about the use of state funds on this project, and adds:

What do you suppose "positive change" is going to mean to MADD’s courtwatchers? More convictions, faster, and more punishment. After all, if your sole goal were "reduction of alcohol-related crashes," you could do away with due process, convict every person accused of DWI (regardless of the facts) and put them all in prison…

Like MADD, I’d like to reduce alcohol-related crashes. That’s why I won’t drive after having more than one drink. Unlike MADD, I don’t think that reducing alcohol-related crashes is more important than due process or common sense.

Why would Mark say he won’t drive after one drink? Well, it is the safest thing to do certainly. After all, the law doesn’t say you are automatically not guilty of DWI even if you are below a .08 Breath Alcohol Concentration.

But I’m also guessing that HPD uses the same rule that Austin police do when making DWI arrests: A traffic violation and the odor of alcohol… arrest now, and sort it out later. You can beat the rap, but you can’t beat the ride. (Also, I suspect some officers think that while they may not have enough to convict, forcing the driver to hire a DWI lawyer is in itself punishment.)

As a defense attorney you can only watch so many video tapes of (some of) your clients performing very well on the Walk & Turn, One Leg Stand, and other field sobriety tests before you realize… the law doesn’t say Zero Tolerance for adults, driving and alcohol, but the police often make arrest decisions on that very basis.

I’m like Mark. I too am not “pro drunk driving”. And I have occasionally praised MADD for some of their marketing campaigns. But is this really an appropriate way to spend taxpayer money?