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Bluestocking’s rationale for why JK Rowling should hire better attorneys.

by Bluestocking on February 29, 2008

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Ok! I’ve just finished reading the JKR/WB response.  As attorney, I’m a little bit disturbed by this legal writing on WB/Rowling’s part.  Yes, case law was cited in both briefs filed to date; however, case law was not discussed.  That’s a problem!!!  My boss would kill me if I tried to send a reply brief out that looked like that.  The premise of JKR/WB’s argument is that the Lexicon is a derivative work.  However, they did not cite any case law giving an example of a compilation work that was considered derivative or any court rules defining the elements of a derivative work.  I think RDR did a much better job on its brief.  JKR/WB’s arguments are very conclusory.  However stating that you think a person’s work is copyright infringement is not a legal argument.  Ok so you better understand what I’m talking about, I’ll give you a quick and dirty lesson on legal writing.  There is a form to writing the legal argument section of a brief.  The form that is used is known as CRAC or IRAC.  The first acronym stands for Conclusion, Rule, Application, and Conclusion.  The second acronym stands for Issue, Rule, Application, and Conclusion.  When I was in law school I learned the CRAC method of writing.  Now under CRAC, the Rule portion is usually divided into two parts. RS which stands for rule statement and RA which stands for rule analysis.  So I’ll give you a little demonstration to show how the brief should have been written.

Conclusion:  The Lexicon infringes JK Rowling’s copyright because it is

a derivative work

RS:  XYZ court held that a work is derivative if it has

the following elements: 1) ...2)....3)..

RA:  In XYZ , here you would state the facts of this case.

Then you would describe the court’s rationale for

rule.  Then you would say, In this case the court found

element 1 had been met because, element 2 had been meet

because, etc.

Application:  You would state that these elements have been met in this

case because 1)....Many times you state how your case is

similar to the case that you just discussed.

Conclusion:  Therefore the Lexicon is a derivative work. 

NOTE: as an attorney you have an ethical obligation to report not only cases that help you but also cases that hurt you.  So basically if there is a case out (ABC) there that says, encyclopedic type books are not derivative you MUST disclose that to the court in your brief.  How do you deal with something that hurts you, you must DISTINGUISH it from the case before the court.  You must still do rule statement and rule analysis on the case, but in the application you state: The case before this court is distinguishable from ABC for the following reasons.  Then you list the reasons.

This brief rambles and makes citations but it just doesn’t do a good job of legal analysis.  These attorneys, in my humble opinion, do not make good legal arguments in any of their briefs.  I dunno for the amount of money that WB is paying, I’d expect much more savvy analysis.  Why is RDR’s argument better?  Well the Standford law group entered the fray on their behalf.  Law professors know how to write effectively. 

I personally find it a little suspect when attorneys have poorly written briefs.  It’s my observation that their briefs are poorly written because legally they have little ground upon which to stand.  I’ve had a number of briefs come across my desk like this.  What’s sad is that some of these attorneys have been practicing for so much longer than I have.  I feel bad for the opposing party because you would hope as a plaintiff or defendant that you’re attorney is competent.  But it makes it very easy for me to tear them apart in my opposition or reply because essentially they have given the court no legal argument.

P.S. If you would like to see WB’s brief, click on the link.  I have a handy widget that will allow you to read the brief without downloading it to your computer.
http://web.mac.com/bluestocking_bb/The_Bluestocking_Guide/The_Bluestocking_Guide/Entries/2008/2/28_JK_Rowling_WB_file_a_response_to_RDR%E2%80%99s_motion.html

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