Sunday, December 29, 2013

My Favorite Books Read in 2013

This list is a little off topic, but here is my list of best books that I actually read this past year.  Many -- in fact all but one -- were published in earlier years.  One, Mickey Spillane's My Gun Is Quick, was first published over 60 years ago. But as someone once told me, every book is a new book until you read it.

My best books read in 2013

1.     Sharp Objects, Gillian Flynn
2.     Life Itself, Roger Ebert
3.     The Help, Kathryn Stockett
4.     Sycamore Row, John Grisham
5.     The Immortal Life of Henrietta Lax, Rebecca Skloot
6.     The Innocent Man (non-fiction), John Grisham
7.     The Kennedy Detail, Gerald Blaine
8.     Dark Voyage, Alan Furst
9.     Reclaiming History, Vincent Bugliosi
10. Thomas Jefferson, the Art of Power, John Meacham
11. My Gun Is Quick, Mickey Spillane
12. Dark Places, Gillian Flynn

Sunday, December 22, 2013

Free House For Writers, But There's a Catch: It's in Detroit

The efforts at revitalizing ravaged urban blight areas has taken a new turn.  And for some writers, it may be worth looking in to.

Write A House, a Detroit non-profit corporation, has established a program to fix up blighted houses in a section of Detroit, fix them up, then give them away to writers.  The intent is the establish a writers community in the Motor City in an effort to infuse new life into the city that is most recently known for the largest municipal bankruptcy in American history.

Write A House has already purchased three houses and is raising funds to refurbish them.

The project is a short distance from the Powerhouse Project, which has successfully started an artists community in refurbished Mo-Town housing.  That project has received national publicity, particularly from the national artistic community publication Juxtapoz.

Undoubtedly the project is not for everyone.  But for some aspiring writers, it could be a great opportunity.

For the project's website, including the application for residency, CLICK HERE.  For a detailed article in the Huffington Post on the project, CLICK HERE.

Saturday, December 14, 2013

Hell's Angels Riding Into Court to Protect Intellectual Property Rights

Hell's Angels in Court.

That's not so surprising.  But the reason may be.

Hell's Angel's Motorcycle Club, the bad ass kings of leather and tattoos, the feared road warriors of legend and movies, are not fighting drug charges, or defending themselves from terrorizing small towns as in The Wild Ones or Wild Hogs.

Nope.  They are going to court to enforce their intellectual property rights.  Specifically, they are aggressively asserting their property rights in the club's trademarked "Death Head" logo.

Heading the charge is 67-year-old lawyer Fritz Clapp, an intellectual property expert bedecked with a red mohawk and a stylish white beard.  In his sites have been such targets as Toys R Us, Amazon, Saks, Marvel Comics and The Mouse himself, Disney Corporation.

It's a bit of a change in direction for the group that is still labeled by law enforcement as an organized crime group involved in drug trafficking on six continents. The New York Times in its recent article on this quoted a veteran member with the street name of "Chico."  He told the Times reporter:  "We stabbed and stabbed people left and right in the day, but that way is less common now."

Hmmm . . .  "Less common."   Leads to some interesting speculation about what Hell's Angels cease and desist letters might look like.

"Dear Joe:

Please immediately cease and desist using our trademarked Hell's Angels logos.  It violates the law and we will sue you for lots of money if you don't stop.  Please note, however, that we don't stab people left and right like we used to.  We may still do it, but it's less common.

Thank you for your prompt compliance.  And by receiving this letter it is apparent:  we know where you live."

photo credit: <a href="">AWKWORDrap</a> via <a href="">photopin</a> <a href="">cc</a>

Friday, November 29, 2013

The Matrix, Terminator, and the Copyright Judgment That Doesn't Exist

"Black Author Wins Copyright Case for Matrix." 

"If it's on the Internet, it must be true"*
That recent blog post, re-posted to Facebook by one of my friends, caught my attention.  And a Google search shows that the story has been spreading through the blogosphere like wildfire.

You can see why.  The post noted that Sophia Stewart, a black writer now living in Salt Lake City, won a HUGE judgment against Warner Brothers, Joel Silver and the Wachoski Brothers, producers of the uber-successful (and profitable) Matrix, and sequels Matrix Reloaded and Matrix Revolutions.

And there's more.

It seems the judgment also included Terminator, the Arnold Schwatzeneger blockbuster from the 1980s.

Billions of dollars in profits.  All of it stolen from Ms. Stewart's script for The Third Eye. And a judgment for her reaching into the hundreds of millions of dollars.

Only it's not true!

Before re-posting the judgment information, I did a little independent research. There is no finding that The Matrix or Terminator were stolen from Ms. Stewart's 1980s script.  There is no judgment of hundreds of millions of dollars.

Yes, Ms. Stewart filed a lawsuit in 2003.  But despite her reported claims that the media hasn't been publicizing her suit because Time Warner owns all major media outlets, the actual fact is that the court ruled against her.

She lost the case and there is no judgment.  See Stewart v. Wachowski, 574 F.Supp.2d 1074 (C.D. Cal. 2005).  Click HERE for the ruling of the U.S. District Court for the Central District of California finding that Ms. Stewart was not the author of either The Matrix or Terminator, and that neither work is derivative of her Third Eye script.  For more details, click HERE to view Time Magazine's article debunking this Internet myth.  And if you think that Time is just trying to cover up for its corporate owner, click HERE for the myth-busting report of

But that hasn't stopped the blogs from spreading the story.

The lesson in this case for bloggers and other writers: do your research.  Don't just pass on what you see someplace without checking it out.  Bloggers hungry for material seem to be most prone to this, but writers of every ilk are guilty.

So be sure. As carpenters would say: "Measure twice and cut once."  Don't add to the false stories that permeate Social Media and the Internet.

Be a writer, not a gossip.  Check it out. 

*photo credit: <a href="">( kurtz )</a> via <a href="">photopin</a> <a href="">cc</a>

Monday, November 4, 2013

Boobies Bracelet and First Amendment: Case Headed to Supreme Court?

I {heart} Boobies.

I'm sure you've seen those colorful rubber bracelets.  They are used to express support for
Breast Cancer Awareness and the website.

Cute.  Harmless.  They may induce a titter (no pun intended).  But they certainly not lewd and obscene.

Unless you're a student in the Easton Area School District about 60 miles north of Philadelphia. 

In 2010,  the school district banned wearing of the bracelets.  When 12-year-old Kayla Martinez and 13-year-old Brianna Hawk, wore the bracelets to Easton Area Middle School, they were suspended.

The American Civil Liberties Union of Pennsylvania stepped up and went to bat for the girls in court.  The result?  Not surprisingly, the District Court held that the school overstepped its bounds and violated the girls' First Amendment rights.

This past August, the US Third Circuit Court of Appeals unanimously affirmed the lower court decision.

You'd think that would be enough, wouldn't you.  But NOOOOOOOO!

The Easton Area School District is adament that it, not the courts, should determine whether the girls should be allowed to express the support for "the Boobies."  So the School Board, by 7-1 vote, decided to spend local taxpayers money to file an appeal to the United States Supreme Court.  This is despite: (1) First Amendment lawyers say the appeal is a waste of money; and (2) of 10,000 petitions for certiorari filed each year with the Supreme Court, the Court chooses to hear no more than 100.

Tens of thousands of dollars -- all trying to keep students from referencing "boobies".

Maybe if they don't let students wear the bracelets, those teenage boys won't notice the changes in their female classmates.

But if I recall my junior high days, my teachers would have been delighted if the students used the term "boobies" rather than the term that was most commonly used.

The Easton Area School District, located about 60 miles north of Philadelphia, said several years ago that the bracelets, distributed by the Keep A Breast Foundation of Carlsbad, California, were lewd and banned students from wearing them.
Kayla Martinez, then 12, and Brianna Hawk, then 13, defied the ban and wore the bracelets to Easton Area Middle School in 2010. They were suspended.
The girls, with the help of the American Civil Liberties Union of Pennsylvania, then challenged the ban, and after making its way through lower courts, the 3rd U.S. Circuit Court of Appeals agreed with the girls in August. The court said the district didn’t prove the bracelets were lewd or disruptive.

Saturday, October 5, 2013

Court Strikes Down Illinois Law Making Video of Police a Felony

Until this week, videoing this in Illinois was felony
The U.S. 7th Circuit Court of Appeals, in a 2-1 decision, struck down an Illinois law
that made recording police, or any other public official, a felony.

The law expanded Illinois' Wiretap Act to prohibit any recording with sound of police or any other public official during the performance of their official duties.  The District Court upheld the law.  In reversing, the 7th Circuit Court described the law as the broadest in the nation.  The court found it exceeded permissible bounds of protecting privacy, which was not applicable to police performing their public duties.

The law suit was brought by the Illinois ACLU, which maintained that its videographers who were filming police were threatened with prosecution.

Noted conservative jurist Richard Posner dissented.  He argued that there law protected potential private conversations which citizens might have with police, and further societal security and privacy.

The case undoubtedly will be appealed to the United States Supreme Court.  However the Supreme Court is under no obligation to review the case.

photo credit: <a href="">Wurz</a> via <a href="">photopin</a> <a href="">cc</a>

Sunday, September 29, 2013

REVERSED! US Appeals Court Holds "Like" on Facebook is Protected Free Speech

Clicking "LIKE" on Facebook is expression protected by the First Amendment.

That's the ruling of the U.S. Fourth Circuit Court of Appeals in Bland v. Roberts.  The  decision reversed an nearly inexplicable Virginia District Court decision that held clicking "LIKE" was not sufficient expression to qualify for First Amendment protection.

The case arose when Bland and several other employees of the Hampton (VA) Sheriff's Department clicked "LIKE" on the Facebook page of Sheriff's candidate Jim Adams.  The problem was that Adams was running against the current sheriff, B.J. Robert.  When Roberts discovered that his employees had clicked "LIKE" on Adams Facebook page, he fired them.

The former employees sued for violation of the right to free political expression,  The Federal District Court judge dismissed the case, holding that just clicking "LIKE" was insufficient to invoke the protection of the First Amendment.

In a post reporting the District Court decision, I commented that the decision was so far out of line with established law that it would be reversed on appeal.

In reaching it's decision, the Court stated that "Liking" campaign's Facebook page was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

photo credit: <a href="">Stewf</a> via <a href="">photopin</a> <a href="">cc</a>

Thursday, September 19, 2013

"UNSUB on that 187. Need ME & SIS. Get BANG & CRASH to CP, Code Two." Police Speak - Courtesy of Michael Connelly

Best-selling author Michael Connelly just did us all a BIG favor.

On his website, he just published a list of acronyms used by police.  If you read or write crime fiction (and I'm a big Michael Connelly fan), this is a great little reference.

And while you're at it, if you have not read any of Michael Connelly's books, by all means do so.  His characters are fascinating.  The writing is spot-on.  And as a lawyer, I appreciate the fact that he's one of the few crime/legal thriller writers who gets the law right.  

If you're starting out on Connelly's books, my suggestions for starting points:  The Lincoln Lawyer (2005), the first in a great series about criminal defense lawyer Mickey Haller (made into a movie staring Matthew McConaughey);  Concrete Blonde (1994), the third book of Connelly's quentisential detective Harry Bosch, and the Blood Work (1998), the first of three books featuring FBI agent Terry McCaleb (and a Clint Eastwood movie).  But you can pick up any Michael Connelly book and you'll be hooked.

Here's the list:

187 California Penal Code for Murder
187 LEO California Penal Code for Murder of a Law Enforcement Officer
3056 California Penal Code for Parole Hold
5150 California Penal Code for Mentally Unstable
51 Reports Citizen Complaint Files
51s Investigative Chronology reports
ACU Asian Crimes Unit
ADW Assault with a Deadly Weapon
AFIS Automated Fingerprint Identification System
AFS Automated Firearm System
AG Attorney General
AGU Asian Gang Unit
ATF Alcohol, Tobacco, and Firearms
BAM By Any Means
BANG Boulevard Anti-Narcotics Group
BAR Bureau Assistance Request form
BOLO Be on the Lookout
BOR Board of Rights
BPO Black Peace Officers
BSS Behavioral Science Section
CAPs Crimes Against Persons
CCB Criminal Courts Building
CHP California Highway Patrol
CI Confidential Informant
CIR Critical Incident Report
CLET Clandestine Laboratory Enforcement Team
CO Commanding Officer
Code Seven Out of Service, On A Break, Off Duty
Code Three Lights And Sirens, Emergency
Code Two Respond As Soon As Possible
CODIS Combined DNA Index System
CP Command Post
CR Chronological Record
CRA Community Redevelopment Agency
CRASH Community Resources Against Street Hoodlums
CRT Crime Response Team
CUBA Conduct Unbecoming An Attorney
CUBO Conduct Unbecoming An Officer
DA District Attorney
DB Dead Body
DCFS Department of Children and Family Services
DDs Due Diligence reports
DEA Drug Enforcement Agency
DL Drivers License
DMV Department of Motor Vehicles
DNA Do Not Approach
DOB Date of Birth
DOJ Department of Justice
DP Deployment Period
DPS Department of Public Services
DPSS Department of Public Social Services
DYS Division of Youth Services
EE Electrostatic Enhancement
ERT Emergency Response Team
ESB Evidence Storage Building
ESD Evidence Storage Division
FBI Federal Bureau of Investigation
FI Field Interview
FO Field Office
GBI Great Bodily Injury
GIU Gang Intelligence Unit
GOSD Gang and Operations Support Division
GRIT Gang Related Information Tracking
GSR Gunshot Residue
IAD Internal Affairs Division
IED Improvised Explosive Device
Interpol International Criminal Police Organization
IO Investigating Officer
IR Interview Room
ISL Involuntary Stress Leave
K-9 Jacket Keep Away Status in jail
KAs Known Associates
LAFD Los Angeles Fire Department
LAPD Los Angeles Police Department
LWP Life Without Parole
MCT Mobile Computer Terminal
MDT Mobile Digital Terminal
ME Medical Examiner
MPPD Monterey Park Police Department
NCIC National Crime Information Center, National Crime Index   Computer
O3 Office of Operations
OC Organized Crime
OCID Organized Crime Intelligence Division
OCP Office of the Chief of Police
OCU Organized Crime Unit
OD Overdose
OHS Office of Homeland Security
OIR Original Incident Report
OIS Officer Involved Shooting
One-K-Twelve radio designation for an RHD Homicide Detective
OP Observation Point
OPG Official Police Garage
OPR Office of Professional Responsibility
OT Overtime
PAB Public Administration Building
PC Probable Cause
PCD Probable Cause Detention
PDU Public Disorder Unit
PI Private Investigator
RAT Radiological Attack Team
REACT Rapid Response Enforcement and Counterterrorism
RHD Robbery-Homicide Division
RO Reporting Officer
ROD Relieved of Duty
ROR Released On Own Recognizance
RTC Return To Custody
RTD Return To Duty
SID Scientific Investigation Division
SIS Special Investigation Section
Staff Two radio designation for Assistant Chief of Police
Ten-Seven Dinner Break, Out of Service, Home
T & L report Time and Location, Alibi Sheet
TOD Time of Death
Twenty Subject’s Home
Two-Six Forthwith From the Chief’s Office
UM Unfit Mother
UNSUB Unknown Subject
VICAP Violent Criminal Apprehension Program

Monday, September 16, 2013

I Got This Great Idea Where Harry Potter and Spiderman Meet Christian Grey . . .

What characters lurk in your imagination?
At a writers conference I was asked by a several people about plots involving established characters.  Maybe not quite Harry Potter, Spiderman and Christian Grey (50 Shades of Grey), but not far from it.

Such works have become such a mainstay on the Internet that they now have their own genre:  Fan Fiction.

The Internet is full of additional story lines with Harry & Hermione and Ron -- some amateurish, some surprisingly well done, and some, well, down right pornographic.  The same is true of Katniss, Bella, and a whole host of fictional creations.

I have a great story idea that's even better than the original.  So what's the problem?

The problem is an aspect of copyright protection called derivative works.  The copyright protection which attaches to any original work (without registration or even a copyright symbol) protects not only that work, but any derivative work.

So if you create the next James Bond, or Katniss, or Harry Potter, or Harry Bosch, no one else can write stories using those characters, at least not without your consent and license.  Noted thriller writer Jeffery Deaver is writing the new James Bond novels 50 years after the death of Bond creator Ian Fleming.  He is the latest (and probably best) in a line of subsequent Bond writers.  But all of those writers have been selected by and contracted with Ian Fleming's heirs.

So what about all those fan fiction sites?  What about imitation being the sincerest form of flattery?

The reality is that publishers and authors seem to be willing to turn a blind eye to fan fiction - as long as it is not for profit.  That's not the law. They could send take down notices and sue over those stories and websites.  But it appears the marketing executives and legal departments of various publishers have decided that as long as no one is doing it for money, it probably helps spread enthusiasm among devoted fans.  And who wants to go around suing some of your most devoted fans?

But the instant money enters the equation, the dynamics change.  Publishers will sue in the drop of a hat to pull down fan fiction that is offered for money.

So if you are a fledgling author, instead of trying to think of a grown-up Harry Potter novel, or what happens when Elvis Cole and Stephanie Plum are hired to work opposite ends of a case, think up your own characters. 

After all, that's the challenge and excitement of the creative process.

photo credit: <a href="">Anna Fischer</a> via <a href="">photopin</a> <a href="">cc</a>

Thursday, September 12, 2013

Reality and Fiction: Part 3 - Writing Real People in Fiction

George & Abe hunting vampires?
After touching broadly on the legal principles, it's time to get down to practicalities:

Can you use real people in your fiction?

As I alluded to in my earlier post, the answer is a qualified yes.

Example 1:  You have your character have a chance run in with Martha Stewart in a posh Washington, D.C. restaurant.  They exchange greetings and discuss mutual acquaintances, then go on their way.

No problem here.  Passing reference to Martha doesn't raise any issue about privacy, publicity or defamation.

Example 2:  Your character is in a posh Washington, DC restaurant when he sees Martha Stewart, in a drunken stupor, berate and throw a drink in the face of her waiter, stand on her table and pull up her skirt to reveal she is going commando and has a tattoo of Matt Lauer on her ass, then say something that reveals she is, in fact, the Georgetown Slasher, a vicious serial killer who leaves victims in the finest hotels in Washington surrounded by handmade candles and tasteful flower arrangements.

Now we have a problem.  It's not a right of privacy or publicity issue, but straight out defamation.  Even though it is labeled fiction, it still exposes Ms. Stewart to a possible lowering of her reputation.  And it would be hard to claim that the statement was not made with knowledge of falsity when in fact you are writing FICTION, which by definition is false.

Example 3:  Your earlier books have been made into successful movies - one by Clint Eastwood, and the other staring Matthew McConaughey - so you write them in to your later novels.

No problem here.  That's exactly what was done by best-selling author Michael Connelly.  His novel Blood Work was made into a move directed by and staring Clint Eastwood.  So when Connelly wrote the sequel A Darkness More Than Night, he included references to Eastwood and to the fact that a movie had been made about protagonist Terry McCaleb's heart transplant.

Matthew McConaughey played the role of Connelly's character Mickey Haller in the movie version of The Lincoln Lawyer.  In Connelly's sequels The Brass Verdict, The Reversal and The Fifth Witness, there are passing reference to his characters having encounters with McConaughey

Example 4:  Your character has various dealings with early industrial giants Henry Ford, Louis Chevrolet, and Thomas Edison.

This is the context of D.E. Johnson's series of books (Detroit Electric Scheme, Motor City Shakedown, Detroit Shuffle) set in Detroit in the early years of the auto industry.  No problem here.  They are dead.  No defamation.  No invasion of privacy.  And because their deaths long preceded any rights of publicity laws, there is no concern there either.  But since rights of publicity statutes exclude books, that issue doesn't exist in any event.

Heck, you could even write a book about, say, Abraham Lincoln killing vampires.  But then again, who would ever want to read something as far-fetched as that.

photo credit: <a href="">Scott Ableman</a> via <a href="">photopin</a> <a href="">cc</a>

Monday, September 9, 2013

Reality and Fiction: Part 2 - Adding real people to fiction - the legal background

Best-selling author John Gilstrap, whose latest Jonathan Grave thriller High Treason is heading up the best-seller lists, made a comment to my last post.  He raised the issue of intermixing real people in fiction.

So can you have your main character have a chance encounter with Martha Stewart?  Or Matthew McConaughey?  Or Elvis?

The short answer is yes -- but with qualifications.

Let's start with a little legal background.

The legal issues involving real-life people revolve around the right of privacy, the right of publicity, and libel.  The rights of privacy, although recognized in some forms since the early 1900s, are still not uniformly recognized among the 50 states.  Some aspects, such as commercial use of images without consent, are adopted by virtually all states.  Public disclosure of truthful private facts, is another issue.  Members of an evenly divided Indiana Supreme Court opined that the state constitutional provision providing that truth is an absolute defense in defamation actions, precludes any liability for truthful statements -- even the disclosure by a nurse to a plaintiff's co-worker that the plaintiff had AIDS.

The right of publicity is a new concept.  It was not recognized at common law, under which all personal rights to privacy, publicity and defamation died with the person. The legal adage is that you cannot defame a dead person.

But prompted by the death of Elvis Presley, the Tennessee legislature enacted a statute giving the right of publicity for a deceased person to his estate.  In the following years, some, but not all, states have passed statutes regarding the right of publicity.

Generalizing, those statutes give the heirs all rights to use of the image, likeness and voice of the deceased person. So when you see a commercial using the image of Elvis Presley or the voice of Bing Crosby, someone is paying the estate (or more likely, a corporation set up by the estate).

But those statutes have an exception for books.  There would be significant First Amendment issues if the legislature tried to prohibit writing about people without their consent.  Hence the exclusion.

Finally, there is the issue of defamation.  In short, defamation is an untruthful statement about a person that lowers that person's reputation in their profession or in the community.  There are various standards that apply to defamation depending on whether the person is a public official, public figure, limited person public figure, or private person.  But in general,  the old common law still stands -- you can't defame a dead person.

In the next post, I'll discuss the practical application of these laws to using real life people in fiction.

Wednesday, September 4, 2013

Reality and Fiction in Writing -- Part 1: Changing Names

Back from a bit of a hiatus --

At the Midwest Writers Workshop, I was part of the Buttonhole the Experts session.  The question that came up more than any other -- both in the short "buttonhole" sessions and in hallway discussions -- was about the interplay of real life and writing.

The question came up primarily in three setting, all of which have arisen in my law practice.  First, and seemingly more common, is the "fictionalizing" of real events, usually by slight changing of names or places.  Second, is the use of real life people in works of fiction.  Third is the issue of writing about people without their consent.

The next installments of Law for Writers will address these issues.

So how about fictionalizing real events?

This seems to most commonly arise in the following scenario:  Joan Smith is writing what effectively is a memoir.  But because of family concerns, or because of fear that revelations will subject her to a lawsuit,  she changes the names of the characters, and maybe even the location.

So by changing the names, has Joan protected herself from libel?

The quick answer is "NO."

Just changing a name of a real life person to a made-up name does not protect the author from exposure to liability for defamation or even invasion of privacy.  The general rule is that if a person can be identified, simply changing a name or using the label "fiction" will not provide the author with an impenetrable wall against liability.

Now does that mean that one cannot use real life events as inspiration for fiction, or even as the basis for a work of fiction?  Of course not.  Much, if not most, fiction, is inspired by or drawn from real life.  Often that is what gives fiction its believability.  One of the classic American novels, Robert Penn Warren's All the King's Men, clearly was inspired by Louisiana Governor Huey Long.  But it remained a work of pure fiction.  It's characters were fictional, not just some account of real life persons and real life events with a simple name change.

There maybe reasons for "fictionalizing" a memoir or a true account by changing names.  Maybe it gives the author a way of dealing with disgruntled family members.  If so, that is the choice of the author.

But do not count on protecting yourself from liability by the simple expedient of a name change.  It's a thin veil and the law has no difficulty seeing through it.

photo credit: <a href="">J. Paxon Reyes</a> via <a href="">photopin</a> <a href="">cc</a>

Friday, August 2, 2013

Robert Ebert and Life Itself: Worth Reading

Within two weeks of reading Roger Ebert's autobiography Life Itself, I lost a law school
classmate, a friend and business associate of nearly 20 years, and a cousin, all of whom died suddenly and without warning.  It made Ebert's book and his reflections about life all the more poignant. 

Live Itself is a stunning accomplishment - not just for the very act of writing a book with all the maladies that Roger Ebert was suffering at the time - but for the book, the life it recounts, and the soul it reflects.

From the delicious humor of a chapter dedicated to the perfection of Steak and Shake, to recounting of long walks through London and Venice, to the remarkable people with whom his life was filled (including Gene Siskel, Studs Terkel, Russ Meyer and Robert Mitchum), this book is to be treasured. The story of Mitchum, his agent & Ebert trying to find a closed workhouse outside Pittsburgh where Mitchum was shooting a movie that he signed up for by mistake is laugh-out-loud funny.  So too is the story of a bathtub resurrection scene envisioned by Ebert and filmed by Meyer for a vampire skinflick, only for the scene to end up on the cutting room floor while the off-chance filming of nearby truckers recruited to carry the bathtub to a precarious hilltop perch made it to the screen.

And above all, Ebert tells of the love of his life, his wife Chaz.

But in the end, it is Roger Ebert who is the most amazing person in these pages. With the end clearly in sight (Ebert died in April of this year), he reflects on an illness that took away his ability to eat, to drink, to converse, or to take those treasured long walks.  He misses food, but misses the social aspect of dining with friends more.  He misses his walks, but can reconstruct them step by step from his memory.  Remarkably, he still finds contentment and happiness.

Ebert concludes the book by contemplating his own mortality and the greater questions of Man's place among the universe.  He does so with a calmness of vision, a clarity of thought, and without fear.

Ebert takes an honest look at himself, his travels, his family and friends and -- at life itself. And in doing so, he makes all of us the richer for it.

If you are looking for a book to read as summer moves so quickly into autumn, consider Life Itself.  It is well worth reading.

Wednesday, July 31, 2013

First Amendment at Risk: Blogger / Lawyer Faces Discipline for Criticism of Judge

This is a bit off-topic, but it does deal with an important issue of free speech, which is
the life-blood of all writers.

Indianapolis lawyer / blogger / all-around gadfly Paul Ogden has been hauled before the Indiana Disciplinary Commission, an agency of the Indiana Supreme Court that is responsible for prosecuting disciplinary complaints against lawyers.

His "misconduct" which threatens his law license and his livelihood?  Sending a private email stating that a judge, who had already been removed from handling an estate.  Somehow the judge got wind of the negative comment and filed a disciplinary complaint.

Adding grist to the issue, just before the disciplinary proceedings were filed against Ogden, he had published a post highly critical of the disciplinary commission, pointing out that of the 400 complaints filed against lawyers during the final three years of the previous executive director, 397 were filed against solo and small firm lawyers.  Only three complaints were filed against lawyers in larger firms.

Ogden has expressed his view that this made him a target because of his critical postings.  He buttressed this in a post-hearing article (CLICK HERE) in which he pointed out that during the 11 1/2 hour hearing, the Disciplinary Commission utilized 5-6 lawyers, and presented boxes of files from the estate case.

Ogden's post contrasts this to the handling of numerous complaints against noted construction injury lawyer William Conour, who this month pleaded guilty in federal court to stealing  $4.5 million from more than 25 clients over several years.  Numerous disciplinary complaints had been filed against Conour for mishandling client money, but the Diciplinary Commission never charged him with misconduct until after he was indicted by a federal grand jury.

So the question remains:  how much right to free speech does one give up by becoming a lawyer, particularly a lawyer who posts comments critical of the state supreme court?

We'll see. The decision of the Indiana Supreme Court likely is months off.

photo credit: <a href="">kouk</a> via <a href="">photopin</a> <a href="">cc</a>

Sunday, July 28, 2013

Defamation and the NFL Cheerleader: Gossip Website found liable for $338,000

Sarah Jones - former Bengal Cheerleader
Writers and bloggers need to be keeping an eye on the case of a former Cincinnati Bengals cheerleader who won a $338,000 judgment against, a website most recently known for exposing (pardon the expression) the latest Anthony Weiner photos. 

The case revolves around Section V of the Telecommunications Act of 1996, commonly known as the Communications Decency Act, and specifically Section 260.  Provisions of that Act provide immunity to website operators for content posted by third parties and not edited by the website.

Traditional common law rules of defamation held that a person who republishes a libelous statement is equally culpable with the person who made the original statement.  With the growth of the Internet and spread of electronic communications such as message boards,  internet providers such as Yahoo, Comcast, AOL and AT&T ran to Congress to obtain an exemption.  They did not want to be held responsible for content that people posted on the internet.

Congress agreed, and in 1996 enacted Section 260 of the Federal Communications Decency Act.  The provision granted immunity to internet content providers for content posted by others, so long as the provider did not select or edit the content.  In other words, as long as the provider was simply providing the mechanism of the communication, and had no part in the content, it was immune from defamation liability.

Enter our fair cheerleader and  In 2009, published two posts from anonymous contributors asserting that  Sarah Jones, a school teacher and cheerleader for the NFL's Cincinnati Bengals, had sex with every player on the Bengals, and in a separate post, that she had two sexually transmitted diseases.  Under common law established long before the internet - or electricity for that matter - statements attributing unchaste behavior to a woman (but not a man) or a "loathsome disease" (old speak for sexually transmitted disease) to anyone, are considered defamatory per se - that is, by the statement itself without any proof of damages.

The Arizona judge denied a motion to dismiss the case based on Section 260, finding that, through its operator Nik Richie, had selected the posts for publication and had then added comments to the post, thereby taking it outside the protection of federal law.

The case was previously tried in January, 2013, resulting in a hung jury.  This recent jury deliberated more than 10 hours before finding Nik Richie had acted with malice, and awarding damages of $338,000.  

An additional issue was presented by Ms. Jones well-publicized conviction for her sexual relationship with an underage former student.  In criminal proceedings in Ohio, Ms. Jones avoided jail but was banned from ever teaching again.  In a trial strategy move, Ms. Jones sought damage only until February 1, 2011, apparently the date she was charged for her conduct with the former student.  Her attorney argued (apparently successfully) that the jury should ignore Ms. Jones conduct after that date.

Lawyers for are promising an appeal on the judge's refusal to dismiss the case on the basis of statutory immunity under the Communications Decency Act.

NOTE:  Ms. Jones, now 28, and her former student, now 18, have announced plans to marry.  Truly, "There are more things in heaven and earth, Horatio, Than are deamt of in your philosophy."

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Sunday, July 21, 2013

Lawyer Disbarred for Writing Tell-All Book

A Carmel, Indiana lawyer thought he had a great story to write.  So lawyer (now former lawyer) Joseph Stork Smith wrote a book about Dee Dee Benkie, a former aide to President George W. Bush.  The  2010 book, Rove-ing Her Way to the White House: Machiavelli’s Sexy Twin Sister, was not a best seller, but is was sold on

The problem is that Ms. Benkie, now a Fox commentator and Republican strategist, was Mr. Smith's client.  Apparently for a time she also was involved in a personal relationship with Mr. Smith.  But that relationship ended -- apparently very badly from Mr. Smith's perspective.  So he wrote the book detailing what he perceived as Ms Benkie's dirty laundryCue Don Henley and Dirty Laundry.

Smith's book details Ms. Benkie's asserted criminal background and claims that she should never have been given clearance to work at the White House.  The book description on the Better World Books website states: "Rove-ing Her Way to the White House, demonstrates that it was clearly possible to lie, cheat, steal, and manipulate others to gain full security clearance in the White House."  The description promises revelations of  "sex, criminality, not following the Golden Rule, and, most importantly, jeopardizing the security of the United States of America."

That same description claims that the author had a "unique perspective" which gave him knowledge to write the book.

Damn right he did.  He was her lawyer !

Confidentiality is at the core of the attorney-client relationship.  It is taken seriously by lawyers, the legal profession and certainly by the Indiana Supreme Court, which is in charge of enforcing those rules and disciplining lawyers in the Hoosier state.

Those same Rules of Professional Responsibility also prohibit lawyers from having a sexual relationships with their clients.  There is an exception where the relationship pre-existed the representation, so you can represent your spouse. But if a relationship develops during the representation, the lawyer must withdraw (no pun intended - well, maybe a little pun intended) from the representation before he/she "does the deed" with what should now be a former client.

Apparently Mr. Smith didn't pay any attention to that rule, either. 

In disbarring Mr. Smith, the Supreme Court did not mince any words or hide its disgust. It was a tour-de-force of clear to-the-point writing.   The Court opinion stated:

"In the book, Respondent revealed personal and sensitive information about [the former client] that was obtained in confidence as her attorney, and its revelation had the potential of causing her public embarrassment and other injury, such as impairment of her employment opportunities.  .  .  . Respondent's selfish motivation in deliberately attempting to reveal this confidential information to a wide audience for monetary gain, his false statements in the book and in this disciplinary matter, and his lack of any remorse lead us to conclude that that disbarment is appropriate for Respondent's misconduct."

Cue Queen - Another One Bites the Dust.

 Note to Indiana Supreme Court:  My legal thriller, Stars Fall, is entirely fiction.  

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Wednesday, July 17, 2013

A Conversation About Writing with Crime Thriller Writer Matthew Clemens

Crime thriller writer Matthew Clemens is the author and co-author of a wide variety of crime thrillers and true-life crime stories.  He has worked extensively with Max Allan Collins on numerous projects, including the best-selling CSI novels based on the television series.  

He is also an integral part of the Midwest Writers Workshop, so much so that Matthew claims status as the conference mascot.  New week the Midwest Writers Workshop will hold its 40th annual conference, and Matthew will be one of the featured instructors.

I interviewed Matthew this Spring on my online radio show, Stephen Terrell: Just Us.  Among other topics, Matthew discussed the genesis of his writing, collaborations with Max Allan Collins, and his advice to those striving to be professional writers.

Beginning of a writer:

I actually started writing in the third grade because I had bad penmanship. That was the genesis of the entire career.  I was the only a third grader in 1965 with homework. And I had to go home and fill a page of that tablet every night with cursive.  When I copied it out of a book, it took forever.  I hated it. 

One night, I cant tell you why, I just wrote what was in my head. And I was done in five minutes. And that was the ah-ha moment.

After college I took a long time when I didn't write. It could be that I just didn't know enough.   You have to have a certain amount of life experience to have something to write about.  Consequently when I was 31, I started going to writers conferences, and it's all sort of blossomed from there.

That's how I got started was third grade bad penmanship.

Honing the craft of writing:

I started going to conferences when I believe I was 31. And I was always smart enough to know that I didn't know what I was doing. 

A lot of writers, when they go to conferences, the first thing they want to know is how to get an agent.  The first thing I wanted to know was how to write a book.  So consequently over the course of four or five years, I went to conferences and I kept learning more and more.  And my fiction improved as I went. 
The first year I was lucky enough to win a couple of awards. That encouraged me. But even then I knew that I sucked.  It was just a matter of trying to get better and better.

Becoming a professional writer:

Finally, in 1992, five years after I started studying, I decided to hang out my shingle as a book doctor because it seems I have an eye for catching problems in manuscripts.   I've read a lot of books over the years. . . .  You learn to spot problems. And that was what I first started doing. 

First it was a non-fiction book, a true-crime book about a chiropractor in my hometown who killed his wife and cut her up with a chain saw.  That was the first book that came out.  It was called Dead Water {NOTE: Dead Water is now again available as an ebook and in print}.  Actually the guy wouldn't have had as much of a problem, but people really took umbrage about the chain saw.

Collaborating with Max Collins:

Eventually it dove-tailed into Max Allan Collins calling me. . . .  Max Allan Collins has written over 100 books, the most famous of which is the graphic novel Road to Perdition, which became the Tom Hanks / Paul Newman movie. He's won Shamus Awards. He's one of the masters of detective fiction and also one of my first teachers.

We had been searching for something to do that would allow us to work together, to collaborate.  I had collaborated on Dead Water with a guy named Pat Gipple. So I didn't mind collaboration, so when Max came to me right after CSI came on the air, and said 'I think this is the property we should do together.' It was under his by-line because it was a job they had approached him to do, but we did the books together.  He knew I watched the show and I had a true-crime background, and I had access to forensics people, so it made it a very easy thing to get in to.

We did eight novels based on  CSI: Las Vegas, two on CSI: Miami, three graphic novels for Vegas,  one for New York, and eight jigsaw puzzles.  CSI kept us very busy for about 5 or 6 years. 

 The CSI books made the USA Today Best Seller lists (and) sold millions of copies.

Where story ideas come from:

The whole world is full of them.  All you got to do is look around.   Every crazy SOB on the planet is   And it's just finding that 'what if' moment in there that allows you to write a different story than has been written before.
going to do something, and all I've got to do is watch it, then ask "what if?"

The work and craft of writing:

Two thousand words.  Every day, two thousand words.  Six days a week.  And if I'm on deadline, 7 days a week.  The idea is to get from the beginning of the story to the end of the story as fast as I can so I know I have a story.  And then you actually go to work.  You do all the hard stuff after that

When I got into the business, I was told it was 40 percent writing and 60 percent re-writing.  I think that's wrong. I think its closer to 30-70. 

When characters write their own story:

There is a moment when you're writing a book where the character does what he has to do instead of what you want. That is the moment you're looking for, because then they're real.   If they're not real for me, if I can't make a character real enough that I believe in, I can't make you believe it.  It's that simple. It really is.

We can think of a thousand endings for stories.  The characters will show us the correct end by the time it's all said and done.  I know how I want this book to end that I'm working on now.  I have no idea if that's how it will end since I'm not done yet.

Closet writers:

America's closets are just filled with first chapters. But its being able to write all those other chapters, and then saying "Okay, now I'm going to show this to someone who doesn't like me -- someone that has no vested interest in making me feel better."   That's the hard part.

If you can put it in the closet and leave it, do it.  If you wake up in the morning and you have to write, go seek out professionals and learn how to do it.  Those who do this professionally, who are serious about it, we don't really worry about getting paid as much as we do about we have to get this out.  You have to do it. 

How to become a professional writer:

This isn't the sort of job people pick to do long term because it's a cool job to have.  It's really hard.  You sit in a room by yourself all day.    And in my case I even have the door closed even though I'm the only one home.  It's not a job for everybody.

But if you have that thing that says you have to do it, there are writers conferences, there are writers groups, all kinds of ways to learn how to do this.  The Internet makes life easier.  There are classes.  There are books on writing: Karl Largent, Stephen King, Lawrence Block.  There's great books on how to become a writer. 

But the bottom line, the very bottom line to all of that, is to put your ass in a chair and write.  That's how you become a writer.

The value of Midwest Writers Workshop: 

They're family.  I've been coming since 1990.  I started as a student there in 1990. Karl Largent, who was on the board at MWW . . . told me that if I wanted to get better, that the more conference I went to, the better off I would be.  And go to Midwest Writers. 

And I've been there ever since. I have gone from student, to faculty, to now into sort of campus mascot.  But it is a place loaded with really good writers, and more importantly, really good teachers.  That would be the place I would recommend for everybody. There are all kinds of resources available.  And Midwest prides itself on the fact that its faculty is available outside the classroom as well.  It's also where I go to dip my toe back in the water and get my enthusiasm back.

Saturday, July 13, 2013

Conversation: Best-Selling Author Julie Hyzy

Julie Hyzy is the best-selling writer of the White House Chef and Marshfield Manor cozy mystery series.   She is a two-time winner of the coveted Anthony Award.  Recently Julie was a guest on my online radio show,  Stephen Terrell: Just Us.   

Stephen Terrell: Just Us is broadcast Tuesday nights at 9 pm on Past shows are available in the station's archives  and can be downloaded to Itunes. 

Julie's newest book, Grace Takes Off, was released July 2.  Here are the highlights of my discussion with Julie.
Born writer:

I wanted to write since was just a little kid. I've been writing since I was a little kid.  We recently came across some of my old stories that my mom had saved when my brother and I we were cleaning things out.  We found a lot of stuff that that I had written when I was 6 or 7 years old.  It's been a constant thing in my life.


When I went to college I said I was going to be an English major, and everybody said 'are you going to teach?'  And I said no, I'm going to write. And my family and friends and everybody said, 'You're going to starve.'  So they talked me out of being an English major and into being a business major.

I graduated from Loyola University with business major.  I thought, I can write on side. Didn't happen at all.   Now I was married, and I thought once have baby can stay home, and can write.  Couldn't   Didn't happen either

Back to the dream:

When my youngest about nine or ten,  I started writing and submitting in earnest.  I figured it was now or never.  I didn't want to be 120 years old and sitting in a chair and thinking back and saying, I never tried or I never attempted to do it.  I wanted to see.  If I fail, I fail, but I wanted to try.

I started submitting.  And after a while, I had a little bit of luck.  I had some short stories published, then a novel. And I enjoyed writing a novel so much, I started writing a series.

Living the dream:

It's just been the best.   Better than I could every possibly imagine when I was ten years old and wanted to be a writer.

Winning the Anthony Award - twice: 

I got to tell you, I'm really blown away by this.  It's like it couldn't have happen, yet it did. . . .

In 2009,  State of Onion won the Anthony Award and the Barry Award in Indianapolis.  It was my most favorite Bouchercon ever.  I was so excited.  Then last year Buffalo West Wing got nominated  and won again.  I'm so excited I can't believe it.  It's pretty awesome.

A friend of mine, a very good friend of mine . . .  immediately after the Anthony Award in Indianapolis, he came up to me and said "Julie.  Julie.  Guess what?"  And I said "what?" And he said, "You have your obituary now.

On the White House Chef series:

It's been a true joy to write.We've not heard back from White House chefs.  We've tried repeatedly to get the books into their radar. . . but we have no idea whether anybody has noticed them or paid any attention to them.    We don't know if they are aware of them.  (The next book in this series, Home of the Braised, is set for release in January 2014

On the Manor House Mysteries:

The first book, we suggested the title "Grace Under Pressure" because the principal character was Grace.  The Publisher has decided to keep Grace in all the titles, which I didn't know was going to be happening.  And I think it's just a genius idea.   [The newest book in the series, Grace Takes Off, was released July 2, 2013].

Grace is young girl.  She doesn't have Ollie's (White House Chef Olivia Paras) strength of character or confidence yet, because she suffered quite a few blows, like the loss of her mother, and her fiancĂ© left her for her sister.  So she suffered through a few things, but she's finding her strength now.  She has her own story to tell and I'm having a lot of fun with her.   A lot of fun, because she's discovering herself   Ollie knows who she is.

Favorite character:

Probably at this point, it's Frances, who is Grace's assistant at work.  She is probably my favorite character.  She's just annoying as all get-out .  She's snarly and not happy.  But you know that she's a marshmallow underneath.  You just haven’t' found it yet. But I'm having fun with her.

Advice to aspiring writers:

I think the first thing I say is that if someone can talk you out of being a writer, then you're not meant to be a writer.  Anyone who is meant to be a writer can't be talked out of it.  They may push it aside for a while, they may say "Oh my God, I have priorities" and go with whatever the priorities are for a while.  But if they can't be talked out of it -- if it's something that makes them return to telling stories -- then they need to stick with it. 

And that's probably the number one thing -- perseverance.  Because there are so many moments where things feel down, or things feel negative.

The publishing world is changing now, and the role of agents and the role of publishers, they're evolving.  Still, if you're going to be publishing in a traditional manner, you're going to have to go through agents.  You're going to have to go through editors.  And there's a lot of rejection. 

If you're going with the self-publishing route . . . there's the difficulty of dealing with rejection on the part of buyers who either don't buy the book or who buy it then review it poorly.

So it's a very tough road, and unless you believe in yourself, or you believe you have the ability to grow and change, and learn, and constantly learn, it's going to be very tough.

My best advise to anyone starting out, who truly believes in themselves, is to not give up. To constantly learn.  To give themselves every opportunity to learn more.  To take it in, and then let it come out through their writing.

Best writing advice ever:

I had an instructor tell me once, and I thought this was the best advice I have ever been given, you learn as much as you can.  You're a sponge.  You take in as much as you can, and then you let the magic come out of your fingers.  And I thought that was just beautiful. 

Expose yourself to as much as possible, and put it into practice as much as possible. And write every day.