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.

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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.

Wednesday, July 10, 2013

Apple Ruled Liable for E-book Price Fixing

A federal judge has found that Apple colluded with the big five publishers to illegally set prices for ebooks.  The court stated that Apple “played a central role in facilitating and executing” a scheme with the big five publishers to keep ebook prices high in the face of fierce competition from Amazon.

Federal Judge Denise L. Cote stated that the trial on damages will follow.

The impact of decision on the ebook buying public will be minimal.  The big five publishers all earlier settled anti-trust claims brought by the United States Department of Justice.  All five are now operating under a consent decree that prohibits those publishers from withholding their ebooks from discount sellers.

The antitrust claim came about when Apple and the big five publishers tried to made a dent in Amazon's domination of the ebook market.  They withheld their most popular titles from Amazon unless the books were sold at a minimum price, thereby trying to thwart Amazon's pricing structure.

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