on line legal advice by davem2


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                                     Beware of Online
dozier                               Legal Advice
Multiple variables Might iMpact application of decisions

          I get a report every day oF                                                               end up with different opinions, and if the
          many of the important judicial
                                                    by John dozier                                  differing opinions are at the federal circuit
          decisions relating to Internet and                                                        court level, then the law would mean one
ecommerce law. I have to review a court’s           by people who do not put the ruling in the      thing in one area of the country and mean
decision in detail before I begin to understand     proper context. Often we see reports about      something else in another area of the
the ruling, the facts and the law as applied.       a case of “first impression,” which means       country. One reason we have the Supreme
    Judges are oftentimes only as good as           that the issue has not been decided before,     Court is to resolve such conflicting legal
the briefs submitted by the lawyers. In             and everyone assumes that the ruling is         decisions. Unfortunately, many of the
other words, well briefed and well argued           now the law of the land.                        issues we face in the online world will no
issues facilitate good decisions. Sometimes              Many times I have clients who heard        longer be issues by the time a case reaches
a court relies upon the wrong law, or fails         about a court decision and therefore            the Supreme Court.
to consider other interpretations, and that         concluded they had no relief available for          So, the next time you read about a
leads to a bad decision. Sometimes the              a problem. Just as often I receive inquiries    court deciding a case, go search the web
facts before the court can cause a judge to         from prospective clients who erroneously        for comments on the decision. Then, don’t
decide a matter without due regard of the           cite a particular case or statute as support    follow the advice offered or buy into the
law. “Bad facts make bad law” is a principle        for taking legal action.                        interpretation. Just don’t rely upon what
every law student hears over and over                    Here’s the problem. On the state and       you are reading. There are way too many
again as professors try to explain judicial         federal trial level, judges make rulings        variables in play to know what impact any
mistakes.                                           all the time that you never hear about.         court decision will have on your business.
    The third variable in trying to under-          These are unpublished (and sometimes
stand court decisions is human nature.              unrecorded) decisions. A formal opinion by
Areas of the country look at matters                a trial judge has no binding effect on other
differently, and the opinions and beliefs of        trial judges. No one is bound to follow the
the public often are mirrored by judges,            decision, not even the judge who made
particularly those elected by the public            it. These types of decisions carry little
or appointed by a representative body.              weight. Likewise, federal district courts
Certain states are pro-consumer, others             often publish opinions made by the judges,
are pro-business and judges often reflect           but these opinions are not binding on other
                                                                                                      	 John	Dozier	is	president	of	Dozier	
those attitudes.                                    judges.
                                                                                                        Internet	Law,	PC,	a	law	firm	repre-
    In today’s world, the minute a legal                 Appellate courts make decisions and
                                                                                                        senting	small	and	mid-sized	online	
decision is made public we are bombarded            lower courts within that circuit must follow
                                                                                                        businesses.	He	can	be	reached	at	
with news articles, online newsletters and          them. But the decision of one circuit court
                                                                                                        jwd@cybertriallawyer.com	or	online	
bloggers commenting on the decision.                is not binding on courts outside the circuit.
                                                                                                        at	Cybertriallawyer.com.
Legal issues arise and are blogged about            So, as new issues arise, the courts often

42    ////  Practical EcommErcE  ////  January/February 2007

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