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May 31, 2006

Does Failure to Give Notice Mean "No Harm No Foul?" or "Out of Luck"

If you don't provide timely notice of a claim to your insurer, are you simply out of luck?  Or do you stand a chance of retaining coverage if you can show that the insurer was not prejudiced by your delay?   Marc Mayerson of Insurance Scrawl offers us this exhaustive post on the consequences of failing to give timely notice in several different jurisdictions.   As Mayerson describes, even in more recent cases, many courts strictly enforce notice provisions, with no "ifs, ands or buts:"

"Courts continue to struggle with claims where the policyholder may not have provided notice as soon as one might have liked, and the coverage litigation typically centers on whether the dispositive argument is "no harm, no foul" -- that is, policyholders will argue that coverage is not lost unless the insurer has been prejudiced in some fashion from the allegedly "late" notice. The Illinois Supreme Court and a Texas appellate court both have confronted this question recently, and these are largely consistent with recent holdings from New York's highest court finding that the notice provision must be enforced as written -- no ifs, ands or buts."

So what are policyholders to do?  For starters, they can follow Mayerson's advice and try not to get into the situation to begin with:

"Of course, policyholders should assiduously avoid giving insurers this opportunity to deny coverage for a covered claim (and given the scope of exclusions few enough claims are covered to begin with). The advice I always give policyholders is this: 'Notice is like voting in Chicago –- do it early and often.'"

Beyond that, policyholders giving notice late are at the mercy of their insurers and the courts.  And here, Mayerson wonders whether the strict enforcement policies -- kicking a fella when he's down, as Mayerson puts it -- is really consistent with what we generally consider proper.

May 31, 2006 | Permalink | Comments (0)

A Blog on Law Firm Diversity

Looks like there may be a blog that can help inform the discussion of law firm diversity, an issue that I recently addressed here.   Bob Ambrogi tells us about a new blog, Law Firm Diversity, that's intended to promote a rational discussion about "the so-called business case for diversity." 
The blog is written by Mister Thorne, a freelance writer and editor in San Francisco, who's married to a lawyer.  Thorne discloses that he is "one half of an interracial couple ... I’m Anglo, and my wife is Afro, which means I have experiences that most Anglos don’t."  Thorne has already put up a bunch of posts that are fairly thought provoking.

May 31, 2006 | Permalink | Comments (0)

What's the Best Hope for Improving Associate-Partner Relations?

With heavy associate attrition rates, one would think that firms would have incentive to do all they can to make life better for associates.   But in reality, though firms should have this incentive, they don't, a topic that's explored by Arnie Herz in this post, Nurturing the partner- associate business relation.  Citing a post by Tom Collins, Why Partners Hoard Work, Herz explains that partners have no incentive to delegate or train their underlings because their compensation is based on "individual production."   Herz adds that both Collins and David Maister, in this post Don't Compromise, Take Turns,  offer advice on improving associate partner relations, such as occasionally making an employee the focus of the company's attention or basing compensation on factors that would provide incentive for partners to help associates along.

On a related note, Bruce MacEwen has a lengthy post on the pros and cons of  lock step versus "eat what you kill" compensation.   EWYK was apparently intended to give partners incentive to generate more income. But apparently, some firms have realized that lockstep compensation can increase profits by improving collegiality within the firm.   MacEwen does not discuss whether either lockstep or EWYK would help improve partner/associate relations, but maybe that's a factor that firms should consider when they examine these different compensation schemes.

May 31, 2006 | Permalink | Comments (0)

Should Law Firms Take a Lesson from Law Schools?

Kevin O'Keefe of Lex Blog reports in this post (based on a tip from Concurring Opinions) that many law schools, such as University of Illinois, are featuring their marquee bloggers prominently on law school Web sites.  Maybe law firms should consider the same technique, listing lawyer Web logs on their home page.  This type of system would give individual firm attorneys incentive to blog.

May 31, 2006 | Permalink | Comments (1)

What Philip Morris Means for Punitives

On Tuesday, the Supreme Court agreed to review Philip Morris' appeal of nearly $80 million in damages the cigarette  maker faces in payment to a longtime smoker.

The Associated Press reported the following:

"The Oregon Supreme Court had ruled that the amount wasn't excessive given the 'extraordinarily reprehensible' conduct of Philip Morris in marketing cigarettes. "

However, a decision in the case could shield companies from large jury awards.  Peter Lattman over at the's Law Blog says that the decision could also answer the $64 billion question: How Samuel Alito will come out on punitive damages.

In Punitive Damages on the Supreme Court Docket, Lattman says that the Philip Morris case has set the stage for "a clarification of the Court’s muddled guidelines on punitive damages." He writes:

"The issue the court will address is whether the award against the tobacco maker was so disproportionate to the injury as to violate the constitutional guarantee of due process.
The amount of the award was 97 times greater than the roughly $500,000 in compensatory damages awarded by the jury to a woman whose husband died of lung cancer.

"So how will Justices Roberts and Alito vote on punitive damages?"

May 31, 2006 | Permalink | Comments (2)

May 30, 2006

Are You A Go-To Lawyer or A No-Too Lawyer?

Lawyers can be placed into two different categories:  "go to" lawyers, the type of proactive, can-do lawyer who everyone  wants to work with and "no too" lawyers (as in "I'll say no to that too"), who always tell clients what they can't do.   In this post, Larry Bodine describes the characteristics of each.  According to Bodine, go-to lawyers are up-to-date on the law, grasp their clients' strategic issues and "put some skin in the game," by sharing risks with clients.  By contrast, no-too lawyers reflexively tell clients no, don't bother to learn about the client and its business environment, don't return phone calls or keep current on issues.

Bodine wants to know: "Which lawyer are you?" 

May 30, 2006 | Permalink | Comments (0)

If You Think Being Sued for Malpractice Is Bad ...

Just last week, BigLaw firm Weil Gotshal settled a malpractice action based on claims that the firm's attorneys had a conflict of interest between their client, a small boutique owner and its adversary, a large fashion house.   Now, just little more than a week later,  another action grounded on conflict of interest allegations has surfaced against Sullivan & Cromwell, as reported in Complaint Accuses Sullivan & Cromwell of Fraud. But this time, plaintiffs aren't calling the conflict of interest malpractice, they're calling it fraud.

From the article, here's a summary of the allegations against Sullivan & Cromwell:

At the heart of this dispute is Flintkote Co., which manufactured and sold vinyl floor tiles, cement pipes and other asbestos-laden products. Two years ago, Flintkote collapsed under the weight of more than 157,000 personal injury and wrongful death claims and wound up in bankruptcy court, where it remains.  Its principal creditors -- asbestos claimants now represented by Snyder -- say that about 20 years ago Flintkote's parent siphoned at least $500 million in funds that should have gone to pay victims. And they say Sullivan & Cromwell orchestrated the raid while serving as Flintkote's counsel [...]

Snyder said that Sullivan & Cromwell provided legal advice to Imperial Tobacco and Flintkote simultaneously, while its true loyalty lay with the parent company. "Our view of the case is that Sullivan & Cromwell was Imperial Tobacco's Trojan Horse inside Flintkote," he said.

In one sense, a firm might be better off facing suits for fraud rather than malpractice since the former are likely harder to prove.  At the same time, BigLaw firms won't find much sympathy with jurors if sued for fraud, which means that they're probably more likely to settle these claims if they reach trial.   Finally, if fraud claims against firms become more common, lawyers may need to check with their malpractice insurers to determine whether their coverage includes suits for fraud.

May 30, 2006 | Permalink | Comments (0)

Supremes Muffle Government Whistleblowers

The Supremes handed down a blow to would-be government whistleblowers today.  The high court in its ruling in Garcetti v. Ceballos made it more difficult for government employees to file lawsuits claiming they were the victims of retaliation for going public with allegations of misconduct, according to reports.

The Associated Press' Gina Holland writes:

"On a 5-4 vote, justices said the nation's 20 million public employees do not have carte blanche free speech rights to disclose government's inner workings. New Justice Samuel Alito cast the tie-breaking vote. "

SCOTUSblog's Marty Lederman provides some analysis:

"The looming question in the case was not so much the outcome but the Court's rationale ... Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development."

May 30, 2006 | Permalink | Comments (0)

Roundup: 'Apple v. Does' Ruling Recognizes Bloggers

While most were hightailing it for the holiday weekend, a California court on Friday was issuing a ruling  in the closely watched Apple v. Does case.

In Apple v. Does, or O'Grady v. Superior Court, Justice Conrad Rushing of the 6th District Court of Appeal ruled in favor of bloggers, rejecting Apple's attempt to unmask sources of leaked product information that made its way to Web sites. The ruling grants online reporters and bloggers the same protections given to MSM (mainstream media) folks under California shield law.

"Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large," EFF Staff Attorney Kurt Opsahl, who argued the case before the appeals court last month, said in a statement on EFF's site. "The court has upheld the strong protections for the free flow of information to the press, and from the press to the public."

Legal Blog Watch's Bob Ambrogi took note of the bloggers' victory on Friday. He writes:

"In a 69-page opinion in O'Grady v. Superior Court, the California Court of Appeal said that the trial court erred in refusing to grant an order protecting against disclosure of their identities."

Ambrogi points out Denise Howell's analysis over at Bag and Baggage for more on the decision.

Previous coverage at
Apple Trade Secrets Case Under Close Examination in Court
Can You Keep a Secret?
Apple Wins Legal Dispute Over Published Trade Secrets
Apple Suit Pits Web Reporters Against Trade Secret Protections

Column of note from
Who's a journalist? Now we know, thanks to Apple

May 30, 2006 | Permalink | Comments (0)

Learning the Practice of Law in Law School

Over at LegalSanity, Arnie Herz comments on the failure of law schools to teach skills that students will need in practice, such as  cultivating client relationships, seeing how emotional issues come into play in real world practice and developing practical lawyer skills.  Herz notes that this trend may be changing somewhat; he links to this article from the ABA's e-report on how even venerable Harvard Law School is re-examining ways to incorporate problem solving into the law school curriculum.

One problem mentioned in the article is that many law professors themselves haven't had much practical experience.  The article quotes Lawrence Rosenthal, a 1981 Harvard Law graduate, as saying:

"So many faculty members at so-called elite law schools don’t have any significant practice experience, so they manage to convince themselves that you don’t need to know much about the practice of law to teach it," Rosenthal says."

Moreover, most law faculty members don't have to engage in the type of relationship building that practicing attorneys do, because scholarship dictates tenure decisions.  Whereas lawyers by necessity need to engage clients and treat them with respect or lose them, law professors will keep their jobs whether they're responsive or accessible to students or not, so long as they meet applicable publishing requirements.   It's hard to train students to act a certain way when you don't behave that way yourself.  For that reason, unless most law schools are different from my alma mater or professors have changed significantly since the late '80s when I was a law student, I don't hold out much hope that students will ever learn in law school what they eventually figure out on the job.

May 30, 2006 | Permalink | Comments (0)

Bad News for Telecommuters

Here's some bad news, or at least negative publicity for telecommuters, courtesy of this recent post by Rees Morrison.  Morrison writes that he came across a survey mentioned in The New York Times that says the following:

"When office employees say they are working at home for a day, 25 percent actually work less than one hour." 

It's hard to imagine any law firm allowing attorneys to work from home if those statistics have any truth to them.  At the same time, Morrison notes a second thought also included in the article: 

The survey "did not ask how long those people actually worked when they went to the office."

May 30, 2006 | Permalink | Comments (1)

Sixty in Sixty

Bob Ambrogi, one of the co-presenters of the ABA Tech Show's perennial "Sixty Sites in Sixty Minutes" announces that the Sixty Sites in Sixty Minutes presentation for 2006 is available online here.   Are your favorites included?   

May 30, 2006 | Permalink | Comments (3)

May 26, 2006

Helping Lawyers Keep A Foot in the Door

Here's a novel solution to the ubiquitous work/life balance question.  What if lawyers could take an extended leave of absence from their firms to raise their kids and return, getting right back up to speed?   One ABA Committee is helping to make that  happen, as reported in  Helping Lawyers get back to cases in The New York Times  on Thursday. 

As the article describes, firms have a big investment in lawyers.  They also believe that those who come back will work harder.  One question  -- how to keep those lawyers up to speed to enable them to return?  Linda Hayman, a corporate partner at Skadden came up with an idea with her partner Kayalyn Marafioti:  a pilot project, "Back to Business Law," to provide seminars and informal networking opportunities for lawyers who have left active practice but are still interested in corporate law.  The Web site is online at back to business

Marafioti concludes:

"We can't have this pool of talent and let it evaporate. We need to nurture them. We don't know if it's the right way or the only way but certainly one means to accomplish our goal."

This new program sounds like it can help lawyers who are also parents achieve the best of all possible worlds:  time off to raise children while keeping up to speed so that they can return to work when they're ready.

May 26, 2006 | Permalink | Comments (0)

One Judge's Last Word on the Ministerial Exemption

Today Mike Fox posts an extensive analysis of the late Judge Becker's decision in Petruska v. Gannon University.  The case involved whether a "ministerial exception" to sex discrimination laws applies to a chaplain suing for discrimination.   The purpose of the ministerial exception is to prevent constitutional problems of interference with church affairs.   Just a few months before Petruska, Judge Posner had missed a decision finding that an organist was barred by the ministerial exception from bringing a Title VII discrimination act.

Becker provided an extensive analysis, complete with an explanation of the history of the exception and offered a test for determining whether it should apply.  Fox predicts that it's Becker's well-reasoned 60-page decision that will either stand the test of time or at a minimum attract the attention of the Supreme Court, which will inevitably tackle the matter in the future.
The decision was published five days after Judge Becker's death, making it literally, his last word on the subject.

May 26, 2006 | Permalink | Comments (0)

Come Travel With Future Lawyer

Why spend Memorial Day weekend tied up in beach traffic when you can travel the Web with Future Lawyer?   In this post, Future Lawyer's Rick Georges announces the creation of LegalNet Tourist. Georges writes:

"Envisions a place where we can all meet at a virtual water cooler, and tell each other about the cool virtual places we have visited. The difference is that, while typical tourists bring back photos, and bore everybody to death, we can now let everyone know how to visit those cool places on the web. Check it out."

Memorial Day weekend is starting now -- so why not pay a visit to the site if you don't have other plans.  And enjoy your trip!

May 26, 2006 | Permalink | Comments (0)

Disparaging Discount Rates

Few people are willing to look a gift horse in the mouth, but Rees Morrison does just that when he criticizes law firms that offer discount rates in this post.  Morrison wonders if discounted rates aren't just a way to provide less service or incentive for clients to sign up for more work.  He writes that rates should reflect the ability and experience of lawyers -- and if that's the case, there's really no reason for discounts. 

Does your company pressure firms to offer discounts?  Are you a law firm that uses discounts to lure clients?  What is your feeling about the practice of discounting.  Tell me what you think.

May 26, 2006 | Permalink | Comments (1)

The Enron Case: A Verdict for the Attorneys

Yesterday afternoon,  Legal Blog Watch  delivered the late-breaking news on the Enron Verdict. Today,  Howard Bashman offers a vast collection of articles analyzing the verdict.   Everyone's got a spin on the verdict, asking (like Daniel Gross in Slate) whether corporate America will really learn from Enron to an opinion from Bench Conference that Enron shows why defendants should not testify on their behalf.   What's not been covered, however, is whether Enron was a victory for Daniel Petrocelli and Michael Ramsey, who represented Skilling and Lay.

Though  Skilling  lost,  Petrocelli won big.  For Petrocelli and his firm, Enron was a gamble in the sense that it represented an attempt for Petrocelli and his firm, O'Melveny & Myers to transition from big civil work to big criminal work.  Consequently, the firm was willing to take a soaking on fees.  And looks like it's paid off, as shown by this endorsement from one juror, reported in this BusinessWeek article:

"Jurors said they believed attorney Petrocelli did a good job defending Skilling, despite the loss. 'I'd hire him,' said one. 'If you had the money,' another added."

As for Ramsey, results are more mixed.  Some experts questioned the Lay defense team's decision to plow ahead even in the face of Ramsey's leave of absence midtrial due to medical conditions.  But at least one juror quoted in this article didn't think it would have made a difference, explaining:

"Ramsey is a great lawyer. But I'm not sure that the Lord himself could have turned these facts around. A Mack truck coming at you at 100 miles an hour is a hard thing to stop."

May 26, 2006 | Permalink | Comments (1)

Circulating: DeLay Thinks Colbert Is His Ally

If you thought Stephen Colbert's roast of President Bush at the annual White House Correspondents Association Dinner was funny, check out this item involving former House majority leader Tom DeLay and Stephen Colbert.

DeLay's legal defense fund people on Wednesday, perhaps mistaking Colbert for  a conservative commentator, sent out a mass e-mail that touts Stephen Colbert on their side against a movie critical of DeLay, according to blog sources.

Think Progress got this blog scoop on the DeLay group's gaffe e-mail maneuver against Robert Greenwald's movie, "The Big Buy: How Tom DeLay Stole Congress." In the e-mail, the lead item is Colbert's interview with Greenwald on Comedy Central. Not having seen this interview clip, my guess is that Colbert played the self-mocking neocon critical of the movie. And somebody didn't get it.

Think Progress' Nico Pitney did. He writes:

"DeLay thinks Colbert is so persuasive, he’s now featuring the full video of the interview at the top of the legal fund’s website."

Perhaps overwhelmed by requests, the video was not working last time I tried.

May 26, 2006 | Permalink | Comments (2)

May 25, 2006

Digesting the Enron Verdict

The big story is in: The long-awaited day has come for the Enron trial as Kenneth Lay has been convicted  of all six counts against him and Jeffrey Skilling has been convicted of 19 of the 28 counts against him for conspiracy to commit securities and wire fraud. Observers of the Enron case have weighed in across blogs.

Professor Stephen Bainbridge of the blog ProfessorBainbridge has posted some thoughts on the verdict, which he says was somewhat predictable if you were checking with your bookie over at Tradesports. But here's some of Bainbridge's analysis:

"The acquittal of Skilling on some of the insider trading counts suggests the jury approached the issues with an open mind, contrary to defense claims that they could not get a fair trial in Houston.

"It's not the crime, it's the cover up. The real crimes at Enron mainly consisted of turncoat government witness Andrew Fastow's shady deals, but Skilling and, especially, Lay are going down for improperly misrepresenting Enron's fortunes. "

The professor says that the Powers Report should be "your 'go to' document for background on the Enron mess."

Meanwhile, over at the's Law Blog, Peter Lattman points out what some observers had noticed: that Lay's testimony was less than flattering. He writes, Was Lay’s Testimony his DownfallLattman says:

"In the Law Blog’s view, Lay’s testimony proved fatal. Everyone expected a charming, avuncular presence on the witness stand; instead, what they got was an argumentative, challenging, embittered man who refused to accept any personal responsibility for Enron’s collapse. "

For Skilling, he says, it came down to one thing: Credibility, Credibility, Credibility.  He writes:

"A jury will grasp on to things that it can easily understand, like issues of veracity and personal credibility. And during cross-examination Skilling suffered some serious blows in that regard. Here are three aspects of the cross that might have been issues ..."

Howard Bashman points out a timely posting at Sentencing Law and Policy, penned by Douglas Berman, who ponders the sentencing issue facing Lay and Skillings on Sept. 11. In First-cut Enron sentencing question (and links), Berman writes:

"My mind is already racing with thoughts and questions about the sentencing of former Enron chiefs Ken Lay and Jeff Skilling  ...

"What will be the likely offense level and sentencing range for Lay and Skilling under the federal sentencing guidelines?  (By my rough calculation, the guideline sentence could be life or at least 360 to life.) ...

"Should I give up my day job and offer myself up to Lay and Skilling as a sentencing consultant?"

Berman has a roundup of white-collar sentencing pieces:

  • Debating life imprisonment for white-collar offenses
  • White-collar sentencing and prison realities
  • Pondering white-collar sentencing
  • The evolution of white-collar sentencing
  • DOJ brags about white-collar prosecutions (but is silent on sentences)
  • A pattern of white-collar leniency?
  • White-collar Booker breaks
  • Are the federal guidelines too tough on white-collar offenders?
  • Tough sentences for white-collar offenders
  • BusinessWeek has a first-person piece from Jeffrey Skilling's ex-girlfriend, who was dragged into involvement with the case for Lay's and Skilling's combined $270,000 investments in her Internet startup, Photofete. She explains how she had forgotten about the matter until it made front-page news. She writes about the case:

    "Skilling and Lay admitted that they had not disclosed their investment in Photofete, though I wish they had! That appeared to constitute a clear violation of the company's ethics rules ...

    "Skilling's and Lay's efforts to explain their actions got them into  even hotter water. 'Rules are important,' Lay told the jury, 'but you shouldn't be a slave to rules either.' Prosecutor Kathy Ruemmler loved that quote so much that she made it a highlight of her closing argument."

    Previous news coverage picked up at

    Prosecutors Insist Defendants Lied as Enron Jury Begins DeliberationsIn Closing Arguments,

    Enron Defense Zeroes In on Juror Hesitation

    Enron Prosecutor Hits Former Executives' 'Cover Story'

    Lay Finishes Enron Testimony

    Lawyer Seeks to Show Enron's Lay Ignored Warnings

    Prosecutor Prods Lay on Stock Sales

    Skilling Wraps Up Enron Trial Testimony

    Skilling Grilled on Cross-Examination in Enron Fraud Trial

    May 25, 2006 | Permalink | Comments (0)

    The Five Best Mediation Blogs

    In recognition of the growing popularity of blogs, the National Institute for Advanced Conflict Resolution offers up its picks for the top five blogs devoted to mediation. They are:

    1. Online Guide to Mediation, written by Diane Levin, Marblehead, Mass.
    2. Mediator Blah ... Blah ..., written by Geoff Sharp, Wellington, New Zealand.
    3. Mediator Tech, written by Tammy Lenski, Dublin, N.H.
    4. Mediation Mindset, written by Anthony Cerminaro, Pittsburgh, Penn. (How many blogs does Anthony write?)
    5. Florida Mediator, written by Perry S. Itkin, Fort Lauderdale, Fla.

    List-topper Diane Levin -- a mentor to me in my own mediation work -- says that for her, "What has been tremendously exciting has been to see the growth in popularity of blogging among conflict resolution professionals just within the past 12 months." She counts 25 active blogs devoted to ADR and another 13 that regularly touch on it. She should know, because she is keeping a tally at her Directory of Alternative Dispute Resolution Blogs. In fact, she adds, "I'm breaking ground on a new home for the Directory at and hope to announce a housewarming party soon." I'm sure we'll all be invited.

    May 25, 2006 | Permalink | Comments (1)

    When Passing the Bar Is National News

    As if taking the bar exam is not stressful enough, imagine sitting through it with a national audience looking over your shoulder. That, of course, was the situation for former Stanford Law School Dean Kathleen Sullivan, who made national news last year when she failed the California bar exam and who again made the news this week when she passed the exam. All this made Sullivan, now a lawyer in private practice, the talk of the law blogs and even non-law blogs.

    But what does it tell us when a renowned constitutional law scholar fails to pass the bar? In an op-ed this week in The San Francisco Chronicle, Hans Allhoff asks that question as he graduates from Stanford Law and faces his own run through the bar exam gauntlet. Does Sullivan's case, he asks, tell us something about her capabilities as a lawyer or about the pointlessness of the bar exam?

    "If she failed it, and if most lawyers practicing in California would fail it too, then it's hard to see how it proves anything more than one's ability to study for and pass a test."

    The legal system prides itself on reasonableness, Allhoff says. If this is so, he urges, "Let's not excuse the State Bar itself from this utmost of obligations."

    May 25, 2006 | Permalink | Comments (0)

    Equal Opportunity Blogging

    Every time I log on to Legal Blog Watch to file a post, I sense the spirit of Lisa Stone. Until Carolyn Elefant and I took over here as co-hosts, she was this blog's first and only contributor. Lisa gave this up to focus on BlogHer, a Web site, a conference and a virtual community, all devoted to exploring women's place in the blogosphere.

    The work of Lisa and her BlogHer collaborators was the launching point for an article this week in the Contra Costa Times, "Call Them Equal Opportunity Bloggers," that raises the question, Why is the supposedly democratic medium of the blogosphere re-creating real-world inequality? Noting the emergence of a "blogarchy" of "so-called A-listers who get checked out more often than Lindsay Lohan," reporter Jessica Guynn writes:

    "What's perplexing: Nearly all of these Web celebs are men even though more women blog than men. How do men leverage their laptops into giant soapboxes when hordes of women type away in digital obscurity?"

    Enter Lisa and her BlogHer partners, Elisa Camahort and Jory des Jardins:

    "Together, they decided to stop talking about where the women bloggers are and create a place for women bloggers to read each other and be read by everyone."

    Their second BlogHer conference is coming up in July. Meanwhile, I can't help but think that if the blogosphere is tainted by gender inequality, then the legal blogosphere offers more equal opportunity. When I think of the top legal bloggers, I think of as many women as men, starting with my co-host here, Carolyn Elefant. I don't want to get myself in trouble by beginning a list I could never complete, but consider such legal "A-listers" as Denise Howell, Sabrina PacificiJeralyn Merritt, Monica Bay, Joy London, Cathy Kirkman, Diane Levin, Genie Tyburski and Bonnie Shucha. My point is not to single anyone out, but rather to suggest that, among legal bloggers, women have been among the most well known and the most pioneering. In fact, I would go so far as to suggest that the virtual world of the legal blogosphere is a more equal place for women than the bricks-and-mortar world of law firms and courts.

    May 25, 2006 | Permalink | Comments (0)

    Supreme Inequality Among Clerks

    While we're on the topic of gender inequality, Tony Mauro tells us today what we already suspected: High Court Clerks: Still White, Still Male. He writes:

    "[A]s high court clerkships drift ever upward into the stratosphere of earthly rewards to which young lawyers can aspire, one stark reality persists: Recipients of this prize are overwhelmingly white, and mostly male.

    "Eight years after attention was first called to the dearth of minorities among high court clerks, it appears that only three of the 37 clerks serving at the Court this term are nonwhite. No Hispanics or Native Americans seem to be among the ranks of law clerks, and not a single African-American male."

    In the chambers of seven of the nine justices, Mauro reports, all the clerks are white -- only Clarence Thomas and Stephen Breyer hired minorities this term. Even worse, the number of minority clerks is the lowest in recent years. Todd C. Peppers, author of a new book, "Courtiers of the Marble Palace," tells Mauro that the dearth of minorities "opens a real issue of social justice." 

    May 25, 2006 | Permalink | Comments (0)

    May 24, 2006

    VC Forecast: Hot?

    Law firm Fenwick & West has dished out results from its  first-quarter 2006 Silicon Valley Venture Capital Survey.

    The San Francisco Bay Area VC benchmark analyzed the valuations and terms of venture financings for 101 technology and life science companies based in the area.  And if the climate keeps getting better for venture capital, it might be time for still hotter predictions.

    Take their barometric reading: Fenwick & West's Venture Capital Barometer -- the measurement of change in share price of Silicon Valley companies funded during the quarter compared with their previous financing round -- was up 64 percent. Does this mean it's going to start raining VC money soon?

    Compare it with a San Jose Mercury News report on their survey of December 2005, when it seemed the mercury, as in thermometer, wasn't quite so high, up 38 percent.

    Drilling further down into the information, the survey from today found:

    "Up rounds significantly outpaced down rounds 74 percent to 15 percent," said Barry Kramer, partner in the firm and co-author of the survey. "That differential is also the largest since our survey began."

    An "up round" is defined as one in which the price per share that a company sells its stock has increased since its prior financing round. A "down round" is defined as one in which the price per share has declined since a company's prior financing round.

    Fenwick is a technology specialist with expertise in venture capital, IPOs and other corporate finance, joint ventures and M&A, among other areas.

    To its credit, Fenwick pointed to a note of caution.

    "IPO activity continued to be weak with only 13 venture backed companies going public, and with Nasdaq down 7 percent in the quarter to date," said Fenwick & West partner Michael Patrick. "A note of caution is appropriate."

    One word: Vonage.

    May 24, 2006 | Permalink | Comments (0)

    Are You 100 Percent Paperless?

    As technology advances, many lawyers are moving toward the nirvana of the paperless office, with no more desks cluttered with paper or boxes stuffed with documents.  Or are they?  Evan Schaeffer makes an admission in a post,  Do Away With Paper Entirely?  Not Me. He says that it's hard to break the habit of relying on hard copies for certain tasks.  There's a discussion in the comments that accompany the post. 

    How paperless are you?

    May 24, 2006 | Permalink | Comments (0)

    How to Capture the Hearts of Your Employees

    Despite ever increasing associate salaries, law firms still grapple with the problem of associate retention.  Maybe that's because just as you can't buy love, you can't buy loyalty either.  For firms grappling with low associate morale, Arnie Herz has some suggestions in a blog post,   Winning the Hearts of Lawyers.  Herz cites a study by Deloitte titled: "It's 2008: Do You Know Where Your Talent Is?"  The study looks at the "emerging talent crisis" and related "contest for human capital" in the new marketplace -- an increasingly competitive global market characterized by "creative and technological advancements" and imminent vacancies created by a wave of Baby Boomer retirements.   But what Herz found particularly significant for the legal profession was the report's coverage of the disengaged employee:

    "Against a backdrop of some eye-opening statistics, the report addresses steps managers can take to 'reduce the losses caused by an exhausted and demoralized work force.'  Notably, the report identifies 'workplace relationships' -- specifically, the employee-boss relationship -- as "a crucial and often overlooked source of disengagement." To remedy this problem, it suggests that organizations make leadership development a priority when revamping their "talent strategies."

    Herz cites other materials that law firms can use to keep employees engaged and retain talent.  What remains to be seen is whether these reports will sufficiently engage law firms to remedy the problem.

    What are your suggestions for addressing lawyer morale at big firms?  Send me a comment and let me know.

    May 24, 2006 | Permalink | Comments (0)

    Should Law Firms Bill for Bills?

    Rees Morrison wonders whether law firms should ever charge clients for preparation of bills.   He begins by citing the conventional wisdom that says billing for bills is inappropriate:

    "Under the model rules of conduct, it is normally inappropriate for a law firm to allow its timekeepers to charge clients for time they put into preparing bills (See John W. Toothman and William G. Ross, Legal Fees: Law and Management 44 (2003) and its citation to Restatement (Third) The Law Governing Lawyers, Sec. 38(3)(a)). Billing is an administrative necessity of a firm, a cost of business covered by billing rates, not a valued service to the client, and may not be charged. As Toothman and Ross put it, 'The distinction should be made between efforts to manage or run the law firm and those that are professional services rendered to the client.'"

    Still, Morrison wonders whether billing is justified when lawyers spend substantial time customizing bills, synching them up with the budget and including projected expenditures.   That's probably a service that clients want and arguably. At the same time, it seems that firms that already offer this level of detail for free would gain a competitive edge over firms seeking to charge for it.   Shouldn't these added perks be a part of great client service anyway and a way for law firms to set themselves apart?

    May 24, 2006 | Permalink | Comments (0) | TrackBack

    Shouldn't Running the Store Be Part of Being a Lawyer?

    In a commentary piece, "Let Lawyers Be Lawyers," Karen Asner of White & Case argues that given  the complex administrative tasks involved in running a large law firm today, firms are better off delegating administrative tasks to professional administrators, thus freeing lawyers up to be lawyers.   She writes that less than 15 years ago, law firm partners often handled human resources, recruiting, marketing and communications tasks, but as firms have grown, these day-to-day operations have become too onerous for lawyers:

    "Lawyers are trained to be lawyers -- not marketers, human resource managers or IT specialists. And the constant juggling of significant administrative responsibilities and the pressure to maintain a practice (what Harvard Business Review calls the "producing manager dilemma"[FOOTNOTE 1]) can be one of the most stressful aspects of the job. That's why large law firms are increasingly professionalizing staff to handle firm operations and help partners make strategic decisions about their business."

    I recognize the enormous issues involved in large-firm administration.  At the same time, lawyers should be involved to some degree in the running of a firm.  Lawyers have to be committed to marketing to make a marketing program work; you can't hire a professional marketer and expect him or her to do the job for lawyers.  Likewise, lawyers should be aware of technology decisions, of the pros and cons of Web sites and blogs and client extranets so they can serve clients.  Lawyers, after all, don't just practice law.  Much of the advice that we give is strategic, not legal; we don't advise only on whether a company can win a case, but whether pursuing a win is worth the cost.  If lawyers become too divorced from the process of running a business, they can't be effective in rendering that advice.

    The one benefit of a small firm -- the lack of administrative support and staff -- is also in some ways its biggest advantage.  It ensures that lawyers keep in touch with the inner workings of the business of law and in the long run, makes them more sensitive to the needs of their clients.

    May 24, 2006 | Permalink | Comments (0) | TrackBack

    May 23, 2006

    Killer Seeks to Block Lawyer's Profits

    New York's Son of Sam law, intended to keep criminals from profiting from their crimes by selling their stories, was named for serial killer David Berkowitz, who confessed to killing six people in New York in the 1970s. Now, Berkowitz is invoking that very law in the hopes of blocking his former lawyer from profiting from a book about the case.

    The former lawyer, Hugo Harmatz, published a book in June 2005 titled "Dear David..." that uses letters written to Berkowitz by various people. According to Associated Press, when Berkowitz learned of the book, he filed suit in Manhattan seeking return of the letters. The report says:

    "Berkowitz's current lawyer, Michael D. Heller, said Sunday that Berkowitz would not withdraw the suit unless Harmatz agreed not only to return Berkowitz's possessions but also to turn over any money he makes from 'exploiting' them to Berkowitz's surviving victims and the families of the ones he killed."

    The New York Daily News reports today that efforts this week to settle the case broke down when Harmatz "balked at handing over profits from the self-published book." Harmatz, a lawyer in New Jersey, has said he was clear with Berkowitz about what he planned to do with the letters.

    May 23, 2006 | Permalink | Comments (0) | TrackBack

    The Provincialism of U.S. Blogs

    "There is a school of thought," says English solicitor Justin Patten at Human Law, "that Americans are too insular in their approach in the way they see the world." His comment is broad, but he is aiming it at bloggers. As Patten notes, however, at least one U.S. law blogger is attempting to encourage a more global perspective. Dan Hull of What About Clients is completing a catalog of active non-U.S. legal blogs. He says here that it will be done by the end of this week.

    Both Patten and Hull find inspiration in this quote from UK commentator Delia Venables:

    "Americans do tend to think that the rest of the world is rather far away and not terribly important."

    That may be true. Except, of course, when it comes to law firm globalization.

    May 23, 2006 | Permalink | Comments (0) | TrackBack

    How a Solo Won $4.7 Million

    It is a story tailor-made for Hollywood, complete with its setting in Beverly Hills: Solo lawyer takes on four-lawyer defense team to win $4.7 million for grandmother left homeless by the fraud of her former attorney. Before any aspiring screenwriters start work on the script, they should stop by My Shingle for Carolyn Elefant's interview with the solo, Scott P. Schomer of Torrance, Calif.

    He tells Elefant that when the grandmother first came to his office, he found her story hard to believe:

    "I was shocked that an attorney could have so mistreated his client.  After I reviewed the facts, I was certain that defendants would settle quickly because the allegations ... were so outrageous.  Instead, defendants fought me tooth and nail through the entire procedure."

    This was Schomer's second million-plus verdict. What advice does he have for other solos? His best advice, he tells Elefant, is to develop a network of solo lawyers. "By building a good network, you are in essence creating your own virtual law firm."

    May 23, 2006 | Permalink | Comments (0) | TrackBack

    SEC Brings First Patriot Act Case

    The Securities and Exchange Commission yesterday announced its first-ever enforcement action under the USA Patriot Act, Denise Diaz reports via the blog CompanyCounselor.  Diaz writes:

    "The SEC announced its first enforcement action under the USA Patriot Act, which requires broker-dealers to implement and document identity verification procedures for all new accounts. The SEC has sanctioned broker-dealer Crowell, Weedon & Co. for failing to properly document its customer identification program."

    Crowell, Weedon consented to the issuance of a cease and desist order, Diaz says.

    What does the Patriot Act have to do with securities enforcement? In the SEC's announcement, it offers this explanation:

    "The USA PATRIOT Act seeks to protect the U.S. financial system from money laundering and terrorist financing by, among other things, requiring broker-dealers to implement and document identity verification procedures for all new accounts."

    May 23, 2006 | Permalink | Comments (0) | TrackBack

    Salaries Rise for London Lawyers

    For newly qualified lawyers in London, the best pay in town is at a U.S. firm. In the London office of Bingham McCutchen, NQs earn a starting salary of £87,900, equivalent to about $165,000 in the U.S. (according to The Universal Currency Converter). At venerable Magic Circle firms Freshfields and Clifford Chance, the starting salary for NQs is £55,000, or about $104,000.

    These are the figures reported this week by RollOnFriday, based on information collected directly from associates at the firms. Following Bingham in NQ pay are two other U.S. firms, Cleary Gottlieb at £84,000 ($158,000) and Dewey Ballantine at £77,000 ($145,000).

    RollOnFriday also compiled pay figures for new salaried partners and found huge disparities. It explains:

    "No one's going to be complaining at Linklaters on £250k ($470,000), but newly promoted partners at Field Fisher Waterhouse will find themselves earning about the same as a 25-year-old NQ at Bingham McCutchen. But at least they'll have time to spend it."

    Linklaters leads in new-partner salaries, followed by Baker & McKenzie, where salary plus profit share is £210,000 ($395,000), and Clifford Chance, where compensation is £207,000 ($390,000). The report cautions readers to "bear in mind that this is not the sort of thing firms are generally happy to disclose," so not all figures are confirmed.

    May 23, 2006 | Permalink | Comments (0) | TrackBack

    May 22, 2006

    A Debate: Should Lawyers Be Licensed?

    Over at Point of Law, Jonathan Wilson kicks off this debate with Larry Ribstein over whether lawyers should be licensed.  (fortunately for Stanford dean, Kathleen Sullivan, this debate is theoretical because she passed the California Bar the second time around).

    Wilson argues that lawyers should be licensed.   First, he believes that a free market, deregulated solution would not work for legal services, because choosing an attorney involves some expertise that lawyers do not have.  My own concern in a fully deregulated system is whether the bars will change lawyer advertising rules to enable lawyers to compete with other providers or whether lawyers will be subject to restrictions that would handicap them in a deregulated system.   For example, most bars prohibit lawyers from soliciting clients after an accident; would this same prohibition apply to non-lawyer representatives?  Or lawyers cannot say that they are "experts" in a field without taking a certification test.  But could a non-lawyer who's informally helped friends in immigration matters hold himself out as an "immigration specialist."  If that's the case, then the problem of inability to assess legal services in a deregulated environment would be even worse than Wilson describes.

    Wilson's other point is that if you think the legal system is bad now, it would be far worse with pro se litigants running amok, filing frivolous motions, raising outlandish arguments and consuming even more resources.   As Wilson concludes:

    "Deregulating the practice of law would open the floodgates to fraud of every conceivable variety and would only compound the problems that the readers of these pages see in our civil justice system."

    I'll be waiting to hear Ribstein's response to this.

    May 22, 2006 | Permalink | Comments (1) | TrackBack

    Why is the WSJ Defending Milberg Weiss?

    As reported by Peter Lattman in the WSJ's Law Blog,  an editorial in today's Wall Street Journal  has harsh words for the DOJ's indictment of Milberg Weiss.  Why would a newspaper that caters to big business and corporate interests defend a class action firm whose raison d'etre was to sue big corporations (WSJ's primary constituents) for securities violations?  Here's the answer from Lattman:

    "DOJ's stance of threatening to indict unless it waived attorney-client privilege and label its partners criminals. The editorial warns that this is "a dangerous precedent that can be used -- and surely will be -- against more honest business enterprises." It adds: "The threat of a corporate death sentence is an abuse of prosecutorial discretion against any but the most corrupt criminal enterprises -- namely, the mob."

    And citing similarities to Arthur Andersen, where the government tried to take the whole firm down, the editorial expressed concern that by going after the law firm, DOJ would harm not just the bad actor lawyers, but bring damage to its support staff and other innocent employees as well.

    May 22, 2006 | Permalink | Comments (0) | TrackBack

    Would BigLaw Have Made A Difference in a 9-0 Decision?

    A few weeks back, I  responded to arguments that solo practitioners are bringing down the quality of criminal representation at the Supreme Court and should instead cede control of their cases to experts at BigLaw.  (for more discussion of the issue, see Orin Kerr and Concurring Opinions.)  One case, Brigham v. Stuart, was at the center of the controversy, with many experts criticizing solo Mike Studebaker's performance. 

    The results are in and just I suspected, Brigham was DOA,  a  quick and decisive 9-0 ruling  with a concurrence from Stevens, wondering why the case even made it up to the Court to begin with.  So my question now is how would a Supreme Court expert have changed this outcome?

    May 22, 2006 | Permalink | Comments (0) | TrackBack

    Brief Blurbs From Blog Watch

    Two brief items from Legal Blog Watch.  First, we welcome Mark Beese of Leadership for Lawyers to the network of bloggers on ALM's  Second, this week's too-dense-for-easy-summation Blawg Review #58 is up and running over at Kevin Heller's Tech Law Advisor.

    May 22, 2006 | Permalink | Comments (0) | TrackBack

    Does Jewish History at Law Firms Have Lessons for Others?

    Bruce MacEwen asks Would You Rather Be Jewish or Female at a law firm?  MacEwen believes that the Jewish experience bodes well for women or other minorities at large firms, and as  someone who doesn't have the "either or option" (being both Jewish and female), I'd have to agree:  There have never been more options for female or minority lawyers than there are now.

    MacEwen begins by exploring the history of Jewish lawyers and BigLaw, a phenomenon also discussed recently in this article, Can the Success of the Jewish Law Firm Be Duplicated?   MacEwen says that the success of Jewish lawyers was attributable to their specialization in areas like mergers and acquisitions that suddenly became hot fields:

    "The practices Jewish firms specialized in, theorizes Wald, gave them a "protected" ecosystem in which to develop expertise and, when corporate America came calling for more sophisticated legal services in areas such as litigation, antitrust, and M&A, the Jewish firms were ready to respond while the white-shoe firms were caught temporarily flat-footed.  Wald sees the establishment firms' willingness to hire Jewish lawyers as driven by the competitive realities of the marketplace --which changed in the 1970's."

    Just as competitive realities lead to the enormous success of Jewish firms -- and their eventual integration into the world of BigLaw, the same will happen for women and minorities.   For now, law firms may have the luxury of maintaining an all white, "good old boy," network.  Corporations -- whose economic success rises and falls on their ability to attract customers of all gender and race -- are starting to demand diversity from the law firms that serve them. And if BigLaw won't offer that diversity, corporations will start seeking out women-owned or minority-owned firms that can offer it.   

    MacEwen believes that once firm recognize these economic realities, they'll do more to attract and retain women.   Here's where we part company.  Like Jewish lawyers, who had to strike out on their own to achieve equality in the profession, I believe that women and minority lawyers will have to do the same, setting up their own firms and growing them into powerhouses that compete with BigLaw.  When that happens, large firms will absorb or merge with these women- owned or minority-owned firms and real integration will pervade the profession.  As with any fight for equality, the major push has to come from those adversely affected.  BigLaw has its own agenda and we can't let it fight our battles for us.

    May 22, 2006 | Permalink | Comments (0) | TrackBack

    Whatever You Call Them, Make Sure It's Not Scalito

    Used to be that SCOTUS advocates had trouble telling Justices O'Connor and Ginsberg apart, often calling one of these women by the other's name.  That problem has been eliminated now that O'Connor has departed the bench, but with the appointment of Alito, there's a new opportunity for confusion.  As Howard Bashman writes in his column, "Scalia-Alito is the New O'Connor Ginsburg," Court watchers and advocates have been confusing Alito and Scalia. 
    Bashman wonders whether "any organization plans to provide these two jurists with T–shirts stating "I'm Scalia, not Alito" and "I'm Alito, not Scalia," and fears for the first lawyer who commits the truly huge gaffe of referring to either one of them as "Justice Scalito."

    May 22, 2006 | Permalink | Comments (0) | TrackBack

    May 19, 2006

    LexisNexis gobbles up CaseSoft

    What do Law Technology News editor-in-chief Monica Bay and the National Security Agency have in common? They both have spies everywhere. Now Monica's spies have let her know that CaseSoft is the latest legal tech company to be gobbled up by LexisNexis. The good news, a CaseSoft insider tells Monica, is:

    "We're receiving additional development resources, so we'll be able to speed up work on some very cool new enhancements to our tools."

    Having met CaseSoft's co-founders, Greg Krehel and Bob Wiss, I can vouch for the fact that it could not have happened to two nicer and more well-deserving guys.

    May 19, 2006 | Permalink | Comments (0) | TrackBack

    Talking about immigration reform

    Sweeping proposals this week from Congress and the president to change U.S. immigration laws have been met with strong reactions from across the political spectrum. On this week's Coast to Coast legal-affairs podcast, my co-host J. Craig Williams and I discuss these proposed changes with immigration lawyers Gregory Siskind, founding partner of Siskind Susser in Memphis, and Monica Guizar, employment policy attorney at the National Immigration Law Center in Los Angeles.

    May 19, 2006 | Permalink | Comments (0) | TrackBack

    Review: Law blog, the novel

    The unmasking of the blogger known as Anonymous Lawyer was a scoop fit for the pages of the venerable New York Times. On his blog, he described himself as a "fictional hiring partner in a large law firm in a major city." In real life, he was a third-year law student at Harvard named Jeremy Blachman.

    Now Blachman has turned his blog into a novel, "Anonymous Lawyer: A Novel," due out July 25. Howard Bashman has uncovered a prepublication review posted on the AutoAdmit discussion board. The reviewer's verdict, in a nutshell:

    "This is going to be the 'One L' for 2Ls, summer associates, and biglaw attorneys. Except it’s funny. Very funny actually. ... I think that most people (or at least those with legal backgrounds) are going to read this primarily for the comedy and satire."

    Who knows, maybe blogger Blachman is the next Scott Turow.

    May 19, 2006 | Permalink | Comments (0) | TrackBack

    Milberg defends itself via Web site

    Seems federal indictments may prove a boon to the Web design industry. As I noted in January, former Enron Corp. CEO Kenneth Lay and his defense team launched a Web site, Ken Lay Information, on the eve of his federal criminal trial. Now, with yesterday's federal grand jury indictment of Milberg Weiss, the law firm is fighting back with a defense site of its own: Milberg Weiss Justice. A note on the site's front page explains:

    "The Justice Department charges the firm with an indictment that is unjust, misguided, and misinformed. We dedicate this website to communicating the truth about their accusations and about how this unjust investigation only helps corrupt corporations escape accountability."

    May 19, 2006 | Permalink | Comments (71) | TrackBack

    For tobacco giant, one win, one loss

    No sooner did the executives at cigarette maker Philip Morris light their victory cigars this week over their courtroom win in Oregon than another court sent them wheezing back to the boardroom.

    On Wednesday, the Oregon Court of Appeals vacated a $150 million jury verdict against Philip Morris and ordered a new trial to determine the appropriate award of punitive damages. Then yesterday, Massachusetts' highest court, the Supreme Judicial Court, issued a precedent-setting decision that tobacco companies cannot shield themselves from liability by claiming that smokers acted unreasonably by lighting up when they knew cigarettes were dangerous. Chief Justice Margaret H. Marshall wrote for the court:

    "If Philip Morris chooses to market an inherently dangerous product, it is at the very least perverse to allow the company to escape liability by showing only that its product was used for its ordinary purpose."

    Richard Daynard, director of the Tobacco Control Resource Center, told AP:

    "It's an extremely important decision. I think it's the first time that any court in the country has squarely held that as a matter of law, except in extraordinary and unlikely cases, this (personal choice) defense cannot be used."

    John F. Banzhaf III, a professor at George Washington University Law School and founder of a national antismoking group, said in The Boston Globe:

    "This could blow Big Tobacco out of the water. What the court is saying is that this product is so dangerous that the plaintiff almost never can be said to have used it improperly."

    But Paul E. Nemser, an attorney for Philip Morris, told AP that the ruling does not send the company's defenses up in smoke. The ordinary-use defense remains viable, he said, "if there are unusual circumstances making the use of cigarettes unreasonable."

    May 19, 2006 | Permalink | Comments (0) | TrackBack

    May 18, 2006

    Corporate America: Got Am Law 100 Envy?

    In this post, What's So Bad About Being in the Am Law 100, Bruce MacEwen takes issue with a recent American Lawyer article that focused only on the grim side of being a top Am Law firm.   From the article:

    "The historical data suggests that The Am Law 100, as a universe, is growing too fast in size to sustain its own long-term revenue expansion. All those additional lawyers are a drag on the growth of revenue per lawyer." [...]Average billable hour statistics provide convincing evidence that last year The Am Law 100 had too many lawyers. Even at the 30 most profitable firms included in Citigroup's 2005 survey, partners and associates averaged only 1,850 billable hours."

    MacEwen suggests that one of the flawed assumptions in the Am Law piece is that it takes a short-term historical look.  MacEwen posits that a short-term view does not work particularly well in the legal profession, which is characterized by periods of frantic hiring, followed by frenzied downsizing.  Instead, a long-term view that evens out the hills and valleys makes more sense.   

    Thus, MacEwen examines the Am Law 100 firms' growth over a 10-year period.  Crunching those numbers, MacEwen found that firms have experienced an absolute growth rate in revenue of 215 percent over ten years, or 146.5 percent when adjusted for inflation.  MacEwen bets that "a healthy cross-section of executives across corporate America would look on these figures green with envy."  I agree.

    May 18, 2006 | Permalink | Comments (0) | TrackBack

    Should Phone Companies Hire Orin Kerr?

    A few days ago, Overlawyered reported on some of the early lawsuits being filed against AT&T, Verizon and other phone companies for disclosing customer phone records to NSA in violation of the Fourth Amendment of the Constitution and various statutes.  Today, at his solo blog, Volokh conspirator Orin Kerr argues that the phone companies may not be liable, at least for violations of the Stored Communications Act, 18 USC 2701.  As Kerr explains:

    The Stored Communications Act, 18 U.S.C. 2701-11, [which prohibits certain disclosures of customer records to government] only regulates two kinds of providers: providers of electronic communication service and providers of remote computing service. Everyone agrees that the telephone companies are not acting as providers of remote computing service, so if they are liable they must be acting as providers of electronic communication service. 18 U.S.C. 2510(15) defines “electronic communication service” as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” (For our purposes, a “wire communication” is a telephone call; an “electronic commuincation” is an e-mail.)

    A local telephone company is clearly a provider of electronic communication service: it literally provides users the ability to send or receive telephone calls. But is a company that only provides long distance service a provider of electronic communication service?

    As Orin explains, the government  only sought information from long distance providers, not local phone companies.   If, as he claims, long distance companies are not covered by the Stored Communcations Act, they can't be found liable for violating it.  Maybe those phone companies should hire Kerr to defend them -- or maybe they'll settle the lawsuits just as readily as they turned over their customers' records.

    May 18, 2006 | Permalink | Comments (0) | TrackBack

    Is Lawyerpedia Next?

    Bob Ambrogi shares news about a terrific new resource, Congresspedia, which is a collaboratively compiled resource that will give you the inside scoop about members of Congress.   It launched in April with 539 articles, one for every current member of Congress, the non-voting delegates, and one former representative.   So watch out, Martindale -- is Lawyerpedia next?

    May 18, 2006 | Permalink | Comments (0) | TrackBack

    Being Honest With Clients Means Being Honest With Yourself

    How many times have you promised a client a memo analyzing several legal issues by morning only to send it out days later?   Or claimed that you were certain that you would prevail on some long-shot legal matter, only to achieve the slimmest of gains?  In both instances, what you've delivered --  a complex memo in a few days or a win of any kind in a dud case -- is still pretty good.  But still, the client remains disappointed because he came away with less than you'd promised.

    Arnie Herz discusses the conundrum of client expectations at this  post, which starts out with a story about his wife's experience at a late night grocery story.   His wife had complained to the manager about slow service to which the manager responded that she should be grateful that the store was open late hours.   However, the store had advertised that it was open late for shopping convenience -- and by forcing customers to endure long lines late at night, it did not live up to that promise.  As a result, Herz's wife probably won't return to that store, just as a client whom you've let down probably won't be a repeat customer either.

    So why don't we -- the grocery store owner or the lawyer -- simply change our ways.  It's much harder than you'd think, because it's not just a matter of altering our time management skills, but also, our own perception of ourselves.  That's because, as Herz explains:

    "What’s not always so clear to us is that, much of the time, our failure to meet client expectations derives from our own lack of authenticity. We’re simply not honest with ourselves about the work we’re adept at and passionate about, the deadlines we can reasonably meet and our desire to be available to clients. If we aren't coming clean to ourselves about our strengths and weaknesses, boundaries and sincere interests then, chances are, we’re treating our clients to the same deception."

    The next time a client comes to your office and asks if he can have something on his desk the next day at 9 a.m., don't automatically agree.  Be honest with yourself about whether it's feasible and if it's not, say so.   Maybe this client will pass you by, but the truth of the matter is that if you can't make good on your promises, you'll lose the client anyway. 

    May 18, 2006 | Permalink | Comments (0) | TrackBack

    The Success of a Blogging Associate Who's Kept His Identity

    Several months ago at My Shingle, I wondered why associates at large firms were willing to blog without personal attribution.   After reading this piece, Associate's IP Blog Is Patently Good Publicity, describing McDonnell, Boehnen associate Dennis Crouch's success with his Patently O blog, I can't see any justification for associates blogging anonymously -- or for a law firm to want them to.

    After all, look at the results that third-year associate Crouch has obtained for himself and his firm:

    "In two years, Patently-O has won Crouch thousands of fans, a book deal and speaking engagements galore. It's also landed his firm, Chicago's McDonnell Boehnen Hulbert & Berghoff, new clients."

    Crouch's firm also cuts him some slack on meeting firm billable requirements in recognition of the benefits that his blog brings.

    The Crouch model for associate bloggers beats the conventional nonattribution model hands down, in my view.   When associates keep credit for a blog and collect rewards like book deals and notoriety, they have incentive to make the blog even better -- which eventually inures to the firm's benefit.   Those same incentives don't exist at BigLaw blogs where posts are unattributed and thus, it would not surprise me in the least if these firms are not reaping the same rewards from their blogging efforts as Crouch's firm is.

    May 18, 2006 | Permalink | Comments (0) | TrackBack

    Sources: Milberg Weiss Indictment Expected Today

    The whispers out there on Milberg Weiss indicate that chances  are slim for negotiating a nonprosecution agreement with the Justice Department and that a grand jury indictment is looming for Thursday. The Recorder's Justin Scheck over at the Legal Pad blog on Wednesday posted an item, Always Darkest Before the Indictment, with gloomy predictions for the firm working out a deal:

    "If possible, the cloud over Milberg, Weiss, Bershad & Schulman grew darker Wednesday afternoon. People familiar with the long-running investigation of whether the class action firm paid kickbacks to lead plaintiffs said the Milberg lawyers and L.A. federal prosecutors remained far apart on a deferred-prosecution agreement that’s been discussed for months. Such a deal would prevent an indictment -- widely assumed to be a death sentence for the firm. ...

    "If the government determines that it won’t soften its demands, these sources said, it will probably seek a grand jury indictment Thursday against the firm and two of its name partners, David Bershad and Steven Schulman."

    Meanwhile, Peter Lattman on Thursday cited a report in The Wall Street Journal that says Milberg Weiss will be indicted Thursday afternoon, according to lawyers familiar with the situation. Lattman writes that the U.S. Attorneys office in Los Angeles has scheduled a conference for 12:15 p.m. PT to announce an indictment to be returned from a federal grand jury.

    Lattman says, "More when we have it." Stay tuned.

    May 18, 2006 | Permalink | Comments (0) | TrackBack

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