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November 26, 2008

Happy Thanksgiving, No Matter What Type of Blog You Are

Via Court-o-rama, I learned about Typealyzer, a neat tool that subjects your blog to a Myers-Briggs personality test. In case you're wondering, we here at Legal Blog Watch rank as an INTJ (introverted, intuitive, thinking and judging) -- or "The Scientists" as we're categorized by Typealyzer.

In any event, enough analysis. No matter what kind of blog you write, Happy Thanksgiving from all of us here at Legal Blog Watch. We're back up and posting on Monday, December 1.

November 26, 2008 | Permalink | Comments (1)

Lack of Lawyer Marketing Blamed for High Levels of Intestacy

It's not often that you hear that lawyers market too little. But that's apparently the premise of this recent abstract entitled "Marketing Wills" that appears in the Elder Law Journal. (H/T Mark Merenda, Smart Marketing Blog) The paper's authors, Michael McCunney and Alyssa DiRusso contend that intestacy levels (i.e., level of people who die without wills) remain high, in part because lawyers have not done a very good job of marketing wills to prospective clients. The authors suggest that lawyers use marketing experts to devise campaigns to educate clients on the need for wills. Scott Greenfield comments, noting that lawyers do not need to engage in marketing to educate the public and that perhaps, the bar associations are a more appropriate resource for providing education on wills than lawyers.

As for me, I disagree with the underlying premise that the high level of intestacy is attributable to lack of education. In this day and age, most people realize that it's a good idea to have a will, just like it's a good idea for women over the age of 40 to have an annual mammogram or for men to undergo checks for prostate cancer. Yet often, even the best-educated don't take these actions, either because they flat out don't have the money, or figure that they don't have enough at stake (i.e., a large enough estate or family history of cancer) to justify the time and cost associated with preventative measures. Lawyers can educate the public about wills all they want, but until they can actually prepare wills inexpensively and conveniently, many people will continue to forego them.

November 26, 2008 | Permalink | Comments (7)

Ticketed While Exercising

We often hear stories of police officers arresting folks for exercising their rights, but apparently, the cops are now picking on folks simply for exercising. That's what Eric Turkewitz tells us at New York Personal Injury Attorney Blog, where he summarizes this New York Times article about Santa Monica police busting people for exercising on the median of a popular roadway. Apparently, the exercisers' conduct violates a city ordinance that prohibits congregating in a public median. Since the patrols began, the city has issued eight citations -- the fine is $158 -- and has given warnings, which are generally heeded, to about 600 people a month.

As Turkewitz points out, with the economy down the tubes and a war overseas, maybe it's time for the cops to take on another kind of exercise: discretion.

November 26, 2008 | Permalink | Comments (1)

Pressure to Cut Costs Drives More Work to India

In this troubled economic climate, one trend is clear: Clients are looking for ways to cut costs and are no longer willing to write firms a blank check. A few days ago, I noted that clients are making clear that they don't want their fees subsidizing associate bonuses. And today, the Wall Street Journal reports that clients are starting to proactively ask law firms about using Indian lawyers, who bill at around $75 to $100 an hour, the same rate for U.S.-based paralegals and often less than U.S. barred contract lawyers. (H/T Law and More). In fact, based on the rate at which firms and companies are already sending legal work overseas, Forrester Research Inc. estimates that 35,000 U.S. legal jobs will be moved offshore by 2010 and 79,000 will move by 2015.

In comments on the story over at WSJ Law Blog, a few participants call for the American Bar Association to take a more protectionist approach and prohibit firms from off-shoring work, while others decry use of Indian lawyers as "unauthorized practice of law" since decisions about whether documents are privileged requires legal judgment. So perhaps the off-shoring solution isn't perfect. But until law firms can find other ways to efficiently provide document review services in-house, the offshore option, despite its flaws, is here to stay. The days of $200/hour associate document review are gone for good.

As for associates who are getting squeezed out by these new developments, why not start your own contract lawyering business, as Lisa Solomon suggests at Legal Research and Writing Pro.

November 26, 2008 | Permalink | Comments (4)

November 25, 2008

Holder's Critics Not Holding Back

Holder_Eric_070427 President-elect Barack Obama will officially nominate Covington & Burling partner Eric H. Holder Jr. to be attorney general sometime after Thanksgiving, reports. Obama is satisfied that the Senate will confirm Holder despite plans by Republicans to grill him about his role in President Clinton's last-minute pardon of international financier Marc Rich. (See our previous coverage.)

But even as Holder appears likely to become the nation's next attorney general, opposition to his appointment is being heard from an unlikely array of critics from the left and the right. Among those who oppose Holder's appointment:

  • The right. The Republican Liberty Caucus says: "For years, Eric Holder has worked to degrade our civil liberties and weaken the Constitution and the values on which our nation was founded."
  • The left. TalkLeft is not happy about Holder's efforts while U.S. attorney in Washington, D.C., "to raise marijuana penalties and restore mandatory minimum penalties for drug crimes." 
  • The legalization lobby. NORML Blog expresses concern about Holder's "long history of opposing drug policy reforms, perceiving cannabis smoking by adults as a public nuisance worthy of constant harassment, promoting violent governmental intervention into the private lives of citizens who consume cannabis." 
  • Free speech advocates. The Legal Satyricon says Holder "has a censorship goon past." NewsBusters suggests Holder would "stifle free speech on the internet." 
  • Civil libertarians. The blog Wizbang Blue accuses Holder of "pandering to religious right organizations" on separation of church and state.

Even legendary trial lawyer Gerry Spence is not pleased. Calling him "Eric Holden," Spence says that when a lawyer works long enough for big corporations, as Holder did as partner at a corporate law firm, "the human psyche begins to dry up and one day will fall out on the carpet of the boardroom floor ... like a dried up old prune." Let us just hope that doesn't happen until after the confirmation hearings.

November 25, 2008 | Permalink | Comments (1)

On Being a Black Lawyer

Yolanda-headshot On Being a Black Lawyer is the intriguing title of the blog launched this month by Yolanda Young, a lawyer, author, columnist and TV commentator. She began the blog on the very day a black lawyer was elected president of the United States, writing at the time:

For some time I’ve been thinking about starting a conversation with the African American legal community. It often seems to me that we are both legion and alone. How nice I thought it would be for us to have a place to come to question, vent and on days like this one, celebrate. Today, one of our own, was chosen by the widely diverse and exceedingly complicated citizens of this young nation to be President of the United States. I feel the kind of pride and kinship black barristers must've known the day Justice Thurgood Marshall donned his black robe for the first time or Charles Hamilton Houston won his first Supreme Court Case that fittingly committed every state to providing a place for the legal training of future black lawyers.

Young attracted attention within the blogosphere earlier this year for an item she wrote at The Huffington Post recounting the segregation she experienced as a staff attorney at Covington & Burling as "reminiscent of Jim Crow." She described the firm as "stockpiling its staff attorney ghetto with blacks and other minorities" and wrote, "The vast majority of Covington's black attorneys do no substantive work, have no control over their case assignments and no opportunity for advancement."

Young is a 1995 graduate of the Georgetown University Law Center and author of the 2003 memoir, On Our Way To Beautiful. She is a regular contributing columnist to USA Today and has published pieces in The Washington Post and Essence Magazine. She also writes and posts videos on the blog Spade, which she describes as "a critical look at black America."

November 25, 2008 | Permalink | Comments (1)

Motrin-Gate: A Lesson for Lawyers?

Did mighty pharmaceutical company Johnson & Johnson bow to a small but vocal flash mob when it pulled an online video ad for its Motrin pain reliever? Or was the incident a study in the power of social media? "Yes and yes," are the answers, and the dust-up should provide further evidence to legal professionals that social media are not to be ignored, lest they end up with a headache no quantity of Motrin could cure.

The "wearing your baby" ad had been online at for more than a month without generating so much as a ripple of response. The ad featured the voice-over of a mom talking about the fashion of carrying babies in slings "close to the bod." These things put a strain on a mom's back, the voice says, but she does it to look like "an official mom." "If I look tired and crazy," she concludes, "people will understand why."

On Saturday, Nov. 15, some 45 days after the ad first appeared, someone posted an item to the microblogging site Twitter complaining that the ad was insulting to women. By the next day, the ad was generating as many as 300 Tweets an hour (although the total reached only about 1,500). By 9 p.m. on Sunday, Johnson & Johnson shut down the Web site entirely and its vice president of marketing sent out an apology and promised to discontinue the ad campaign. The next morning, it restored the Web site, with its apology prominently displayed.

An article in Advertising Age suggests that Johnson & Johnson "bowed to a vocal flash mob that represents a tiny fraction of moms." But Katie Noonan at The PR Lawyer says Motrin-gate is an interesting case study in the impact of social media. "In the social media age, a PR professional's job is round-the-clock," she writes. "With people using social media sites 24/7, your response time needs to be immediate. It's critical to protecting your brand and preventing a customer relations crisis." Noonan is right, but I would extend her advice to lawyers and legal professionals. On behalf of their clients and themselves, lawyers need to be prepared to respond to social media. In order to do that, they first need to understand it.

November 25, 2008 | Permalink | Comments (2)

BlockShopper Brings in the Big Guns

Klenk Just a few days after losing its bid to dismiss a law firm's trademark lawsuit against it, the real estate Web site has called in the cavalry, Wendy Davis reports at Online Media Daily. It has retained high-powered First Amendment attorney James A. Klenk to defend it in the lawsuit brought by law firm Jones Day. Klenk, a partner in the Chicago office of Sonnenschein Nath & Rosenthal, represents many mainstream news organizations, including The Chicago Tribune.

Jones Day filed the lawsuit in federal court in August after two of its associates showed up on the site, which reports on real estate sales in Chicago's upscale Lincoln Park and Lake View neighborhoods. The suit alleges trademark infringement and unfair trade practices, based on BlockShopper's use of the firm's service marks, links to its site and use of lawyers' photos from its site. Jones Day is asking the court to shut down the site.

Klenk believes a ruling against BlockShopper could have a devastating impact on online media, according to Online Media Daily. "You and I can't even count how many Web sites this would affect. It would change the way people communicate," he said. "I think what Jones Day is doing is wrong. It's an abuse of the legal process, in my opinion, and interferes with free expression."

As we reported here last week, the judge presiding over the case denied the request by four public-interest organizations -- Citizen Media Law Project, Electronic Frontier Foundation, Public Citizen and Public Knowledge -- to file a brief as amicus curiae in support of BlockShopper's motion to dismiss. U.S. District Judge John W. Darrah ruled that "an amicus curiae brief would not now be helpful."

November 25, 2008 | Permalink | Comments (0)

November 24, 2008

Should Firms Cut Bonuses in Response to Clients?

Slashing associate bonuses isn't making law firm management popular with their subordinates, as the comments at this post at Above the Law make clear. But does it matter what associates think when clients are giving firms kudos for their parsimonious distribution of bonuses?

As today's American Lawyer reports, mega-firms like Cravath and Skadden are reigning in bonuses, either keeping them at the same levels as last year or reducing them by as much as half. And the reaction from clients has been positive; Cravath's head partner, Evan Chesler told American Lawyer that "I've got to tell you, and I don't want to name any names, but I have gotten calls from a half dozen clients this morning thanking me [about cutting bonuses]."

Though some might compliment law firms for taking clients' views into account, others in the blogosphere suggest that clients have no business telling law firms how to run their business. At the Litigation and Trial Blog, Max Kennerly explains that he'd never think to ask his blogging company, Lexblog what it pays its support people because it's none of his business:

LexBlog provides a service. I thought the fee was fair and reasonable and that I got a great service. So I paid the fee and got the service. If the salaries or working conditions LexBlog provide intentionally violate labor, employment or discrimination laws, then we've got a problem. Otherwise, I have better things to do than micromanage my service provider's business.

For Kennerly, the same analogy applies to clients. The reason that clients are complaining about associate bonuses isn't because they're trying to micromanage, but rather, they're questioning the value that the firm is providing. In fact, as Dan Hull suggests at What About Clients, clients should be celebrating, not balking about bonuses, because they provide incentive for firms to retain the cream of the crop. Like Kennerly, Hull agrees that the fact that clients are resenting bonuses is a symptom of greater dissatisfaction with the overall lack of value that many law firms provide.

As for Scott Greenfield, the formula for bonuses for criminal defense lawyers is fairly easy: You get zero, unless and until you prove yourself worthy. At which point, the bonus is more business and more clients.

What's your view? Should firms cut bonuses in response to pressure from clients?

November 24, 2008 | Permalink | Comments (7)

Lawyers Seeking Opportunities Overseas

In a waning economy, lawyers looking for new employment horizons might be advised to look across the horizon -- literally. Because as Legal Blog Watch's own John Bringardner writes in the New York Times, overseas markets are the new land of opportunity for lawyers.

Back in the gold rush days, law firms had a tough time selling lawyers on locales like Dubai, Abu Dhabi or Hong Kong. But now all that's changed, and recruiters are finding plenty of lawyers willing to travel halfway around the world for a job. Because of increased interest in overseas positions, firms can afford to be choosier about who they hire, and also stingier with their incentives. For example:

When Kirkland opened its Hong Kong office in 2006... it was hard to complete its hiring locally. American and British firms there were willing to make candidates the kind of fantastic offers they’d rarely see at home. “Two years ago I saw third-years asking to be made partners,” David Eich [a Kirland partner] says. “With the market crash we immediately felt the inflection of that. These days I see partners happy to take a salary adjustment for their circumstances.”

Still, going overseas isn't just a way to bide time while the economy recovers. Many lawyers are embracing the overseas alternative as an opportunity to build a practice at a time when there's not much going on at the office at home. Seems like a no-brainer to me.

November 24, 2008 | Permalink | Comments (0)

Cravath Partner Offers Tips on Cost Cutting

You know times are tough when Evan R. Chesler, the head partner at Cravath, is dispensing advice to Business Week on how clients can economize on the legal front. Given that, up until recently, large firms took the position that you get what you pay for and that top quality comes only at top rates, Chesler's advice on economizing seems as incongruous as say, Warren Buffet offering tips on clipping coupons.

So what advice does Chesler have for belt-tightening clients who need legal services? First, clients should realize that they don't need a name brand firm for routine legal work, and should choose lawyers "who are commensurate with the assignment." In other words, you don't need to buy a Mercedes to take you to the train station, when a taxi cab will suffice. Second, hire lawyers who are busy so that they're forced to be efficient, and don't pad the bills. Third, try to negotiate alternative fees and avoid the billable hour, which can create "all the wrong incentives."

Lest you think that Cravath is stacking the decks against itself with this kind of advice, Chesler reveals that his firm is "trying more and more to come to alternative fee arrangements that make the billable hour irrelevant." For Cravath, this means charging flat fees to handle cases, often with "success fees" for extraordinary results.

Finding ways to serve clients more efficiently makes sense. But are firms exploring these changes as part of a long term strategy to change their business model? Or are these changes simply temporary acts of desperation to salvage profits in a brutal economy?

November 24, 2008 | Permalink | Comments (0)

Blawg Review #187 -- Evolution Day Edition

Today is Evolution Day, the anniversary of the publication of Charles Darwin's seminal work, On the Origin of Species, most commonly associated with the principle of "survival of the fittest." And with many law firms struggling to survive, Evolution Day provides an apt theme for Blawg Review #187, hosted at Josh Fruchter's Lawyer Casting.

Unlike Darwin's theory of evolution, you won't find any "missing links" in this Blawg Review, which offers tips from around the legal blogosphere on surviving in this economy. The advice runs the gamut, with obvious ideas such as remembering to focus on clients or registering to use LegalOnRamp if you're recently  unemployed. But there are also some suggestions that seem counter-intuitive such as why you shouldn't run out and set up a bankruptcy practice (since clients may not be able to pay your fees) or why firms should not lay off associates to save money, but rather, might consider investing in them.

All in all, in this economy, Blawg Review #187 should come as a natural selection for your reading. And you can also play a role in the next iteration, to be hosted at New York Personal Injury Attorney Blog, where Eric Turkewitz has already put out the casting call.

November 24, 2008 | Permalink | Comments (0)

November 21, 2008

Blogger on Scene as Mukasey Collapses

At least one legal blogger was in the audience last night when Attorney General Michael Mukasey collapsed while delivering a speech at the annual dinner of the Federal Society in Washington, D.C. Laurie Lin, a contributor to the blog Above the Law and author of her own blog, The Kitchen Cabinet, provided an eyewitness account of the incident to ATL editor David Lat, who posted it last night at 10:30 p.m. Mukasey "literally collapsed mid-sentence at the podium," she reported. "Medical people are working on him now as he lies on the dais. Secret Service says no one can get up. Entire hall is shocked and silent."

Mukasey was rushed last night to George Washington University Hospital, where he remained overnight. This morning, The Washington Post reported that he is said to be doing well, with strong vital signs and in good spirits. President Bush spoke with him this morning and said through a spokesman that he "sounded well." The report said:

A person who attended the black-tie dinner at the Marriott Wardman Park hotel in Woodley Park said Mukasey was visibly shaking and perhaps slurring his words before he fell to the floor. Video footage showed a tuxedo-clad Mukasey, 67, staggering behind a lectern as FBI agents in his security detail raced to his side.

Below are two videos of the incident.

November 21, 2008 | Permalink | Comments (4)

Study: Class Actions Not Such a Big Deal

A just-published Federal Judicial Center study of class actions in federal courts finds that there is less to them than might appear. Released yesterday, the report presents preliminary findings from the second phase of an ongoing study of the impact on the federal courts of the Class Action Fairness Act of 2005. It looks at class action activity in the two years leading up to CAFA's effective date. A subsequent report will compare these findings to post-CAFA cases. Of the litigation looked at in this study, the report concludes:

Preliminary findings indicate that in diversity class actions there is less to class allegations than one would expect. Most of the plaintiffs in cases that raised class allegations did not take the next step and move to certify a class. All class actions that were certified, whether for litigation or settlement purposes, ended with class settlements about 10% of the sample. Relatively little motions activity took place in the typical case, and many cases the majority of cases not remanded to state court ended in a voluntary dismissal. Further analysis and comparison with class actions based on federal questions may shed further light on these observations.

The study looked at 231 class actions filed in or removed to federal court based on diversity of citizenship. Only five of the cases were ever formally certified as class actions, although 21 resulted in court-approved class settlements. Of the cases that came to federal court through removal, more than half ended up being sent back to state court.

November 21, 2008 | Permalink | Comments (0)

Jones Day Wins Round in Blockshopper Case

More news in the lawsuit by law firm Jones Day against the Web site You may remember that as the case that Public Citizen lawyer Paul Alan Levy, in a post at the Consumer Law & Policy Blog, said deserves a prize for the "grossest abuse of trademark law to suppress speech the plaintiff doesn't like." (We wrote about it here and here.) Well, it wasn't gross enough to get the complaint thrown out of federal court in Chicago. U.S. District Judge John W. Darrah has denied BlockShopper's motion to dismiss the Jones Day complaint. He did, however, dismiss the law firm's claims against the Web site's two founders, Brian Timpone and Edward Weinhaus.

The judge's refusal to dismiss the claims of trademark dilution was based on his finding that the complaint presents "legal and factual issues not appropriate for resolution at this motion to dismiss stage." At Citizen Media Law Project, Sam Bayard criticizes the ruling for confusing "the court's obligation to credit factual allegations with its duty to determine whether the alleged facts state a cause of action." Bayard writes:

As a matter of policy, the decision is absurd. Deep linking is a ubiquitous feature of the web. Nearly every website and blog in existence relies extensively on linking. As Paul Levy wrote in September: "That is what web sites do – they link to other web sites (that’s what makes it a 'World Wide Web')." The court's decision exposes anyone who takes advantage of this basic feature of Internet communication to the prospect of substantial litigation costs.

The CMLP was among a group of four public-interest organizations that sought permission to file a brief as amicus curiae in support of the motion to dismiss. (The others were the Electronic Frontier Foundation, Public Citizen and Public Knowledge.) Judge Darrah also denied their request, concluding that "an amicus curiae brief would not now be helpful."

November 21, 2008 | Permalink | Comments (1)

Online Law Grad Sidesteps Accreditation Hurdle

Logo_concord For the first time in Massachusetts, and perhaps for the first time anywhere outside California, a graduate of an online, unaccredited law school will be permitted to take the state bar examination. Ross E. Mitchell, a graduate of the wholly online Concord Law School, was initially denied permission to take the Massachusetts bar exam, based on the state's rule that applicants be graduates of law schools accredited by the American Bar Association. He sued the state Board of Bar Examiners, contending that the rule was unconstitutional as applied to him or, alternatively, seeking waiver of the rule in his case. In a decision issued yesterday, Mitchell v. Board of Bar Examiners, the state Supreme Judicial Court held that Mitchell is entitled to a waiver of the rule and will be allowed to take the bar exam.

In an opinion written by Justice Margot Botsford, the SJC emphasized that its decision to grant a waiver was confined to the unique circumstances surrounding Mitchell's case. The court cited a number of factors personal to him, including that he had been admitted to practice both in California and before the 1st U.S. Circuit Court of Appeals, had a stellar academic record and was valedictorian of his class, had scored well on the California bar exam and on the MPRE, and, through his representation of himself in his own case, had provided a "positive illustration of his skills."

But Mitchell's excellent personal record, alone, would not lead it to grant a waiver, the SJC said. Also a factor was the ABA's recent announcement that it is beginning a comprehensive review of its approval standards that will include consideration of schools providing instruction online. "[I]n view of the fact that an online legal education program such as Concord's cannot qualify for ABA approval under the current ABA standards and that the situation with respect to online programs may change in the reasonably near future, equitable considerations weigh in favor of granting Mitchell a waiver of the ABA approval requirement in this case," Botsford wrote. Justice Roderick L. Ireland dissented, writing that he would await the results of the ABA review rather than grant Mitchell's request for a waiver.

Founded in 1998, Concord Law School is owned by Kaplan Inc. California is the only state that permits its graduates to apply for admission to the bar. I could find no references to Concord graduates obtaining admission in other states. If you know of examples, please comment below.

November 21, 2008 | Permalink | Comments (4)

November 20, 2008

Blaming the Defendant, Even When the Penalty Is Death

So, the judge and the prosecutor in a capital case in Texas admit to having an affair, but don't disclose it at trial. The defendant, Charles Dean Hood, is convicted and sentenced to death. Eighteen years after the trial, Hood's lawyer learns about the judge's relationship with the prosecutor, fights valiantly to secure an on-the-record admission of the affair, and submits the evidence to the court.

At this point, you're probably thinking that the only possible issue for consideration is whether the affair between the judge and the prosecutor prejudiced the outcome of the case. But Hood can't even get that far. Instead, the Texas Court of Criminal Appeals sent Hood's case back to the lower court to determine whether evidence of the affair was presented too late in the appeals process.

The appeals court ruling suggests that Hood waited too long, particularly given that evidence of the affair had apparently been available for several years. Well, actually, the evidence was available even earlier than that: at the time of trial, the point where the judge or prosecutor should have disclosed the relationship to begin with. To even suggest that Hood bears responsibility for having failed to discover what the prosecutor and judge knew all along is, quite simply, criminal.

November 20, 2008 | Permalink | Comments (0)

Can Employees Be Booted for Wasting Time While Computer Boots Up?

Seems like some companies will do anything to squeeze an extra 30 minutes of work out of employees. Believe it or not, companies actually have the gall to dock employees' pay for the time spent waiting for their computers to boot up, reports the National Law Journal (subs. only). Though skimming off an extra quarter or half hour may not seem like much, it adds up over the course of a week or month, which means that employees are losing significant pay.

You'd think that it would be obvious that time spent waiting for a computer to boot up would constitute time on the job, but Richard Rosenblatt, of Morgan, Lewis & Bockius, argues otherwise:

They go have a smoke, talk to friends, get coffee — they're not working, and all they've done at that point is press a button to power up their computer, or enter in a key word.

As the California Wage Law Blog points out, lawyers like Richard Rosenblatt probably don't stop the clock when they sit in court only to find that the judge is twenty minutes late. In the meantime, if employers don't like the idea of employees wasting time while a computer boots up, the answer is simple: Invest in a new computer system.

November 20, 2008 | Permalink | Comments (0)

Go Green, Get Green

Here's an interesting program: Boston-based law firm, Sherin and Lodgen will discount legal fees for clients who go green. The firm's “Going Green? Take Fifteen” program, which begins in 2009, will provide 15 percent off legal fees for green projects. The program will reward developers building LEED projects or those certified under the U.S. Green Building Council’s Leadership in Energy and Environmental Design.

Five of Sherin and Lodgen’s 50 attorneys are LEED-accredited professionals, so presumably they can confirm whether a client's project actually qualifies as green.

November 20, 2008 | Permalink | Comments (0)

November 19, 2008

Now That's a Holiday Party

476pxmileydog In a year when budgetary belt-tightening is forcing corporate planners to scale back on holiday parties, one Texas law firm is letting its belt out a few notches. In a state known for doing things big, the Houston-based Lanier Law Firm is staying true to reputation. Its holiday party will feature entertainment by none other than teen sensation Miley Cyrus as headliner.

It is one of the hottest tickets in Houston, writes Brenda Sapino Jeffreys at Tex Parte Blog. "Cyrus, star of the 'Hannah Montana' television series, is a big draw in Houston," Jeffreys writes. "When she appeared at the Houston Livestock Show and Rodeo in March for a Hannah Montana/Miley Cyrus concert, she set an attendance record." The party doubles as a charity fundraiser, with firm founder W. Mark Lanier and his wife Becky asking guests to bring school supplies or donate money that will go to children in Guatemala.

(Photo by Mike Schmid via Creative Commons license.)

November 19, 2008 | Permalink | Comments (1)

Holder Called in June for Closing Gitmo

Holder_eric_070427 With Covington & Burling partner Eric H. Holder Jr. President-elect Obama's apparent pick for attorney general, a speech he gave in June suggests he would make a top priority of closing Guantanamo Bay. In the June 13 speech to the American Constitution Society, Holder called Guantanamo an "international embarrassment" and said the next president must close the detention facility and transfer prisoners to military prisons. A WorldNetDaily report quotes extensively from the half-hour speech and ACS has the full video.

The speech provides insights into the positions Holder would take as attorney general, if only with respect to the war on terror, which was the exclusive focus of his remarks. He called Gitmo a "moral hazard" and said the fact that the Supreme Court "had to order the president to treat detainees in accord with the Geneva Convention" was disgraceful. "In the months and years since 9/11, the Bush administration took many steps that were excessive and unlawful," Holder said. "We authorized torture and we let fear take precedence over the rule of law, as we overreacted to perceived danger."

According to the WorldNetDaily report by writer Jerome R. Corsi, Holder called on the next president to:

  • Declare without qualification a policy that the United States will not torture political detainees, engage in forced interrogations or submit people to degrading treatment in prison.
  • End all programs, covert or otherwise, to transfer detainees to nations that practice torture.
  • Stop domestic search and seizures without warrant and end wiretapping of citizens.

"There is evil in the world and we face grave threats to our national security," Holder said, "but we must reclaim our moral leadership by no longer letting fear rule our reactions." 

November 19, 2008 | Permalink | Comments (0)

Post Prompts Apology; Apology Prompts Praise

In a post last week entitled "Best 'Elevator Pitch' Ever...?" legal marketer Larry Bodine related the elevator pitch of a lawyer he described as "the silver-haired senior-most litigator" at a law firm in Joliet, Ill. The lawyer's pitch involved a Holocaust "joke" that Bodine himself now describes as "anti-Semitic and repellent." Readers of his blog complained about the post in comments and phone calls. Bodine responded to their concerns, deleting the post and replacing it with an apology. "I sincerely apologize for the crude and offensive 'Elevator Pitch' post I put online last week," he wrote in part. "In the clear light of morning, it is clear that it was anti-Semitic and repellent. I want to thank all the people who commented and called me about it; I listened and took what you said to heart."

Bodine's apology earned high praise from Victoria Pynchon at Settle it Now Negotiation Blog, not just as a lesson in blogging etiquette, but as a broader reminder to lawyers of the power of an apology. Bodine, she notes, "did not simply say 'I'm sorry.' He removed the admittedly offensive post; disowned it; and, empathized with those who found it offensive by sharing his own family's WWII imprisonment story." An apology can be a powerful tool, she suggests, one that attorneys too often make light of.

The point is that we all trespass on the feelings of others; those feelings are critical to our connection with one another; our connection with one another is fundamental to our individual well-being and our survival as a species; the urge toward reconciliation is therefore natural, as are our desire to be forgiven, our spontaneous expressions of remorse, our attempt to explain and normalize our bad behavior (we are all fallible and we have all suffered harm)  and our fellows' willingness to forgive, particularly when we bare ourselves and our histories to one another in the course of our effort to re-establish what joins us and to move beyond that which divides us.

It is a lesson, Pynchon believes, that all lawyers should learn. "And for that lesson," she adds, "we owe thanks to Larry Bodine."

I should add that my colleague here at Legal Blog Watch picked up on Bodine's original post and wrote about it here, initially with praise but then quickly realizing and apologizing for its offensive content. 

November 19, 2008 | Permalink | Comments (2)

Costumed Jurors No Reason for Reversal

It was a decision that could have haunted the trial judge for years, had the appeal turned out differently. As the complicated civil trial in Massachusetts Superior Court dragged on into late October, the jurors asked the judge if he would allow them to wear costumes on Halloween. After consulting with counsel for all parties and hearing no objection, the judge allowed their request. On appeal, the defendants argued that the presence of jurors in costumes turned the trial into a circus and denied them due process. In an opinion issued this week (Zabin v. Picciotto), the Massachusetts Appeals Court delivered the defendants a trick rather than the treat they'd hoped to receive.

With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors' request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings. However, as to the defendants' claim of a due process violation, the judge did not merely accommodate the jurors' request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.

That wasn't the whole of it. At one point, plaintiffs' counsel handed out candy to the costumed jurors. Later, a proposed "cast list" was circulated for a Hollywood movie version of the trial. Neither of these provided grounds for reversal, the Appeals Court said. "The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the 'cast list' was circulated to the jury." Here, indeed, victory was sweet.

[Hat tip to The Docket.]

November 19, 2008 | Permalink | Comments (1)

Banned by ABA, 'Ellen' Launches Blog

"After reviewing our last week of comments, we have decided to become more assertive with our comment moderating," ABA Journal Assistant Managing Editor Molly McDonough wrote in a post to the magazine's Web site Monday. "We will more readily exercise our authority to remove inappropriate comments, those that are particularly off-topic and those that generally flout the rules of civil discourse and persistently disrupt the comment stream."

In the interest of full disclosure, I should note that Molly is a friend and former colleague of mine. What prompted her clamp-down on commenting was an increasing volume of inappropriate comments by someone Molly describes as "the fictional 'Ellen Barshevsky' and her various personas." Because Ellen provided no e-mail address, the site's editors were unable to warn her that her comments had crossed a line. So, after tolerating them for some time, Molly wrote, "As of this morning, 'Ellen' has formally been banned from commenting on the site."

No sooner was Ellen banished from the ABA Journal's site than she reappeared with a blog of her own, Ellen Barshevsky -- The BLAWG. In an introductory post, she writes:

I was banned to TODAY by the aba journal. They DO NOT like my blawgs and they know I am NOT a First Amendment lawyer so they think they can silence my writing. But my BOYFRIEND, and yes he is my boyfriend, says that I should do MORE blawgs on my own, so that is exactly what I am doing here.

A question much debated by others who have posted comments at the ABA Journal site and elsewhere is whether Ellen and her oft-mentioned boyfriend are real people and actual lawyers. Ellen, true to form, asks the same about Molly. "I don't think Molly is a real name," she writes on her new blog. "I don't know anyone who names their child Molly these days."I can vouch for Molly's existence, but I'm not so sure about Ellen's.

November 19, 2008 | Permalink | Comments (7)

November 18, 2008

Third NAWL Study Shows Women Still Underrepresented and Underpaid at Large Firms

The Am Law Daily shares this somewhat underwhelming news from the third annual National Association of Women Lawyers (NAWL) Survey: Women remain underrepresented in the top ranks at large law firms and underpaid in comparison to their male colleagues. Despite law firm efforts to implement women's business initiatives and other programs to help retain and advance qualified women, something's just not working. 

Here are some of the salient statistics from the report, courtesy of the WSJ Law Blog (where there has been some interesting discussion of this issue in the comments):

According to a survey of 137 of the 200 large corporate defense firms by the National Association of Women Lawyers (NAWL), about 48% of first and second-year associates are women. But the percentages dwindle from there; 27% of non-equity partners and less than 16% of equity partners are women. There is also a considerable pay gap. At 99% of the firms, the top-paid partner is a man; on average, male equity partners earn more than $87,000 annually [more] than female equity partners. (Fifty-nine firms in the AmLaw 200 reported compensation data.)

So why, despite investment in women's initiatives and part-time programs haven't women advanced?  Are women's initiatives merely window dressing, as Denise Howell suggested several months back in Death by Committee? Do we need to give these programs even more time to work? And finally, how much should we care that women haven't cracked the glass ceiling at Biglaw when female lawyers are finding success in virtually every other area (e.g., politics, solo practice, judgeships, in-house and government) outside of large firms?

November 18, 2008 | Permalink | Comments (4)

Harvard Law Professor Takes on the RIAA

If you're a fan of Jonathan Harr's book, A Civil Action, you probably remember Harvard law professor, Charles Nesson, who was retained by plaintiffs lawyer Jan Schlictmann to give his firm (which represented a group of Woburn, Mass., residents in a toxic tort suit against two large corporations) more credibility before the Harvard-educated judge in charge of the case. But Nesson brought more to the case than just a Harvard pedigree -- he also suggested a new way of valuing the case, by focusing on the potential for punitive damages rather than just the harm to a small group of plaintiffs. As such, he earned the moniker "Billion Dollar Charlie."

Nesson is back in the spotlight, this time challenging the constitutionality of the Recording Industry Association of America's (RIAA) lawsuits, which seek damages for illegal music downloads. The crux of Nesson's argument is that the RIAA is using civil litigation to punish alleged criminal activity, which Nesson claims violates the Constitution.

As this profile highlights, Nesson has lead an interesting and somewhat unconventional life, particularly for a Harvard academic. From the profile:

Now 69, Nesson has become something of a legend, not necessarily for the right reasons. A few years ago he spoke openly about his occasional marijuana use, and of late he has been haunting the onanistic underworld of Second Life, a computer-generated, "virtual reality" universe.

It's not clear whether Nesson will prevail in his actions against the RIAA.  Even so, Nesson's involvement will level the playing field between the RIAA and those whom it sues -- giving them cause to celebrate that this Boston Charlie did in fact return.

November 18, 2008 | Permalink | Comments (1)

Breaking Up Harder to Do in Poor Economy

With the economy floundering and unemployment on the rise, you'd think that this increased financial stress would drive more people to divorce. In fact, the opposite may be true. According to this story in the Associated Press, times are so dire that many couples can't afford to split up. 

In a recent survey of the American Academy of Matrimonial Lawyers, 37 percent reported that business was down. As Bonnie Rabin, a matrimonial lawyer in New York explained, more of her clients are waiting to see whether homes and retirement accounts will regain value before moving ahead with a divorce. Instead, much of Rabin's practice has now shifted to support modification disputes, which are increasingly common as clients' economic situations change. 

Staying together in poor economic times isn't a new phenomenon; statistics show that the divorce rate dropped during the Great Depression. But for those who harbor illusions that the economy can save marriages, it's also worth noting an unfortunate consequence -- domestic violence rates during the Depression went up.

November 18, 2008 | Permalink | Comments (1)

Corporate Bankruptcies on the Rise

For anyone reading the business pages these days, the increased number of corporate bankruptcies should come as no surprise. But on top of the steady flow of anecdotal evidence, The Conglomerate now provides us with statistics on the uptick in filings. Consider that during the past 90 days alone, "according to filings posted on PACER, 395 chapter 11 cases were filed in the District of Delaware and 107 such cases were filed in the Southern District of New York." And the trend is crossing the pond: Business bankruptcies are up by 26 percent in the United Kingdom. 

More bankruptcies will bring more layoffs for many employees, except perhaps for those working at the law firms handling the bankruptcy work.

November 18, 2008 | Permalink | Comments (0)

New Legal Risks: Skydiving for Charity

So, you think lawyers aren't risk-takers?  That may be true when it comes to advising clients or practicing law, but for charity, one group of lawyers across the pond was willing to take a chance.  According to this story, five lawyers from the family law practice at U.K. firm B P Collins took to the skies to make a tandem skydive for charity. The five raised more than £4,000 ($6,000) for the Leonard Cheshire Disability Home in Gerrards Cross, outside of London.

November 18, 2008 | Permalink | Comments (1)

November 17, 2008

Savage Predictions for the Supreme Court

Los Angeles Times legal reporter David G. Savage speculates today on who President-elect Barack Obama might pick for the Supreme Court. While Obama's first nominee is virtually certain to be a woman, she is not so certainly going to lean as far left as many liberals may hope, he suggests. "I think it's a virtual certainty Obama would apoint a woman," lawyer Thomas Goldstein, founder of SCOTUSblog, tells Savage. Among the likely candidates are 7th U.S. Circuit Judge Diane Wood, 2nd U.S. Circuit Judge Sonia Sotomayor, Harvard Law School Dean Elena Kagan, Arizona Gov. Janet Napolitano and Michigan Gov. Jennifer M. Granholm.

But Savage mines an October interview Obama gave to the editorial board of the Detroit Free Press to find clues that Obama may lean towards the middle in filling high court seats. In the interview, Obama said he considered liberal justices such as Earl Warren, William Brennan and Thurgood Marshall to be heroes. "But that doesn't necessarily mean that I think their judicial philosophy is appropriate for today," he added. Later, he praised Justices Stephen G. Breyer and David H. Souter as "very sensible judges" who look at the facts and try to figure out how the Constitution applies.

"That's the kind of justice that I'm looking for. Somebody who respects the law, doesn't think that they should be making the law, but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice."

As vice president, Sen. Joe Biden could be influential in making the nomination, Savage notes. He served on the Senate Judiciary Committee throughout his career and knows many of the Democratic appointees to the bench who could end up on the short list. Of course, all of this is academic unless and until a vacancy opens on the court, and there is no certainty of that happening anytime soon.

November 17, 2008 | Permalink | Comments (3)

Obama Names White House Counsel

Craig Gregory B. Craig is "certainly the only trial lawyer who has represented a president (Bill Clinton) and a man who shot a president (John W. Hinckley Jr.)," says The New York Times. On Saturday, the Williams & Connolly partner achieved another presidential parallel -- he was selected by President-elect Barack Obama to be White House counsel. Craig was chief coordinator of the legal team that represented former President Clinton at his impeachment trial in Congress and one of the lawyers who helped win Hinckley a verdict of not guilty by reason of insanity.

The 63-year-old Craig is a graduate of Harvard College (1967) and Yale Law School (1972). At Yale, he befriended the Clintons and was their longtime friend. But he threw his support to Obama early in the campaign, after being introduced to him at the home of Vernon Jordan. As Politico, which first reported his appointment Saturday, observed, "His selection adds to the surprisingly large number of Clinton White House veterans who are at the top of the Obama roster." The AmLaw Daily adds this:

"Craig is well-known in Washington circles, having served an assistant and special counsel to President Bill Clinton from 1998-99, and as a senior adviser and policy planning director for Secretary of State Madeleine Albright. Craig also spent five years, from 1984 to 1988, as Senator Edward Kennedy's senior adviser on defense, foreign policy, and national security issues."

The NYT profile describes Craig as carrying "very little" baggage. A less-kind 2000 profile published by the National Review portrayed him as an innocent "dupe." Noting that a recommendation for Craig's application to Harvard described him as "Adam before the Fall," the NR piece criticized him as perhaps too innocent for failing to recognize witness bias at a 1984 hearing he organized for Sen. Edward Kennedy  on alleged human rights abuses in Nicaragua. That article aside, the general reaction to Obama's pick of Craig, at least so far, is praise. As Politico put it, Craig offers the administration "both experience and loyalty."

November 17, 2008 | Permalink | Comments (1)

This Blawg Review Speaks for Itself

As any 1L can tell you, "res ipsa loquitur" means the thing speaks for itself. This week, however, Res Ipsa Blog speaks not just for itself, but for the universe of other legal bloggers, as it hosts Blawg Review #186. Noting that today is International Students' Day, the author of the blog, Benson Varghese, himself a third-year student at the Texas Tech University School of Law, devotes his hosting duties to posts by or of interest to law students.

So what do law students find interesting? Pretty much the same stuff as lawyers, it appears -- technology, politics, the Supreme Court, IP and, of course, humor. In that latter category is the dead husband who killed his wife, an employment lawyer's liability analysis of the latest episode of The Office, and a voir dire classic from the vault of U.S. District Judge Jerry Buchmeyer. So check out Varghese's Blawg Review and catch up on the best of the blogosphere buzz.

November 17, 2008 | Permalink | Comments (0)

Revenge is Tweet

We have it on no less an authority than The Wall Street Journal that Twitter is now mainstream. But it seems that some lawyers want even more proof than a proclamation from the WSJ. And their reluctance to jump on the microblogging bandwagon is bringing the legal blogosphere to the verge of a good old-fashioned flame war.

Self-anointed curmudgeon David Giacalone kicked off the debate this weekend. Spurred by a Lawyers USA article, Attorneys Flocking to Twitter for Marketing, Giacalone referred back to a year-old Time magazine piece that called Twitter a way of "simply killing time." He wrote on his blog f/k/a ... :

"If you think that constant marketing or attracting blawg visitors is at the core of your law practice (or your cyber-business), joining the Twitter revolution might make sense, as you follow dozens, scores, or maybe hundreds of other Tweeters throughout the day or hope they follow you.  But, I sure hope you’re not my lawyer (or my employee), adding yet another wave of cyber-distractions to your workday, instead of focusing on efficiently providing quality services.  For us, maintaining multiple levels of unessential multitasking is not a virtue."

That drew a somewhat vituperative response from blog evangelist Kevin O'Keefe, who wrote both in a comment to Giacalone's post and on his blog, Real Lawyers Have Blogs:

"But hey, hang to your prejudices, ignorance, and a year old article in Time magazine as reasons to tell lawyers that Twitter is not worthwhile.

"Sorry to be so blunt, but Twitter is adding a lot to many lawyers' lives. Twitter is not something to be dismissed by lawyers who are not giving Twitter a fair try."

Predictably, others around the blogosphere have weighed in with their own opinions about Twitter. Notable among them is Scott H. Greenfield, who at least tried Twitter (for a week) before condemning it in a post at his blog, Simple Justice. But before getting to Twitter, he starts with a comment about O'Keefe:

"Before delving into my experience, note that Kevin is the main twitter cheerleader that comes across my twitter screen.  He's like the energizer bunny of twitter, and uses it in pretty much the exact way that he promotes it to others.  He posts regularly, and its almost invariably about a new Lexblog client coming online, or a new post on Real Lawyers Have Blogs.  He markets. And markets and markets. Then he twits (tweets?) about marketing successes, large and small.  Kevin walks the walk as well as twits the twit."

As for Twitter, Greenfield goes on to say:

"Twitter is what Kevin says it is, and it's also what David fears it is.  It's a disconnected, never-ending stream of consciousness series of one-liners that may, or may not, add or detract to your day.  My guess is that it's a lifeline for lawyers who really want a water-cooler but don't have one.  But it's not exactly fulfilling, in that there's no assurance that you get any real or timely reaction to anything you twit. ...

"Is this worth the time it sucks out of your day, particularly when added to the time checking RSS feeds, blog posts and links, news stories, emails and anything else that comes across one's computer?  Not really.  If I'm busy, twitter is the first thing to go, providing the least benefit of all the myriad forms of hi-tech communications.  Way too many tweets of way too little value and interest."

Excerpts here fail to do justice to his entire post. He ends on more or less of a conciliatory note, writing, "David's not Kevin's enemy.  Nor am I.  Kevin, and twitter, will have to pass muster with the thousands of others who will either care or not.  We're just two old lawyers."

This week's Blawg Review #186 has more on on these "Twitter Wars." As for the undersigned, I come down on the side of the proponents. In fact, the December issue of Law Technology News will have an article I wrote in which I describe 16 ways lawyers can use Twitter in their practices. And just since submitting that piece, I've thought of several more ways. The fact is, like so many other technology tools, Twitter is what you make of it. Can it be a distraction? Absolutely, but you can manage that. Can there be a lot of noise? Sure, but, again, you can manage that by being selective about whom you choose to follow. It is not "just" a marketing tool, as both Giacalone and Greenfield seem to believe. In my article, I talk about using Twitter for knowledge management, competitive intelligence and current awareness, to name just a few. No single technology is the be-all and end-all. But Twitter is a tool I'm glad to add to my chest.

November 17, 2008 | Permalink | Comments (2)

November 14, 2008

Wal-Mart's Full Employment Act for Lawyers

Why would a company seek to enjoin a practice that generates money for the company?  Perhaps if opposing that practice would generate money for lawyers. That's what Techdirt suggests is behind the latest takedown notice Wal-Mart's law firm, Baker & Hostetler, sent to, a site that aggregates information on store deals. The site recently posted a Wal-Mart Black Friday circular, which Wal-Mart contends violates copyright law -- even though the postings actually help Wal-Mart by increasing business. 

Here's what Techdirt's Mike Masnick has to say:

So, we have Wal-Mart, whose employees think deal sites are helpful, getting its lawyers to send out bogus takedown notices over content that isn't copyrighted, and then sending them to search engines that don't even host the content in question.  It makes you wonder how much the lawyers are charging Wal-Mart... and if the fees are being paid out of the legal budget, or the marketing and promotions budget.

November 14, 2008 | Permalink | Comments (0)

The Future of the Law According to Richard Susskind

In a profession that prizes adhering to precedent, many lawyers might be inclined to ignore the advice of "legal futurist" Richard Susskind -- but doing so would be as foolish as not Shepardizing a brief.  In a recent interview with The Am Law Daily, Susskind, author of the upcoming new book, The End of Lawyers? (Oxford University Press, Dec. 2008) shares his thoughts on what today's law firms must do to survive in tomorrow's legal world.

Susskind's advice is somewhat counter-intuitive. You'd think that in a world where competition will stiffen as legal services become commoditized, law firms would be wise to engage in a survival-of-the-fittest combat to keep market share. Instead, Susskind tells firms to collaborate with each other and share information to spread the costs of legal services between clients. 

Another area where Susskind perceives growth is legal risk management. According to Susskind, in-house lawyers identify legal risk management as their central concern -- yet hardly any law firms have developed methods, tools or systems to help clients review, identify and quantify risks. Susskind believes that lawyers can play a central role in this type of strategic planning. 

Why don't you play the role of "legal futurist" for today? Where do you see the profession heading, and what should firms be doing to strengthen their own futures?

November 14, 2008 | Permalink | Comments (0)

Great Elevator Pitch for Lawyers

Larry Bodine has an amazing example of the best "elevator pitch" ever. Here's an excerpt:

The silver-haired senior-most litigator at the firm came up with the BEST elevator pitch ever.  The senior partner said, "when I step onto elevator at the top floor, I size up the other person to see if he is a business man.  I know they don't like lawyers." "When they ask me, 'what do you do for a living?' I answer I'm a Nazi medical researcher." The businessman will react with shock.  "Then I say, 'I was kidding. I just said that because I'm a lawyer." This always gets a laugh from the businessman. "Then I say I help businessmen in court."

I don't think I could pull this type of elevator pitch off, but I sure wish that I could.  What's the best (or worst) elevator pitch you've heard recently?

Law firm public relations expert Rich Klein makes the important point at his blog that an elevator speech making light of the Holocaust is offensive. Klein is right and I apologize to anyone whom this post may have offended. Moreover, Klein's post is also a reminder to think carefully about our elevator speeches since some may be completely inappropriate, while others may be appropriate only in certain situations.

November 14, 2008 | Permalink | Comments (13)

November 13, 2008

Another Lawyer, Another Gay Romance Writer

We wrote here not long ago about Scott D. Pomfret, an enforcement attorney with the Securities and Exchange Commission in Boston who moonlights as an author and publisher of romance fiction (and erotica) for gay men through his company Romentics. Now from California comes word of another lawyer who has published a romance novel for gay men. Under the nom de plume G. Carlos Smith, lawyer Gregory C. Smith, a partner in the Palo Alto office of Skadden, Arps, Slate, Meagher & Flom, has written a novel that "considers the tragic effects of laws like Proposition 8 while offering new hope."

The Am Law Daily caught up with Smith for a brief interview about the book, titled A Matter of Choice. Asked whether the book, which features a lawyer as a central character, mined his own career, Smith replied:

It doesn't draw on my law firm experience a whole lot but most novels have some autobiographic element. We don't live in a vacuum. It is very easy to write about a profession you understand. Also, the book describes the effect of law on people's lives so I wanted one of the characters to have a good grasp of the law.

As for Proposition 8, Smith calls its passage "truly tragic" and says it "formalizes a second-class citizenry among gay and lesbian people." In September, he married his long-time partner. "We had just gotten comfortable with calling each other husband," he told the Am Law Daily. "Now, I don't know what we are."

November 13, 2008 | Permalink | Comments (1)

Note Left on Chair Ousts Firm Leader

Until last week, Michael Hausfeld was chairman and name partner of the Washington, D.C., law firm Cohen Milstein Hausfeld & Toll. Then on Nov. 6, he returned to his office to find a note left on his chair. It was from his partners, telling him he was fired. "Pretty cold," Hausfeld commented in an interview with Bloomberg News. But Cohen Milstein partner Joe Sellers saw it otherwise. "This was a proper way to give him notice under the partnership agreement," Sellers said. "It's hard to believe he viewed this as a shock."

If not reason to be shocked, would he at least concede it was in poor taste? After all, the 62-year-old Hausfeld had been at the firm since 1971. In his former partners' defense, they did also send him an e-mail, after voting to oust him while he was out of the office negotiating a settlement. Nor should we shed too many tears for Hausfeld, who has already set up his own firm where he expects several Cohen Milstein clients and lawyers to follow. And Legal Times reports that Hausfeld has retained lawyers at Venable to represent him "in considering what legal claims we might have for [Cohen Milstein's] conduct, or misconduct."

As of this morning, Cohen Milstein's Web site still bears Hausfeld's name and even several of his articles, such as this one, but not his profile.

November 13, 2008 | Permalink | Comments (1)

Bill Ayers Heads to Georgetown Law

Conservative blogger Michelle Malkin calls it a case of an "unrepentant, anti-capitalist terrorist" cashing in. The occasion for her ire is a lecture scheduled for Monday at Georgetown Law School by Bill Ayers, the former Weather Underground leader who resurfaced in the spotlight during the 2008 presidential campaign. Yesterday, Beacon Press released an updated edition of Ayers' 2001 book, Fugitive Days: Memoirs of an Antiwar Activist, and Ayers is going on the road to promote it as well as another new book, Race Course Against White Supremacy, co-authored with his wife and fellow Weather Underground leader Bernardine Dohrn, now a professor at Northwestern University School of Law.

His appearance at Georgetown is sponsored by the school's chapter of the National Lawyers Guild. In a piece last week in In These Times, Ayers may have offered a preview of his talk, commenting on his latest round in the media spotlight. "I became a prop, a cartoon character created to be pummeled," he wrote. When he heard Sarah Palin accuse Obama of "pallin' around with terrorists," he says, "I pictured us sharing a milkshake with two straws."

A couple of legal bloggers -- Walter Olson at and Elie Mystal at Above the Law -- have picked up on Ayers' visit to Georgetown Law. As for Malkin and other conservative bloggers such as Ron Radosh who criticize Ayers for standing in the spotlight, I can't help but note that it was them who helped drag him there. Frankly, what most troubles me about Ayers' appearance at Georgetown is the discovery that the law student who posted the event may not know the difference between "addition" and "edition" ("Ayers will be speaking on his forthcoming book ... and the new addition of Fugitive Days.")

November 13, 2008 | Permalink | Comments (2)

November 12, 2008

Connecticut Same-Sex Marriages Moving Forward Today

Even as the future ability of same-sex couples to marry remains uncertain in California, same-sex couples in Connecticut are tying the knot today, a month after Connecticut's highest court legalized the unions, reports the New York Times. However, Connecticut isn't expected to have the same rush on marriages as experienced by Massachusetts or California, two other states that also legalized same sex unions. That's because Connecticut has allowed civil unions since 2005, which for some couples has been sufficient.

November 12, 2008 | Permalink | Comments (2)

Should You Stay or Should You Go Now?

It seems that every day now brings new announcements of law firm layoffs or downsizing. The latest: White and Case is laying off 70 associates and there are reports of reduced summer hiring, even at top schools like Harvard.

So here's my question: If you're currently employed as a lawyer, should you stay at your firm or jump ship now? This Dallas Morning News story quotes experts who agree that, in this economy, it's better to remain at a lousy job and take the paycheck instead of trying to find a new position. But I'm not so sure that's the best approach. Staying at a job in unstable times can be stressful and may detract from your ability to look for other opportunities.

On a related note, here's the perspective from the employer's side regarding layoffs. At Texas Lawyer's Work Matters Blog, Michael Maslaka gives a rundown of layoff tips from entrepreneur Guy Kawasaki's new tome, Reality Check. They include: cut once and deep; move fast; lower the boom on Monday (so that folks can start looking ASAP); and give minimal severance, sans releases (which just anger employees).

What do you think? Do you agree with Kawasaki's advice on layoffs (I'm sure most lawyers cringe at the thought of no release)? And what should a lawyer do when things are slow -- keep the job or jump ship now?

November 12, 2008 | Permalink | Comments (9)

While Many U.S. Firms Struggle to Survive, Indian Firms Thrive

As U.S. law firms struggle to survive in this economy, India's lawyers thrive, reports the Financial Times. And it's not just outsourcing companies that are reaping the benefits, but India-based law firms. At top firms, junior partners are earning up to $250,000 before bonuses, and some firms have increased salaries by 200 percent. And while those salaries may seem small by New York standards, they've grown considerably since 2001, with starting associate salaries jumping tenfold.

In large part, the boom for Indian lawyers is attributable to the company's strict admission rules, which guarantee a virtual monopoly. As we've reported here, India prohibits foreign firms from setting up shop within the country. So for companies doing business in India, a domestic firm is the only game in town. However, the economy in India is also growing -- according to India Today magazine, the country requires 3,000 new lawyers a year to keep pace with demand.

But it's difficult to say whether India's lawyers can keep pace with the demand. Some foreign firms are building India law practices outside the country to get around India's strict policies. In many instances, foreign firms manage to lure the brightest Indian lawyers, leaving domestic firms without adequate talent. And some companies located in India express frustration about the difficulty of doing business in the country given the restrictions on foreign lawyers. For the time being, however, India's law firms remain the envy of outsiders.

November 12, 2008 | Permalink | Comments (1)

New iPhone App Helps Drunk Drivers Calculate Blood Alcohol and Find a Lawyer

So, let's say that you've been laid off from your Biglaw job and you go out drinking to drown your sorrows (or celebrate your freedom). En route to your next destination, you get pulled over. So who are you going to call? Your ex-colleagues, most of whom have probably never seen the inside of a courtroom? Your mom? No worries -- because if you have an iPhone, you have a lawyer. Avvo, a lawyer directory/ratings site just announced the launch of a new iPhone application, dubbed "Last Call" that suggests the names of top DUI lawyers in the area from the Avvo directory. 

But Avvo isn't just trying to drum up business for lawyers in its listing service. The company prefers that you never reach that point, so the application includes a way to calculate blood alcohol levels (based on number of drinks and body size) and phone numbers for local cab companies if you discover you exceed the limit.

November 12, 2008 | Permalink | Comments (4)

November 11, 2008

Supreme Court Lets Secret Case Stay Secret

The Supreme Court yesterday declined to accept review of a federal employment discrimination case that has remained hidden from public view for seven years, according to The Reporters Committee for Freedom of the Press. RCFP had filed an amicus brief on behalf of itself and 29 news organizations urging the court to accept the appeal.

The petitioner, New York Law Publishing Company, had sought to intervene in the underlying civil action in order to unseal the docket and record of the case, in which the plaintiff claimed she was wrongly fired because she had an abortion. (The New York Law Publishing Company is a division of Incisive Media, publisher of this blog.) In its brief, the RCFP argued:

Despite the profound issues at stake -- abortion, medical privacy, and alleged employment discrimination -- this case was conducted entirely in secret for seven years. Searching for the case on the district court or circuit court docket yields no result. The hearings, briefs, court records, and even trial court orders were all hidden from public view, and it was not until the Third Circuit issued a precedential opinion in May that the public became aware of the existence of this case. Even now, every record is sealed save the Third Circuit's orders and the Supreme Court docket. Absent correction from this Court or a change of heart below, the case will presumably go to trial in secret.

While the petition was pending before the Supreme Court, the woman settled her case with her former employer. An Associated Press report suggests "that may have affected the high court's decision."

November 11, 2008 | Permalink | Comments (0)

Skeeter Jones, Canine-at-Law

Doggraduate If you try to hire Skeeter Jones as your lawyer, you're barking up the wrong tree. Sure, Skeeter has a degree from Baylor Law School in Texas. And, yes, Skeeter has a knack for sniffing out the essence of a situation. But Skeeter will not be taking the bar exam and any appearances he makes in court will at best be second chair. This is because Skeeter is a dog and his degree -- the first by Baylor to a nonhuman -- is Juris Dogtor.

Skeeter, whose unique educational accomplishment is recounted this week in the Waco Tribune-Herald, is the black Labrador retriever that serves as a companion and guide to Amy Jones, who was left a quadriplegic after a skiiing accident in 2002. When Jones enrolled as a law student at Baylor, Skeeter came with her. By the time Amy graduated last week, Skeeter had earned his chops as a "special friend" to everyone at the law school. "Skeeter has become a part of our community and part of our family here at the law school," Dean Brad Toben said.

The law school's blog describes Skeeter's honor as the highlight of the graduation ceremony. Skeeter and Amy came on stage together and Skeeter was given his diploma. It read:

WHEREAS Skeeter Jones, good and gentle Labrador, attended faithfully with Ms. Amy Jones all prescribed Baylor Law School classes, dog-day in and dog-day out, until completion; WHEREAS he showed uncommon bravery in yawning loudly in abject dog-boredom during a certain lecture of Professor Jeremy Counseller, caring but little for the intricacies of removal and remand; WHEREAS he successfully begged for donuts from Professor David Guinn, having been unfairly tempted by the hi-jinks of the latter; WHEREAS Good Dog Skeeter completed the Practice Court program without being called upon once or reading nary a case, all knowing that a snarl would rebuff any such intrusion; WHEREAS he is now an older, wiser and even a bit fatter dog; WHEREAS those who survive Baylor Law School are entitled to all barking rights, entitlements and appurtenances thereto; THEREFORE, BE IT HEREBY DECREED that Baylor University School of Law confers upon Skeeter the Labrador this


So if you should seek the legal services of Skeeter Jones, be advised that, like so many law school graduates, his bark is worse than his bite.

[Hat tip to ABA Journal.]

November 11, 2008 | Permalink | Comments (8)

The Registry of Dope Smokers

By a landslide margin, Massachusetts voters last week passed Question 2, a ballot initiative decriminalizing possession of an ounce or less of marijuana. Even though the law will not take effect until 30 days after it is endorsed by the state's governor's council, it has already left law enforcement officials with anything but a case of the giggles. The problem, officials say, is that the initiative said nothing about how it should be administered and enforced. As Michael O'Keefe, district attorney on Cape Cod and president of the Massachusetts District Attorneys Association, told the Cape Cod Times, while the state has a Registry of Motor Vehicles to collect speeding fines, "we don't have a registry of dope smokers in Massachusetts, and apparently we're going to have to create one in order to effectuate the statute."

The state's district attorneys were meeting this week to try to come up with a plan, and Attorney General Martha Coakley (who was otherwise occupied yesterday, arguing before the Supreme Court) said her office would play a role. "Question 2's passage not only authorizes the decriminalization of small amounts of marijuana, but also establishes a parallel civil regulatory structure that does not currently exist," she said in a statement. Other states that have decriminalized possession of small amounts of marijuana handle administration in various ways, the Cape Cod Times article notes. In Maine, fines are assessed and collected through the court system. In Ohio, one can pay the fine through the mail or appear in court to contest the citation, similar to a speeding ticket.

Under the Massachusetts law, anyone caught with an ounce or less of marijuana must pay a $100 fine. Minors must also attend drug education and treatment classes and perform community service. Not only does this scheme raise questions about its administration, but it also creates a new set of questions for police officers who find someone with marijuana, says an article in The Berkshire Eagle. "Can we interview them? Can we interrogate them?" wonders a Pittsfield police captain. "It's going to be real tricky to figure out what this means, and there's no question that people are going to take advantage of this."

One outcome seems fair to predict: If you thought lines were slow at the Registry of Motor Vehicles, just wait until you see how the long wait seems at the Registry of Dope Smokers.

November 11, 2008 | Permalink | Comments (0)

Former D.C. Lawyer is the 'Other' Hero

Mccartney_rosenburg If you've watched CNN lately, you've probably seen the promos for its CNN Heroes contest and Nov. 27 broadcast that will highlight the 10 finalists and the hero of the year. Voting is underway now to pick one from among the 10 "whose accomplishment, impact and story inspires you the most." The winner will receive a prize of $100,000.

One of the finalists is Liz McCartney, a woman so stunned by the destruction caused by Hurricane Katrina that she left her job as a teacher in Washington, D.C., and moved to Louisiana's St. Bernard Parish, where she opened a nonprofit organization, the St. Bernard Project, to help rebuild homes by raising money and organizing volunteers. But McCartney was not the only hero behind the St. Bernard Project. She left D.C. and founded the project together with her boyfriend, Zack Rosenburg. A criminal defense lawyer in Washington, Rosenburg was equally moved by Katrina's devastation and the urge to do something about it.

Together, McCartney and Rosenburg left their Washington jobs in 2006, bought a truck and headed to Louisiana, initially intending to help out however they could. Within two months, they founded their nonprofit, which is based in Chalmette, and achieved results that have won the project wide acclaim. As of July 2008, the project had helped to build more than 140 homes. While their focus so far has been on building homes for the elderly, people with disabilities, and families with school-age children, they hope to continue their work until everyone who lost a home can return.

Even though CNN has chosen to honor just half of this dynamic duo as one of its 10 heroes, the lawyer half is not without honors of his own. Last week, at a ceremony in New York, the Manhattan Institute honored Rosenburg with its Social Entrepreneurship Award. The $25,000 award honors nonprofit leaders who have found innovative solutions for America's most pressing social problems. Both McCartney and Rosenburg say they will donate any prize money to the project they founded. You can read more about the couple and their project at the project's Web site and its blog, as well as in this profile published last year in The Times-Picayne. And you can vote for McCartney or one of the other finalists to be hero of the year at CNN Heroes.

November 11, 2008 | Permalink | Comments (0)

Is a Prison Escape a Violent Act? Depends

Here is a question for the criminal law attorneys out there: Is a prison escape an act of violence? That was the issue yesterday as the Supreme Court heard oral arguments in the case of Chambers v. United States. The court's answer will determine whether Deondery Chambers will have to serve the mandatory 15-year minimum sentence required of federal defendants who have committed three violent felonies. There is no question Chambers escaped, but his was not of the dramatic made-for-TV variety. Rather, he simply failed to report to prison. Under Illinois law, his failure to show up was considered an escape. But does that make it violent? A just-published report of the U.S. Sentencing Commission appears to support Chambers' argument that it was not.

At Chambers' sentencing hearing, the district court declined to distinguish between a prison break and a failure to report. It concluded that "escape is escape" and that any escape is a violent felony. On appeal, the 7th U.S. Circuit Court of Appeals, in an opinion by Judge Richard Posner, affirmed, finding itself bound by an earlier 7th Circuit precedent. Noting that other circuits had gone both ways on the issue, the panel suggested that further data would be useful in assessing the risks of violence posed by a failure to report. Even as the Supreme Court agreed to review the 7th Circuit's decision, the Sentencing Commission took up its suggestion to review the data and this week made its findings available online.

The transcript of yesterday's argument includes several references to the Sentencing Commission's data. Examining cases from 2006 and 2007, the Sentencing Commission found that of 42 failure-to-report cases and 118 failure-to-return cases, not a single one involved the use or threat of force or resulted in injury. By contrast, in 64 cases of escape from secure custody, nine involved force, 17 involved use of a dangerous weapon and seven resulted in injury. For all types of "nonsecure escapes" -- failing to report, failing to return and leaving nonsecure custody -- just one out of 337 cases involved force. The Sentencing Commission's report presents this data without making a recommendation as to how the Supreme Court should decide the issue. The data clearly draw a distinction between the kind of prison break TV viewers know and love and the devoid-of-violence failure to show up. Some parts of yesterday's argument indicate that the final outcome may turn on whether the court is willing to draw lines between types of escapes or believes that an escape is always an escape.

November 11, 2008 | Permalink | Comments (0)

November 10, 2008

Blawg Review #185

Blawg Review #185 is up now, hosted by Duncan Bucknell's IP Think Tank Blog. The theme du jour is Inventor's Day, and true to form, the review discusses a variety of innovation-related topics, such as what an Obama administration means for technology and IP and the Bilski decision, which sets more rigorous standards of eligibility for business methods patents.  No need to invent a reason to visit Blawg Review #185 -- just go over and have a look.

November 10, 2008 | Permalink | Comments (0)

No Surprise, Growth at Nation's Largest Firms on the Decline

The National Law Journal's annual survey of the nation's largest law firms is out, and not surprisingly, growth is down from the incredible gains reported last year. But make no mistake, firms are still in fact growing, just at a slower pace. Last year, firms added 4.3 percent more attorneys, compared with 5.6 percent growth in 2007, with 133,723 lawyers working at the top 250 law firms compared with 128,213 attorneys in 2007. Even more interesting, the 4.3 percent growth rate is still larger than the 4 percent rate of 2006. Experts quoted in the article explained that the growth rate reflects the reality that firms need to continue to recruit new talent even in tough times, in anticipation of replacing soon-to-be-retiring boomer lawyers.

Partner totals also lagged, with an increase in partners of just 3.5 percent compared to 4.6 percent last year, and 5.1 percent in 2006. The number of female partners remained the same as well, with an average of 39.4 female partners compared to 39.3 in 2007.

Has the legal industry hit rock bottom yet? Will growth continue to decline, with top law firms shrinking in size next year? Or is 2008 a brief dip that will level out over the next few months as firms gear up to deal with some of the new legal issues that might arise under an Obama administration. Post your thoughts below.

November 10, 2008 | Permalink | Comments (0)

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