On The Other Hand: Culhane Meadows is growing.
Kim Kardashian And Tigers Or Something: This was in some apocalyptic text, right?
The Devil Went Down To Georgia: Not a great analogy for the law school situation because the Devil was totally transparent with Johnny.
305 Doing Better Than Most 3Ls: Pitbull got published in a law journal… what have you been doing?
Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.
This past Saturday was (apparently) “National Pet Day.” I have pets and was unaware of this, but I’ll survive. Anyway, the US Copyright Office thought that this would be a good day to tweet out this utter nonsense:
On the off chance the Copyright Office comes to its senses and takes down that tweet, it shows a (cute!) picture of a sleeping kitten, and then says in the text of the tweet:
Happy #NationalPetDay from the Copyright Office. All 10k of the photos you took of your cat while asleep are protected by copyright from the moment they are created.
You’d think that someone at the Copyright Office would have enough sense to recognize that this message just makes basic copyright law appear to be the insane mess it truly is. Remember, under the Constitution, the sole reason that Congress is allowed to enable copyright protections over creative works is to “promote the progress of science and the useful arts.” In short, copyright in the US (under the Constitution) is designed as an economic right in order to create an incentive for the production and distribution of creative works.
Now, who the hell takes 10,000 photos of their pet because of the copyright granted on those pictures? The answer is basically no one — with the possible exception of a few professional photographers who sell images of animals. Most of us don’t need the 10k photos of our pets locked up under copyright for the rest of our lives, plus an additional 70 years.
Indeed, this tweet by the Copyright Office succinctly reveals the absolute insanity in American copyright law post-1978 when we moved from a copyright system of “formalities” (i.e., you need to register your works to get the copyright) to automatic copyright, where everything that meets the low bar of creativity gets an automatic copyright at the point of fixation. Even if you believe in the necessity of copyright for protecting professional creators, authors, artists, etc., the idea that you’re happy and excited and bragging over the fact that it covers the kind of artwork that needs no such incentive, is not intended for economic purposes, seems pretty messed up and really raises questions about the Copyright Office’s understanding of the underpinnings of copyright law in the first place.
Oh, and it gets worse. Someone on Twitter responded to the Copyright Office by asking “what is the legal position on retweeting this?” and the Copyright Office gave really bad advice:
In case you can’t see that, it says:
All government created work is part of the public domain, meaning you can freely use and reuse it. As cat people, we’d welcome it.
But… that’s wrong. Specifically, it’s wrong in that the photo in question is not a government created work. As the photo itself shows, the photo is from photographer Alena Ozerova, a Russian photographer, and the image is available to license via Shutterstock. Odd that a Copyright Office that is gleefully claiming that photos of cats are covered by copyright, then freely (and incorrectly) suggests that the image it’s tweeting is in the public domain, when that absolutely does not appear to be the case — and that’s not even getting into the question of whether or not retweeting copyright-protected material would be fair use or infringing.
Either way, the whole sequence of events seems like an abject lesson in how screwed up American copyright law is that even the US Copyright Office is both gleefully celebrating unnecessary copyrights that appear to go against the Constitution, and then claiming an actually copyright-protected image is in the public domain.
Update: Hilariously, many hours after giving the misleading advice regarding public domain materials, and after multiple people pointed out on Twitter that they had given an incorrect explanation, the Copyright Office then came back to clarify its earlier misleading tweet. Which brings up a neat follow up point: when even the Copyright Office can mislead the public about copyright in such a way that it has to come back and qualify its earlier incorrect tweet, how the hell are every day people expected to not accidentally infringe?
Why Is The Copyright Office Celebrating That All Our Cute Pet Photos Are Locked Up Under Copyright?
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Stoel Rives had a good 2018, making $225,921,000 in gross revenue and ranking 134th on the Am Law 200. But that historical success is no match for COVID-19. Even Biglaw firms with strong financials find themselves worried about cash flow and the coronavirus economic downturn. As such, austerity measures are the order of the day.
The firm, like so many others, is using a combination of cost-cutting measures to weather the COVID-19 storm. Salary cuts and staff furloughs feature prominently in their austerity plans:
• Reducing partner distributions by 20% effective April 1.
• Effective May 1: implementing tiered hourly reductions for staff with corresponding pay reductions: 5% for those earning less than $75,000; 10% for those earning $75,000-$100,000, 15% for those earning $100,000-$150,000 and 20% for those earning over $150,000.
• Also effective May 1: Implementing a 20% pay reduction for associates, staff attorneys, and of counsel attorneys; on an annualized basis, a 20% cut starting in May through the end of the year would equal a 13% reduction.
• Furloughing approximately 10% of staff members, beginning April 17, 2020 for at least 90 days. Furloughs are temporary, and staff can be called back to work if economic conditions improve. Benefits will continue during the furlough period at the same level they exist now.
• Continuing the existing hiring freeze and spending freeze.
• Deferring staff bonuses.
• Eliminating associate bonuses based on hours and implementing discretionary-only bonuses.
• Eliminating firm reimbursement for perks such as parking and public transportation.
• Evaluating administrative budgets for additional spending reductions.
The firm’s full statement is below.
If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).
If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
“For Christ’s sake men—come on! Do you want to live forever?” – Sergeant Major Daniel Daly, U.S.M.C.
Probably my proudest moment in my legal career was as a third-year associate. I’d been up for God knows how long and was getting out a document production. We’d had some last-minute technical issue, and it was likely going to be going out a few minutes past midnight, which in retrospect was a self-imposed deadline, but I really wanted to get it out by midnight. Also, at that point I’d been doing two-a-week productions for about a month, so I was feeling especially invested in the whole production enterprise.
At some point while I’m walking around the office, the only person on the floor, waiting for the technical issue to resolve, I hit a wall fatiguewise and thought I might collapse. I was together enough to realize that I might fall and hit my head or have an aneurism or something, and if that happened, no one would find me until the next morning.
What I’m proud of are my next two thoughts. The first was that if I was found dead the next morning, that would be a great excuse for the production being late, and it would help the case. The second was that I was going to be a damn legend posthumously. It’s easy to talk a good game, but then you live in constant uncertainty, wondering whether you’ll live up to it when put to the test. When you do, it’s an enormous relief.
Tracing The Problem
For most of my life, I assumed everyone — especially litigators — thought like this. It wasn’t until I was in my mid-30s that I realized that some people didn’t think like this, and weren’t ready, like Harry on St. Crispin’s Day, to go out in noble glory if the professional circumstances required it.
Maybe it was the people I hung out with in college. I remember when my college friends and I read about the Japanese concept of karoshi — death by overwork — how impressed we were at how seriously the Japanese people took their jobs and how great it was that they celebrated those who truly took it past the limit. It wasn’t until much latter that I realized that it was generally considered a bad thing and not, in fact, gloriously celebrated. I was disappointed.
In college, we also used to read and talk about Dennis Block, the legendary then-Weil Gotshal partner who was rumored to throw staplers at associates. This seemed totally normal to us, and we’d sit around and talk about how great it would be to work for someone who was so passionate and debate whether it was acceptable to dodge. We finally decided that if he didn’t say anything you should dodge (as it showed off your reflexes), but if he said “Don’t move” before the throw, then obviously you stood and took it.
Another time, when I was working, I got a decently ugly head injury during lunch after I tripped while trying to get out of the way of a tourist taking a photograph. Shirt drenched in blood, I spent half an hour in a hotel bathroom trying to stop the bleeding with a paper towel while people kept coming in asking me if I was okay — the usual. Once I stopped bleeding, I went into the office without even thinking; obviously, you go back to the office. It showed a proper work ethic and would be important to clients: they obviously wanted the type of firm where associates show up at the office drenched in their own blood. Who wouldn’t? And we shared a building with Debevoise, so there were real stakes in play if the right client saw me in the lobby and started asking questions.
So maybe the lesson is that lightweight rowers have atypical life experiences — although no one can ever take away from me my personal best of losing 10 pounds in 12 hours — or maybe I watched too many Aaron Sorkin shows in my youth. But it seems most people don’t think like this.
The Problem: Clients Deserve Better
Why is this a problem? Because clients deserve better. They trust us to be dedicated to their cases and to getting the best result. Pigs, not chickens, and so forth. I’m reasonably certain that if you ask most clients dealing in high-stakes litigation whether they’d expect their litigator to, if push came to shove, take a bullet for them, and they had to answer truthfully, the answer would be yes. And to be fair to them, most high-stakes litigations are dealing with amounts exceeding the actuarial value of a human life.
In perspective, this isn’t an unusual ask. Military personnel, police, and firefighters put their lives routinely at risk, and make much less than commercial litigators. And to that, now we can add medical personnel in the current climate. It’s almost insulting for us to act like we deserve some special treatment.
Character Is What You Do Under Pressure
Yet many litigators seem to think they deserve special treatment, and value their own safety over winning for their clients. I’ve lost track of how many blast emails I’ve seen from law firms — not to mention other service providers — assuring clients that the safety of their staff is their highest priority. But if I’m a litigation client, this is stunningly tone-deaf: I just care about winning my case.
Some litigators may think that their clients don’t think like this — but they don’t understand human nature. Sure, most litigation clients won’t admit it, and maybe many won’t even admit it to themselves. But they’re thinking it. In their heart of hearts, they are rightfully judging you for your lack of dedication.
But It’s Never Too Late To Change
But if there was any time to turn over a new leaf, you won’t get too many chances better than this. Wherever you’re off socially distancing yourself, this is your big opportunity to take the change in routine to become better, faster, stronger, and less afraid. Don’t let it pass you by.
Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.
(Image via Getty)
At some point, perhaps in a few weeks or so, it will be easier to track the Biglaw firms that aren’t cutting salaries than those that are. But right now reports of salary cuts are coming in quickly, and each one has an impact on the overall landscape of Biglaw.
The latest firm to cut salaries is Snell & Wilmer, a firm with $262,000,000 in 2018 gross revenue making it 120th in the Am Law 200. Tipsters report Snell Wilmer is cutting associate salaries by 10 percent. Some staff, those who can’t work remotely, are also being furloughed, and the firm will keep paying their portion of benefits and give them legal advice to navigate CARES Act benefits.
Matthew P. Feeney, chair of the firm, provided this comment:
Since the onset of the COVID-19 pandemic, Snell & Wilmer has been committed to doing everything possible to ensure the health and safety of our staff, attorneys, clients, and communities, while continuing to provide the highest quality legal services in a timely and efficient manner. Consistent with that commitment and in furtherance of the long-term success of the entire Snell & Wilmer family, we announce the difficult decision to implement pay reductions at the firm and furloughs for certain employees who are unable to work remotely due to the nature of their positions or whose work has significantly declined because of the current crisis.
In May, partners’ monthly draws and the base salaries of non-partner attorneys will be reduced by 10 percent. Administrative professionals will see reductions from 1 percent to 10 percent depending on their annual salaries.
The furloughed individuals are valued members of the Snell & Wilmer team and we expect to bring them back following the furlough. The firm will cover both the employer and employee portion of health, life, and long-term disability insurance premiums for all furloughed employees. Snell & Wilmer attorneys are assisting furloughed employees in obtaining unemployment and CARES Act benefits. These employees have also been invited to participate in our weekly staff town hall meetings.
These decisions were difficult, but we believe they will best serve our clients and our team. Going into this pandemic, Snell & Wilmer has never been stronger. We know this extremely challenging time will pass.
Best of luck to those dealing with austerity measures.
If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).
If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
The COVID-19 epidemic has been particularly hard on the elderly. Not only does it kill them in distressingly large numbers, but in order to keep it from doing so, we have to do even more of something which we’re already pretty good at doing as a society generally: Ignoring them to molder away in lonely isolation with minimal if any human contact. As such, we’re told to check in on our older friends, family and neighbors. Give them a call. Wave to them from the street. Buy them so groceries or pick up their meds or whatever else we can do at a safe distance.
Well, there’s a 96-year-old man in California with a lot of time on his hands who could use some fucking phone calls, people.
Surely hordes of corporate executives must be calling Berkshire begging for capital?
“No, they aren’t,” said Mr. Munger. “The typical reaction is that people are frozen. Take the airlines. They don’t know what the hell’s doing. They’re all negotiating with the government, but they’re not calling Warren. They’re frozen. They’ve never seen anything like it. Their playbook does not have this as a possibility.”
He repeated for emphasis, “Everybody’s just frozen. And the phone is not ringing off the hook. Everybody’s just frozen in the position they’re in.”
That being said, since this nice Wall Street Journal reporter decided to check in on old Charlie, he thought he’d ask the Berkshire vice chairman what he’s been up to these days. The answer is, contra the immoral Bill Ackman, not a whole hell of a lot.
“We just want to get through the typhoon, and we’d rather come out of it with a whole lot of liquidity. We’re not playing, ‘Oh goody, goody, everything’s going to hell, let’s plunge 100% of the reserves [into buying businesses].’”
He added, “Warren wants to keep Berkshire safe for people who have 90% of their net worth invested in it. We’re always going to be on the safe side. That doesn’t mean we couldn’t do something pretty aggressive or seize some opportunity. But basically we will be fairly conservative. And we’ll emerge on the other side very strong.”
So, please, desperate executives, give Charlie Munger a call and ask for some money. He’ll say “no,” but if you don’t, he’ll have enough time and money to make sure no undergraduate ever wakes up to natural light again.
Charlie Munger: ‘The Phone Is Not Ringing Off the Hook’ [WSJ]
Great news, America! We may be confined to our homes during a deadly pandemic, but at least we won’t have to suffer through yet another Roger Stone hearing. Describing his motion as “a tower of indignation, but at the end of the day, there is little of substance holding it up,” Judge Amy Berman Jackson denied Stone’s petition for a new trial based on juror misconduct. Turns out, you can’t claim evidence is “newly discovered” just because your lawyers and jury consultants couldn’t be bothered to do a Google search during the trial. Who knew?
In November, a jury convicted the self-described dirty trickster of obstruction, false statements to congress, and witness tampering. After a sustained attack on the prosecution by Donald Trump and his merry band of howler monkeys, the jury foreperson identified herself in a social media post defending the Justice Department’s handling of the trial. At which point, the defense team had the novel idea to do a Google search of her name and social media presence.
The juror had straightforwardly admitted in the jury questionnaire that her social media might contain posts commenting on the Russia investigation. And yet, it failed to occur to anyone on the defense team to investigate this further before the trial. Nor did it occur to them to ask her any further questions about potential bias during voir dire.
As Judge Jackson noted:
At the time of the trial, though, the defense made a strategic choice not to look for social media information. None of the seven lawyers or the two jury consultants on the defense team performed the rudimentary Googling that located this set of Facebook and Twitter posts: not 7 during the two months they were in possession of the entire set of jury questionnaires with the jurors’ names on them; not during the four to five days before trial when they knew the exact order in which the members of the jury panel would be questioned and seated as jurors; not during the two days of jury selection; and not overnight after the twelve jurors and two alternates had been picked and instructed to return the next morning to be sworn.
And what did Stone and his illustrious counsel discover once they figured out the password for the WiFi? They found that the juror doesn’t like the president. And that she is a Democrat. And that she got her photo taken with Democratic strategist Donna Brazile once in 2008. All of which is perfectly consistent with her admission that she’d run for Congress as a Democrat and served in local political groups when she lived in Tennessee.
But to Roger Stone, it was “newly discovered information” which proved that the foreperson’s “answers were equivocal, misleading, deceptive, evasive, and fallacious.”
Deriding his “parade of adjectives,” Judge Jackson noted that dislike of the president does not equal bias against Roger Stone, as “linking them together in a sentence does not make them one and the same.” Because who would think that a low-rent, hanger-on ratf*cker had any power in Washington, anyway, right?
At bottom, the motion appears to be based on the defendant’s assumption that the juror must have known who he was, what his relationship with Donald Trump has been over time, and what role he played in the campaign, and that since he was so central to the election, one could not possibly view him independently from the President. See Mot. Hr’g Tr. at 45–46. But there is no basis to conclude that Roger Stone was a household name in either Washington, D.C. or in the foreperson’s home state, particularly given his short and informal association with the campaign.
Noting that the juror only made her social media private after the president sicced his wingnut minions on her, Judge Jackson observed that “the problem is not that the material could not be discovered; it was not discovered. And it was not discovered because no one was looking for it.” None of the five lawyers, the paid jury consultant, nor the Defendant himself — who knows a few things about social media, from his own assiduous trolling — could be bothered to type this woman’s name into their phones. FFS, the courthouse itself has WiFi!
Whodathunk that a legal team which stumbled into the case by botching the pro hac vice motion would make such a boneheaded mistake? What a shocking turn of events!
US v. Stone [Memorandum Opinion , USA v. STONE, No. 1:19-cr-00018-1 (D.D.C. Apr 16, 2020)]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.
(Photo by Dimitrios Kambouris/Getty Images for ULTA Beauty / KKW Beauty)
Law students have a tough job during the pandemic in trying to balance the rigors of academic learning with the harsh realities of COVID-19 life. And Netflix, so they definitely have to balance some good old-fashioned binge watching in there.
And like everyone else in law school, Kim Kardashian has to balance these (and running a multimillion-dollar business) pulls on her time. Okay, technically Kim isn’t in law school, what with not having a bachelor’s degree and all. But she is studying via apprenticeship to be a lawyer, and she even has plans to take the bar exam in 2022.
Faithful Above the Law readers will be familiar with Kim’s social media documentation of the the process. She shared a criminal law issue spotter that cast Justin Bieber as a criminal mastermind, complained about the fact that law student life sucks, explained that she neglected her Keeping Up With the Kardashians livetweeting duties to keep up with torts homework, bailed on summer holiday festivities as she continued with her contracts homework, and dealt with personalized questions all about her. She even has a favorite law professor — University of Washington contracts professor Steve Calandrillo — who she’s shouted out on Insta.
Going by her latest post, Kim is enjoying both studying AND Tiger King… which… makes her more relatable than anything on the last three seasons of KUWTK. Anyway, here’s the question she shared from JD Advising:
In case you didn’t catch that, here’s the question for you to puzzle out:
A woman visited a tiger rescue zoo with her family. While she was there, she tripped over a tiger’s tail and injured her arm.
Who should the woman sue and what is her best theory of liability?
(A) The owner of the zoo, for negligence.
(B) The owner of the zoo, for strict liability.
(C) The owner of the zoo, since a tiger zoo is considered an abnormally dangerous activity.
(D) Carole Baskin.
Think you know the answer? Check out the full answer and explanation here.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
(Image via Getty)
Yet more decisions between bad and worse are upon us. The class of 2020 is due to start arriving in less than six months. There’s not going to be enough work for them; they should be deferred.
There’s no abnormal reputational risk in announcing deferrals now. It would be well received by current associates who’ll recognize it avoids increasing the competition for what work is available.
It’s tempting for firms to delay announcing decisions about the arrival of the class of 2020 as we await greater clarity. However, we are already past the time in 2009 by which most firms had announced. There’s also an important benefit to incoming associates from moving soon: delay weakens their prospects of securing prestigious paid public interest work and entry into elite LL.M. programs.
— Hugh A. Simons, formerly a senior partner and executive committee member at The Boston Consulting Group and chief operating officer and policy committee member at Ropes & Gray, arguing that, given historical perspectives from the Great Recession, the associate class of 2020 should be deferred.
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.