Author: TSA Press

Ed. note: Please welcome Molly McDonough to the pages of Above the Law. Her writing will focus on client communications.

Everyone is paying attention to the coronavirus right now, except maybe Chicago St. Patrick’s Day revelers who thought it would be OK to pub crawl over the weekend.

Those partiers didn’t get the social-distancing message. But millions of others did. And they’re scared. They need reassurance and guidance, especially for situations that are already out of their control.

Think child custody, divorce, criminal defense, wills and trusts, guardianship, powers of attorney, advanced directives, contracts (many of which are in a state of disruption). The list goes on and on.

Companies I do business with are flooding me with notes about COVID-19. For the most part, these communications have been less than helpful. They read as self-serving and often rehash the same CDC information I’ve read a million times.

That’s not to say there aren’t some good client messages and connections happening.

Take Bay Area family lawyer Erin Levine, founder of Hello Divorce. After getting more than 50 questions about how the pandemic could impact divorce proceedings, she produced a helpful Q&A for her clients and, undoubtedly, many others looking for guidance.

In her piece, “Will Coronavirus Affect My Divorce?” Levine covers court dates and possible closings, co-parenting decisions, and child support if jobs are at risk. Levine’s team has since fielded more than 500 questions from the Hello Divorce form at the end of the blog post, her firm’s contact form, and via Instagram.

Utah lawyer Rebecca Long Okura also urged her clients and potential clients to prepare COVID-19 co-parenting plans sooner rather than later. She created a realistic hypothetical case profile to discuss the issues and then jumped into the comments to address specific questions and situations.

Long Okura sent the link to clients and has been working with them directly to address the co-parenting issues she raised.

I like these examples because they aren’t vague, cover-your-bases messages. They are specific to these practice areas and create opportunities for meaningful client connections.

Seattle lawyer Dan Harris is capturing his firm’s client worries and common questions at his China Law Blog. Given his firm practices at the epicenter of outbreaks in China and the United States, Harris has much to say on the topic. In his first of what I expect will be many blog posts, he summarizes questions in several key practice areas. Each of the topics in his overview would be good fodder for a personalized Q&A for lawyers reaching out to clients.

But even if you don’t have time to write a Q&A for your clients, you need to make a connection. Reach out. Let your clients know how to reach you and how you’ll stay connected to their current matters or if they need you for something else. No doubt, you would let clients know if matters get postponed. But even if they aren’t, your clients will be wondering.

The lawyers who are blogging, posting meaningful updates, and actively reaching out to their clients show they are knowledgeable and care about their clients. They also show they recognize their clients’ fears and are working on ways to provide answers at a time when sometimes the answer is, we’ll have to wait and see.

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Molly McDonough is a longtime legal affairs writer and editor. Before launching McDonough Media, she was editor and publisher of the ABA’s flagship magazine, the ABA Journal. She writes about access to justice at A Just Society.

Fighting isolation and loneliness amid a broad public health concern might seem more challenging, but the best way to do it is generally the same as in the absence of an outbreak: with intention and commitment. Schedule time to check in (by phone or video) with family and friends and keep the appointment. Even if you’re tired, make the calls and give yourself permission to be fully present for the conversations. In a time of increased stress, a sense of connection can be transformative and, for some, lifesaving.

—  Patrick Krill, an attorney who is a certified alcohol and drug counselor and works as a consultant to numerous law firms on mental health and substance abuse issues, in an op-ed about how lawyers and legal professionals can protect their mental health during the coronavirus outbreak that’s plagued the world.

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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.

When we started hearing that the Trump administration sowed the seeds for the lackluster response to this outbreak by firing the nation’s whole pandemic preparedness team a few years ago, it was genuinely disturbing how unsurprising it was.

But former administration officials are now pushing back against the report that Trump recklessly fired the response team of experts by claiming… he didn’t dissolve the team at all. An odd flex given that Donald Trump already admitted that he fired everyone in the office, explaining that he didn’t want people on the payroll when there wasn’t an active threat and “when we need them, we can get them back very quickly.”

And while being comically contradicted by Trump himself should end the inquiry, the managerial lackeys who actually staked their careers on this debacle are taking to the press to try and defend their crumbling professional reputations.

Tim Morrison, a former NSC official, wrote to the Washington Post claiming, “No, the White House didn’t ‘dissolve’ its pandemic response office. I was there.” It’s an editorial earning a lot of plaudits from John Bolton, Morrison’s former boss. who is also deeply implicated in this move since he oversaw the decision. Right-wing Twitter is sending it around in… I don’t know… some kind of weird attempt to claim that whatever Trump did with the team isn’t why the response has been so badly botched?

It’s also an editorial that seems to woefully misunderstand both “pandemics” and “preparedness.”

Morrison’s claim is that he ran the successor organization to the pandemic preparedness group, a move that cut most of the minds behind the original, but…

One such move at the NSC was to create the counterproliferation and biodefense directorate, which was the result of consolidating three directorates into one, given the obvious overlap between arms control and nonproliferation, weapons of mass destruction terrorism, and global health and biodefense. It is this reorganization that critics have misconstrued or intentionally misrepresented. If anything, the combined directorate was stronger because related expertise could be commingled.

This is where we can all take a lesson from Ford v. Ferrari.

When you take a highly specialized racing unit and say, “we’re making changes, firing your people, and putting you under the domestic sedan unit,” well, you end up losing Le Mans.

Morrison and Bolton are publicly arguing that they aren’t responsible for dismantling a highly praised pandemic team because they buried its mission under the auspices of an arms control and bioterror unit. Except those are security threats predicated upon predicting and remediating human state and non-state actors. Where, exactly, does a group born out of influenza responses fit? Because when your leadership is a bioterrorism hammer, everything becomes a nail. This is how you end up with 800 scenarios for a nerve gas attack on public transit and 0 scenarios for dealing with an asymptomatic pneumoniatic flu.

Like the revolving door corporate hacks that they are, the administration made its cuts about “efficiency” rather than “results” and somehow has the gall to pretend they were right when the whole operation crashes around them. Diseases might come from bioterrorism, but they’re far more likely to come from the serendipity of mutation. If some entity were planning a bioterror attack, it would focus on agents that are highly lethal and, necessarily, not highly contagious — diseases can’t survive when they kill the host. This is precisely why an organization charged with gameplanning terrorist attacks is ill-suited to deal with traditional pandemics. The whole frame of reference is wrong.

Dissolving the team would have been bad, but what the administration actually did was far worse. What they actually did was slit the throat of America’s preparedness for an outbreak like this while convincing themselves they still had a plan. Senior administration officials honestly believed they had this covered by their cut-rate bioterror team. The whole operation revolves around the idea that there’s someone to attack, someone to blame, someone to fire. But there’s no villain here and they can’t seem to grasp what to do about that.

If only they had some sort of “team” charged with “preparing” for something like this…

No, the White House didn’t ‘dissolve’ its pandemic response office. I was there. [Washington Post]
Trump disbanded NSC pandemic unit that experts had praised [AP]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Terror is a feeling we’re all getting used to keeping at bay. The novel virus COVID-19 seems to be coming for us all, indiscriminately afflicting friends and celebrities with equal ease. And even for those privileged enough to assume they can survive the health impacts, the economic downturn is looming, the first harbinger of which are the slew of restaurant workers that have just been laid off. It’s enough to make anyone want to bury their head in the sand until the whole mess blows over.

That (albeit, understandable) approach is pretty much the opposite of what Paul Weiss chairman Brad Karp did as the impacts of COVID-19 started to cascade. He’s decided to harness the awesome power of Biglaw to help those who are facing daunting economic realities. As officials on the federal, state and local levels are working to ameliorate those impacts, Karp is organizing pro bono efforts at Paul Weiss to help folks navigate those complicated waters. As he told Law.com:

“As these programs are rolling out, I believe we’re going to be able to help these individuals access emergency resources that would otherwise be unavailable,” he said.

On Saturday afternoon, he sent a firmwide email looking for volunteers to build a “swat team” to make sense of these resources. Within two hours, over 350 attorneys at the firm had responded by pledging their assistance. Another 25 to 50 have volunteered since the start of the day Monday.

“I’ve been chair of this firm for 13 years,” Karp said. “There’s nothing I’ve seen that compares to this.”

Those lawyers are already at work. They’re researching federal programs, New York state programs, New York City programs, other state programs, and private and charitable organization programs. They’re drafting FAQs, templates and other forms. And they’ll be staffing a 24/7 hotline to answer questions about all the programs.

Karp anticipates the firm will spend 2,500 hours a day on the effort, but he doesn’t think that’ll be enough. He’s calling on other firms to join in the effort so that the full power of Biglaw can be thrown at the problem:

“I think in the U.S. we’re going to need thousands of lawyers to step up and work with us on this,” he said.

Hopefully Biglaw heeds the call.

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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).

Pound for pound, it is hard to top reading attorney’s fees decisions as a worthwhile investment of time for patent litigators. They don’t come around so often, even in these post-Octane days of weaponized attorney’s fees motions in patent cases, but they have much to teach us. Take the case profiled in my June 2018 column on this issue. There, I noted how “patent litigation defendants who are clearly unprepared to mount a full defense of the case brought against them” were at risk of being tagged with attorney’s fees when their inevitable loss came along. And how, as a practical matter, patent litigators pitching for defense work would do well to make sure that the prospective client had the resources and will to take the fight to the end before signing on as defense counsel. Nothing magical, just an easy example of a lesson learned from reviewing just one attorney’s fees decision.

In addition to learning what to do to avoid an attorney’s fee award, attorney’s fees decisions are valuable for a few other reasons. For one, they often present insights into how district court judges weigh the merits of arguments made in patent cases. While a judge may or may not let the parties know whether a summary judgment or claim construction decision was a close call at the time it was made, attorney’s fees motions force that same judge to provide an honest appraisal of the strength or infirmity in the arguments underlying the critical decisions in the case. Additionally, attorney’s fees decisions are helpful in terms of analyzing the factors that lead to a patent case being decided on the merits, as opposed as through the overwhelmingly usual vehicle of settlement.

There is also a voyeuristic element to attorney’s fees decisions, at least for those of us interested in the costs of patent litigation. Yes, it is important to know what types of costs will be credited by the court to the winning party. But the juicier stuff often lies in the analysis of the fees charged by the winning side’s lawyers — including whether the judge in a particular case is willing to determine that those fees are reasonable. As we all know, hourly rates for senior patent litigators can easily approach four figures — and rare is the litigation firm (Biglaw or boutique) where even junior associate rates are less than three hundred or four hundred dollars an hour. While most attorney’s fees decisions involve some commentary from the judge as to whether such rates are reasonable, it seems like judges around the country recognize that patent litigation is a premium practice and is priced accordingly. So as long as there is no obvious overcharging, most attorney’s fees requests seem to pass muster more or less intact.

One thing, however, is clear about the overwhelming majority of attorney’s fees decisions to date. They hold tight to the traditional hourly billing model as the basis for determining fee awards. Which makes sense, considering how entrenched hourly billing for most litigation remains. At the same time, alternative billing models — such as flat-fee or hybrid arrangements — have taken hold, especially at the upper echelons of the litigation universe. In the patent realm, some of the leading proponents of alternative fee arrangements have been leading litigation boutiques, even as Biglaw IP groups have also been forced to compete by deviating from their sky-high hourly scales as well. While these alternative billing arrangements have taken root in patent disputes, there has not been much discussion yet of how to treat such arrangements in the context of attorney’s fees awards. Probably because so few patent cases actually reach that stage.

The scarcity of discussion on the changing reality of how IP firms charge clients for patent work in attorney’s fees decisions presents a challenge for clients, lawyers, and courts forced to confront such issues. I was happy, therefore, to see that a recent attorney’s fees decision addressed some of these thorny issues head-on. The case at issue involved Straight Path IP — a former darling of the publicly traded patent enforcement business era — as well as tech heavyweights Apple and Cisco. With the latter prevailing at trial and appeal, the inevitable attorney’s fee motion ensued. Once granted, the court decided to appoint a special master to sort out the fee awards to Apple and Cisco. While the award to Apple was relatively straightforward, Cisco’s use of alternative fee arrangements with its counsel made for a more interesting treatment.

In fact, the special master (Matthew Borden) did an excellent job of framing the issues around alternative fee arrangements in the attorney’s fees context. For one, his report discusses the increased adoption of alternative fee arrangements by sophisticated litigants like Cisco and Microsoft, as well as the motivations that make such arrangements attractive for those companies and their chosen firms. At the same time, the report recognizes that large contingency fees have traditionally not been recoverable for a prevailing party — and that under certain circumstances a flat-fee arrangement could mimic a large contingency fee if the result was achieved with fewer hours than expected. Or that “opportunity for mischief exists” with certain types of fee structures, particularly where the client and firm may be tempted to engineer a larger-than-necessary fee to gain leverage over a counterparty. At the same time, the report suggests that reasonable flat fees should be recoverable in patent cases, subject to some measure of accountability and judicial review.

Ultimately, the special master in Straight Path recommended that Cisco recover half of its expended fees, based in part on the unique circumstances of the case, including that Cisco had swapped counsel midstream. Despite the haircut, Cisco was entitled to recover nearly $2 million in fees — a sizeable sum by any measure. More importantly for both Cisco and future patent litigants, the report provides a welcome starting point for courts confronting flat fee arrangements in attorney’s fees motions. Because flat is the future, at least when it comes to fee arrangements in patent cases.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Lindsay Kennedy back to our pages.

In South Korea, we started our pandemic journey in late January. The Korean school my 3-year-old attends was closed for most of February and all of March. The American school on the military installation closed four weeks ago. My sexy husband, an active-duty soldier, has been working long hours.  For all this time, it has fallen on me to guide my Kindergartner in virtual school, work, and handle everything, while not going anywhere except the commissary.

Our motto has become “Protect the Bubble!” Our bubble is our neighborhood. It is a two-street world with mostly Americans — military families. The working moms are all at home, the work-from-home moms are all still trying to preserve their career, and the stay-at-home moms are helping me keep it together.

It reminds me of my childhood in the 1980s. There are no activities for kids to attend. Snacks are given freely to the groups of feral children. And the kids play most of the day outside, after completing their schoolwork. When the weather is bad, I end up with five or six kids in my living room building forts and pretending to be gymnastic stars (because my house is the only place they are allowed to jump on the couch).

Somehow while all this goes on, I sneak upstairs and get a few minutes of research done. I do research and writing contract work for attorneys and want — no need — to keep doing it to maintain my sanity. I don’t charge much, but my brain needs this outlet in general, let alone during this challenging time.

The Korean people are rationing masks. Each day you can buy one mask and some days, based on the last digit of your birth year, you can buy more. They wear masks to protect others from their own germs, not to protect themselves. They find it rude when someone does not wear a mask, I was politely told by a friendly Korean woman.

In the beginning, we experienced what I called panic. For 24 hours, there was no meat, cereal, or crackers at the commissary. But within one day, shelves were fully stocked. We never ran out of toilet paper. The Korean grocery stores never ran out of anything.

This “panic” turned into exhaustion rather quickly and has remained at a stalemate for weeks. Even the kids are tired of playing at home all the time. The number of people who are diagnosed with the coronavirus is finally going down each day. We can see a light at the end of the tunnel.

The lockdown is hurting many businesses and some are finding ways to adapt. Restaurants are re-inventing their take out options. Others are closing permanently.

It took me a long time to understand that I am not doing this to protect myself or my family. We are not high risk; we are not even medium risk. If we got it, we’d be fine. In the 1980s, it was normal when a kid caught chicken pox for every relative and neighbor kid to come over to get infected.  The thought of doing this approach has crossed my mind.

But the more people that contract the virus, the more it spreads to those that are at risk. This country is the size of Indiana with the dense population of 1.5 times the population of California.  It has been very impressive to watch an entire nation give up so many personal liberties by choice to protect its most vulnerable citizens. Without this high-level of dedication, I have no doubt that millions would have died.

The relentless effort in tracing every step an infected person took is both frightening and remarkable. The locations are instantly released to the public and extensive sanitation follows.

We are not out of the woods yet. Lower numbers still mean new diagnoses daily. Weeks ago, one person with little-to-no symptoms went to a church service and within a day or two hundreds of cases could be traced directly to him. Even weeks later, Daegu, a city with a population of over 2 million, is still considered a hotspot — the entire city is off limits.

The schools are finally talking about opening up again. There is hope that our lives will be back to normal soon. But my mentality will forever be changed -– experiencing an entire nation work together despite it hurting their personal livelihood. Writing about it doesn’t begin to do it justice. It inspires me to do something for the greater good in this world -– I just have to figure out what that will be. Until then, we will keep protecting our bubble!

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Lindsay Kennedy is a part-time lawyer doing legal research and writing for other attorneys and military wife with two daughters in South Korea.  Lindsay is also the Executive Director of MothersEsquire, Inc.  She supports changes in the legal profession to allow for more non-traditional options so both parents are afforded the opportunity to enjoy their family. You can reach her at LKennedy624@gmail.com.

As the great George W. Bush put it: “Fool me once, shame on — shame on you. Fool me — you can’t get fooled again.” Wise words.

Generally speaking, Americans make fun of politician foibles way too often. A 24-hour news cycle has made punchlines out of wholly competent government officials who let slip easily decipherable miscues or get caught up in all too prevalent Twitter thumb or autocorrect errors. These people aren’t necessarily dumb because they say “million” instead of “billion.” Cut them some slack. FDR had polio and no one talked about it — Joe Biden says any of the goofy shit he’s said for DECADES and it’s two days of talking heads wondering if he’s senile.

But as the above Bushism counsels, it’s one thing to screw up once, but you can’t get fooled again.

Senator Marco Rubio, who in one of the saddest commentaries on modern American politics was “the smart one” in 2016, took to Twitter yesterday to calm American nerves over the looming government lockdown:

Of course, “Marshall” is Eminem and Rubio’s mistake convinced the country that Mathers was dropping a new album. In fairness, Marshall Law would be a pretty good title.

A passing chuckle is acceptable since he managed to spell it wrong TWICE in the Tweet, suggesting it wasn’t a mistake but that the University of Miami Law grad honestly didn’t know what “martial” is. Still, we can give him the benefit of the doubt and just say he might have had an autocorrect problem or something.

But then Rubio continues:

It feels like someone should have proofread the response. To paraphrase Waylon Smithers, I don’t that’s the right word because they spell and pronounce it differently. The last time I heard stupid rumors about “Marital” law, Marco Rubio was talking about the dangers of same-sex marriage. God, this guy hates homophones almost as much as homosexuals.

As of this morning, Rubio apparently hasn’t realized he screwed up his second Tweet and hasn’t corrected it to “Marshal” or “Marigold” yet.

Has anyone considered just taking away his Twitter? At least Trump’s feed is entertaining in an unfiltered crank sort of way. Rubio’s is just a string of nonsense from a man-child trying to sound important and smart. Back on March 7, when this disease was already well on its way to requiring comprehensive federal leadership, Marco Rubio was preparing to go on recess and Tweeting about Daylight Saving Time.

Despite the captions, Rubio referred to it as “Daylight Savings Time” proving once and for all that Jonah Ryan from the television show Veep is real and he’s exactly who we thought he was.

Dude, take a sip of water and sit this one out.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

The Centers for Medicare and Medicaid Services (CMS) and Department for Health and Human Services (HHS) implemented changes that would make it easier for hospitals to stand up telehealth programs in response to the Covid-19 pandemic. As healthcare workers face an influx of patients and limited protective equipment, telehealth will play an important role in helping triage and treat patients.

After President Donald Trump declared a national emergency over the new virus on Friday, CMS shared additional guidance on what it means for health systems. Hospitals will have more flexibility to reserve beds for the sickest patients, and providers will be able to work across state lines, making telehealth programs easier to implement in many states.

CMS Administrator Seema Verma said the changes would take effect retroactively, dating back to March 1.

“Our actions allow hospitals to reserve beds for the most severely ill patients by discharging those who are less severely ill to skilled nursing facilities; they bolster hospital capacity in rural areas by removing restrictions on critical access hospitals; and – crucially – they allow healthcare professionals to provide care across state lines more easily,” she said in a prepared statement. “I’ll also flag the expanded use of telehealth, allowing people to communicate with their providers from home and limit the spread of the virus. And this is just the beginning of our work on telehealth – we will have more flexibility coming in the coming days.”

HHS Secretary Alex Azar waived requirements on Friday that out-of-state providers be licensed in the state where they are providing services, opening the door to telehealth services that cross state lines. The changes apply to both Medicare and Medicaid programs.

States will also be able to seek Medicaid waivers to streamline enrollment and licensing requirements for providers.

These changes are on top of flexibilities passed earlier this month by Congress as part of an $8.3 billion emergency spending bill. Azar enacted the changes on Friday that would lift Medicare restrictions to telehealth in rural areas, allowing older patients to receive telehealth visits in urban areas and for in-home care.

Photo credit:  Medical University of South Carolina

* A mistrial was declared in a criminal trial in New York City yesterday after one of the lawyers experienced an intense coughing fit. Please attorneys, don’t try this on purpose… [New York Post]

* A Virginia lawyer has been charged with allegedly bilking a client out of over $400,000 in phony payments over a several year period. [VA Lawyers’ Weekly]

* Lawyers are trying to argue that a Detroit rapper should not be jailed because of coronavirus fears. Gotta hand it to the attorneys for trying every argument. [Detroit News]

* A lawsuit is attempting to secure the release of immigration detainees who may be at risk of contracting COVID-19. [Buzzfeed]

* A California lawyer is stuck on a cruise to Antarctica because of the COVID-19 pandemic. Apparently, there are around 120 doctors on board, so this attorney is in decent hands. [Sacramento Bee]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.