Author: TSA Press

This column is for the newbies among us, now adorned with their shiny bright law licenses, who are headed off to court for their first appearances without having received much (or any) instruction or guidance from whomever assigned them to the appearance. Oftentimes, it’s just a casual hand-off, a “make this appearance for me,” rather than any cogent explanation of what to expect, what to say, and the like. A lot of this advice may sound simple, even stupid, but better to be forewarned and prepared.

Never, ever be late to court. If you are going to be late, call the courtroom and let them know. Most courts will allow you to put over your matter to “second call,” usually 30 minutes to an hour later. Just make sure your court is one of them and that your phone is fully charged. Be early if you can. Make sure you have sufficient time to do whatever you need or want to do beforehand.

Hopefully, by the time you appear, you have business cards to take along.  Don’t forget to bring the file with you, at a minimum the file that has the pleadings and other documents that may be needed. You never know if you will need to refer to something in the file, especially if there’s disagreement about some point.

Find out from courtroom staff if — and I’m sure the answer is “what” — idiosyncrasies the court may have. I still cringe at the memory of taking an exhibit to a witness and walking through the well (the sacred space between counsel table and bench). I can still see Judge Aaron come unglued as I trespassed. I needed to learn that lesson only once.

While at counsel time — by the way, do you know which side of the table to stand behind? Plaintiff’s side is closer to the jury box — never interrupt while another counsel is speaking. Resist that temptation. Stifle yourself. Wait your turn. Don’t be intimidated; if counsel has misstated something, correct it. If the court has misunderstood something, you need to correct that in the most polite, respectful way.

If a tentative ruling has been posted online, make sure you have a copy with you and that you have read it (and understood it to the extent possible, since sometimes tentatives are not models of clarity). If the tentative is in your favor, keep quiet. If not, be prepared to try to persuade the court to change its mind. However, know that the court does not want to have you reargue what’s in the pleadings (so you better have read those). Be concise and address the court’s questions. Don’t blither; answer the question asked. If you don’t know the answer, say so. There’s nothing worse than looking foolish before the court. (Been there, done that.) Make sure you take notes, and make sure you understand all of the court’s rulings.

Never ever argue with the court once it has made a ruling. Don’t storm out of the courtroom in a snit if you’ve lost. Not only bad form, but judges talk (why should they be any different from lawyers?) Courts notice such conduct and file it away for reference next time there’s an appearance on that matter. Court clerks have steel trap minds for remembering behavior, ditto bailiffs, and if you are not respectful to the court, you are also dissing the staff at the same time. Always say “thank you, your honor,” even if “thanks” is not your preferable word choice.

The court will ask whether notice is waived. Do you know what “notice” is? My preference was to never waive notice, and I was always happy to be the one to prepare the notice of anything and everything that was determined at the hearing. I did it because I couldn’t always rely on  opposing counsel to be diligent in getting the notice filed and served, especially if counsel had lost the motion. Yes, I was and still am a control freak, especially in litigation. Aren’t we all?

It’s critically important that the record is clear. What can (and does) happen is that down the road there’s a disagreement as to what the court held at that hearing. The court’s minute order is important, especially if notice has been waived. What’s a minute order? It’s a recap of what happened at the hearing, prepared by the court clerk, and made a part of the record. It’s not signed by the judge; that’s a court order, which oftentimes is prepared by one attorney or jointly and then submitted to the court for its review and signature.

Relax; every attorney (or almost everyone, except for those who have never gone to court) can regale you with war stories about their first court appearances. We survived, at least I think we did, and you will too.

When you get back to the office, find out who should let the client know. If it’s bad news, then it’s good practice to learn how to deliver it. If it’s good news, then relish telling it; that doesn’t necessarily happen very often.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

This year, the Legal Department Operations survey asked respondents to rate their maturity in various areas of operation, including Contract Lifecycle Management (CLM) technology.

Among those respondents who used CLM tech (just over 80 percent said they did), half put their maturity at either a 1 or 2 on a scale of 1-5. Conversely, less than 1 percent of respondents who use CLM technology consider themselves power-users, rating themselves 5 out of 5 for maturity.

In other words, while many legal departments have adopted CLM, many are just beginning to leverage the technology in their practices. Some departments are in their infancy, using CLM technology solely as an electronic repository post-execution.  More mature departments will use CLM for pre-execution activities, like template management, clause libraries, and automated approval workflows.

Another indicator of CLM maturity is found within the survey in response to questions about the collection and utilization of metrics.  Asked which contract management metrics departments track with their CLM, the most common response is “contract volume by customer, partner, program type, and geography.”

This is important data to gather as a starting point for a company. But it is very basic information and telling of the unrealized potential of CLM in today’s legal departments.

In truth, this is totally to be expected with new technology, especially when that technology handles something as sweeping and complex as managing contracts across highly matrixed, global enterprises.

Contracts are language-based and unstructured, meaning they do not lend themselves to straightforward data analysis the way, say, external legal spend does. On account of this challenge, early CLM systems were little more than a repository to store and share contracts across the enterprise.

However, today’s contract management software, leveraging the power of artificial intelligence and cloud computing, can do much, much more.

Best-in-class CLM technology can extract contract data and metadata at scale to give enterprises deeper and wider views of their contract landscape. This means business can be done faster, risk can be reduced, and operations can be optimized.

But it doesn’t happen overnight. To fulfill their goals regarding CLM maturity and use of CLM data, legal department operation professionals should take a “crawl, walk, run” approach to enterprise contract management.

Such a progression might look something like this:

Crawl: A common early step for legal departments adopting CLM is to measure contract volume to get a comprehensive baseline for what your contract landscape looks like. How many contracts are touched by your legal department? The survey suggests that many legal departments are already at this stage, but if you are part of the 20 percent not yet using CLM technology, this is a good early project to start on.

Walk: With contracts digitized and quantified, legal departments can start to measure things like contract turnaround time and delays in approval and contract value. With this data, LDOs can identify bottlenecks, revise workflows and measure improvements over time. For instance, armed with this type of information, high-value contracts can get automatically routed for review to the pertinent attorney or subject matter expert; executives gain instant insights into the company’s most important contractual relationships; and risk can be more quickly surfaced and addressed.

Run: Finally, legal departments can begin to mine contract clauses for a global understanding of how contracts are deviating from standard terms and how the company is doing at fulfilling obligations and extracting maximum value from their contracts. At this point companies can leverage the technology to reduce litigation and improve outcomes — thereby becoming a true, strategic partner in the business.

Contracts form the foundation of commerce, governing every dollar in and out of the enterprise. Legal department operations professionals can accelerate, protect, and optimize their businesses with mature, robust contract lifecycle management technology.

For some reason, lawyers always feel the need to speak their minds, even if there’s not much in those minds to begin with.

With the campaign season revving up, inboxes — both physical and virtual — are filling up with requests for donations from candidates hoping to be elected to offices ranging from dog catcher to POTUS. Most of us sift through the emails and either donate or toss the message accordingly. It’s at best a 10 second imposition on our daily routine to reject a flyer from a candidate we don’t like.

And while participatory democracy is a laudable ideal, ranting at a fundraising email isn’t really what Jefferson had in mind.

Peter Khalil is a Stanford Law grad running for the U.S. House in Washington’s Third District. As one might expect, he’s sending out fundraising emails. One of these found its way to a fellow Stanford Law grad who felt it wasn’t good enough to just ignore and decided to offer some concrete policy disagreements. And by “concrete policy disagreements” we mean a rant calling the candidate a commie and a “soyboy.”

There’s strong “old man yells at cloud” energy on display here, but even though 39 years was a long time ago, age is probably less of a factor here than professional hubris. There’s a clutch of attorneys out there that sense with metaphysical certainty that their J.D. entitles them to an opinion on everything and, more disturbingly, an unshakeable belief that anyone else cares about that opinion. It’s a trait that’s all the more problematic because attorneys usually are some of the smartest people in the room and could make genuine contributions if they felt just enough humility to educate themselves before popping off.

Honestly, the problem here isn’t so much the childish, ad hominem attacks, it’s that they aren’t even clever childish, ad hominem attacks. When you stray too far from parody, it’s not window dressing on a well-meaning argument, it’s just a sad proxy for substance. Unfortunately, the right has created a virtual circle jerk to applaud each other’s vapidity one “soyboy” joke at a time. And if that atmosphere wasn’t already insufferably toxic… now they’ve got law grads.

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.

Hong Kong protestors are fighting for their freedom, but that’s not the only story out of Hong Kong right now. Since the early 1990s, Hong Kong has had intimidating legislation in place that criminalizes any involvement in a surrogacy arrangement where negotiation payments to locate or hire a surrogate are made at the outset. It doesn’t matter whether the surrogacy happens in Hong Kong or elsewhere in the world. The language is broad, and pretty much sucks everyone in -– the surrogate, the intended parents, agencies and other intermediaries, and, yes, even attorneys!

Recently, a Hong Kong court had two surrogacy cases before it, testing the true intent and enforcement of the law. The cases are familiar stories. In the “FH Case,” a married heterosexual couple had two children but very much hoped for another child. The couple were both U.S. citizens, but maintained permanent residency in Hong Kong. Due to medical concerns, the wife was unable to carry another pregnancy, and the couple looked to surrogacy options in the United States. Using a surrogacy agency—which is common in America—the couple was matched with a California surrogate, who successfully carried twins, genetically related to both intended parents, for the couple. The intended parents’ names were listed on the U.S. birth certificates for the children, and the family soon traveled home to Hong Kong with the children on dependent visas. All things considered, it was a pretty normal surrogacy journey.

Happy ending right? Oh, not in my column. The couple realized they had an issue only when, almost two years later, they traveled back home with their children after a trip. The couple was open and truthful with the Hong Kong immigration officials as to the circumstances of the children’s conception, and they were informed that they needed to petition the Hong Kong courts for parental recognition.

Some Major Problems.

1. The Parentage Application Is Time Barred. Unfortunately, they were walking into a sticky situation. Hong Kong’s Parent and Child Ordinance (PCO), Cap 429, s. 12 — under which they needed to petition to be named the legal parents of their children under Hong Kong law — required them to file a petition within six months of birth.
2. The Compensated Arrangement = A Criminal Offense. The other not-so-inconsequential problem was that under the Hong Kong Human Reproduction Technology Ordinance (HRTO), Cap. 561, s. 17m, it is a criminal offense to pay money to an agency for the purposes of locating or hiring a surrogate — whether in Hong Kong or elsewhere. Uh … oops. Under their California arrangement, the intended parents had paid all the usual U.S. surrogacy negotiation fees and, therefore, committed a criminal offense.
3. The Attorney May Also Be Committing A Crime! To make matters worse, if an attorney assists with the arrangement — you know, like helping the intended parents apply to the courts to be recognized as the legal parents as they are being told to do -– the attorney could also be caught by the criminal statute because the arrangement involved payment to an agency that set up the surrogacy arrangement! Fortunately for the parents, at least one BigLaw firm — my own alma mater Sidley Austin (along with Michelle and Barack Obama’s) — did not shy away from the challenge.

Think Of The Child! The court ruled that the best interests and welfare of the children must be paramount; and, therefore, the legislature could not have truly meant to ban those who missed the six-month deadline from being recognized as parents. Such a result would penalize innocent children. The court analyzed the importance of parental recognition in Hong Kong — including the usual rights such as inheritance, as well as the ability to register the children for kindergarten. The court ruled that the six-month requirement could be overlooked, and that the court could, and did, find a legal parent-child relationship, despite a late application.

What about those illegal payments? Well, in good news, the criminal statute has a six-month statute of limitations for prosecution. So, when they missed the six-month window to apply for parentage, the intended parents had also made it through the six-month window where they could have been criminally prosecuted. And while the Court waived the six-month requirement for a petition for parentage, it did not suggest that such a waiver was likely to also be given for prosecutors coming after intended parents, surrogates, or attorneys. After detailing the expenses paid by the intended parents, the court went on to authorize the expenses –- totaling over $108,000 in U.S. dollars — after the fact, as permitted by the statute.

What’s An Attorney To Do? I spoke with Marcus Dearle, a Hong Kong-based attorney with Bryan Cave Leighton Paisner and an expert in the area. Dearle explained that because of the original possibility of criminal sanctions, prior to this ruling, the compliance team at his firm would not have allowed him to represent intended parents in such a case. A major difficulty, he says, was that many lawyers in Hong Kong wrongly assumed that the restrictions in Hong Kong would be exactly the same as the UK, and were unaware of the restrictions against them which did not exist at all under UK law. Now, he and fellow assisted reproductive technology  specialists are feeling more confident that they will not be subject to prosecution as a result of these judgments, and likely able to help similarly situated intended parents. Although Dearle notes he would first seek a Directions Order from the court as to a surrogacy representation involving payments made at the outset — but, now, he is cautiously optimistic that such an application would go favorably. He highlights the confusion about compensation generally that so often occurs — and that it’s perfectly legal to compensate the surrogate. It’s the original payments to agents when the surrogacy arrangement is negotiated that cause the problems.

A Second Positive Ruling. In confirmation of the Court’s new lenient stance, there was a second ruling in the past few months where the same judge once again disregarded the six-month petition deadline and retroactively authorized the payments in a compensated surrogacy arrangement. Throwing in a couple of other variables, this time the children were born in China, the embryos were formed with donor eggs, and the surrogate’s husband, curiously, did not even know about the pregnancy. Wait [record scratch], what was that last thing? I’m sure there is a story there -– but, sadly for us, the court did not go into it.

These rulings are good news all around: good news for FH and his family, good news for future surrogacy-assisted families, and great news for everyone now that attorneys have more leeway to provide legal guidance in Hong Kong without risking prison time.

For more information on best surrogacy practices when dealing with parties in Hong Kong, stay tuned for Dearle’s upcoming article in Legally Speaking, including his top ten tips for reducing the legal risk of surrogacy as it pertains to Hong Kong law.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

A shocking complaint has been filed in the Southern District of New York against Biglaw firm Fox Rothschild and counsel at the firm, Ian W. Siminoff. A former paralegal, Stephanie Jones, alleges claims under Title VII of the Civil Rights Act of 1964, New York State Human Rights Law and the New Jersey Law Against Discrimination. The complaint details escalating instances of sexual assault and harassment over a three year period.

The complaint alleges Siminoff repeatedly subjected Jones to physical touching, fondling her breasts and vagina:

On one occasion, while in Siminoff’s office, he closed the door and fondled Ms. Jones’s breasts. Ms. Jones pushed him off, told him to stop and left his office.

Siminoff’s attacks on Ms. Jones extended beyond the breast fondling attack in his office. He would stop by Ms. Jones’s desk and attempt to fondle her breasts and her body through her clothes.

On one occasion, when both were at the coffee machine, Siminoff put his hands under Ms. Jones’ dress and grabbed at her vagina.

Ms. Jones never touched Siminoff. Rather, she kept him at arm’s length to the extent she could.

According to the complaint, these physical assaults escalated to attempted rape:

In January 2015, after 5:30 p.m., during the work week, Ms. Jones found herself nearly alone on the 4th floor of the NJ office with Siminoff. During this encounter, Siminoff pushed Ms. Jones into a deserted bathroom and tried to have sexual intercourse with her.

Ms. Jones fought off Siminoff’s sexual assault.

In addition to the physical assaults, the complaint also details the sexual harassment Jones was allegedly subjected to. The complaint has over six pages of inappropriate texts that Siminoff sent to Jones. Some of what he allegedly texted Jones includes:

• “Don’t mind me, I’m just laying here at 3 am thinking about kissing your breasts.”
• “I’d like to pour that glass of wine on your naked body. As I see it, it trickles down your breasts, in between them, to in between your legs.”
• “I’m doing what I usually do when I think of you.”
• “Dreams about you last night. I always cum when I think of you!”
• “Let me know if you want to know how I did you in my dream, too”
• “I suppose there is the possibility, mind you, just a possibility, that kissing could lead to me doing you from behind?”
• “Three different images, one after the other: 1) you spitting my cum into my ex’es hair; 2) you inserting veggies into her ass; and 3) you fucking Andy while I was sleeping”

Siminoff also allegedly sent Jones pictures of his genitals. The complaint says that when Jones would block Siminoff from sending her texts, he would harass her until she relented.

The complaint also alleges that when Jones complained to the Office Administrator that Siminoff made her uncomfortable and was inappropriate, she was denied her request to no longer work with Siminoff. The complaint further alleges she was told if she was unhappy at the firm there were “plenty of other places to work.”

Tyrone A. Blackburn, attorney for the plaintiff, had this comment about the lawsuit:

“The discrimination, harassment and intimidation apparently rampant at Fox Rothschild epitomize precisely the hallmarks of sexual abuse that the #MeToo movement has chronicled and seeks to combat. That Ms. Jones suffered not just the indignity of harassing behavior but also her employer’s failure to act when she reported it is as appalling as it is illegal.”

We reached out to the defendants for comment, but have not heard back.

Read the full complaint on the next page.

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).

It’s bonus season in Biglaw, and the major firms are slowly but surely rolling out their bonus announcements and telling associates what they’ll be getting in their stockings this year. But Elie sees a bit of a Scrooge in the early first move and slow matching cycle. What’s going on with the legal market and are we really looking at a recession in the making?

His apartment is a mess of clothes after combing through every inch of his place — including all the trash bags.

The 26 year-old business student at Memorial University in St. John’s should be on his way home to Zimbabwe, but he’s stuck on his couch in his basement apartment.

“I am in a tight spot, because in that passport was my study permit, there was my U.K. visa, my Canadian visa,” he said. “So I am stuck, I can’t even go anywhere.”

Last week, he purchased two bags from the Winners on Stavanger Drive to carry what he needed on the long journey to Africa.

Tucked away

He realized he didn’t need both bags — but had already started packing them — so he took out what he owned and brought the black Guess duffel bag back to the Winners store.

Little did he know that tucked away in that bag was the most important document he owned, and according to store staff someone bought the bag on Saturday, before Mawora could get it back.

In an email to CBC a spokesperson for Winners said it feels terrible about Mawora’s predicament.

If people could just check their bags, maybe my passport is in there somewhere. – Leonard Mawora

The email goes on to say that the store can’t track the item, but “we fervently hope that a good Samaritan will find and return the documentation.”

Mawora’s heartbreaking story gets worse — he was heading home to mourn the death of his younger brother.

“It’s been really hard, because the world can be a lonely place,” said Mawora. “Since I lost my passport, I cannot even do anything.”

The international student has spent much of the past few days on the phone with anyone he thinks might be able to help.

Jeremy Eaton/CBC

The Zimbabwe embassy in Ottawa told him they could get him emergency travel documents to get into his home country, but without his Canadian student visa he can’t get back to St. John’s, and Mawora says it’s not easy to get documents in Zimbabwe.

“There are other people who have been waiting for this passport for more than two years and they still haven’t received this passport,” he said.

He told CBC the cost of a new passport would be approximately $700.

As a last resort he’s making a public plea to anyone who might have bought a black Guess bag from the Winners store in St. John’s over the weekend.

“If people could just check their bags, maybe my passport is in there somewhere,” he said. “Right now I’m stuck.”

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