Author: TSA Press

Donald Trump and Elon Musk would not seem to have a great deal in common. Musk is, after all, a self-made immigrant who believes in climate change and is trying to wean the U.S. and world off of the fossil fuels that are quite literally at the heart of Trump’s politics and policy. But for all that, in many ways, they really aren’t so different. They’re both megalomaniacal Twitter addicts prone to ad hominem attacks, weakness at math and contempt for the law. They both went to Wharton and are thus super-geniuses. Oh, and they kind of need each other: Trump viscerally requires the kind of stock market boost that Tesla provides, and Tesla probably needs a good deal of federal help to keep that stock rising and driving David Einhorn insane. Oh, and neither is particularly good with words, as the president amply demonstrated in a long soliloquy to (appropriately) Joe Kernan in Davos.

The beginning of a new year is the perfect time for busy lawyers to take stock of last year’s achievements and to establish plans for being SMART about business development in the coming months. To maximize your business development time, my question to you is: are you being SMART about it? SMART is an acronym that stands for Specific, Measurable, Achievable, Relevant, Time Sensitive. A key benefit to the SMART framework is that you are concentrating time on the most essential areas of your business development activities. SMART provides you with focus, so you can actually achieve your goals.  

Let’s briefly review each area of the SMART framework:

Specific – Being specific means that the goal is clear on what exactly the action needs to be. Who do you need to include? 

Measurable – Can you quantify the goal? 

Achievable – Can you accomplish this goal? Is it attainable?

Relevant – Does the goal align with what you need to do right now? Why is this goal important to your work and your practice?

Time Sensitive – What can you do today? In a week? In a month? In 3 months?

For example, you might commit to raising your profile and building more relationships this year by focusing on industry conferences and associations (e.g., See my ATL article Essentials For Maximizing Any Conference). Use SMART to make that goal more meaningful to you by adding more specific and concrete objectives that foster accountability:

“In the next 90 days, I will identify conferences that bring together in-house counsel in the financial services industry. After identifying potential conferences, I will work with my marketing and business development team to register for at least one relevant conference.  After receiving the attendee list, I will reach out to at least 5 current or prospective clients in advance of the conference.” 

After drafting the goal, set up 15-30 minutes in the next 90 days to review your goal and see what progress you have made. If you achieved that SMART goal, it is a great time to set up another. 

In the beginning, I would recommend using one or two SMART goals to get started. After that you can develop as many as you feel are achievable.

So go ahead and be SMART this year! Reach your goals and set new ones. Having problems getting started? Feel free to drop me a line at my email below.

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Jason Levin founded Ready, Set, Launch, LLC®, www.readysetlaunch.net, after a career in brand management at Unilever, consulting at Accenture, and employer branding sales at Vault.com.  Business development, personal brand and outplacement coaching are his passions, and Jason partners with lawyers and law firms to further engage and develop attorneys through training and one-on-one coaching.  Jason works with his clients to develop a business plan, land that next client, elevate their personal brand, make a career change, or transition into retirement. Jason enjoys speaking on and moderating panels and presenting career and business development seminars and webinars at staff retreats, conferences and training sessions.  Jason is “an attorney by marriage.” You can email him at jason@readysetlaunch.net and follow him on twitter @jasoncareers.  

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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. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

Well here’s some news that’ll actually make you feel good — the top spot on the mastheads at the best law reviews in the country all belong to women. For the first time ever, the law reviews at the top 16 law schools — as defined by U.S. News & World Report — have all elected women to lead the publications.

This good news is a clear break from what has historically been true. As reported by Law.com, it wasn’t that long ago, 2012, when studies decried the law of women in exactly these kinds of leaderships roles.

That’s a significant shift from 2012, when a study by the nonprofit group Ms. JD found that women comprised just 29% of top editors at the flagship journals housed at the top 50 law schools. Women made up 43% of all law review editors in 2012 and 45% of all law review members.

As Above the Law readers are well aware, these editorial positions at top law schools are incredibly competitive. It’s great to see that not only are women going to law schools at record rates, they’re also excelling once they’re there:

“It speaks well to the progress that many law schools have made toward cultivating a more hospitable environment for women, people of color, and first-generation law students,” said Melissa Murray, a professor at New York University School of Law. “But credit should not go to law schools alone. The law reviews deserve credit as well.”

Congratulations to these outstanding women.

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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).

You’re not supposed to stop getting better, so make sure you are always getting better (though be careful what that means). And if you actually think you’re done, it’s time to get a new job.

I don’t think we ever used the term to described ourselves when I was growing up, but after I was somehow let in to what my third son would call a “fancy” college, I realized that where I came from would be considered a ghetto. Yes, it had its fair share of crime (I grew up in New York City in the ’70s and ’80s), but, more, it was a restricted and, in many ways, small place — restricted by ethnicity, by experience, and by worldview. As an example, when I left it to go to that “fancy” college I met, for the first time, a white Protestant (where I came from just about everybody was Catholic or Jewish). And that’s when I was exposed to the notion of being born again.

In my naive (and, I suppose, ghetto) way, I interpreted being born again to just being done with your religion: accept this, and you’re over the finish line, and all set. I know it’s not that simple. But, more than that, I rebelled at my limited understanding of the notion even then. How can you be all done?

Well, we can’t be, or, at least, I think we shouldn’t be, and that applies not just to faith but to profession. If you’re blessed enough like me and my colleagues to be a lawyer in America and believe it’s the right thing for you, you can never be done. This isn’t a sprint where we try to get over that finish line as I imagined it in college. The marathon metaphor comes to mind, but a career in the law is the New York City marathon: through different neighborhoods, up and down, over different terrain, crossing bridges along the way, and at times more than a bit odd.

What exactly does that mean for how we work and live and grow as lawyers? Certainly it means not embracing this extreme niche notion of being a professional, being the person who can handle some arcane legal problem and, perhaps, only that arcane problem (which, as a practical matter, worked out, for example, extremely poorly for those hundreds of well-paid lawyers a decade ago who handled only mortgage-backed securities work).

We need to keep expanding and pushing: handle new work. Work with new people. Try to get new kinds of clients. Read new articles. If you’re a trial lawyer like me: try cases in new courts or arbitral bodies. Keep getting better, but the real way of getting better — not just, or not even, more money, or more “prestigious” work, or more awards (I still think the term “Super Lawyer” sounds like it’s from a comic book). Keep developing as a work in progress as a lawyer.

But if that stresses you out — that you’re never going to quite know everything; you’re never going to be, or, at least, never should be comfortable; you’re always going to find yourself in a situation where, at first, you don’t have a solution — this simply may not be the job for you. I’m not being negative, but I am being serious. Gaggles of people go to law school for all kinds of bad reasons and then manage to become admitted lawyers. It doesn’t mean they all should be lawyers. And if the idea of constant growth stresses you out, then get out of this profession as soon as you can.

However, for those of us that don’t have much choice but to be lawyers, we have to be a bit impatient with ourselves. We should never be satisfied. We have to always push ourselves. We have to keep getting better at what we do and keeping helping our clients to win in the process.

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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at 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 john.g.balestriere@balestrierefariello.com.

Sauntore Thomas sued his employer for racial discrimination and secured a confidential settlement. When he tried to cash his settlement at TCF bank, they called the cops on him.

Despite having an account at the bank for almost two years, the bank thought Thomas’s settlement funds were fraudulent, citing a “VOID” watermark on the checks that suspiciously wasn’t an issue when he walked over to a Chase bank and opened a new account and cashed the check on the spot. But even if the check aroused suspicion for some understandable reason — which there’s not a great reason to concede — immediately calling the cops evinces a hair-trigger unwillingness to believe and willingness to raise the stakes up to 11 for a black patron.

“Obviously, assumptions were made the minute he walked in based on his race. It’s unbelievable that this guy got done with a race discrimination case and he’s not allowed to deposit the checks based on his case? It’s absolutely outrageous,” said [his attorney Deborah] Gordon, stressing all of this could have been avoided.

“They could have just called the bank that issued the checks, and they apparently didn’t do anything because it would have all been verified immediately.”

For its part, TCF points out that the teller who alerted the police is also black, which isn’t really a defense because acting on racial prejudices doesn’t actually require being white. Still, TCF says Thomas trying to cash checks struck them as a “highly, highly unusual request.”

People shouldn’t have to avoid checks just to steer clear of racial discrimination, but why wasn’t this just wired to his account? If the settlement came directly from the defendant as in this case where he received three checks from his employer it’s a simple enough transaction. Even if the money had first been sent to Thomas’s attorney, it could have then been wired to him from the trust account. If there’s any commingling concern either put in the retainer agreement that the client will be responsible for the $25 transaction fee or just reimburse him on the back end.

Some social media observers cite the warm feeling of getting a check with a lot of zeroes, but it’s the 21st century. This is the age of direct deposit. Wiring money isn’t a perk of the rich and famous anymore.

Gordon filed a lawsuit on Thomas’s behalf against TCF on Wednesday. Assuming this settles, maybe go for the wire this time.

Detroit man settles race discrimination lawsuit, then bank won’t cash his check [Detroit Free Press]

On Monday, Varun Mehta took over as CEO of Factor, an Axiom spinoff previously known as Axiom Managed Solutions. Mehta and Factor aim to take a bite out of the segment of the legal market that has previously been off-limits to anyone except Biglaw attorneys: challenging, sophisticated contract negotiations and compliance.

If Axiom’s history is any indicator, Factor is going to be a force in the industry. Axiom manages over $1 billion in active contracts and has over 2,000 legal professionals working under its banner.

The days of Biglaw lawyers ignoring alternative legal service providers are coming to an end. To find out what it means, Mehta spent part of one of his first days on the job talking with me about the legal industry and what’s ahead.

Why You Never Sell Legal Tech To Lawyers

Like so many of the movers and shakers in the legal tech space, Mehta is not a lawyer. He went to school for biomedical engineering but found himself on the founding team of Clutch Group, a legal analytics and compliance company. After spending time there as EVP and CRO, he ran Clutch for a year following its merger into Morae Global in 2017.

After exiting Morae in 2018, Mehta said he took some time off to evaluate the legal landscape and consult with tech incubators interested in the legal space. His advice was highly sought after. “Everyone knows legal is hot, but there’s not enough information out there about it,” he explained.

The conclusion Mehta eventually reached was counterintuitive: if you want to break into legal tech, you need to stop selling to lawyers. Unlike the corporate world, which has defined procurement procedures and obvious entry points for salespeople, Mehta found law firms have no internal drive to onboard new tech and no clear place for developers to sell. As a result, law firms remain permanently behind the tech curve, and even the best technologies marketed to law firms can wither and die. “It’s not the best tech that wins, it’s the technology that finds users and empowers them, helping them become owners and experts.”

Enter Factor, which tapped Mehta to lead its ambitious expansion efforts. Mehta said the opportunity was a perfect match for his views on the industry and his goals as a leader. Factor wasn’t building a product to sell to lawyers; it was building a platform to sell to clients, to eat the lawyers’ lunch in a way no other company was daring to try. Factor was “one of the few companies working from this premise of complex legal work and scale.”

JDs Need Not Apply

Factor’s secret sauce is leveraging a few attorneys with expansive nonattorney support. Factor’s in-house lawyers oversee large teams of nonattorneys specially trained in contract management and compliance issues. The goal seems to be to ethically entrust as much work to those nonattorneys as possible, bringing the cost of even highly complex transactions down to a minimum.

A short time ago this sort of thinking would have been anathema to in-house lawyers, but the pendulum is swinging steadily away from the traditional monopoly of the JDs and toward alternative legal service providers like Factor and other cost-saving approaches. Call it a drive for increased access to the legal system, call it a grab for cash, the legal and business worlds are getting more comfortable with nonlawyers handling issues traditionally reserved for attorneys, and businesses like Factor are taking advantage of the change in the public’s temperature.

Mehta doesn’t see the role of attorneys going away. In addition to the lawyers overseeing Factor’s work, Mehta believes there will always be a place in the legal market for “the artisans, the Michelin Star Chefs” who do truly unique work at the highest level. There will always be lawyers needed to figure out how a company interfaces with the world at large, or a new regulatory regime, or how it navigates a highly complex strategic decision.

That’s a small part of a company’s overall legal spend, however. In Mehta’s vision, it’s when those bespoke decisions need to be rolled out at scale that companies like Factor can shine. A lawyer can decide what language to include in a company’s new vendor agreement; Factor can manage the thousands of agreements that ultimately get signed. Mehta wants to build Factor to the size of an Am Law 50 firm, but with drastically higher capacity and less overhead. At 500 legal professionals currently, most of whom are not JDs, they’re off to an impressive start.

Will Firms Strike Back?

Factor is biting off a lot, but those of us in Biglaw would be foolish if we didn’t take note. If Factor can competently figure out how to offer our traditional complex services without the overhead of paying salaries on full-blown JDs, they’re going to have a price advantage we can’t beat. Today, Factor curates other company’s products for its customers. If Mehta and its leaders can also bring in a cutting-edge business tech sheen, one starts to wonder what lawyers can offer besides pointing to the diploma on the wall.

Make no mistake: a new front has opened up in the war between alternative legal service providers and traditional law firms. Even if Factor stopped growing today, which is unlikely, it’s identified a market opening that others will want to attack. The upper tiers of the transactional legal world are officially up for grabs. As litigation gets more expensive and private arbitration more efficient, it’s not hard to imagine the complex litigation world might also start to feel the heat of nonattorney competition as well. The ALSPs have money, business savvy, and momentum. No one’s book remains safe.

All is of course not lost. Firms could choose to strike back by expanding their own nonattorney staffs and trying to offer similar cost and efficiency savings. Firms could also choose to slim down, consolidate, or otherwise brace themselves for a long pricing battle with the ALSPs, one that will only get longer if trends toward nonattorney ownership and fee-splitting continue to pick up speed.

Whatever firms do, simply sitting pretty is no longer an option. Varun Mehta and Factor are making sure of that.

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James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

Perhaps, like the apparently mythical figure of the investor who’s sure, in spite of all available evidence and history and the apparent will of an angry God, that Wells Fargo has turned a corner and is ready to start printing money for shareholders, there really was a bank out there somewhere in this vast and exceedingly stupid land that looked at its problems and thought, “There’s only one solution here: John Stumpf.” Perhaps these people stopped reading the financial press in early 2016 and believed, like John Cryan before them, that there was no finer bank out there, and only one man who’d led that bank to the promised land. Well, we have bad news for that bank today: The dream of a Stumpfian renaissance is well and truly dead.

Earlier this week, a federal judge in Massachusetts essentially shrugged his shoulders when Customs and Border Patrol defied a court order and deported a student it had detained. At the time, we noted that this did a disservice to the federal judiciary and constitutional order, essentially signaling to the government that there will be no repercussions for wantonly disregarding Article III judges.

Judge Frank Easterbrook is not willing to let the government continue to run train on the federal courts.

In the case of Jorge Baez-Sanchez v. Barr, an undocumented migrant with a past battery conviction hoped to put a stop to his removal by applying for a U visa, which allows an admissible immigrant remain in the country if they themselves have been victims of crime in the United States. Given his prior conviction he was ineligible to apply for the U visa, but the applicable statute allows the Attorney General to grant a “waiver of inadmissibility” which would allow him to apply. An immigration judge granted this waiver because immigration judges exercise the powers of the Attorney General per existing regulations. The Board of Immigration Appeals disagreed. The Seventh Circuit took the immigration judge’s side and asked the BIA to address a few other ancillary concerns.

The BIA responded that based on a letter William Barr wrote, they had decided that the Seventh Circuit was wrong. This is where Judge Stearns might say, “welp, they never listen to me.” Judge Easterbrook opts for a different path:

What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect…. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary.

It’s fair to say that the guy who is arguably federal judiciary’s most textualist jurist was less than pleased that the Board of Immigration Appeals made a decision based on a footnote in a letter instead of, you know, a statute. But that disappointment doesn’t approach his outrage to learn that the Seventh Circuit’s express order was ignored:

The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government.

Hopefully this will be covered in their next CLE.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.

Yes! This behavior is contemptuous! While few would fault Judge Easterbrook leveling some sanctions sua sponte, his anger jumps off the page. And even if he’s not asking marshals to start throwing lawyers in jail, he’s fully cognizant that without some kind of sanction, the government can let this roll off its back. So when the government asks for the case to be remanded again for a ruling that doesn’t spit on the Seventh Circuit:

Yet we have already remanded, only to be met by obduracy…. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. That’s not the goal of the remand rule. Baez-Sanchez has waited long enough…. The petition for review is granted, and the Board’s deci- sion is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, which grants Baez-Sanchez a waiver of inadmissibility so that he may seek a U visa from the Department of Homeland Security.

That, by the way, is how a federal judge should respond when the government tries to take advantage of a coequal branch.

(Full opinion on the next page…)

Earlier: Administration Takes A Dump On Federal Court Order, Judge Responds With ‘Aw, You Got Us!’

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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.

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