Author: TSA Press

There seem to be two ways to interpret Justice Clarence Thomas and Samuel Alito’s response within a unanimous Supreme Court Order refusing to take up the case of Kim Davis v. David Ermold. One interpretation issued by Mark Stern, is that with the imminent ascension of arch conservative Amy Barrett to the Court, this new super conservative majority will overturn Obergefell v. Hodges “which recognized same-sex couples’ right to marry.” The other interpretation made by Scott Shackford, dismisses such concerns about same-sex marriage recognition being overturned as “panic.” As is so often the case, however, the truth lies somewhere in the middle (for the record I am well aware of how cliché this sentence sounds but bear with me). No, I do not think gay marriage will be overturned even though I think Thomas, Alito, and Barrett are eager to do so if given the chance. But with a new super conservative court, it is all but certain that gay marriage recognition/protections will be afforded so many religious exceptions that in many areas of the country such recognitions/protections will exist in name only.

First, let us dive into a little bit of background of the Kim Davis case. As many will undoubtedly remember, Davis was a clerk in Rowan County, Kentucky, who refused to issue a marriage license to a same-sex couple based “on God’s authority” shortly after the Obergefell ruling. As a result of her refusal, Davis was held in contempt and jailed for five days. Upon her release from jail, Davis was met by then president hopeful Mike Huckabee who loudly praised her defiance of the law (for those keeping score Huckabee has now completely “reversed” his stance on defiance to the law because, you know, LAW AND ORDER IS NOW ALL THAT MATTERS!). Since her release from jail, Davis has also faced civil litigation over her refusal to follow the law, and it is over the matter of her civil liability that the Supreme Court addressed in its order.

Davis had been trying to invoke qualified immunity, which is a court-fabricated immunity that almost always protects government actors from facing consequences when they violate a citizen’s rights leaving victims “violated but not vindicated.” The Sixth Circuit made an exception, however, and denied Davis this immunity which the Supreme Court refused to overturn via an order where Thomas and Alito agreed with the refusal but nevertheless ranted about how the Obergefell decision has made Christians victims of official stigmatization. Glancing over the transparent absurdity of claiming that official stigmatization is unlawful against Christians but up to the states when it comes to same-sex couples, let’s explore why Obergefell is not at all likely to be overturned.

As Shackford convincingly points out, given that the Bostock ruling (which included both Roberts and Gorsuch in the majority opinion), “says it violates the Civil Rights Act to discriminate against an individual for being gay or transgender, it’s hard to imagine how the Court could then restore a ban on same-sex marriage recognition. Not unless it overturned both precedents.” So, while a restoration of a complete ban is therefore all but certain to fail, what Shackford touches on but I think misses the point is the degree to which a super conservative court will afford religious exceptions to gay marriage recognition.

In Bostock for example, although Gorsuch agreed discrimination against gay or transgender citizens violates the Civil Rights Act, he also made a point to identify the Religious Freedom Restoration Act (RFRA) as a “super statute” that can displace “the normal operation” of federal laws for religious belief. In other words, Gorsuch was acknowledging that religious folks, and religious folks only, as RFRA has always denied to nombelievers, may not have to abide by the Civil Rights Act (though he expressly left the decision open to a future case).

It is the favoritism and extension of religious belief being held superior to the law that I find troubling, more so because at every turn this free conscience, free exercise right to defy the law is regularly being denied to nonbelievers. Where is the nonbeliever exception to laws that force then to financially support religious monuments, churches, and schools? If only religious people are afforded such rights to dissent, we cease to have a society committed to pluralism but rather one committed only to the protection of certain kinds of beliefs.

A case that could determine how far the Court is willing to make the professed doctrines of religion superior to the law is the upcoming Fulton v. City of Philadelphia case. In that case a religious organization is arguing that not only does it have the right to refuse to abide by the City’s anti-discrimination laws when operating a foster care center within a government program, but that unless the City allows it to deny foster children the right to have full access to all loving, and qualifying homes it is the City who are the bigots. Before Barrett’s nomination, I was fairly confident that the religious organization in Fulton would lose. Replace Ginsburg with Barrett however, and I would change my assumption entirely. More to the point, if the Court rules that churches can become countries unto themselves where the rules and the law do not apply, to the degree that foster children can be denied government benefits in a government program, then I would not hold out much hope for the future of gay marriage recognition.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Over the years, I have been fortunate to have attended a wide variety of conferences. Some, like Greenbuild or LD Micro, were not legal conferences in nature, while others, like various bench and bar conferences, really honed in on litigation practice in a particular jurisdiction. The majority of conferences I have attended, however, have focused on IP issues, with the overwhelming majority of attendees fellow IP lawyers. Often put on by various national or local bar associations, IP conferences usually have a pretty standard formula — tracks for patent or soft IP, litigation or prosecution, with keynotes by leading IP personalities. Considering the investment of time and money put into attending these conferences borne by my various law firms, I always felt a responsibility to make my time there productive. Indeed, I have even written about how to maximize one’s time at such conferences on these pages over the years.

One set of conferences I have been fortunate enough to attend (and write about) that bring a different energy have been the IP Dealmakers and LF Dealmakers Forums. From venue, to speaker lists and topics, to unparalleled networking, to a general attention to detail — these conferences have earned, at least in my view, a premium reputation in the IP industry. Part of what sets the respective Forum conferences apart is their embrace of the business side of IP practice, both in terms of the ever-increasing role of litigation finance, as well as the approaches being taken by sophisticated companies and IP counsel to generating value from IP-related investment.

At the helm of the Dealmakers enterprise is Wendy Chou, a long-time veteran in the IP conference hosting arena. Having gotten to know Wendy, I have long hoped to conduct an interview with her for this readership — and with both the 2020 LF and IP Dealmakers Forums fast approaching, I am pleased to have gotten the chance to do so now. (The 7th Annual IP Dealmakers Forum will be held virtually on December 1-10, and the 3rd Annual LF Dealmakers Forum kicks off virtually next week on October 13. For more details and to register, visit DealmakersForums.com. They are currently offering a limited number of LF Dealmakers passes for in-house executives and senior partners at law firms, so if you’re interested in litigation finance I’d encourage you to check out the program and sign up soon!)

Some more background on Wendy before we get into the interview itself. As she puts it: “Well, although I earned a science degree (in behavioral biology) I somehow ended up in the conference space early in my career and started specializing in IP conferences, developing some of the earliest events focused on IP monetization and finance. I then had the opportunity to serve as Ocean Tomo’s first head of marketing, and led their branding and outreach efforts, including launching its internationally recognized live IP auctions business which was later sold to ICAP. After that, I founded CHOUmedia, which provided marketing and communications services to a variety of clients, many of which were IP-focused entities, including startups, professional service firms, publishers, and industry associations. I also founded Dealmakers and launched IP Dealmakers Forum in 2014 focused on bringing together a select group of decision-makers at the forefront of the IP market. In 2018, we launched LF Dealmakers Forum, which is focused on developments in litigation finance.”

As usual, I have added some brief commentary to Wendy’s answer below but have otherwise presented her answer to my first question as she provided it.

GK: Dealmakers has become known for its successful conferences in the IP and litigation finance spaces. What do you attribute that success to?

WC: What we do at Dealmakers is more than just conferences. We bring together the people at the intersection of legal and finance to discuss critical issues, exchange ideas, create best practices, and perhaps most importantly, get business done.

Early in my career, I spent time at commercial conference companies and based on that experience, I’ve developed a methodology that is almost the exact opposite of how many of those entities operate. Whereas a lot of conference companies turn around programs quickly, use junior level people to put sessions together, and don’t bother to research the relevant topics, we source thought leaders in the industry, curate our content extensively, and go to great lengths to bring together a cross-section of people in different sectors within an industry to create an environment where we can help move that industry forward.

GK: As you can see from my introductory paragraphs above, I really do feel that the Dealmakers events get the mix of attendees and speakers right. Add in the high-level content and networking opportunities with fellow attendees — that are there not only to attend a conference but to get a leg up on cutting deals — and the reputation that Wendy’s Dealmakers events have earned is easily understood. Again, as someone who has attended these events, I can testify that there is an energy “in the room” that is unique to the IP conference space, an energy that draws succor from the interest level (and capability) of the attendees in making IP deals happen.

While the realities of the current pandemic may make capturing that energy a little more difficult, we will hear from Wendy next week on how she and her team are rising to the COVID-19 challenge, as well as how she thinks Dealmakers’ programming has helped to make litigation finance more transparent.

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.

Seven days ago, Cravath entered the fall bonus scene empty-handed, announcing that associates would not receive an extra cent from the firm until the fourth quarter. Since that time, not a single firm has issued bonus payments to associates; instead, firms have only mimicked Cravath in saying that no bonuses will be issued prior to their customary timing. It now looks like Cravath may have crushed associates’ hopes and dreams for additional compensation this fall, because yet another Biglaw firm has stepped out to say bonuses won’t be coming.

In the wee hours of the morning, under cover of darkness, Paul Weiss announced that the firm would not be offering special bonuses this fall. Instead, chairman Brad Karp offered the usual old chestnuts about associates’ dedication and the firm’s values during these trying times (even naming two partners who had recently passed away). Here’s an excerpt from the memo Karp sent at 1:43 a.m. (available on the next page):

Over the past couple of weeks, some of our peer firms have announced special “pandemic” bonuses, while others have announced that they would not pay such bonuses.  We have considered whether to distribute such bonuses, in advance of our regular year-end bonuses.  After consulting with the Associates Committee and our partners and after hearing from several of our clients, I have concluded that announcing such a bonus now would not be appropriate.  So many of our clients and others across our community are experiencing unprecedented economic trauma, including the shuttering of their businesses and the loss of hundreds of thousands of jobs, as a direct result of this pandemic.  Providing a special cash reward in direct response to the pandemic does not feel right at this time.  That said, please be assured that we will recognize your extraordinary contributions in December and we pledge to retain our position as a market leader in compensation, taking into account any special bonuses paid by our peer firms.

Paul Weiss is a firm that came in at #20 in the most recent Am Law 100 rankings, with $1,387,694,000 in gross revenue in 2019. On top of that, Paul Weiss came in third place in terms of profits per equity partner, with an eye-popping $4,699,000. Associates certainly kept these facts in mind because as could have been expected, they are less than thrilled with the firm skipping out on fall bonuses.

Here are just a few of their reactions:

• “Paul, Weiss won’t pay special bonuses. And invokes the names of a deceased partner and associate, and clients’ views for not paying them. But also spent the past six months talking about this is a banner year with billables up 10%.”
• “Using the death of two members of the firm to soften the blow is an all time low.”
• “Ew. He invokes the names of two deceased members of the firm as some sort of creepy guilt trip. Also, apparently billables have been up over 10% this year and he’s been bragging about that in the media. Seems like a move motivated by greed more than anything else.”
• “And what do clients think of your $5,000,000 in PPP?”
• “No fall bonus for Paul Weiss associates. Pretty interesting to see the chairman claim to be a market leader in comp while . . . not being a market leader in comp. I’m glad they’re considerate of the clients’ feelings as well, curious to see how the partners adjust their take home pay in order to be appropriate in this tough time.”
• “The partners can go to hell. So can our useless associates committee.”

At least the firm will be taking the fall bonuses into account when it’s time for year-end bonuses. Plus, it looks like staff will be receiving special year-end bonuses as well for all of their hard work during the pandemic.

So, what do you think? Is this yet another sign to other firms not to match? We think it could be. Feel free to sound off by email, by text message (646-820-8477), or by tweet (@ATLblog). A fun or insightful response — we’ll keep you anonymous — could find its way into an update to this story.

(Flip to the next page to read the Paul Weiss memo in full.)

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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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.

In what has to be admitted is a strong field, none of the contentious, late-public-service-career innovations by Securities and Exchange Commission Chairman Jay Clayton to increase opacity, kneecap shareholder democracy, and ensure snitches get stitches and not much else have proven as controversial and his plan to save a few thousand hedge funds the trouble of telling the world what they owned six weeks ago. Investors small and large hate it, by the thousands. Companies who’d be a bit more in the dark about who their owners are, hate it, too. Goldman Sachs, which runs a very successful little index based on the filings, hates it. The New York Stock Exchange and Nasdaq hate it.

* A Michigan lawyer has changed his name to get more recognition from voters. This definitely worked for Eddie Murphy’s character in The Distinguished Gentleman. [ABA Journal]

* Eric Trump was deposed yesterday as part of a probe conducted by the New York Attorney General’s Office. [CNN]

* A Tennessee lawyer has been suspended from practice for allegedly forging a witness’ signature on a court document. [Bloomberg Law]

* A lawyer has been charged with allegedly trying to extort the University of Maryland Medical Center of $25 million. People should really read my article on attorney shakedowns… [Fox News]

* The Supreme Court is allowing a class action filed by minor league baseball players who allege they are being paid less than minimum wage to proceed. Bet they’re happy their lawsuit didn’t strike out… [Sports Illustrated]

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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.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to the Leopard Law Firm Index, presented by Leopard Solutions in partnership with Above the Law and Adam Smith, Esq., which practice area has experienced the most headcount growth to date in 2020 at the Top 200 law firms?

Hint: The practice area has seen headcount balloon by 61 percent this year.

See the answer on the next page.

“You have an impressive resume …” said Judge Noonan of the Ninth Circuit Court of Appeals, his gaze fixated on the piece of paper, sliding down the page in what felt like slow motion.

What was I thinking, detailing just about EVERY achievement since birth?!

He continued going line-by-line through my resume, painstakingly s-l-o-w-l-y.

S-L-O-W-L-Y. . .

Slowly enough for me to admire his historic chambers, notice the woodcutting on his antique mahogany furniture, and approximate (and then actually count!) his numerous leather-bound books.

He was still in the preamble.

What was I thinking?!

More complimenting.

I am making this now-centenarian (he was only 80 at the time!) suffer through my 8.3 font (and 6.1 spacing!).

I no longer felt clever …

The steady flow of (very slow!) compliments continued.

I was at the edge of my seat.

He was ONLY about one third through page 1.

“Judge Noonan, if you like me so much, why don’t you give me an offer on the spot?” I blurted out and regretted it immediately.

What kind of desperate person (let alone future lawyer!) says this to an esteemed federal appellate judge?! Who did I think I was?

Judge Noonan lifted his head (very slowly!), smiled knowingly, and said, “If you want it so much, the job is yours.”

I got lucky that day, to be sure. Judge Noonan was open to my hijinks and had a playful side himself. But I learned a valuable lesson that day: it turns out that the future belongs to the doers and builders. It belongs to those who demonstrate initiative and then take steps to make them come true and have an impact. And then once you’re in a position to show that impact — when you’re in Judge Noonan’s chambers with your resume in his hand — you just need to make your power felt.

Today, as the legal field is crowded with talent and extraordinary capabilities, it is more important than ever to show your own ability to take initiative and following through with actions.

But this is especially true for in-house legal positions. Fortunately, there are endless ways to do it.

Focus On Impacting The Outside In The World Or Your Industry

For example, I recently spoke to Simon Zinger about the General Counsel Oath. He explained that following the global pandemic and developments in the United States, it is clear that many companies struggle with, among other things, diversity, equity, and inclusion. The General Oath is a tool for the legal leaders to lead the change and move in the right direction. It encourages legal leaders to lead, highlight small wins, and celebrate progress.

Also available on Apple Podcasts, Google Podcasts, and Spotify.

Embrace The Internal Opportunities To Impact Operations And The Bottom Line

Other times, showing initiative internally is effective. In talking with Lourdes Fuentes Slater, it became apparent that in-house lawyers can take initiative, make progress, and have a significant impact on digital transformation. Redefining a modern legal department is a real opportunity. Legal technology is no longer an option, it’s a necessity. Companies are often hesitant to implement innovation, but more and more, that hesitation will create unnecessary roadblocks to success. Take the chance to do so.

Also available on Apple Podcasts, Google Podcasts, and Spotify.

Pursue Unconventional Adventures In And Out Of Law

Why limit your initiatives to law? Heather Stevenson first ran a business and then found her way back to law. When she returned, she did so with a more rounded point of view and was thus able to create a broader impact. It is hard to find the courage to stray from the traditional legal career path, but there are numerous and unpredictable rewards available to those who make atypical choices, especially in the legal field.

Also available on Apple Podcasts, Google Podcasts, and Spotify.

Where there’s an opportunity for innovation and growth, there’s an opportunity to take initiative. This is true in all walks of life, but especially in a field like law that is constantly seeing fundamental changes.

I encourage you to learn a new skill, bring it to your workplace, and make an impact. Doing so will not only improve your current environment and make a real difference in real time, but it’ll show future employers and bosses that you are willing to take initiative and leave a positive change in your wake. That’s a timeless skill.

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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. 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.

Think about this scenario:  A mother of college-age kids decides to pursue her passion as an interior designer and love of the European modernist aesthetic, and simply starts posting her ideas own Instagram and Twitter. As her following grows, she begins to promote videos of her design tips on her own YouTube channel. As a result of her efforts, she develops a substantial YouTube subscriber base (millions of subscribers) and a similar following on Twitter (not to mention Facebook and Instagram). By all accounts, she is the epitome of 21st century online success — she not only obtains significant ad revenues from her YouTube presence and now thriving design business, but has created for herself an incredible reputation as an online influencer. So what does Section 230 immunity have to do with this scenario? More than you may think (or want to imagine).

How? With such success, she suddenly starts dealing with the unthinkable: some “fans” on her Facebook page object to her use of certain Native American fabrics in her European designs as “improper cultural appropriation.” She counters that she is celebrating these patterns as part of a juxtaposition against  more modern lines and design, to no avail. Facebook (and Instagram) promptly take down a large number of her posts. The Twitterverse jumps on the bandwagon, calls for her removal, and her account is suspended. YouTube soon follows suit. She is now not only watching her entire social media presence crater, but her business suffer to the brink of collapse. What’s worse, is that she has zero recourse against any of the platforms. Why? Not just terms of service that heavily favor the platform but more importantly — you guessed it — Section 230 immunity.

As you probably know, there has been a lot of attention this year about Section 230 of the Communications Decency Act, most of it pushed by political speech on social media platforms and some fairly strong feelings on both sides of the issue.  I have written on this subject most recently here, and find this issue is not an easy one to address. On one hand, many advocate that Section 230 is essential to free speech on the internet and such immunity cannot be curtailed. On the other hand, a significant number of voices (many in Washington, D.C.)  insist that Section 230 immunity should not only be severely limited but even cease altogether. It shouldn’t surprise you that I think neither of these approaches work, but that is because the issue is more nuanced than politicians would have you believe and more important than a political talking point.

I won’t recount the basic structure of Section 230 immunity (I have already written on that here), but suffice it to say that there are two main parts to the protections afforded to interactive service providers: First, Section 230 shields online service providers from civil liability for defamatory, tortious, and even illegal content that its users post onto the platform (such as third-party comments posted in response to an article posted on a social media platform). I believe that the vast majority of people would agree with this proposition to a point — to the extent the interactive service provider does not know the activity is defamatory or illegal, most people would reasonably agree it should not be held liable for it. Despite this point, current Section 230 jurisprudence goes much farther. The bigger issue, it seems, is what such providers do (or don’t do) with respect to accessing such content on their platform and whether they are doing so in good faith. Here are three reasons that the status quo on Section 230 immunity is no longer acceptable:

1. The Internet Is Not a Baby Anymore. In the early days of the internet, it made sense to create a statutory protection for online service providers who chose to moderate content. Some providers (like Compuserve) operated like an online newsstand (i.e., distributor) and did not moderate content, while others (like Prodigy) operated more like a newspaper editor (i.e., publisher) and chose to do so. Both got sued … but only Prodigy was held liable. Section 230 came about in large part in an effort to address this disparity. Makes sense for the mid-1990s, but what about 25 years later? Given the sheer reach of many of these platforms and massive amount of content and news disseminated on them now, at the very least the issue needs to be revisited.
2. Broad-Based Immunity Has Had Its Day. Shortly after Section 230 was enacted, a lawsuit was brought that interpreted Section 230 very broadly.  In Zeran v. America Online, Incorporated, the Fourth Circuit Court of Appeals affirmed the trial court’s dismissal of the case based upon Section 230. Stemming from offensive jokes about the 1995 Oklahoma City bombing posted online using the plaintiff’s first name and home telephone number, the plaintiff brought suit against AOL seeking damages for harm to his business. Rather than treat AOL as a distributor under the First Amendment (holding it liable if it knew or had reason to know of the illegal content), the presiding judge on the panel (J. Harvie Wilkinson) cited Congress’ desire to protect free speech in reading Section 230 broadly. He found distributors of content online to be a “subset” of publishers and deserving of very broad protection against liability. No question, Judge Wilkinson’s broad interpretation shaped subsequent Section 230 case law — the question is, should this interpretation stand in 2020 and beyond? Examples like the one in the introductory paragraph beg otherwise.
3. Good Faith Matters. A cursory review of articles online will uncover numerous instances of online service providers restricting content under the auspices of “fact checking” and “combating fraud and misinformation” (to name a few). Being an election year, it seems as if accounts are being suspended and content is being removed at a feverish pace. From my perspective, moderating content is not per se problematic — the problem is, where should such providers draw the line? Perhaps the answer lies within Section 230 itself — “action voluntarily taken in good faith to restrict access to or availability” of certain content. Under the present broad interpretation of Section 230, such good faith has little “punch”; however, rethinking the breadth of Section 230 immunity can bring this critical language back to the fore.

Based on the legislative history, Congress expressly sought to encourage online platforms to offer a “forum for a true diversity of political discourse.” It is catastrophically ironic that in this day and age, Section 230 jurisprudence has induced such providers to not only lose sight of Congress’ express intent here, but ostensibly abandon it. The argument is not about the neutrality of online service providers from my perspective, but about their methodology and consistency of its application.  It’s high time that we rethink Section 230 consistent with this original intent, and we should accept nothing less.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

During the first week of law school you are indoctrinated with the concept that you can only understand the law if you read and understand the written decisions of judges. This is because, under the common law, the principle of stare decisis is the bedrock of all knowledge. In law school this means many hours reading cases and preparing digests of specific rulings — known as holdings — and the reasoning behind them, as well as how to differentiate dicta, which is that part of the decision that is not relevant to the holding. One of the teachings in law school is that there is no substitute for hard work and the members of the Law Review, which is the most prestigious student group with the highest grades, consisted generally of those students who studied the most.

When I started my own firm, I initially focused on new issues and representing companies raising money. But the stock market went into a rapid and long decline. Some of my clients turned to me and asked me to defend them in regulatory enforcement actions and to handle litigation. As a one-person firm competing against large Wall Street law firms, I realized that hard work was critical to the survival and success of my nascent practice. Fortunately, Westlaw was a new legal research product which enabled us to compete. We were now able to do a much more comprehensive search. We also found that in reading the cases we developed new threads and ideas for further research.

But research is only the beginning of your hard work. In litigation, you need to spend the time and energy to develop an initial strategy. Two of the tools we use at my current firm are 1) develop a case plan at the outset, which is continuously revised and expanded during the lifetime of the matter, and 2) a weekly plan for what needs to be done the following week by the responsible partner, the associates, and the analysts.

Another tool I use is what I call my instant memo file. When I have an idea, I dictate it out, as well as what needs to be done to develop that idea, and I immediately put it into the file for that matter. The case team also meets periodically to discuss long-range strategy and further ideas that need to be pursued to figure out how to win the case or successfully defend our client in a government regulatory matter. Preparing for this type of meeting can involve substantial work because you need to organize your thoughts and ideas based on the legal and factual research that has been have done.

Reviewing and analyzing documents to be produced by your client for privileged materials and reviewing those produced by opposing counsel and other parties for “hot documents,” can be extremely time-consuming, but it is critically important.

Working hard also means working smart. Artificial intelligence has become an important research tool in cases where a substantial amount of documents is produced. It enables us to more effectively and efficiently conduct documentary review and to set up a program to enable us to easily locate key documents. Although this involves a significant expenditure of money, if the client is able to pay the costs of the third-party vendor, in the long run you get a much more comprehensive and reliable document search at a lower overall cost. An integral part of AI legal research is not only to initially develop a plan, but then to use samples to modify the research plan and search terms to make the review more effective.

Hard work, organization, and planning are critical in producing documents to be filed with the court or administrative agency. I always find preparing an outline and drafting the papers to be an ongoing and cumulative process. You cannot simply draft perfect papers in one shot. After you do a rough outline, in almost all cases there is more research to be done and the need to review the documents you have available to you. Once you have prepared a draft, you need to send it out to your client, expert witness, and possibly others for their review and comments. Once these comments are received and analyzed, you need to revise your drafts. Each time a draft comes back I try to take a fresh look and often make substantial revisions. It is hard work but it must be done to end up with the best product possible.

At my firm we have a unique procedure for filings. The attorneys have to be done with their writing and revisions 24 to 48 working hours before the papers need to be filed to enable the analysts to complete the filing process, which is time consuming and detail focused. This includes, among other things, a line edit of the text to make sure that everything is clear, properly spelled, and grammatically checked. It also involves a fact check, including checking that the exhibits or referenced documents are accurately described in the text. It also involves checking that the legal citations comply with the Blue Book and applicable state style guide.

The end product of a well thought out, well-argued, and winning product is the result of hard work by a number of people at your law firm.

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Charles Hecht is an entrepreneurial lawyer who had his own firm for 39 years and recently joined Balestriere Fariello as a partner. He specializes in innovative solutions to complex litigation, arbitration, and securities transactions. He values teamwork, which is one of the reasons why he joined a New York City boutique law firm. He and his colleagues represent domestic and international clients in litigation, arbitration, investigations by governmental agencies, and securities transactions. You can reach him via email at charles.hecht@balestrierefariello.com.