Author: TSA Press

Recognizing that a loved one needs a guardian can be a trying time. Taking steps to help the situation is painful and often destructive to the family unit. Not everyone agrees on next steps or who should take control. Sometimes, a medical diagnosis suggests cognitive impairment. Other times, one’s conduct indicates that she requires intervention. The standard for the appointment of a guardian or a conservator varies from state to state. Generally, one is appointed as a guardian when the individual’s functional limitations are so great that she is likely to suffer harm.

A personal guardian makes medical decisions. The guardian may decide treatment plans, choice of residence, and doctors. A financial guardian marshals assets, pays liabilities, budgets, applies for benefits, and can commences lawsuits in order to recoup monies which are owed to the individual. Often guardianships are born out of financial scams wherein individuals are taken advantage of and made to give or loan their money away.

Not every guardianship involves a grandmother with dementia or a bed-ridden senior citizen. For example, despite the fact that pop star Britney Spears has a conservatorship, she has continued to work, earn money, and raise her children. Often guardianships are tailored to allow the individual as much freedom as is safe in her particular instance. Guardianships and conservatorships apply to those with mental, emotional, and physical diagnoses when individuals exhibit behaviors that may cause harm to themselves. Sometimes people do not even have an official diagnosis.

As with Britney Spears, a guardianship proceeding may be commenced while someone is still working and participating in the community. Justice Laura Carter Higley is a 72-year-old judge in the First Court of Appeals in Houston, Texas. As she sits on the bench, her two adult sons have commenced a guardianship proceeding on her behalf in Harris County Probate Court 2. She was recently diagnosed with Alzheimer’s disease and they have alleged her failing cognitive health.

Her sons argue that since November 2017, the justice has suffered from neurocognitive issues. Justice Higley, who first took the bench in 2002,  drives herself to work daily in Houston. She has been involved in cases since March 2019, although no one has appealed her decisions since her diagnosis.

As in many guardianships, there exists a fight for control as the judge has an $8 million estate. Her husband, Bob Higley, is the mayor of West University Place, Texas, and he resides there with his wife. The sons are concerned about financial exploitation. Mayor Higley serves as the justice’s agent under a financial and medical power of attorney since March 2019. The sons also question their father’s actions with regard to the judge’s personal safety.

Complaints and concerns about Justice Higley could be made to the State Commission on Judicial Conduct, although it will not reveal if any have been filed as a result of their rules on privacy. The sons allege that their father has encouraged Justice Higley not to resign from her position.  According to the Texas Constitution, a judge can be removed from office in the event a disability interferes with her duties, which is or is likely to become permanent.

In many state jurisdictions, there is mandatory retirement for judges at a certain age. Such a rule often prematurely removes productive judges from the bench. Some of these judges then seek employment in the private sector. Justice Judith Kaye, the first woman to serve as the New York chief justice of the Court of Appeals, retired at age 70, due to the New York mandatory retirement statute. She then joined Skadden, Arps, Slate, Meagher & Flom as of counsel. Supreme Court and federal judges have lifetime appointments and many of these jurists have demonstrated monumental decisions during their “golden years.”

The case of Justice Higley highlights the fact that every guardianship matter is different. Individuals have different impairments, some of which can be hidden in the course of day-to-day activities. Some individuals may require assistance yet present well. Conversely, others may appear disheveled or in despair, but have a clear grasp on their lives. As practitioners and judges, we must look at the details and background of each case and make certain that the outcome specifically fits the facts. As is the concern with judicial mandatory retirement, not everyone ages the same way.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com. 

Just before Halloween, we asked our readers to submit their legally themed costumes to us for our annual contest. We got a great crop of entries, and we think you’re going to like them a lot — almost as much as President Trump likes saying NO COLLUSION NO QUID PRO QUO.

We’ve got 10 awesome finalists for you to choose from, and voting starts today. Who will be the winner of the tenth year of our competition?

First up, we’ve got Brett Kavanaugh — err… Bart O’Kavanaugh — and his infamous calendar. Woof.

Next, we have some law school fashionistas. We now present to you justices of the Supreme Court.

Coming to you straight from the ACC of Northeast Ohio, just try and pierce this corporate veil.

Here’s a reminder about the ghost of coverture. Let’s exorcise this one for good.

Keep reading to see some more costumes…

This post isn’t about sexual harassment, although the behavior I am talking about is harmful, and sexual harassment is a component of it.  And it isn’t about my current dean and associate dean, who I think are awesome.  In case you were wondering.

This post is how a mean boss can take your mental health away from you, even if the behavior doesn’t rise to the level of harassment.  And, this is a discussion of how one’s self-esteem and competence can be destroyed by a thousand cuts from such a boss.

Tales of senior partner abuse of associates run deep in the whispers of the legal profession.  Some tales extend generations.  The tales have common themes and characteristics.  It’s the boss who screams at you in front of others; questions whether you are competent to handle even basic tasks; takes credit for your efforts while knifing to your back with other partners; micromanages your every move; controls your time by religiously only sending you tasks when they hear the rattle of your keys as you are about to exit; gives you feedback that isn’t constructive, but rather is designed to question your competence and destroy your confidence; or watches you in the creepy “Every Breath you Take” kind of way to assure you are on task or not otherwise gaining support from others.  There are many ways for a boss to bully you, and there are many degrees of dysfunction in how a boss might treat you.

Research suggests that your level of competence doesn’t matter in terms of whether or not you experience workplace abuse.  You could be gloriously good or average and the abusive boss doesn’t discriminate, although the reason for the abuse might be different.  For the average, it might be the abusive boss’s frustration about your perceived level of competence.  For the gloriously gifted, it might be because the abusive boss feels threatened.

And there is a lot of advice out there about dealing with abusive bosses.  Much of it bad, and in the form of “suck it up.” Work harder.  Maybe try being super nice to the bullying boss.  Those of us who have dealt with bullies as a kid know how well that advice works.

There is literature that suggests that fighting back will make things worse, while trying to kill the bullying with kindness won’t help. If you lash out at your bulling boss, you might catch more hell.  But abusive bosses didn’t respond to their employees being nice or empathetic either, according to research.  Thus, one can be trapped in a cycle of abuse at work, just as there are cycles of abuse in other relationships.

Being abused by a boss can affect your mental AND physical health.  The headaches, the ulcers, the exhaustion, the panic attacks, the sleepless nights, the dread as you enter work in the morning, the dread every time you check your emails, the dread when your phone rings, the potential to abuse drugs and alcohol to escape the abuse, and the questioning every decision in your life.  The cycle of abuse leads to more abuse.  As you deteriorate, you make yourself more a target for the abuse.

Law firms are starting to take employee mental health seriously.  They recognize the potential such issues might have on their bottom line.  There are workshops and other measures designed to ease the frustration of law firm life.  But I couldn’t seem to find an article that says “law firm takes bullying seriously!”  So, for many, it’s like saying to someone who has been repeatedly yelled at to have a massage between screams.

So, what can be done?  Sadly, I don’t have the answers.  Well, I do, but telling law firms to stop abusive partners from being abusive is not likely to gain traction.  And many who are in this field don’t think that law firms are willing to give up the cycle of abuse.  Firms priding themselves on lawyers willing to work long hours and sacrifice their bodies and minds to the cause means that firms don’t pride themselves on having lawyers who are happy and more productive because of it.

That’s a problem.  And at the moment, it’s a problem without a solution.

There is an old saying in psychology:  The person who broke you cannot fix you.

This is the fatal flaw of the abusive boss.  It’s also the fatal flaw in relying on law firms to fix this problem.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

When I started school I was told by the dean of the school that ‘law school is a marathon, not a sprint.’ I took that statement to heart and am now finishing my last year with a marathon, proving that you can push your mind and body to the limit.

— Michael Millus, a third-year student at Brooklyn Law School, in comments given after completing the New York City Marathon this past weekend. “I started running two years ago to unwind and get my mind off the pressure and stress that comes from law school,” Millus said. Prior to running the NYC Marathon, he’d run three half-marathons, and he clocked in with a time of 3 hours, 45 minutes, 33 seconds for his first marathon. Congratulations!

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.

Back in 2012, we wrote a story about Jennifer Kash, a Quinn Emanuel partner who sent around an email asking her associates to let her know their availability for more work. That’s not an uncommon ask in the Biglaw universe, but the takeaway from Kash’s email was that any associate billing under 2400 hours/year was still open to more work in the firm’s estimation:

In case you forgot: 5 is crazy busy, 4 is could do something but it would hurt and would have to be very small, 3 is you have some bandwidth and might be able to take on some more work, 2 is I could take on a bunch more work, my plate is not full, 1 is you need lots of work.

One further note, based on how busy everyone is if billing under 200 hours a month you are a 3.

At the time, we described Kash’s email as emblematic of the way firms see associates as consistently underutilized — a mindset that can level undue stress and potential burnout.

Today, Jennifer Kash would likely agree with that assessment. While associates working 2400+ and still getting assigned more work may sound miserable, Kash was billing 3500 hours at the time and only making due with healthy doses of Adderall. It’s easy to think of law firms as pyramid schemes because, in a sense, they are. But just because the associates grinding out hours at the base are whittled down to the partnership tier doesn’t mean the partners have stopped billing themselves. Many partners are juggling as much or more.

The former Quinn Emanuel San Francisco office chief is now living in the Caribbean running a non-profit called Virgin Independence, which helps transitional youth in finding jobs and training and working on a new program that invites attorneys to join her in St. Vincent and the Grenadines to get the support that lawyers rarely get while trying to manage their schedules.

The Lawyer’s Escape Pod is an excellent podcast hosted by Megan Smiley that peeks outside the legal industry to show lawyers that there is, in fact, an escape route. Smiley posted an interview with Kash where she opened up about her worldview as a partner and how she went from Biglaw big wig to living in the islands.

On the show, she describes the isolation that can form around partners in the Biglaw system:

Law firm system not set up to support people at the top. Because we so assume once they get there and they have money and they’ve made it through the ranks of associates that there’s no longer going to be problems they need to address and there is. And the problem is there’s no place to go and no resources available to them because they don’t have any confidentiality and they need support in a way that’s embarrassing and that they’re not willing to maybe sometimes let their egos be set aside to address.

It’s a great way to close the loop on the article we posted seven years ago — time has a way of changing perspectives. Jennifer Kash wants lawyers to understand that taking care of themselves isn’t something they can just put off because the money’s good.

Earlier: How Many Billable Hours Do You Have to Work Before You Are ‘Busy’?

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.

For better or worse, Biglaw is more of a business than it ever has been. It’s no longer the case that you join a firm after law school, work hard and make partner, and remain at the firm until you retire or die. Instead, partners regularly part ways with their longtime firms, in search of better platforms — and bigger paychecks.

In this environment, it’s more important than ever for lawyers — and not just partners, but counsel and associates as well — to understand and excel at business development and marketing. If you want a long and successful career at a law firm, you need to be not just an excellent attorney, but also a talented marketer.

How can you become a Biglaw business-development whiz? It’s not easy; many major rainmakers will tell you that it took them years to master the art. But you can definitely give yourself a head start through reading and research.

My recommendation: Start with Best Practices in Law Firm Business Development and Marketing by Deborah Farone, published earlier this year by the Practising Law Institute (PLI). Farone, the founder of the Farone Advisors consultancy and former chief marketing officer at two of the nation’s finest firms, Cravath and Debevoise, interviewed numerous Biglaw business generators, as well as other industry experts, to learn the secrets of their success.

I recently spoke with Deborah Farone about her book and about Biglaw business development more generally. Here’s a (lightly edited and condensed) write-up of our conversation.

DL: What inspired you to write the book?

DF: I felt that there was a real need in the marketplace to study the best practices in business development. I knew there was keen interest in two related subjects: One was in learning what it was that certain law firms were doing to consistently drive profitability and foster a positive culture, and the other was the curiosity about the habits of great rainmakers.

Around this same time, as I was thinking about starting a consulting practice, I was approached by PLI to write a book on legal marketing. Although I knew a lot about the world of large law firms and their operations, I always wanted to learn about best practices and innovation in other sectors of the legal profession, including midsize firms and boutiques. Conducting the research with academics, technologists, and other thought leaders and writing a book was an ideal opportunity to do this.

DL: As I know from my own experience, writing a book is a challenging and demanding endeavor. What did you think of the process?

DF: I gave myself a year to write it and I finished within that year. I mapped out a series of deadlines and devoted every morning from 6 to 11 to work on the book, assuming I wasn’t traveling to a client’s office. I interviewed more than 60 people for the book, so it involved a lot of juggling of schedules. I had to attack it in a very organized and disciplined way to complete the project.

DL: Your book isn’t just a primer on business development, but it’s also a portrait of Biglaw over time. I love the opening, where you paint a vivid picture of what Debevoise was like back in 1989. What would you identify as the single biggest change in this world over the past three decades?

DF: One big change that reverberates throughout many parts of the profession is that general counsel are in the driver’s seat more than ever before. Compared to their predecessors, today’s GCs are very sophisticated consumers of legal services, command larger departments, and have more tools at their disposal. In the past, if the GC had a new legal problem, they’d immediately look to their outside law firm. Today, they might turn to hiring additional lawyers in-house at a lower cost or using an alternative legal services provider. They’ve also acquired technology to address reoccuring issues and, as we’ve seen by the rise in influence of CLOC, brainy experts in legal operations are also there to help protect the company and manage legal costs.

DL: What ramifications does this have for legal marketing?

DF: When marketing their services, firms need to ask themselves: are we doing something that adds value? Are we providing a service that a GC can’t simply do in-house? This thinking requires law firms to be more strategic in their offerings and in their branding. It is why many more firms are developing strategic plans for key practices or for entire firms. They are working to identify the areas where they can provide exceptional value and differentiate themselves from the firm down the street.

DL: Have law firms risen to the challenge? Have they gotten better at business development and marketing?

DF: Some have. In the book, I focus on innovative firms — firms like Orrick and Gunderson Dettmer, to name a few — and what they’re doing to succeed in business development. Marketing has to be involved, of course, but so does management. The focus needs to be all hands on deck, focusing on the client.

Deborah Brightman Farone (courtesy of the author)

DL: Based on your research, can you offer some advice on how Biglaw partners can work most effectively with their Chief Marketing Officers and marketing teams?

DF: Marketing can’t be a back-office department that works somewhere in the Ozarks. Marketing folks need to be involved in the strategic direction of the firm. For example, when a firm hires a lateral partner, the marketing department should have a hand in everything from helping to think about how the lateral will fit into the business, what services they will bring to clients, and what the firm can do to ensure there is support for the lateral to succeed in their practice. The CMOs I’ve met are incredibly talented, but at times they’re under-utilized by their firms when it comes to their strategic capability.

Firm leadership needs to be in regular communication with their marketing group to let them know not only the state of the firm and what is transpiring, but to communicate that their work is central to the operations of the firm. At Cravath, both Evan Chesler and Allen Parker met with my department regularly to let us know about new opportunities and their goals for the firm. This conveyed to the marketing department that they were an integral part of the firm and on the same team as the lawyers.

DL: You mentioned integrating lateral partners, a subject of great interest to me these days. Have firms gotten better about this process?

DF: Again, some have, and some haven’t. Today, many have a well-run integration program set up well before the partner even accepts the offer. They are thinking: Which clients will potentially use this partner? To which clients should the new partner be introduced, and by whom? Firms shouldn’t just count on lateral partners spinning gold from their own contacts when they arrive. If firms truly collaborate with new partners, the new partners are much more likely to stick. Close to 50 percent of lateral partners end up leaving the firm after five years. It’s expensive to bring on a lateral, so it behooves the firms to think seriously about how the partner will fit into the firm culture and business.

DL: Speaking of law firm culture, how does it affect marketing and business development?

DF: Firm leaders are so busy that they don’t always have time to stop and think about culture as a vital factor in the firm’s success, but if you think about it, culture is often the reason that firms maintain clients and talent, and grow revenue. If you have a culture where partners genuinely like each other, collaborate on bringing in new matters and serving their clients, you’ll have a much more robust business.

Dr. Heidi Gardner of Harvard has demonstrated this in her research. She found that if a client is served by more than one practice, there’s more of a chance of what she calls “stickiness,” and the firm is much more likely to retain the client. This requires a culture where partners like working with each other and have a compensation system that rewards this type of behavior. If you don’t pay attention to culture and just “let things happen,” you lose an opportunity to develop a stronger firm.

DL: Turning to associates, I personally think it’s good for them to start thinking about and understanding, early in their careers, how the business of Biglaw works (and Above the Law aims to help on this front). Do you have any recommendations for associates on what they can do in terms of BD?

DF: I agree. It’s never too early to start thinking about how you’re going to develop a practice, whether you’re planning to stay at your current firm or head someplace else. And that means building relationships. Associates need to work within the paradigm and rules of their own firms, but there are steps most can take.

Foremost, associates should develop relationships amongst themselves — their officemate might be a GC someday — and outside of the firm as well. This might involve using LinkedIn to stay in touch with business contacts, getting involved in leadership roles within bar associations, or serving on the board of a nonprofit in which you have an interest. I was on the board of the Girl Scouts of Greater New York for many years and from that experience, I met a host of people in various areas of business and industries, including banking and pharmaceuticals, who I would not have necessarily met in my marketing role.

DL: And what can firms do to encourage and support their associates in these efforts?

DF: Many firms provide forums for their associates to get to know colleagues at their level at the client, whether through substantive legal work or social activities. Some give associates a budget to take the client to lunch or an event. This helps create a “zippering effect,” where the firm has contact with the client at all different levels, and it also allows the associate to develop their business development skill.

Firms often tell associates, “Your job is to learn to be a great lawyer.” I agree, but I don’t think this is mutually exclusive with teaching them client and business development skills. If you don’t give associates training and exposure in business development and client service, you end up with a class of partners that has never done it before. Then you are in a position of having to train folks to acquire new habits and break old ones. The new partners have also missed out on years of making valuable connections.

I have been to a number of firms to speak with partners and senior associates. They want to learn how to develop business and they are interested in knowing how others in the profession do this. Lawyers tend to look for precedent, and I think by providing examples of behavior that has worked elsewhere, they are able to think about and incorporate what will work for them,

DL: What about business development and diversity? How do these concerns relate to each other?

DF: Of course, business development isn’t just an issue for diverse lawyers, it’s an issue for everyone. Firms should give everyone they tools they need for business development. We need to be sure that we are reaching everyone and spend extra time with those who need it most, regardless of their background.

Marketers can play a role in the conversation in terms of making sure firms recruit diverse candidates and retain and develop diverse lawyers. Firms are starting to track to see that diverse lawyers are being given the same assignments as everyone else. Firms need to ensure that diverse lawyers have the skills and exposure they need to develop their practices.

DL: Looking to the future, how will technology and innovation affect marketing and business development?

DF: Today’s legal technology is amazing, and there are wonderful tools that streamline processes that used to take lawyers a lot of time. Firms can provide equal if not better service in a more cost-effective way. Marketers can spend less time putting together reports and regression analyses and more time involved in strategic projects.

But the relationship aspect of doing business is still so vital. People want to work with people they like and trust. If the client doesn’t trust you, the innovative George Jetson environment you’ve created doesn’t matter. Skills, reputation and relationships are really everything in business.

DL: So very true. Congratulations again on the book, Deborah, and thanks for taking the time to share your insights and advice!

Best Practices in Law Firm Business Development and Marketing [Amazon (affiliate link)]

Earlier:

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

It does not take much these days to be labeled by evangelicals — or the nation’s highest court and legal figures — as being hostile to religion. In a U.S. Supreme Court opinion, Justice Anthony Kennedy found government hostility towards religion based on a single commissioner’s statements that the refusal of a baker to bake any custom wedding cake for a gay couple simply because they were gay, was an improper or “despicable” form of religious discrimination used by others “throughout history.” Whatever your thoughts are on a finding of hostility in that case (I personally agree with the Court that government hostility existed, but based solely on its second finding of animus), it is just a simple fact that religion has indeed been used to justify every form of discrimination. James Madison, the Founder most credited with establishing free conscience liberty, knew this fact well and in his infamous Memorial and Remonstrance Against Religious Assessments, Madison spoke about the nature of religion’s past when it was supported by the state:

Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.

The solution to this history of religious bigotry, according to Madison and other Founders, was to propose a restoration of religion’s “primitive state” where dependence on the state did not exist and funding was dependent on “the voluntary rewards of their flocks.” To Madison, however, returning religion to this primitive state would cause many to predict religion’s downfall. Which brings me to William Barr, our current attorney general.

Recently, Barr gave a speech where, among other claims, he asserted that secularism, or a separation of church and state, was targeting religion for destruction. Barr would also claim that non-religious Americans, or those who reject the religious teachings of Judaism and Christianity in particular, were directly responsible for every societal ill including “depression and mental illness,” “suicide,” “senseless violence,” and furthering “a deadly drug epidemic.” Although Barr’s claims that non-believers are responsible for all societal moral failings are provably false, the response to Barr’s speech by evangelicals was, to my knowledge, universally positive. Even the evangelicals who claim to dislike this president nevertheless proclaimed gratitude that “a man of William Barr’s convictions is heading up the Department of Justice,” and used Barr’s speech as justification for supporting the current president.

I ask my fellow citizens of all beliefs to think about this reality for one second: The Attorney General of the United States blamed citizens who do not subscribe to his religious beliefs/convictions as being directly responsible for the worst elements in society (including violence), and evangelicals universally cheered. Moreover, think about how if you were to replace the word “secularists” in Barr’s speech with say, “Catholics” or “Christianity in general,” how different the reaction would have been. In other words, if any AG had said the teachings of Catholics or Christianity was directly responsible for the country’s violence, drug abuse, and mental illness, can there be any doubt evangelicals would have no problem denouncing that person as a bigot?

Yet, evangelicals see no hypocrisy in celebrating Barr’s speech demonizing those who do not share their beliefs. In many ways, evangelical bigotry is nothing new, as evangelicals today regularly burn secular books, discriminate against secular Americans from giving invocations, force non-believers and those of other faiths to be taxed for the maintenance of Christian monuments, force states to fund property enhancements for churches, force all objecting non-religious people to use currency that conveys upon them a belief and trust in some God they do not have in order to participate in commerce, and force the ever growing non-religious population to subsidize church functions and religious clergy in the billions. Yet, evangelicals with no shame are resolute that they are the greatest victims of society and bias application of the law.

For any student of history, this tactic of the powerful playing the victim while demonizing and discriminating against those who do not share their beliefs is also nothing new. The cause of this latest version is due, in part, to religion’s (particularly Christianity) rapidly declining membership in American society. Like others, however, I expect this decline to stabilize so that in all likelihood by 2030, “[t]he size of most religious groups in America are predicted to be almost exactly the same as they are now.” But for evangelicals who are used to Christian dominance in American politics, law, and social society, this leveling process is a terror. I’ll let Maajid Nawaz, an individual who knows a bit about religious extremism, explain:

When the powerful are being leveled, they become scared. Petrified of losing the deference they believe they are entitled to, they cast themselves anew as the oppressed. Used to receiving preferential treatment, they suddenly feel discriminated against.

And so it has come to pass that every time a powerful group is equalized during times of great social upheaval, they cast themselves as victims.

Combining this kind of fear and bigotry continues to be a central tenet of this administration. The attorney general prior to William Barr (Jeff Sessions), was an equally clear religious bigot who regularly described those who did not believe in his religion as a threat to the country that must be stopped. The current vice president demands that his view — that homosexuality belongs in the same immoral category of unacceptable sexual behavior as pedophilia — should be accepted without criticism, but that “criticism of Christian education in America should stop.” In other words, it is clear from this administration that the concern over religion has nothing to do with “liberty” for all Americans, but rather on maintaining Christian ideological dominance over non-believers.

The combination of fear and bigotry also explains why the same evangelicals who lamented for literal years that Amy Barrett was asked a question once about her religious views, say nothing about Barr’s and Sessions’s more overtly bigoted statements about non-believers. As long as evangelicals continue to install and celebrate religious bigotry in power out of fear, portraying all non-believers as threats coming to get them, things are going to get much, much, worse. However, the only and best recourse we have to such bigotry is an appeal to the Constitution and Madison’s principles of free conscience liberty for all.

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.

Big patent cases take many forms. Sometimes cases earn the moniker “big case” because of the parties (e.g., Qualcomm v. Apple, to take a recent example) involved, or the high-profile nature of the technology (e.g., the CRISPR wars) at issue. Other cases are deemed important because they lead to important changes in the law (e.g., Alice,) or because they end up generating large damages awards. One of the leading contenders in the latter category is the long-running dispute that Bloomberg Law recently referred to as “Merck & Co.’s failed patent infringement case against Gilead Sciences Inc.” over high-priced treatments for Hepatitis C.  (I commend the Bloomberg article to those interested in the potential impact of the latest decision in that saga on life science patents, as well as for the astute comments provided by my partner Zach on the Federal Circuit’s decision to invalidate Merck’s patents.) While the legal ramifications of the decision on the potential validity of many biotech patents are interesting, I think what the case has to teach us about how difficult patent valuation can be is even more important.

For those unfamiliar with the case, the story behind it is an interesting one. In 2011, Gilead purchased a biotech company called Pharmasset for $11B, in the hopes of commercializing Pharmasset’s Hepatitis C treatment. The acquisition was a big success for Gilead, with FDA approval for the Hep C drug Solvadi issued in late 2013. That FDA approval was followed by Solvadi becoming a true blockbuster, with sales in the billions filling Gilead’s coffers almost immediately after approval. With a treatment population of hundreds of millions of people worldwide needing a cure, Gilead’s acquisition of the rights to Solvadi looked like a big win.

With the success, however, came some negatives. For one, Gilead’s pricing for Solvadi, at over $80,000 per course of treatment, came under fire — including from high-profile politicians like Brooklyn’s favorite Bolsheveik and current presidential candidate, Bernie Sanders. (Though because Solvadi is a true cure for Hep C, Gilead’s recent financial performance has suffered for lack of repeat customers.) Second, Gilead’s financial success with Solvadi attracted patent lawsuits, filed by companies hoping for some royalties on Solvadi sales. One company, Idenix, was perhaps the most aggressive with its patent assertion, filing suit against Gilead almost immediately after Solvadi’s FDA approval was announced in December 2013. With billions at stake, the case immediately became one to watch — for both life sciences IP lawyers and investors in both Gilead and Idenix.

While the case has taken years to unfold, Idenix enjoyed an immediate benefit from its tangle with Gilead, with Merck acquiring the company at a hefty premium in 2014. How much the Gilead case played into Merck’s valuation at the time is an open question. (Since then, Merck has taken a heavy write-off on its Idenix acquisition, fueled by the commercial failure of Idenix’s Solvadi competitor.) Either way, the case proceeded on a fairly typical track, albeit with a transfer to Delaware from Massachusetts where it had been filed, culminating in a two-week jury trial at the end of 2016. The headline from that trial was the absolutely massive $2.5B verdict rendered by the jury after less than two hours of deliberation. 

But as with most good news for patentees over the past half-decade (at least), the good times did not last long for Merck. In fact, not only was the damages verdict wiped out on post-trial motions, but the patent asserted by Merck was invalidated by the district court for lack of enablement. That decision was affirmed recently by the Federal Circuit. In a split decision, the patent worth billions was confirmed as worthless. Interestingly, the majority decision never even mentioned that the jury’s verdict had been such an unprecedented and large one. Instead, the court focused on whether or not the patent was enabled based on the claim construction used by the district court. The majority concluded that it was not, since the patent didn’t teach one of skill in the art how to make the accused compound without undue experimentation. Going further, the majority also found the patent invalid for lack of written description — an ignoble “double death” thereby dealt to what a jury had recently considered one of the most valuable patents of all time. Taken together with the majority’s failure to mention the billion-dollar verdict in its opinion, it is not hard to imagine that finding the patent invalid on multiple grounds was a way of insulating the panel’s decision from criticism around rendering worthless a patent that was subject to one of the biggest verdicts of all time.

As is her wont, however, the Federal Circuit’s Judge Pauline Newman was unafraid to criticize her colleagues in a passionate dissent. Criticizing the majority’s approach to conducting the appeal, Judge Newman argued that the threshold question in any patent case is how the patent should be construed. Concluding that the construction advanced by the district court and carried through by the majority was wrong, Judge Newman’s dissent argued that the “claims, correctly construed, are valid and not infringed.” In short, in Judge Newman’s view the patent is valid, but Merck would take nothing from Gilead since there was no infringement under the proper construction.

Ultimately, it is telling that under either approach advanced by the Federal Circuit panel, Merck’s patent would be worthless. So did Merck get it wrong to the extent the value of Idenix’s patent portfolio influenced its decision to acquire the company? Or did Merck do the right thing in persisting with the Gilead lawsuit until now? The answers are not clear, especially since one can argue that the Idenix patent asserted at least had a potential value of over $2B, even though that valuation couldn’t withstand the pressure exerted by the crucible of intensive litigation through trial and appeal. Not every patent will go from billions to zero, of course. But it behooves all patent owners to remember that no patent is immune from potentially going to zero. And that choosing to enforce a patent is the quickest path to determining what its true value is. 

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. 

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.