The Top Above The Law Stories Of The Last Decade (Sort Of)

Technically the decade doesn’t end until December 31, 2020. That said, no one is looking to Above the Law to be the sort of obnoxious gunner who points out something so wildly pedantic. Let’s just lean back and celebrate the common parlance end out the 2010s with a look back the top stories we’ve put out over the first full decade of Above the Law coverage.

Why is this a “sort of” list? Above the Law changed how we track traffic in 2015 so while we can see stories from the whole decade, we can only identify the traffic those stories have generated since the summer of 2015. So when you look at this list you may wonder if there are some early decade blockbusters that should be in here. For instance, Dewey think the death of a law firm might have cracked the list? Probably. I happen to know from memory that this particular post about a former Michigan judge had traffic higher than all but three of the articles listed below. But we have to work with what we have and this list is a good thumbnail sketch of the years.

Of course, if you’re looking to hear a quick recap of the just top stories of 2019 — the feature we usually drop at this point — there’s always the Thinking Like A Lawyer recap.

Without further ado, behold a decade in the life of Above the Law:

10. Which Bar Exam Prep Course Is The Best?: Back in 2013, we endeavored to provide 3Ls with a comprehensive guide to the best bar prep courses available to them by simply laying out all the costs, discounts, and policies of the big players in bar prep so graduates could make an informed decision. The success of this post over the last decade is a reminder that while timely announcements that lawyers are demanding opposing counsel “eat a bowl of dicks” (while that story was only published in December, it is currently the 12th most read story of the decade), ATL also delivers serious, practical information and often that stuff delivers as many eyeballs as the more scandalous stories. And given that this article pre-dates the traffic black hole, it deserves to be much, much higher on this list.

9. The Brett Kavanaugh Chickens Have Come Home To Roost: The top story of 2019 is also the 9th entry in the decade’s hit list. “The Brett Kavanaugh Chickens” in this case represent Maine Senator Susan Collins realizing that she had torched the “I’m a moderate, pro-woman Republican” image that she’d mostly fictionalized to sustain her career in Maine politics. Kavanaugh was certainly a bigger deal this year, but let’s not undersell when she backed Neil Gorsuch as a defender of “precedent” because he’d written a book on it right before gutting the 40-year-old Abood decision. The moral of the story is that Susan Collins is a talentless hack who’s successfully hoodwinked Maine into thinking she’s Olympia Snowe for too long.

8. Apparent Suicide In Front Of D.C. Law Office Building: One of the biggest struggles internally at Above the Law is how to cover death, and in particular death by suicide. On the one hand, interrupting the light tone of the publication to pass along tragic news. On the other hand, this is the brother/sisterhood of the profession and we owe it to the legal industry at large to acknowledge that this happens and to encourage everyone who might be going through the same stuff that help is out there. Frankly, in a roundup of the themes that touched the ATL audience the most over the last decade, it’s important that a story about losing one of the fellowship is in here.

7. Salary Wars Scorecard: Which Firms Have Announced Raises And Bonuses? (2018): Last year, Milbank and Simpson and Cravath combined to give associates a cost of living adjustment to the 2016 raises. Sure, it was only 2 years after the last salary bump so it wasn’t as big of a splash, but it’s a testament to ATL’s audience growth that coverage of the 2018 adjustment actually outpaced the 2016 coverage. In fact, this post was split into two (reflecting the pre- and post- Cravath match and raise) and would actually be 4th if combined. The coverage of individual firm moves generally outpaced 2016 too with one pretty obvious exception that we’ll talk about in a minute.

6. City Attorney Spraying Anti-Trump Graffiti While Drinking Wine Is All We Have Left: Duncan Lloyd, an assistant city solicitor in Philadelphia, spray painted “Fuck Trump” on a wall in 2016 and his story became the first of many springboards for Elie Mystal to elucidate his frustration over the 2016 election.

5. The Lawyer Holiday Gift Guide: The Best Gifts For The Attorney In Your Life: The gifting holidays are behind us for another year, but the gift guide we maintain for those out there looking to bring cheer to attorneys remains an audience favorite.

4. You Realize Arming Teachers Is Going To Lead To Black Students Getting Murdered By Their Teacher, Right?: I remember everything about the genesis of this post. In the immediate aftermath of Parkland shooting, Republicans began discussing a comprehensive plan to solve mass shootings by giving high-powered weaponry to public school teachers in what’s arguably the least sensical idea they’ve had since supply-side tax cuts. Elie had begun work on a post about how the idea just won’t work when Kathryn Rubino and I mentioned that someone we know had pointed out that his biggest concern as a black man was that this will only spiral into teachers killing black students. Within about 20 seconds the original draft was junked and Elie started drafting this full explanation of exactly where this insane policy would end up.

3. The Absurdity Of Current Law School Scholarship Offerings: The rise in law school tuition defines one of Above the Law’s longest-running crusades. The profession doesn’t offer the same golden ticket it once did, but law schools are still treating third-tier students like they’ll be Latham’s next rainmaker. This straightforward piece looks at the trend of law schools driving up scholarship opportunities to cover for their increasingly unrealistic tuition demands.

2. Breaking: NY To $180K!!! Cravath Raises Associate Base Salaries!!! : After almost a decade of stagnation in associate salaries, the 2016 announcement that Cravath would bump salaries to the $180K scale became a huge story for Above the Law. And a good portion of its traffic didn’t even come in 2016. Almost a third of the pageviews for this post came in 2018 right after Milbank made the first move in that round of salary hikes, as people looked back to see how the 2016 round shaped up.

1. A Pictorial Walkthrough On How To Use Excel For Law Firm Billing: Some of Above the Law’s most popular content doesn’t move the needle when it’s first written. This technology piece for small law attorneys is the perfect marriage of two of ATL’s most important — but niche — audiences. We provide a great deal of legal technology coverage that may not generate a click from law students out there, but when attorneys are looking for product reviews and just a frank, maybe even irreverent look at emerging trends in the space, we provide a lot of content. For small law attorneys who needed to get the bills out the door and didn’t have a lot of capital to invest in billing software, this guide was a godsend and it continued to generate a small but steady stream of clicks for years. Today, billing software is more cost effective, so the guide’s traffic has slowed a bit, but it had a tremendous run as the most popular post of the decade.

1 Is Better Than 0

Startup founders have a lot to deal with. From raising money, to finding the right advisors, to hiring the right employees, to actually executing on their business ideas — the demands placed on founders are extreme. For many of them, it may seem like there is an endless checklist of tasks to complete and decisions to take. Among those decisions are IP-related issues, such as what trademarks to pursue or whether patent protection is available to protect at least one of the startup’s product offerings. Fortunate are the founders who has access to competent IP counsel to help guide them through those critical decisions. Even more fortunate are the founders with the budgetary wherewithal to follow through on procuring a robust intellectual property portfolio early in the startup’s lifespan. But how many founders enjoy such good fortune?

It is not hard to imagine that there are a whole host of founders who do not enjoy access to competent IP counsel right away. Likewise, even fewer founders are able to allocate precious resources toward IP procurement without reservation, which can make decisions about IP fraught ones for founders, who are asked to balance their immediate need to preserve resources with the potential future need to stop infringers. Making things more complicated is when a founder is under pressure to procure IP as quickly as possible to attract or satisfy existing or prospective investors, many of whom subscribe to the prevailing wisdom that IP is important to a startup’s prospects.

Let’s explore some of the reasons why that prevailing wisdom has taken hold and remains a potent consideration for investors considering an investment in a startup. For one, investors like to see some external proof that the founder or company they are investing in is innovative, rather than just a copycat market entrant. Likewise, investors know that prospective customers — whether large retailers or individual consumers — are drawn to innovative products and services and look to whether a startup can say that its core products are patent pending or patented as proof. Additionally, investors are drawn to founders that are IP savvy, often interpreting that savviness as proof that the founder is truly committed to the startup’s market goals and is a true believer in the startup’s mission. Lastly, investors realize that most startups are likely to fail in some way, whether that be an outright failure or a need to reposition away from the founding idea to one that actually shows commercial promise. In those common circumstances — especially when the startup goes belly up — the startup’s IP may be the only actionable asset available to the investor to recoup some or all of the investment.

For those reasons, it makes sense that investors like to see a startup invest in IP early on, even when resources are at their scarcest. But as with much prevailing wisdom, there is often a disconnect between the actual belief — such as that IP offers value even for a bankrupt startup — and concrete examples that provide support for that belief. That is why I was pleased to see recent reporting on at least one high-profile example of a startup company that failed, but also saw its patents sold in bankruptcy to the prospective benefit of at least some of its investors.

The company in question, uBiome, had sported a valuation of over $600 million at its peak, based on the expected market uptake of its microbiome testing products, which included self-administered and doctor-directed products designed to offer individualized wellness checks for consumers. Underlying the testing kits were what the company referred to as “a patented combination of full metagenomic and marker-based sequencing.”  At one point, uBiome was reported to have had at least a half-dozen issued U.S. patents, along with over 100 pending applications. As with many startups, uBiome touted its patent portfolio when it announced a successful fundraise, thereby directly linking its innovation with its commercial prospects and investor interest.

But things quickly went sour earlier this year for uBiome, with news in April of an FBI investigation into the company’s billing processes. That investigation eventually led to the removal of the company’s founders. By October, uBiome had been liquidated, with the company’s patents put up for sale at auction. A few weeks ago, it was reported that a Korean company’s U.S. subsidiary had purchased uBiome’s patent estate, pending bankruptcy court approval. The price? A little under $8 million, representing around 1% of uBiome’s peak enterprise value.

Ultimately, it may (or may not) be surprising that a failed startup’s patents could only command 1% of the company’s former value at auction. Either way, however, it is important to remember that the very same patent portfolio had ostensibly paid a key role in helping the company reach its previously high valuation. The story of uBiome can therefore serve as a guidepost for other startup founders, especially those struggling to justify investment in IP. That said, investors will continue to insist startup founders take precisely that step in many situations, guided as they are by a concern about recouping their investment in risky ventures. While it may be too late for many of uBiome’s investors, the company’s investment in IP paid off for somebody, just as it may for the IP’s new owners. At minimum, the patent portfolio’s sale probably redounded to the benefit of at least some of uBiome’s creditors. For them, at least, recouping one percent is better than zero.

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.

Partners Shouldn’t Expect Associates To Be In The Office At 9 Each Morning

Back in the Mad Men (and Dolly Parton) era of office culture, most professionals were expected to arrive at the office no later than 9 a.m. every day. In the past, many people could not work from home, and it was important that everyone be in the office at the same time each day to start completing assignments. Because employees were less accessible after hours years ago, employees also needed to show up to work at a set time so managers could keep track of their workers.

However, people are accessible pretty much all the time in the present day, and most attorneys can complete almost all of their work in the comfort of their homes. As a result, it rarely makes sense for associates to be in the office at 9 a.m. each day, especially when attorneys can finish work later if they arrive at the office later in the day. Nevertheless, some partners insist on establishing artificial expectations for when associates must be in the office, and those requirements can create unnecessary hardships.

Most of the partners I worked for at various firms did not really care when associates arrived at the office every morning, so long as an associate billed enough hours. Indeed, at most firms at which I worked, attorneys usually arrived at the office around 9:30 a.m., and some associates did not arrive at the office until 11 a.m. most days. Of course, attorneys who came to the office later in the day usually stayed later, and there were few downsides to those associates showing up for work after the traditional 9 a.m. start to the workday.

However, I once worked at a firm that decided to crack down on people arriving late to the office. The managing partner of this firm sent out a stern email to everyone at the office requiring that all attorneys and other employees be in the office at 9 a.m. each day. The partner said that having all employees arrive at the office around 9 a.m. would help us provide good service to our clients. It was also mentioned once that it would be easier for attorneys to collaborate on assignments if everyone was around the office at the same time each morning.

However, requiring everyone to be at the office at 9 a.m. every day was completely unnecessary and created burdens for associates and other employees. Clients knew they could email us whenever they wanted and receive a response around the clock. I think I only had a handful of conversations with clients on the landline at my office while working at that firm, and being accessible to clients is a poor excuse to require associates to be at the office at 9 a.m. In addition, since many firms require associates to be accessible around the clock through email, it is extremely unfair to also require these attorneys to be in the office at 9 a.m. each day.

Furthermore, requiring attorneys to be in the office at 9 a.m. is regressive and can create hardships that may make it more difficult for associates to fulfill other responsibilities in their lives. For instance, many parents have difficulty getting to the office that early due to childcare needs, and being more flexible with when associates must be in the office can make it easier for parents to contend with childcare issues. In addition, being flexible about when associates need to start their day can make it easier for employees to attend doctor’s appointments, deal with car troubles, or fulfill any number of other responsibilities people have in their lives. Such flexibility can boost morale and show associates that their employer cares about them and is not establishing artificial expectations that can get in the way of employees fulfilling important obligations in their lives.

In addition, requiring associates to be in the office at 9 a.m. each day so attorneys can collaborate and communicate face to face is also a poor reason to create a hassle in the lives of associates. Most associates today collaborate through text, email, gchat, and a variety of other tools. Indeed, at many of the firms at which I worked, associates had robust group text message chains where all of the attorneys spitballed ideas and supported each other as we completed assignments. Since attorneys use various means to collaborate, it is unfair to use collaboration or face-to-face interactions to justify a 9 a.m. start to the workday.

All told, requiring associates to be in the office at 9 a.m. each day is so twentieth century! Most partners who have such expectations need to get with the times and afford associates greater flexibility. Of course, sometimes there are powerful incentives to get to the office early. One time, I worked at a firm where an important partner was in the office at 8 a.m. each day, and I wanted to be in the office early in order to receive assignments from him. If there is an important enough reason to be in the office early, associates will use their discretion and arrive at the office at an appropriate time.

However, a 9 a.m. start to the workday is usually an artificial hassle that can get in the way of associates completing necessary life responsibilities. Since associates are accessible pretty much all the time through email and other means, partners should be more flexible about when they expect associates to arrive at the office each morning.


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.

Morning Docket 12.31.19

US President Barak Obama embraces US Supreme Court Justice Ruth Bader Ginsburg as US Supreme Court Justices Anthony M. Kennedy (L) and Stephen G. Breyer look on before the President’s State Of The Union address on January 20, 2015 at the US Capitol in Washington, DC. (Photo by MANDEL NGAN/WHITE HOUSE POOL (ISP POOL IMAGES)/Corbis/VCG via Getty Images)

* Joe Biden stated that he may nominate Barack Obama to the Supreme Court if the former president was interested. Obama should brush up on his con law just in case… [The Hill]

* A retired law professor is suing commentors who discussed him online. [Reason]

* We lost some amazing lawyers in 2019, check out the list. [Bloomberg Law]

* A judge has dismissed an impeachment witness’ lawsuit after the House rescinded its subpoena. [CNN]

* An attorney has been hospitalized after a client punched him. This happens far too often. [Star Tribune]


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.

Lithium projects make progress in Austria, Zimbabwe – The Zimbabwean

European Lithium, which is developing Europe’s largest lithium project at Wolfsberg in Austria, has had its 11 mining licences and 54 exploration licences extended to the end of 2021 by the Austrian mining authority.

The company has also arranged a €7.5mn ($8.3mn) debt facility to replace an existing facility, enabling it to complete a definitive feasibility study. A pre-feasibility study has already indicated that the project can use its 7.4mn t ore reserve to produce around 55,400 t/yr of lithium concentrate, which can be converted to 8,400 t/yr of lithium hydroxide monohydrate at a nearby metallurgical plant.

European Lithium is part of a syndicate that has applied to the German government to access funds from a €1bn grant aimed at developing Europe’s electric vehicle industry. The company aims to have the Wolfsberg project in production by the end of 2021.

Prospect Resources has concluded a share placement to raising working capital for its Arcadia lithium project in Zimbabwe while a potential investor and offtake partner completes due diligence and a financier considers the granting of a debt facility.

A definitive feasibility study indicates that Arcadia, Africa’s most advanced lithium project, can produce 173,000 t/yr of spodumene concentrate, 122,000 t/yr of petalite concentrate aimed at the glass and ceramics industries, and 173,000 lbs/yr of tantalum concentrate.

Uranium One, a subsidiary of Russian state-owned nuclear firm Rosatom, is considering gaining access to at least 51pc of Arcadia’s future lithium production. The African Export-Import Bank is mulling a $143mn funding facility for the project, which is targeting initial production at the end of 2020.

Post published in: Business

WFP calls for increased support as eight million in Zimbabwe face hunger – The Zimbabwean

Nearly eight million people, or roughly half the population, are not getting enough to eat, the UN agency said on Monday.

WFP plans to double the number of Zimbabweans that it assists, up to 4.1 million, but will require over $200 million to meet needs in the first half of 2020 alone.

“As things stand, we will run out of food by end of February, coinciding with the peak of the hunger season – when needs are at their highest,” said Niels Balzer, WFP’s Deputy Country Director in Zimbabwe.

“Firm pledges are urgently needed as it can take up to three months for funding commitments to become food on people’s tables.”

Declining harvests due to ongoing drought

Zimbabwe, once known as an African breadbasket, has been hit hard by three consecutive years of drought.

As a result, the maize harvest dropped by 50 per cent this year when compared to 2018.

To meet increasing needs, WFP was forced to launch an emergency lean season assistance programme in August, months earlier than expected.

Hilal Elver, the UN Special Rapporteur on the right to food, visited Zimbabwe in November where she witnessed how women and children are bearing the brunt of the crisis.

“In a desperate effort to find alternative means of livelihood, some women and children are resorting to coping mechanisms that violate their most fundamental human rights and freedoms. As a result, school drop-outs, early marriage, domestic violence, prostitution and sexual exploitation are on the rise throughout Zimbabwe,” she said in a statement following her 11-day mission.

Runaway inflation affecting food prices

The hunger crisis comes as Zimbabwe is facing its worst economic downturn in a decade.

Runaway inflation is just one of the symptoms, and it has put the price of basic goods beyond the reach of the average citizen. WFP reported that bread is now 20 times more expensive than it was six months ago.

Increasing hardship is forcing families to skip meals, take children out of school, or sell off livestock, among other desperate measures.

Gladys Chikukwa sells tomatoes at the second largest market in the country, Sukubva, and is finding it hard to survive.

“Just because we are selling tomatoes in this market doesn’t mean that we have enough food for ourselves. We are seriously struggling,” she said.

“Our produce is rotting in this market because of prices. Today, tomatoes will go for 250 Zimbabwe dollars, tomorrow 300 dollars, the next day 400 dollars and people don’t have that money.”

Funding is essential

The drought shows no signs of letting up, and forecasts indicate another poor harvest in April, according to WFP.

The UN agency also faces challenges in scaling-up its operations in Zimbabwe as the shortage of local currency coupled with rapid inflation requires switching from cash-based assistance to food distributions.

And with other southern African countries also gripped by drought, food stocks must be sourced outside the continent and then shipped to neighbouring South Africa or Mozambique before being transported to landlocked Zimbabwe.

WFP will require nearly 200,000 metric tons of food to assist the 4.1 million Zimbabweans it plans to target.  Mr. Balzer, the agency’s Deputy Country Director, underlined why financial support from the international community is so desperately needed.

“While WFP now has the staff, partners, trucking and logistics capacity in place for a major surge in Zimbabwe, it is essential that we receive the funding to be able to fully deliver,” he said. “The lives of so many depend on this.”

Catholic agencies intervene in Zimbabwe climate change crisis – The Zimbabwean

A family digs for fresh water along the Save River in Manicaland, Zimbabwe, as drought conditions shrink water sources, leaving domestic animals and humans short of water. (Tawanda Karombo)

The Zimbabwe Catholic Bishops Conference (ZCBC) acknowledged the economic and social amenities crisis that Zimbabwe is facing in their Dec. 9 pastoral letter. “The nation is facing shortages of energy, water and other basic commodities. Infrastructure like roads, railways, dams and bridges is in terrible disrepair with little hope of the problems being fixed.”

Are you hosting or attending a climate-related event? Post the information on the EarthBeat Events Calendar.

In March, Cyclone Idai destroyed crops and infrastructure and displaced citizens in Zimbabwe’s Manicaland and Masvingo provinces. Those are regions where the extreme weather phenomenon that many experts blame on climate change was felt the most.

As a result of Cyclone Idai, more Zimbabweans have been left at the risk of hunger. This coincided with a prolonged drought spell, which has also meant that more Zimbabweans will need food aid. The United Nations’ World Food Program (WFP) said in early December that “it plans to more than double the number of people it is helping by January to 4.1 million” as it provides “life-saving rations of cereal, pulses and vegetable oil and a protective nutrition ration for children” under the age of five.

The program said the Zimbabwean hunger crisis was part of “an unprecedented climate-driven disaster gripping” southern Africa, which had given rise to temperatures in the region soaring to more than twice the average global rate. More erratic rainy seasons were also “hitting the country’s subsistence farmers hard,” according to WFP.

Catholic agencies in Zimbabwe have had to intensify their programs and spend more money in the face of climate change and the economic crisis that President Emerson Mnangagwa is struggling to address. Some traditional farming practices and other social practices also continue to worsen climate change in the country.

Rita Bilingsley, the Catholic Relief Services (CRS) country representative for Zimbabwe, told Earthbeat that “poor government policies and a lack of enforcement of existing by-laws by responsible authorities are critical factors contributing to climate change” in Zimbabwe.

She added: “Policies focused on managing the country’s carbon footprint and preventing unchecked deforestation are especially important. At the farmer level, crop and livestock farmers are still using practices that might have worked in previous generations, but in the current situation, practices like use of synthetic fertilizers degrade soil moisture and fertility (while) other practices like uncontrolled mining and poor waste management also contribute to climate change.”

She said climate change was impacting Zimbabwean communities through “increasingly frequent droughts, floods, and cyclones” with the growing season becoming longer, “which means farmers have to wait longer to harvest” their crops. “There is a reduction in habitats and specie distribution.”

The government of Zimbabwe says it is working on a policy framework to mitigate the effects of climate change in the country. State media quoted Tirivanhu Muhwati, a climate change scientist in the Environment and Climate Ministry, as saying earlier this month that emissions in the country were largely a result of energy production powered by coal.

Destruction delivered by Cyclone Idai in Zimbabwe’s Chimanimani area earlier this year. The cyclone left thousands of Zimbabweans without homes and destroyed a wide range of infrastructure. (Tawanda Karombo)

“Most of the emissions in Zimbabwe come from energy consumption so there is a need to reduce the emissions that come from the burning of coal to produce electricity,” he said.

The impact of climate change often cascades down to the wider communities. CRS reports that, in the aftermath of climate change-induced disasters like droughts and cyclones, “there are often disease epidemics like cholera outbreaks.”

They report that malaria and HIV infections “also increase because people are living in makeshift conditions and do not have access to healthcare or basic disease prevention” equipment.

But some interventions by CRS and other Catholic agencies such as Caritas are helping to mitigate the impact of climate change in Zimbabwe. CRS is working with farmers in the country to build their skills in climate-smart crop and livestock agriculture and to provide them with the information they need to anticipate and prepare for climate events.

Takura Gwatinyanya, the program manager for Caritas in Zimbabwe, said by email that its programs are carried out through the Caritas Archdiocese of Harare in partnership with CAFOD community volunteers as well as other stakeholders.

“Climate smart technologies are being promoted to improve access to safe water through the use of renewables like solar, reducing diseases, walking distances, and (the) burden on women and children, promoting economic productivity by providing water for agro-economic activities,” said Gwatinyanya.

The agency is also relying on funding from Caritas Internationalis in its responsive programs in the aftermath of the devastation wrecked by Cyclone Idai, which left around 300 people dead in Zimbabwe.  But limited funding restricts how much can be done.

Logging for firewood and industrial wood use is among the major contributors to climate change in Zimbabwe. Trees are also being cut down for charcoal as electricity shortages hit and prices of petroleum and liquefied gas go up. (Tawanda Karombo)

Climate change experts from Caritas and CRS believe that “a greater number of Zimbabweans in the rural and urban areas now rely on firewood for cooking and this has increased carbon emissions as well as overcutting down of trees” and land degradations, according to Caritas.

Logging is a major practice worsening the impact of climate change as loggers destroy forests for firewood or for charcoal. Both have emerged as major power alternatives in the absence of electricity or in the face of rising prices for electricity and other cleaner sources of energy such as gas.

According to the CRS, one of the biggest challenges in the fight against climate change in Zimbabwe is the limited access that institutions and communities have to resources that will support technology, innovations or knowledge-sharing about climate change. The extreme weather conditions and hyperinflation, as well as rising fuel and communication costs, also make efforts to fight climate change and build resilience difficult, according to Caritas.

Other experts, such as Anna Brazier, who is a consultant in sustainable development, believe communities in Zimbabwe need to develop adaptation plans. She said in Zimbabwean urban areas such as the capital, Harare, companies and businesses need to climate-proof their enterprises especially in terms of water conservation. There is also a need for buildings to make use of low energy and green energy instead of “air conditioning, which is a huge contributor to greenhouse” gas emissions, Brazier said.

“Cities and towns in Zimbabwe need to put water conservation and management plans in place,” she added. “Tree planting in urban areas will help reduce temperatures and help infiltration of water into the soil. All building on wetlands must be banned.”

[Tawanda Karombo is a business and financial technology journalist based in Harare, Zimbabwe, with over 10 years of experience covering sub-Saharan Africa.]

Scandal Preceded The Dissolution Of This Biglaw Firm

Ed. Note: As the decade comes to a close, Above the Law presents you a special Trivia Question of the Day series in remembrance of the Biglaw firms we lost in the 2010s.

What now defunct D.C. based Biglaw firm was founded in 1953 and announced its dissolution in 2016?

Hint: The firm’s lobbying operation had a brush with infamy when it fired former Republican Speaker of the House Dennis Hastert as a lobbyist. Hastert resigned in 2015 after his indictment on federal charges (structuring bank withdrawals to evade bank reporting requirements to make hush payments and making false statements to federal investigators) was unsealed.

See the answer on the next page.

Jeanette Nyden’s Three-Step Approach To Contract Negotiations

(Image via Getty)

“For me for the connection between the commercial terms and the legal terms in a contract is that risk costs money and, oftentimes, the legal terms provide a remedy,” Jeanette Nyden says. “The more that we play with the legal terms, to allocate risk the more likely to increase the possible remedies, the more of a boomerang effect there will be on the relationship and increased costs.”

Nyden is a widely recognized expert in the field of legal contracts. She has authored or co-authored numerous books, including The Contract Professional’s Playbook: The Definitive Guide to Maximizing Value through Mastery of Performance- and Outcome-Based Contracting; Getting to We: Negotiating Agreement’s for Highly Collaborative Relationships; Negotiation Rules! A Practical Approach to Big Deal Negotiations; and The Vested Outsourcing Manual: A Guide for Creating Successful Business and Outsourcing Relationships.

You should never start negotiating with the legal terms, Nyden advised. “When you get a straight legal term, you’re not thinking of commercial terms. That’s a challenge. Legal terms often sound really grand but they impact the commercial aspects of the deal, as well,” she said. For example, when negotiating a warranty clause, look at the buyer’s ability to detect a defective item or nonconforming service through testing and approvals first. It is far better to catch the defect before it is accepted by the buying company, then later through a warranty claim. 

She recommends taking a three-step approach: create a risk profile, manage risks through policies and governance, and then (and only then) use legal tools like a limitation of liability and indemnities.

Start With A Risk Profile 

It is important to align your intentions around supplier performance. Nyden explained. “First, figure out what kind of supplier performance you are looking for. Then you can get back to the contract.” Starting with a risk profile is a good way to begin. “Lawyers really cannot have a thorough understanding of what the risk formula (i.e., limitations of liability) they create should look like if they don’t have a really good idea of the risk profile involved,” she added.

According to Nyden, one way to create a risk profile is by asking and answering these questions: How detectable is the risk? How probable is it? How severe is it? From there, you can develop a profile. You can create an easy color-coded system with red, yellow, or green profiles corresponding to different risk levels. She recommended working with the line of business to identify risks.

Having robust processes to identify, document, and manage the risks process is a must. Ask yourself: Are there early warning signs? How probable is it? “What I want to do is look at it upfront,” Nyden explained. “What protections do we need in the statement of work so that we’ve got the right kinds of security in place, even if that’s as much as we can do?” 

Manage Risks Through Policies And Governance

Then, through operational means, identify ways to mitigate the risks you’ve identified. You need to make sure that the right technical specifications are outlined. “Corrective action planning, cure notices, monthly or quarterly reports, and numerous other mechanisms are there to protect your client from unnecessary risk,” Nyden said. She recommended looking at how corporate policies can control risks. Ask yourself: Do you have the kind of audit rights that you need? Do you have the right kind of background checks in place?

“You can mitigate these risks by having operational procedures such as reviews, approvals, or acceptance-testing in place,” Nyden said. “You can also control risks through stronger corporate policies and audit rights, and things like that.”

According to Nyden, there are differences between controlling, mitigating, and allocating risks. “If you are not actually trying to prevent the loss from happening through mitigation, you need to work in control features. Look at how your statement of work is written and mitigate the risk as much as possible with technical specifications. You can control it through things like audit procedures, background checks, and insurance provisions.”

Lastly, Use Legal Tools

Then, and only then, look at your limitation of liability and indemnification clauses—things like that. Once you have done the hard work, your exposure and liability will become clear. That is a good time to use legal tools like a limitation of liability and indemnification. But those are crude tools; they do not minimize risk. They focus on allocating the responsibility for the risk event and payment once the size of the risk is determined. They should only be used as a last resort.

“Once we’ve been able to identify the risks, you can look at specific potential liabilities, Nyden explained. “If you insert liquidated damages first, then you effectively accept risks and waive other remedies against the supplier.”

In the end, “I see a lot more companies demanding more now,” Nyden observed. “Saying that their buying organization wants higher limitations on liability, higher penalties for late delivery, more indemnification, intellectual property, and especially with GDPR,” she added. “My concern is that this is just a policy. As a contract professional, I prefer to focus on the statement of work. It allows me to address risks through operational excellence and governance.”


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.