Author: TSA Press

I have been writing this column for over a year now, and haven’t even mentioned Phil Vassar. Even worse, in three years of teaching a law school class, I haven’t unapologetically pushed Phil Vassar’s music on my students. It’s an obvious dereliction of my character traits, and I think we could all use the distraction right now of a minor, lighthearted abuse of power, in the face of all the big, dark ones sucking the air out of the room lately.

Now, about 95 percent of you are saying right now, “Who the f*ck is Phil Vassar?” Well, much like Edgar Allan Poe, or Henry David Thoreau, Phil Vassar is a literary genius underappreciated in his own time.

I was raised in a small town. I’m not ashamed of it. Sure, I got a lot of grief for, like, reading, and spending surplus time thinking. But one of the distinct advantages of growing up in flyover America was that the music in vogue there from the mid-90s to roughly 9/11 was PHENOMENAL. You might scoff at that, but all the best stuff started in obscure, backwater, low-income places. See, e.g., barbeque.

As I grew up, things changed, as they do, and many years later, I wound up as a lawyer in a (locally) prestigious firm. My good buddy at the firm, who later went on to become a commercial real estate lawyer in Biglaw, scoffed at my deeply ingrained preference for county music, saying, “Have you ever actually listened to the lyrics? It sucks; it’s just simplistic, pandering nonsense.”

Damn it, after that, I couldn’t help but listen to the lyrics. He was right. We had entered a musically superficial age. What was previously complex, gritty, risk-taking country music had largely devolved into a series of autotuned middle-America platitudes. It sucked.

Yet, Phil Vassar… oh, Phil Vassar. He’s truly an exemplar of a musically better age. When you had a feeling, he seemed to feel it. When you faced a struggle, you better believe he had struggled through the same damn thing. When you were introspective, he had a positive introspective spin for you. In his heyday, Phil Vassar wrote songs for such luminaries as Tim McGraw, Jo Dee Messina, and Kenny Chesney. But in my humble opinion, some of his finest work came when he wrote for himself.

Friday, you’re late. I guess we’ll never make our dinner date, at the restaurant. You start to cry. Baby, we’ll just improvise. Well, plan B, looks like, Domino’s Pizza in the candlelight.

That’s love, no? And real life, maybe especially for someone in the precarious relationship quagmire known as being a law student or a new lawyer?

And take exhibit B:

My next 30 years, I’m gonna watch my weight. Eat a few more salads, and not stay up so late. Drink a little lemonade, and not so many beers. Maybe I’ll remember my next 30 years.

Again, apt. One more Phil Vassar lyric, this one as originally performed by Jo Dee Messina:

Well, it’s been a long time, glad to see your face. I knew we’d meet again another time, another place. Can’t believe it’s been so many years, you better grab a chair and a couple of beers. Lookin’ good in your three-piece suit, ya’ know, I always knew you’d take the business route.

Shit, that is great. Someone understands long-term friendship.

It’s hard to say how much money Phil Vassar has made for Nashville. It’s a lot though. Moreover, he probably gets some credit for spurring certain middle-aged lawyers who came of age in the 90s into action on any given Friday afternoon.

Phil Vassar took on complexity, and sometimes hardship, but rather than being grim and defeatist about it, he was positive. His lyrics may not have been subtle, but they have always been inspiring, and relatable. So, keep an open mind. The next time you need to juice your billable hours on a late afternoon or early evening, look up Phil Vassar’s greatest hits on YouTube. What do you have to lose? And, while Phil really hit his stride for songwriting in the late 90s and early 00s, if you ever get the chance, see him live. He still performs all across the country, often for charity. You will never regret witnessing the things he does with a piano onstage. Seeing that, my friends, is a true value.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Thanks to the emergence of affordable home DNA testing, we are now constantly learning surprising news relating to family connections and assisted reproductive technology. Discovering that a single sperm donor fathered a multitude of children, sometimes more than a hundred, is basically old news by now. It even inspired movies like Delivery Man, where Vince Vaughn finds out that he has fathered more than 500 children from his past side job.

Have you discovered a long lost cousin? Well, you have nothing on Dr. Bryce Cleary. Recently, a sperm donor who is also a doctor brought suit against his former medical school, which he says pressured him into donating sperm, but also misused the sperm after he donated. Per the complaint filed in Oregon’s Multnomah County Court, Dr. Cleary alleges he was in his first year of medical school at Oregon Health and Science University (OHSU) when he and other medical students were solicited to donate their sperm to the hospital to help women become pregnant and for research. Seems like this would have made a good episode of a medical school TV show!

Broken Promises

Cleary alleges that he relied on four very specific promises he says were made by OHSU that induced him to donate. These included:

(1) that all fertilizations would be limited to women residing on the East Coast, and/or women not residing anywhere near the State of Oregon and the Pacific Northwest;

(2) that no more than five children would be born of the donor’s sperm;

(3) that once five children were successfully born, Plaintiff’s sperm would no longer be available to hopeful mothers, but, instead, Plaintiff’s sperm would be utilized only for medical research; and

(4) at all times after birth, Plaintiff’s specific name, identity, and whereabouts would forever remain anonymous unless otherwise ordered by a court of competent jurisdiction.

Wow, right? Very specific promises. I hope he got them in writing.

But I’m a little confused about these promises. Why would the clinic promise all fertilizations would be on the East Coast, when Cleary could have gone anywhere in the country — including, like, the East Coast — after medical school? Wouldn’t it make more sense to distribute the sperm across the country or, even better, the world? The promise to limit the number of kids to five is a little more understandable. It’s a fair concern for a donor to worry about how many offspring he would have, so I can see a donor needing to have such an assurance before agreeing to donate.

Of course, extensive use of the donor’s sperm by OHSU has been revealed as exactly what happened. Last year, a local Oregon woman contacted Dr. Cleary after taking a DNA test that linked her to a relative of the doctor, and led her to identify Dr. Cleary as her donor parent. Dr. Cleary himself ultimately took a DNA test, and it wasn’t long before he discovered 17 (so far!) people conceived from his donations. All of them are local to his part of Oregon. Some kids have even attended the same schools, churches, and social functions as each other. Luckily, none so far have gotten married to each other. But no word yet on whether they might have gone to prom together.

The complaint alleges that the clinic never really even tried to live up to its promises. It says that the clinic didn’t follow up with those who received his sperm to see if children were born. And they gave his sperm out way more than five times. In fact, the clinic’s only knowledge as to the number of births from his donated sperm was from some self-reporting mothers of the donor-conceived children.

Eugenics

A surprising allegation within the complaint is that Dr. Cleary was unwittingly used as a “tool” of OHSU and their eugenics experiments. The complaint argues that the clinic was using medical students to see if their kids would also become doctors. Cleary accuses the clinic of engaging in a full-blown eugenics project “to perversely increase the occurrence of a superior race of desirable inheritable characteristics for profit.” Oh. Hmm.

While I am very much in favor of reform of the sperm bank industry, I’m also a little skeptical that the sperm clinic in this case had the nefarious plan of developing a race of ubermenschen Oregonian doctors. And, if you ask me, that allegation sort of undermines other portions of his lawsuit.

Calculating Difficult Damages

But if the clinic really made the promises above, will the clinic be held accountable for broken promises and damages? How would a court even begin to calculate damages for this type of harm? Cleary is requesting $5,250,000 in damages. The number comes from multiplying a flat rate of $250,000 for each known child, plus $1,000,000 for mental health treatment and lost wages. Cleary alleges emotional distress over discovering he is the biological father to so many children.

I don’t quibble with the fact having lots of kids that you didn’t intend to father is emotionally distressful to Cleary. And I could see a jury concluding that these numbers compensate for those injuries. But it seems so … hard to measure. Why $250,000 per child? What if there are more children discovered next year? Are those an additional $250,000 each? What would the pure contractual damages be? In sum, I have questions.

But one thing is clear. Courts are going to struggle with these types of questions more and more. Whether it’s not having kids because a freezer melts down, having someone else’s kids because of an embryo mix-up, or having too many kids because a sperm clinic might have deceived you, courts are going to have to figure out how much money a plaintiff with a claim ought to be entitled to, if any. Hopefully, the judge isn’t one of Dr. Cleary’s kids.

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

At least clients are putting up a brave front.

When asked about new regulations like the California Consumer Privacy Act, 68 percent of in-house legal department respondents are either “not concerned” or only “somewhat concerned.” That’s a good indication that corporate counsel have a great plan for this stuff, right? Well, in the same survey, when asked “do you feel concerned about your organization’s ability to
meet all aspects of the new privacy requirements?” 69 percent were “concerned” or “very concerned” with an additional 25 percent “somewhat concerned.” And 84 percent “have no clearly defined processes to meet new and emerging privacy regulations.” Maybe this is like the football coach telling the team they have everything they need to win and then turning around and telling the press that the other team presents a real challenge. Still, that’s probably not how to run a legal department.

These stats come from the 2019 In-House Legal Benchmarking Report produced by Exterro, ACEDS, and In The House.

While those responses seem contradictory, maybe the twist is in the phrasing — “of course we’ll be fine with all these laws… but maybe not every aspect of these new laws.” If that’s the source of this disconnect, it may be a product of the GDPR experience, where months of fret resulted in not too much on-the-ground disruption — indeed over half of those surveyed said GDPR hadn’t impacted them at all and only 3 percent reported that the rule changed their processes any more than “somewhat.” But even if GDPR involved a good deal of crying wolf, it shouldn’t numb institutions to the changing regulations.

Also worth noting from the report, legal departments are starting to scale back on their outside counsel. While some of this is due to increased in-sourcing respondents appeared evenly divided between whether insourcing will increase, decrease, or stay the same over the coming years, meaning the contraction in outside counsel choices speaks in part to something else. After years of branching out in choosing law firms, most clients are aiming to have between 1 and 10 law firms at any given time.

Speaking of that in-sourcing trend, while 70 percent of respondents said they handle at least 50 percent of their litigation services internally, only 45 percent said they employ review technology. That presents in-house departments with a lot of low-hanging fruit if they want to take discovery work away from outside counsel. Advances in review technology have enabled smaller and smaller teams to tackle larger and larger tasks — it’s not a stretch to suggest that in-house teams could take on a much larger share of review with a modest upfront investment in legal technology.

Maybe these companies should consider that investment before they have to pay their narrow team of 5 law firms to bail them out for all those privacy violations.

In-House Legal Benchmarking Report [Exterro]

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.

I would love to open up a firm and hire formerly incarcerated people that have spent so much time having to fight for their lives inside. They know the law better than anybody and I think I would have the best firm if I had a firm [filled with these types of people].

I spend a lot of time visiting prisons and some of the most enlightened people I’ve ever met, some of the smartest people, and the people that know law the best are people that are spending time in prison.

— Kim Kardashian West, commenting on her career ambitions to specialize in criminal law in a recent interview. Kardashian, who has largely focused on criminal justice reform during the first year of her “law school” studies, went on to note, “I already know that I really want to study criminal law but you have to go through the motions of contracts and torts and civil, and everything else, but I’ve really enjoyed the process.”

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 case you had any doubt about how a sharply divided Supreme Court will play out over the next several years, Justice Samuel Alito is here to make sure you know petty barbs are now par for the course.

On Monday, the Court heard arguments in Ramos v. Louisiana. In a unique twist, both sides in the case are asking the justices to overturn the 1972 case Apodaca v. Oregon. Evangelisto Ramos, a man convicted of murder on a 10 of 12 jury vote, is asking the justices to formally incorporate the Sixth Amendment’s unanimous jury conviction requirement to the states. The state of Louisiana is also asking for Apodaca to be overturned, but they prefer the Court find there is no right to conviction by unanimous jury under the Sixth Amendment. And Justice Elena Kagan seemed perturbed at Louisiana’s position, as reported by Law360:

“You have this stare decisis, except you’re giving it away,” she said. “And I don’t know what to make of that because I would think what you would do is to say something like: This is an outlier in our incorporation doctrine. There’s no question that it is. But it has been an on outlier for 50 years. It has been completely administrable. It has been completely clear.”

Despite Justice Kagan’s grilling of the respondent over the abandonment of stare decisis, Justice Alito made sure to get in a dig at the expense of the liberal justices who have been disturbed over the majority’s ease in shedding precedent in other cases:

[Alito] lightly chided his liberal colleagues…. pointing out that “last term, the majority was lectured pretty sternly in a couple of dissents about the importance of stare decisis,” the Latin term for respecting precedent.

If there was any doubt to whom he was referring, Justice Alito said he was “thinking about the dissent in Franchise Tax Board and the dissent in Knick versus Township of Scott.”

In those two cases, Justices Stephen Breyer and Elena Kagan blasted the conservatives for overturning a pair of precedents governing state sovereign immunity and the Fifth Amendment’s takings clause. Their dissents also warned about “which cases the court will overrule next.”

I guess precedent matters to Alito when it means a convict might get out of jail. Or perhaps he just wants to get it out there early and often that breaking the eggs of precedent is part of making a Supreme Court omelet before the Court overturns Roe. Regardless, it seems obvious that, at least for the near future, snipping will simply be a feature of the Supreme Court.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Days before Yom Kippur, the holiest day of the year for those of the Jewish faith, anti-Semitic graffiti was found scrawled across the steps to a side entrace to Yale Law, the most prestigious law school in the country.

The graffiti incident occurred late on Saturday night, and according to the Yale Daily News, a white swastika was spray-painted above the word “Trump.” By Sunday afternoon, the graffiti was covered with black paint and a doormat before finally being removed in its entirety. Dean Heather Gerken and Associate Dean of Students Ellen Cosgrove both released statements in the wake of the hateful display:

“We are saddened by this act of hate against our community at any time but understand that this is particularly difficult occurring between the High Holy Days,” said Ellen Cosgrove, associate dean of students at Yale Law School. “Diversity and inclusion are core values of our institution [and] attacks against individual students or communities of students will not be tolerated.”

Gerken emphasized that there is no evidence that a member of the Yale community painted the swastika, and stressed that the act of anti-Semitism is “utterly antithetical” to the values of the Law School.

“Yale Law School has zero tolerance for discrimination or harassment of any kind, and symbols of hate have no place on our campus or in our society,” Gerken said. “We take an incident like this extremely seriously and are currently investigating.”

According to Rabbi Jason Rubenstein, Yale’s Jewish chaplain, the investigation is ongoing and campus police are “relying on video footage from late Saturday night and early Sunday morning” to identify the perpetrator. Rubenstein further noted that campus police visited “all other likely targets of anti-Semitic activity” and found “no evidence that this incident is part of a larger campaign.”

This is not the first time anti-Semitic messages have appeared on the Yale campus. In 2008, swastikas were found sculpted out of snow, and 2014, swastikas were written in chalk outside various residence halls. The perpetrators were never found.

Anyone who has information about the incident has been encouraged to reach out to Dean Gerken’s office or the Yale Police Department.

G’mar chatimah tovah to everyone who is observing Yom Kippur today. May you have an easy and meaningful fast.

Swastika appears on Law School steps [Yale Daily News]
Word ‘Trump’ spray-painted with swastika on Yale Law School steps [The Hill]
SWASTIKA, ‘TRUMP’ FOUND SPRAY-PAINTED ON YALE LAW SCHOOL STEPS DAYS BEFORE YOM KIPPUR [Newsweek]

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.

When I was in law school, I had many flawed perceptions about what it would be like to be a practicing attorney.  I imagined that most lawyers spend their days in court arguing motions or presenting cases to juries.  In addition, I thought that time in the office was spent on legal research, writing briefs, and other strictly legal tasks.  However, as many lawyers understand firsthand, the actual practice of law is extremely different from what many people may perceive.  Indeed, many attorneys don’t really practice much law in any traditional sense, or at least spend the majority of their time on tasks that do not involve strictly legal skills.

Some attorneys work on matters that by their very nature do not require much legal acumen.  For instance, I spent several years earlier in my career working on mass torts cases.  In this role, very little of my time was spent on brief writing, arguing motions, or traditional legal duties.  Instead, the vast majority of my hours were spent completing tasks that did not require much legal skill.

For example, depositions in these mass torts matters were not like examinations before trial in ordinary lawsuits.  Numerous companies were typically sued in each of these mass torts matters, and depositions were usually attended in person or by phone by dozens of lawyers.  Oftentimes, the depositions would go for days or weeks, since one attorney would ask questions that related to all of the defendants, and each attorney would ask client-specific questions for a short while, usually from a script.  In a sizable amount of cases, I did not need to do anything at these depositions except take notes, since our clients were not named at the depositions, and I just needed to be there in case we were implicated in the case.

Of all the skills I learned in law school, the ability to type quickly was the thing that allowed me to succeed the most at these depositions!  Of course, sometimes, I would have to step up and do more of the leg work at these examinations.  However, the vast majority of these depositions simply involved taking notes and basically reading from a script, tasks that did not require too much legal acumen.

Court conferences in these mass torts matters were also unlike conferences in traditional cases.  Since there were dozens of defendants in many of these matters, only a few liaison attorneys did the vast majority of the talking at these gatherings.  Our job would be to simply take down notes from the conferences and let everyone know about deadlines or other details that needed to be circulated.  On numerous occasions, I would travel many hours (all billable) to a court conference to simply take notes for five to ten minutes about our matters, and then travel many hours back home!  Again, none of this work involved much legal acumen other than the ability to take good notes.  Even when we drafted motions in these matters, the briefs were the same formulaic papers we wrote many times before, and we only needed to substitute a few factual details for each individual case.

Even attorneys who work on more traditional legal matters may not spend the majority of their time on traditional legal tasks.  Since many courts are clogged, and because most cases are headed to trial, many litigation matters are settled between the parties.  In fact, much of the time I spend on litigation matters is not on motion practice or discovery, but on back-and-forth trying to resolve my cases.  For many matters, the settlement process occurs at different stages of the lawsuit, so this back-and-forth is even more time-consuming.

The “wheeling and dealing” involved in lawyering is not merely confined to settling matters.  Rather, many courts require parties to come to an agreement, either during meet and confer procedures or at more formal court conferences.  The art of negotiation is not usually taught or tested in law school (although some schools have amazing courses on this subject), but this skill is absolutely critical to the practice of law.

I don’t want to put any lawyers down with this article!  There are many reasons why attorneys need to conduct more administrative tasks rather than flex their legal skills.  Indeed, companies need to have attorneys present and performing work simply to cover themselves in the unlikely event that a company’s interests are at risk.  Furthermore, the standardized nature of many mass torts matters requires that attorneys handle work in a way that does not resemble traditional lawyering.  It seems like attorneys who work at bigger firms on larger matters may spend more time on nonlegal tasks due to the bureaucracy of working on such larger cases.  Since starting my own shop, the vast majority of my time is spent on traditional legal tasks, since I generally work on smaller matters that do not have many administrative requirements.

In any case, I have heard attorneys describe the “wheeling and dealing” involved in many matters as “soft lawyering” rather than the “hard lawyering” that people more traditionally associate with attorneys.  Even if certain tasks performed by attorneys do not involve traditional legal skills, lawyers still benefit from the legal knowledge they learned in practice and in law school.  Even if your job is simply to take notes or negotiate deals, these tasks are enriched by an attorney’s understanding of legal issues.

However, it is still important to recognize that many attorneys do not practice law in the traditional sense, so that law students can fully understand what they may be getting into when entering the profession.  In addition, lawyers should understand that if they handle certain types of legal matters, they may need to rely on “soft lawyering” more than the “hard” legal skills they developed in practice.  Perhaps most importantly, clients should be aware that lawyers routinely spend significant amounts of time on nonlegal tasks so that they can respond accordingly.

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.

* According to an eight-page letter from White House Counsel Pat Cipollone, the White House will not cooperate in the impeachment inquiry because not only does it violate “the Constitution, the rule of law, and every past precedent,” but it also “lacks any legitimate constitutional foundation” and is merely an effort to “nullify the outcome of the democratic process” by negating the 2016 election and influencing the 2020 election. Well then! [Washington Post]

* In case you missed it, here’s what made a federal judge say, “Wow.” In an effort to keep redacted portions of the Mueller report from Congress, representatives from the DOJ essentially argued that a decision to release the Watergate grand jury evidence was “wrongly decided.” [Slate]

* Despite having been dragged into the DLA Piper sexual assault controversy, Kamala Harris has a lot of Biglaw support, and the newly formed National Lawyers Council for Kamala is hoping to raise at least $100,000 by the end of the month to help her campaign for the presidency. [American Lawyer]

* An investigation is currently underway at Yale Law School, where late this past weekend, anti-Semitic graffiti — a swastika with the word “Trump” next to it — was found on the steps to a side entrance to the school. [NBC Connecticut]

* Sign up here if you’d like to take part in a conversation between best-selling author John Grisham and former U.S. attorney Preet Bharara (S.D.N.Y.). I’ll be there to cover the event for Above the Law, and I hope to see you there. [TimesTalks]

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.