Author: TSA Press

Take a moment to think about your most memorable victory, and be honest with yourself. Were the facts on your side? How about the law? Did you actually overcome the odds, or was the outcome predetermined?

One of my colleagues and I were recently regaling war stories over lunch. The topic quickly turned to the most exciting, entertaining, and memorable cases each of us has litigated. As the conversation progressed and tales of victory were exchanged, I found myself noticing how closely we as lawyers identify with our work. After an impressive display of one-upsmanship, the discussion took a dark turn and we began to discuss our worst failures.

Without taking any time to think about it, I found myself instantly remembering my worst defeat. I will not bore you with the minutia of the facts, or the ruling, suffice it to say that despite vigorous litigation, the judge ruled completely against me. Notice how I phrase that: the judge ruled against “ME” — not my client, not my firm, ME.

In retrospect, that is standard protocol for discussing the results of our work. When we win a case, it is our victory, we earned it. When we lose a case, it is our defeat, we have failed. Each decision, each judge’s order is an assessment of our efficacy — infinitely more important than any other source of feedback we have ever received. Each of us, especially litigators, credit our quick wit, our charm, our inventive arguments, our handwork and preparation, or our reputation for each case we win.

The personal identification with our work is part self-preservation and part ego. Each of us wants to believe that we are the unique element that wins the case. Past that, reconciling the amount of time we put in, the tremendous talent we exhibit with each argument we set forth, the eloquence of each phrase we utter at a hearing, and the intellect that drives our litigation strategies with a world that does not care is inapposite. Our work must matter or else there is no point.

A senior attorney once told me, if the facts are on your side, argue the facts. If the law is on your side, argue the law. If the facts and the law are against you, yell louder than the other guy. While I am uncertain that this is a sound litigation strategy, the point is clear — a good lawyer finds a way to make his client right.

While I respectfully take any advice I am given, a reality check is in order. There is no lawyer who wins every argument and dominates every case. The reason for that is simply that the facts of the case, not the attorney, often decide the ultimate outcome. Bearing in mind this reality can help keep us grounded and, in fact, helps us to counsel our clients.

With that said, when the facts are neutral, and the law is not clearly on any party’s side, that is when our advocacy can truly shine. Those are the stories worth sharing and the victories truly worth celebrating.

Andrew C. Bershtein is an attorney at Balestriere Fariello who represents clients in in all stages of litigation, arbitration, and mediation. He focuses practice on complex commercial litigation, contract disputes, and real estate law. You can reach Andrew at andrew.c.bershtein@balestrierefariello.com.

It’s running the risk of becoming cliché to suggest that the media will turn the investigation into the White House using foreign policy leverage to coax other nations into digging up scandal on Joe Biden into a discussion about “how exposed is Joe Biden.” Except, of course, it’s actually already happening because the news cycle is dumb.

Now the drive to churn content on this nascent impeachment inquiry is forcing reporters to look for angles and narratives where none should exist. Take this article in Roll Call, where we’re asked to consider if House Democrats are making a dangerous investigatory mistake in acting… like every litigant ever.

Despite some public pressure from the fringes, impeachment was mostly a dumb strategic move for Democrats over the past few years — the Russia inquiry involved claims that were thoroughly litigated in the court of public opinion and the public mostly didn’t care. In that world, going down this road only served to give Trump the acquittal and “exoneration” he desperately craved. The latest allegations, involving military aid and potentially toying with trade policy, are markedly different than pee tapes and porn stars. With the Democrats taking this endeavor seriously, they’ve also adopted the professional approach any legal inquiry would bring.

Trump’s folks have mostly tried to stymie the investigation and ignore or attempt to quash subpoenas. In the face of these delay tactics, Democrats have warned Trump’s people that withheld evidence will likely earn an adverse inference.

For the less politically inclined, this is exactly what happened to Tom Brady in Deflategate when he admitted that he’d destroyed the phone that allegedly held problematic texts.

And that’s the point: this is how this is handled all the time in the law. It is in no way controversial — if this evidence is being withheld for the seeming purpose of obstructing the probe, it can and should earn an adverse inference. If the administration doesn’t like that, then they should turn the stuff over. Full stop.

And yet….

But an adverse inference shortcut could also be a pitfall.

Just because House Democrats want to infer that missing evidence is bad for Trump doesn’t mean the public opinion will go along with it. And it probably won’t go over well with Republican senators who would vote on the articles of impeachment, either.

First of all, is this article trying with a straight face to argue that but for adverse inferences, Republican senators would vote to convict? Trump could, as he’s suggested, shoot someone on Fifth Avenue and the GOP wouldn’t abandon him — at least not in the numbers necessary for any of this to matter.

But more importantly, maybe don’t call the evidentiary concept of an “adverse inference” a “shortcut” or suggest it runs contrary to “fair and legitimate investigation.” Not only is it plainly wrong, but it undermines the way courts in this country operate every day. This doctrine exists because it’s sound and fair and the only way to guarantee litigants don’t just refuse to produce anything at all. The people trying to undermine and obstruct are the people actually jeopardizing the legitimacy of any investigation.

Ultimately, the impeachment trial itself is a waste of everyone’s time, but a long, thorough investigation isn’t. That will matter for a long time to come. If the House has to style it as an impeachment inquiry to get there because Trump’s lawyers complain that subpoenas lack a “legislative purpose,” so be it. But ensuring the investigation is professional and legally sound is what truly matters.

In other words, this is about process not outcome, so let’s spare everyone all this fretting about the likelihood of Trump’s removal and just let lawyers do their jobs.

House Democrats enlist risky legal move in impeachment probe [Roll Call]

Earlier: Impeachophilia: The Democrats’ Futile And Self-Destructive Attraction To Impeachment

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.

Note ‘blond’ in second row, center. She is here almost daily — at least since you came!

— Chief Justice Warren E. Burger, in a note passed to Justice Harry Blackmun during an oral argument at the Supreme Court that took place in November 1971. Justices used to pass handwritten notes to each other during the arguments taking place at the high court, which Timothy Johnson, a political-science professor at the University of Minnesota who has copied more than two decades’ worth former justices’ papers, including bench notes like these, says provide “an interesting insight into what they were thinking about as the attorneys were arguing.”

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.

Above the Law publishes 20 or more articles a day, and many of our readers get highlights from Above the Law in their inboxes every, single day.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

For most lawyers, they have a goal in mind before they even take their LSAT: making partner at a firm. Making partner at a prestigious firm is the gold standard achievement for a young attorney looking to signal to the world that they’ve arrived. For many, the day they made partner felt like the day their practice of law truly began.

But partnership ain’t what it used to be. Making the transition from associate to partner in today’s legal market usually means new business cards, a press release, maybe an upgraded office. It almost certainly means a slew of new mandatory meetings and committee assignments. But at firms across the globe, it rarely means taking a share of ownership in the business.

What’s in a Name?

Most Biglaw firms have switched to a two-tier — or more — system of partnership. At the top of the system are the equity partners, the ones who take the firm’s leftover profits at the end of the year. The equity partners are generally the rainmakers of the firm, the profit-generators with the big books of business and working attorney collections. They’re also the ones who shoulder much of the firm’s heavy business lifting, generally waiting for payment until the end of the year, signing personal guarantees, and otherwise bearing the risk of loss.

Then there are nonequity partners. Some of these are young partners building their books, on their way to the equity ranks. Others are talented attorneys without significant books of their own, but whose work commands enough respect to merit calling them a partner. Still others are former equity partners who may be winding down their careers or working part time.

Despite the similar titles, there can be a world of difference between the tiers. Aside from the economics, some firms have cultures where nonequity partners are treated as second-class citizens — excluded from key meetings, not given access to key financial information, and not granted voting rights. This cultural divide is not always the case, and the firm I work at has gone to great lengths not to draw distinctions between its equity and nonequity ranks. But lawyers notoriously love hierarchy, and I suspect that our firm is probably more the exception than the rule on this point.

A Model Created by the Great Recession

The concept of nonequity partnership is nothing new, but it truly came to prominence in the wake of the Great Recession. As firm revenues fell and competition became increasingly cutthroat, rainmakers became more valuable than ever. The overall pie was shrinking, so firms, desperate for revenue, took extreme steps to keep business generators or attract new ones. Once the first firm made the move, others had to follow to avoid being raided by firms willing to throw gobs of money at lawyers with big books of business.

You can’t have a redistribution of wealth without someone going hungry. The way most firms came up with the premiums to pay the rainmakers was to shrink their equity ranks. If you divvy up the same profits with a smaller number of people, each person gets more. To accomplish this, some firms stripped equity from partners who were underperforming, or just not performing as well as the others. Still others dramatically cut back on the number of lawyers they promoted to the equity ranks. But most employed some combination of both changes, quickly realigning their partner ratios and profit distribution.

No matter how correct the decision to reallocate equity might be from an economic and competitive standpoint, it’s an unavoidably ugly process. It’s no secret that lawyers have big egos and that many, if not most, are driven by status. Almost by definition, these equity concentration moves have winners and losers. And when someone isn’t able to proudly wear the equity badge, they will often have a difficult time accepting it. From the outside, and even perhaps from within, it can look like the haves are getting greedy at the expense of the have-nots.

A Necessary Evil?

Trust me, I get why many disdain the two-tier structure. Why can’t firms just be more egalitarian, inviting everyone into the equity ranks to work together for the common good of the firm? There’s a real part of me that wishes this model could exist. But I also wish I could fly and shoot laser beams out of my eyes. In both cases, my wishes don’t matter. In the case of flying, gravitational forces keep me grounded. In the case of a single-tier system, market forces have dictated how firms need to adapt.

The truth is prudent firms do not have a real choice when it comes to whether or not they need to follow the market trend of embracing a two-tiered system. Like it or not, firms that fail to make their rainmakers happy will pay a high price. One of the chief problems defunct LeClairRyan faced in the years leading up to its spectacular collapse was its failure to de-equitize non-producing partners. That left the firm’s actual rainmakers feeling like they were subsidizing a favored few, which primed them to be poached by the competition. Those rainmakers then left, and the firm collapsed on itself.

But wait. What about firms like Cravath, which has a single partnership tier and seems to be doing just fine — consistently topping the Am Law profits-per-partner charts? Doesn’t Cravath’s success prove that a firm can thrive without having to adopt a two-tier system? In a word, no. Cravath has a unique brand that allows it to command market-topping rates that immunize it to the market pressures that most firms face. In fact, the Cravath model is even more draconian than the two-tiered approach. The stats tell the story. Cravath has 500+ lawyers, only 83 of whom are partners. So rather than pushing quality lawyers into nonequity ranks, Cravath refuses to even nominally promote any but the best of the best. Ouch.

Biglaw’s Challenge

The challenge for Biglaw management is how to keep both the firm’s biggest earners and its developing prospects content. Efficiently allocating the equity pool is an essential component of this process, but it cannot be the final word. Biglaw needs to understand and leverage the non-monetary benefits it can provide its partnership. There’s almost always going to be someone willing to pay more for any given partner’s book, but if that partner is getting paid decently in addition to receiving support they couldn’t get anywhere else, dislodging them is going to be a tricky task.

The path to equity partnership is a long one, and it’s only getting longer. Good managers will try to get their colleagues to the end of that path. Great managers will get those colleagues to enjoy the journey.

James Goodnow

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

“Invoking the repulsive prospect of alleged forced labour is a new nomenclature for seeking to bar Zimbabwe’s diamonds from the international markets,” the southern African nation’s government said in a statement. “This move constitutes a grave and serious attack on Zimbabwe’s interests and is no less than a manifestation of undeclared sanctions.”

The Kimberley Process, which aims to ensure that the proceeds of diamond mining aren’t used to fund conflict, confirmed that it has no restrictions on trade in Zimbabwean diamonds. The body represents 81 countries, accounting for 99.8% of global rough diamond production.

Zimbabwe, suffering its worst economic crisis since 2008, is desperate to end sanctions imposed by the US and the European Union on politicians and state companies. The government blames the US measures, in place for almost two decades, for hindering investment in the country.

The US Customs and Border Protection agency announced the so-called withhold release order on the Marange diamonds in an October 1 statement, without giving details of the allegations against Zimbabwe.

News, allegations

“A WRO allows importers an opportunity to re-export their goods or to provide evidence that their goods are not produced with forced labor,” the agency said in a response to questions. The order can be imposed on the evidence of news reports or allegations made directly to it by non-governmental organizations, the agency said.

It also imposed the same measures on gold from artisanal mines in the Democratic Republic of Congo and a variety of products made by companies in China, Malaysia and Brazil.

“If they had concerns they should have contacted us, our doors are open,” Polite Kambamura, Zimbabwe’s deputy mines minister, said by phone. “If they request to go to Marange, our doors are open. It’s so disturbing that they made this announcement.”

Marange, in eastern Zimbabwe, is not without controversy. The field, by far the biggest diamond operation in the country, was seized by the government from African Consolidated Resources Plc, a U.K. company, in 2006. The company fought the decision in court for several years but failed to overturn the state’s decision.

Military control

After the seizure, Marange was overrun by thousands of informal miners before being commandeered by the military. Non-governmental organizations including Human Rights Watch and the opposition movement for Democratic Change accused the government of abuses including widespread smuggling — and of using revenue to fund ruling party militia during election campaigns.

New York-based Human Rights Watch accused the military of killing as many as 200 informal miners at the site and demanded that the Kimberley Process sanction the diamonds. The army has denied the allegation.

Between 2009 and 2016, Chinese and South African companies mined the deposit in partnership with the government. In 2016, then president Robert Mugabe ordered them off the deposit, saying that the state had been illicitly deprived of $13 billion in potential revenue.

The only company now mining at Marange is the state-owned Zimbabwe Consolidated Diamond Co.

“We are a responsible state miner that operates within the laws of the country and we observe strict adherence to critical tenets of corporate governance,” the company said. “ZCDC employs labour in terms of the Labour Relations Act and there is no compromise on that.”

Post published in: Business

Lions are classified as “vulnerable”, with only around 20,000 remaining in the wild

Officials have seized 342kg (754lb) of lion bones and arrested three people at Johannesburg airport in South Africa, the environment ministry said.

The bones, which are prized in Asia for supposed medicinal benefits and to make jewellery, were destined for Malaysia.

The 12 boxes of lion bones wrapped in aluminium foil were misdeclared and discovered upon inspection.

Exporting bones of lions bred in captivity is legal in South Africa, though a special permit is required.

Ministry spokesman Albi Modise said those arrested were foreigners, including two from Zimbabwe, with one suspect still in custody.

The average weight of a lion skeleton is 9kg, according to a report produced by South Africa’s EMS conservation foundation and the Ban Animal Trading group.

With skeletons of average weight, 342kg would amount to 38 lions.

It was not immediately clear whether the bones were from lions bred in captivity or from the wild.

Lion parts are often sold in Asian markets mislabelled as tiger parts, due to China’s ban on the sale of tiger products, according to the UK-based Environment Investigation Agency.

“Tiger bone wine” is used in traditional Chinese medicine, though there is no evidence it has any benefits.

More than 11,000 lions live in South Africa, with 3,000 of them located in national parks where hunting is forbidden.

Post published in: Environment