Author: TSA Press

According to data collected by Lawschooli, for the calendar year 2017, which jurisdictions had overall bar passage rates below 50 percent?

Hint: There are only two jurisdictions that fall below that 50 percent threshold — with Alabama managing a 51.83 percent passage rate.

See the answer on the next page.

Whenever I need a taxi, I usually call a transportation service in my city. I met the owner a few times at local business mixers where he advertised his services. His prices were fair and I prefer to support small and local businesses whenever possible. But on one occasion, he was unavailable, so I used Uber instead.

During the ride, I got to know the driver. He was a man in his thirties who has a day job at a financial institution. He initially became an Uber driver full-time to make ends meet when he was unemployed. But now he does it part-time to make some extra pocket change. He also drives for Uber’s competitor, Lyft. He, like other Uber drivers, works whenever he wants. He prefers unusual hours or Saturday nights because they don’t conflict with his day job and the pay is better.

When he worked full-time as a driver for Uber and Lyft, he claims to have made between $5,000 to $6,000 per month. But he had to pay for his own gas, insurance, and maintenance costs which became more frequent since he drove a lot more than usual.

He also knows other people who drove for Uber but quit soon after because the money wasn’t worth it after expenses.

Uber drivers are highly cited as examples of workers in the “gig economy” where people are paid based on the individual jobs or “gigs” they take, usually through a smartphone or computer app. The platforms generally do not require its workers to work a set schedule. They also do not provide tools or equipment to their workers. The advantages to the workers are that there is more flexibility and they can choose which jobs to accept.

The gig economy model encouraged companies like Uber and Lyft to treat its workers like independent contractors rather than employees as their activities were analogous to operating a small business. After all, how is this different from a freelance graphics designer who can pick and choose assignments they see on a classifieds ad or on a business group posting?

From the employer’s perspective, there are many advantages to treating workers like independent contractors as opposed to employees. Independent contractors can be paid with one simple payment. Employees must have taxes withheld and quarterly employment tax returns must be filed by the employer. Employers must also pay employment taxes for every employee they hire — including one half of their social security and Medicare taxes along with state unemployment taxes. Independent contractors are not subject to labor laws that regulate things like indemnity, expense reimbursement, mandatory break times, overtime, and sick pay. And independent contractors generally do not have legal remedies for discrimination and harassment.

Because of the above, there is a great temptation for businesses to classify workers as independent contractors rather than employees. Some will do it illegally and hope that they do not get caught. Others will restructure their business practices so that their workers meet the requirements for independent contractor treatment.

So how does a person qualify for independent contractor treatment? Most states follow the common law test with some variations. The common law test looks at many factors including the level of control the employer has over the person, whether the employer provides tools, and whether the person can work for other businesses. Many states allow certain professions such as lawyers, doctors, accountants, and architects to be automatically treated like independent contractors.

The many factors have led to confusion and disputes with conflicting decisions. For example, if I need someone to draft a basic contract, I can hire a non-barred law school graduate with previous firm experience or a contract attorney. Both will require minimal supervision. Yet one I may have to pay like an employee while the other I can pay like an independent contractor.

The growing presence of gig economy jobs will only magnify the confusion. In most cases, the worker will have their own tools and supplies. For example, Uber drivers will use the cars they already have. Also, most can work remotely and do not need to be present at an office. And usually they can work whenever they want. While this might sound like something freelance workers or small home-based businesses would do, in reality, most gig economy workers are not operating actual businesses. Instead, they are turning to these firms to earn additional income.

Some states, most recently California, have decided to eliminate the multi-factor common law test in favor of a simplified test known as the “ABC test.” This test looks at three requirements and if a person meets all of them, he or she can be treated like an independent contractor. They are:

(A) the worker is free from the control of the employer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) that the worker does work that is not in the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

California’s AB 5 not only codified the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, (Cal. Sup. Ct. 2018) adopting the ABC test, but also expanded its use for determining whether a person is an employee or independent contractor. The provisions of AB 5 will take effect starting January 1, 2020.

The Dynamex decision and AB 5 was designed with gig economy jobs in mind and so businesses are looking into whether they should convert their existing independent contractors into employees. Uber and Lyft have announced that they will not comply with AB 5 because they claim that their drivers are independent contractors even under the new ABC test.

Gig economy jobs blurred the line between who is an employee or an independent contractor under the common law. California has passed the ABC test to simplify the rules and others states are contemplating doing the same. Some businesses are contemplating whether to comply while others plan to continue their operations. Will the ABC test clarify the confusion? Are other tests available? Will this make Uber more expensive for me? These will be the topic of a future column.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

It sometimes seems like my entire life is processing either the direct or secondary trauma of my past. Traumatic echoes of events that, for the most part, are years and decades past, seem to invade every sense, as well as my dreams.

The very direct trauma of bullies ripping off my pants down to my Fruit of the Loom underwear, tearing the pants into shreds, and throwing them out in a busy street. The mile walk of shame to my home. So traumatic, that I can show you exactly where it happened in my hometown of Mt. Lebanon, Pa.

The red robin I allowed other kids to pressure me into shooting with a BB gun at 16 years old. A senseless act of cruelty that still haunts my dreams. Did it feel pain? Will it be missed? The trauma of watching it suffer and failing to come to grips with how my teenage self could be so uncaring and vicious.

The image of the dead animal in the roadway will bother me for days as I project and internalize its trauma.

The family of the young lady I represented so many years ago. A tractor-trailer rear-ended their daughter and she died, trapped in the vehicle as it burned. Her suffering. Her family’s plight.

There was a time when I allowed many of these traumatic echoes to play a role in a litany of unhealthy and self-destructive behaviors. How much impact did they have? I can’t say. Correlation is not cause. What I can attest is my subconscious having decided to preserve these moments as endless ripples of water pushes further and further out from the source but never settling into a peaceful state within the framework of my reconstructive memory.

I utilize various methods of self-care to deal with these feelings. It has not always been the case. The projection of pain, suffering, guilt, and shame consumed me. I wore it all like a skintight suit affixed to my body with super glue.

While there are some commonalities and stereotypes as to what is “trauma,” it can take many forms and be uniquely subjective in how it’s processed. Life-changing trauma to one person may be easily shrugged off without emotional or biological consequence to someone else. In my anecdotal experience, this disparity can result in feelings of guilt and shame. We compare the experience and flog ourselves for not taking the lessor of the emotional routes.

There is no shortage of direct and secondary trauma in the helping professions, including legal. When it occurs within a professional framework that does not encourage vulnerability and portrays therapeutic self-help as weakness, the issues can boil over, and they have. Our profession has the highest rate of problem drinking along with some of the highest rates of depression, anxiety, and suicide.

Rocky Haire is a Dallas-based personal injury lawyer. He is no stranger to the secondary trauma of his clients. He says:

Personal Injury law is a steady flow of injuries and death, each case bringing its unique markers of potential secondary trauma. 

I remember seeing a three-year-old little girl under a truck — hit and killed while her aunt was holding her hand as they walked along the road. Her yellow dress was somehow still clean. I remember her shattered mom and dad looking to me for something — anything. 

I remember a kid who was electrocuted and caught on fire in the CareFlite. His mom hated me — because I was the only one she could saddle it with. I accepted it without hesitation or regret.

 A kid who was hit head-on by a drunk driver going over 100mph and his dad was the first responder. He was so brave in my office — even as he cracked and fell apart.

A beautiful, lifeless high school girl wearing a cardigan sweater, her brown hair just right — and her face crushed. I have hundreds more.

How do you start a conversation with broken parents? The survivors? The dads tend to compartmentalize and check out — the moms take a direct hit nuclear strike while taking care of yourself at the same time. 

I remain detached, for the most part. I’m the lawyer, right? I’m not supposed to be emotional. 

The way I most effectively process secondary trauma and help the survivors deal is to help them heal when they have experienced their own trauma through loss of a loved one or other tragedy that is the focus of a personal injury claim. 

I tell them, “You have to forgive. The person didn’t do it intentionally and this unforgiveness is killing you. Look at you. It’s rotting your bones, and it’s time to let it go. You have to. I’m asking you to.” They usually look at me (a little surprised) with a sad rage — but it subsides. They all say, “You have no idea,” and they’re right — but also, they know I’m right. I have felt the crushing weight of hate and resentment begin to lift off.

Helping them be free from that horrific ball and chain, I believe, is how I deal with secondary trauma. If I can get them to forgive, it somehow releases me, too. There’s a part of me that continues to see those pictures — I still see their broken, decapitated, crushed, burned bodies sometimes — but I know a body is just a vehicle to get us around while we’re here. Nothing more — and death isn’t final. 

Without that hope, I couldn’t do what I do. Knowing the emotional damage is healing allows me to move on with them.

In the interest of full disclosure, my focus wasn’t always as healthy as it is today. For years, I drank — a lot. I wasn’t mean or abusive; I think I just needed something to suppress it. My self-medication didn’t work and evolved into what it is now.

Of course, how Rocky deals with secondary trauma is quite possibly not how you do it in your law practice. There is, however, a universal lynchpin across the board — the importance of continuing self-care. We are taking care of ourselves so that we don’t start exhibiting unhealthy signs and engage in destructive coping mechanisms and continue to provide clients with the highest level of assistance.

I reached out to, Mauve O’Neil, a local Dallas therapist. She says:

Having helpers in all careers like attorneys, healthcare, education, as well as first responders being better equipped to manage stressful situations, regulate emotions, and taking better care of ourselves will also result in better client outcomes for those we serve. We can choose to take time and effort now or we will be forced to do it later…

Here are some ideas to get started with:

RECOGNIZE IT CAN AND WILL HAPPEN!

1. None of us is immune to fatigue/burnout, so we all need self-care prevention;
2. Identify the areas you may be most susceptible to unhealthy reacting;
3. Assess your workplace for how it supports/encourages discussions about care

MAKE AN ACTION PLAN NOW!

1. Write down things that will help you when you need care;
2. Care can be emotional, physical, social things;
3. Whatever works for you to regulate, relax, and refresh!

PRACTICE YOUR PLAN!

1. Regularly, perhaps weekly, try out one of the items to see how it works;
2. We don’t wait to “need” the self-care plan; we practice it all the time!
3. If something doesn’t work or fit for you, try something else

REACH OUT FOR AND TO HELP OTHERS!

1. Share with others what is on your plan;
2. Ask others what works for them;
3. Support each other in your weekly practices and keep adding to them

From my anecdotal perspective in listening to the stories of other lawyers, the trauma problem is two-fold. We not only have to deal with and process our trauma, our story, but we also have to process and deal with the trauma and stories of those we help. A double duty that even the most skilled of therapists and helpers struggle with. Figuring out a self-care plan is vital and will be unique to the person. There is no shame in asking for professional help in putting that plan together. Start today.

Thanks to the following people for their invaluable contributions:

1. Maeve O’Neill, MEd, LCDC, LPC-S, CHC, CDWF/CDTLF
2. Dawn D’Amico, Psychotherapist, Educator, and Consultant in Delafield, Wisconsin.
3. Rocky Haire, Esquire

Brian Cuban (@bcuban) is The Addicted Lawyer. Brian is the author of the Amazon best-selling book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow & Redemption (affiliate link). A graduate of the University of Pittsburgh School of Law, he somehow made it through as an alcoholic then added cocaine to his résumé as a practicing attorney. He went into recovery April 8, 2007. He left the practice of law and now writes and speaks on recovery topics, not only for the legal profession, but on recovery in general. He can be reached at brian@addictedlawyer.com.

When I talk to my friends who are women of color about their clerkships, they can’t point to a single person who looks like them who has done this before. I think we’re losing talent before the court.

— Kelsi Corkran, a partner at Orrick, Herrington & Sutcliffe and a former clerk to Justice Ruth Bader Ginsburg, in comments made during a Women’s Bar Association of the District of Columbia panel discussion titled “Supreme Court Advocacy: Where are the Women?” In the last Supreme Court term, 31 of the 184 appearances were made by women (17 percent of all appearances). “I wish we could stop having to have these discussions,” lamented moderator Amy Howe, a reporter for SCOTUSblog.

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.

So… does Donald Trump, or anybody associated with his administration, have any actual legal strategy to fight the impeachment charges that are now surely coming his way?

Like, anyone? Bueller? Frye? Anyone?

So far, the Trump strategy to defend himself on charges of whether he abused his power to get a foreign government to investigate his political rivals has been to threaten to murder the whistle blower, threaten to start a civil war, call women of color “savages,” call allegations against him a coup d’etat, repeatedly insult the chairman of the House Intelligence Committee, and suggest that everybody who is against him is committing treason.

All of that is, you know, extremely bad. But, critically I think, none of it amounts to ANY SEMBLANCE OF A LEGAL STRATEGY. The president released a document that showed him trying to extort the President of the Ukraine into investigating Joe Biden in exchange for WEAPONS. He released a document implicating his own attorney general in an international scheme to investigate the president’s personal rivals on the public’s time. A whistleblower, within his own administration, outlined MULTIPLE Trump administration officials who witnessed or had knowledge of these underhanded dealings. One such official already quit and will testify in front of Congress. Other officials have been called to testify. House Democrats just announced subpoenas for additional testimony and documents.

Tweeting out “Liddle’ Adam Schiff” does not count, to me, as a legal response to this situation. IT’S NOT A PLAN. An insult is not a legal strategy.

Clear as I can tell, the Trump administration only has three responses to the House investigation:

1. Claim executive privilege. Given how often this White House claims executive privilege, you’d think they’d eventually learn something about how it works. But, they never do. YOU CANNOT CLAIM EXECUTIVE PRIVILEGE OVER SOMETHING YOU’VE ALREADY RELEASED, YOU GODDAMNED IDIOTS. Jesus Christ. Privilege involves the presumption of privacy, and so once you make something public, you lose the privilege. NO TAKE BACKSIES!

2. Claim the whistleblower is “hearsay.” Like executive privilege, this legal term of art HAS NO BEARING on what is going on here. The whistleblower filed a complaint. His complaint is not being offered as evidence, it is being offered as grounds for an investigation. This, of course, is proper. Beyond that, Trump provided the actual evidence against him when he released the memo about his phone call. It’s not “hearsay” when the person who said the thing tells you what he said.

Witness: I heard the defendant threaten the Ukraine.
Defense Counsel: Objection, hearsay.
Defendant: That’s exactly what I said, but it was perfect.
Judge: ZOMG!
Defense Counsel: F**k me.
Judge: Uhh, OVERRULED. And to anticipate your next question, no, I’m not granting your motion to get off of this case.

3. Ignore everything. This, while not a normal legal strategy, does seem to be the only one that works for Trump. The House subpoenas documents, and the White House just ignores it. The House subpoenas witnesses, and the White House instructs them not to show up. Unless and until the House figures out how to put some handcuffs on these people, Trump will continue to act like the law does not exist.

The problem with that strategy here is that the House doesn’t really need any additional documents or testimony in order to bring impeachment charges against the president. Again, Trump admitted to doing the thing he was not supposed to do in a document he himself released. If Trump doesn’t want to comply with subpoenas for documents or testimony, that’s kind of the Senate’s problem during the trial.

If Republicans want to bring witnesses like Mike Pompeo to the Senate trial, they can. But that trial will be presided over by John Roberts. I have a very low opinion of Roberts, but I do not think the Lewandowski strategy of claiming privileges he doesn’t have is going to work with Roberts in the room. Anybody who speaks for the president at trial will be cross examined by Democrats, and that will make it hard to play the obfuscation game. Perhaps Republicans won’t call any witnesses, and put on no defense of the president before they vote to acquit him. That’s certainly possible. But that will be the Republicans’ choice to show the entire country that they are so enthralled to Trump they don’t even want to know more about what he did.

In fairness, that’s the only real Trump “strategy” here. Assume the Republicans are too terrified of him to ever turn on him. That might be the right strategy. But it’s not a legal one. I’ll keep waiting for Trump to have one, sound legal argument for why he refuses to comply with the laws of America.

‘We’re Not Fooling Around’: House Democrats Tell White House Subpoena Is Coming [New York Times]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Most law students are so heavily indebted these days that they’ll try to find any way to pay off their law school loans. Some have even taken to competing on game shows to win enough money to give themselves a net worth of zero.

Meet our latest game show contestant, Kristan Burns. Kristan is a second-year student at the University of New Mexico School of Law, and she appeared on “Wheel of Fortune” last night where she tried to spin for the win.

KRQE News 13 has some additional informations:

The military spouse and mom of one says she’s been trying to get on the show for years. While she didn’t win, Burns says the experience was a dream come true.

“I got to meet Vanna and I got to meet Pat, and they were both incredibly, just wonderful, friendly people. It was an amazing day. Like one of the best days ever,” she said.

Kristan thought she might have hit the jackpot by hitting the million-dollar mark, but at the end of the day, she went bankrupt not once, but twice. Sounds like some sort of metaphor for the entire law school experience. She wound up walking away with $8,000 in winnings, that she says will “help with law school.”

Check out her episode below. Congratulations, Kristan!

UNM law student competes on ‘Wheel of Fortune’ [KRQE News 13]

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.

The urgent call came on Tuesday during a high-level workshop organized by the African Union AU Commission, the ECA and the government of Zimbabwe to sensitize the southern African country’s private sector on the continental free trade deal.

Private sector is a key stakeholder in production and trade, Batanai Chikwene, an Economic Affairs officer at the ECA, said.

Chikwene also emphasized the imperative for Zimbabwe “to address supply-side constraints limiting the productive capacity of its industry to stimulate competitiveness and growth.”

“Ensuring coherence among fiscal, monetary policy, national industrial policies and trade promotion initiatives are critical,” the ECA official stressed, adding that the AfCFTA opens up new market opportunities in Africa beyond the Southern African Development Community and the Common Market for East and Southern Africa, which are traditional destinations and sources of exports and imports for Zimbabwe.

“It is time for the private sector to look beyond Zimbabwe’s neighboring countries and explore trade and investment opportunities in the rest of continent in both trade in goods and trade in services,” he said.

According to Chikwene, in order to fully realize the benefits of the AfCFTA, it has to be backed up by factors including increased productive capacity and enhanced regional value chains, so that Zimbabwean companies can compete well in the liberalized regional market.

“Key reforms are required to ensure that industrialization, trade and investment generate optimum benefits for Zimbabwe,” the ECA official said.

According to Chikwene, the key reforms that are required include in the areas of trade facilitation and infrastructure development.

Beatrice Claudia Chaytor, a senior trade expert at the AU Commission’s Trade and Industry Division, also urged the government of Zimbabwe to exert more efforts to embrace the opportunities presented by the AfCFTA.

Chaytor also emphasized that the Zimbabwe government would need to promote economic diversification through the development of policies that steer away from a focus on export of raw materials into value addition and manufacturing, and policies that facilitate entrepreneurial search and discovery in general.

Post published in: Business

Zimbabwe’s economy has been badly suffering for two decades but the last 12 months have been the worst decline in 10 years, characterised by shortages of basic goods such as fuel and electricity.

Even when such goods are available, they are often unaffordable for most Zimbabweans.

Annual inflation neared 300 percent in August, according to the International Monetary Fund.

The government has been introducing what economists have called “piecemeal” policies to raise revenue, fix currency distortions and increase cash liquidity.

But Mnangagwa was upbeat in an annual speech to parliament on Tuesday, saying that his government’s economic reforms “are beginning to bear fruit”.

“I am aware of the pain being experienced by the poor and the marginalised”, but “getting the economy working again will require time, patience, unity of purpose and perseverance”.

The local currency has fallen from parity against the American dollar to 16.5 Zimbabwean dollars (ZWL) since June, when the treasury introduced currency reforms in a bid to address the chronic monetary crisis.

The local unit briefly breached 20 against to the greenback last week before clawing back a little value.

“Last week’s events of exchange rate manipulation amounts to economic sabotage and should not be tolerated,” said Mnangagwa, referring the near crush of the currency which saw the central bank freeze bank accounts of a Zimbabwean company linked to global commodities trader Trafigura.

On Monday the central bank unexpectedly shut down the use of mobile phone banking for cash transactions, citing exorbitant commission fees.

Years of economic crisis have left the country short of bank notes and commercial banks have been rationing cash withdrawals to a maximum daily limit of 100 ZWL (US$10) per customer.

That limit has led many Zimbabweans to turn to electronic financial transactions as well as using mobile transfers to buy cash.

Mnangagwa said he was “fully aware of the challenges faced by the public in accessing cash, which has resulted in some unscrupulous traders selling cash in exchange for electronic money” and promised to fix the problem.

Nelson Chamisa, the leader of the main opposition party Movement for Democratic Change, said that a state-of-the-nation address “that does not address key issues facing the nation such as lack of electricity, water, fuel, non availability of cash, poor wages, human rights abuses, terror, abductions, illegitimacy and reforms is a waste of resources and an unprovoked insult”.

“This invites us all to act!” Chamisa said after his lawmakers walked out of parliament shortly before Mnangagwa stood up to deliver his speech.

A UN special rapporteur Clement Nyaletsossi Voule visited Zimbabwe last week and concluded that “there is a serious deterioration of the political, economic and social environment since August 2018”.

Mnangagwa won a July 30 election last year, taking over after 37 years of authoritarian rule under Zimbabwe’s founding president Robert Mugabe, who died in hospital last month.

Zimbabwe has been facing a myriad of challenges including 18-hour power outages. It is also experiencing a crippling cash crisis for both local and foreign currency, resulting in Zimbabweans having to buy cash from parallel markets at a huge premium.

In his State of the Nation Address (SONA) presented on Tuesday, Mnangagwa said he was aware of the challenges being faced by Zimbabweans but pleaded for patience.

“I’m aware of the pain being experienced by the poor and the marginalised.

“Getting the economy working again from being dead will require time, patience, unity of purpose and perseverance,” said Mnangagwa.

Cartels

He also expressed concern over what he called the emergence of cartels that are stifling competition and engaging in unjustified price hikes.

“While government will not revert to price controls, we are nonetheless, in the process of reviewing the Competition Act in order to introduce deterrent penalties to combat such business malpractices.”

On the cash crisis, Mnangagwa said the exchange rate is being manipulated by economic saboteurs.

“Last week’s events of exchange rate manipulation, amounts to economic sabotage and should not be tolerated.”

Power utility

On energy, Mnangagwa said power utility ZESA would be restructured, to enhance efficiency.

He added that “to address this state of affairs, we have now restored the cost reflective electricity tariff structure and increased power imports to provide the much needed short-term relief.”

Post published in: Business