Judge ‘Didn’t Mean To Offend’ When He Called Undocumented Immigrants ‘Wetbacks’

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(Image via Shutterstock)

Deep sigh.

Texas Senior State District Court Judge Mark Luitjen will no longer be on a list of visiting judges allowed to hear cases, following “racially divisive” comments that were also racist and stupid and deeply offensive.

KSAT-12 reports (gavel bang: ABA Journal):

Luitjen said he made the remarks while having a private conversation with a court reporter.

“What I said was, after we talked to each other about this for two to three minutes, ‘It was easier when they used to call them wetbacks and mojaos,” Luitjen said.

Luitjen said he was referring to undocumented immigrants who had appeared in court that day.

It’s not all that surprising to me that a Texas judge longs for the days when brown people could be called “wetbacks” without consequences. What I kind of don’t get is how you can be alive in the year 2019 and say this stuff and be honestly surprised by the blowback:

“I didn’t intend to offend anyone and I don’t think I did. The court reporter I was talking with was not offended, she told me that herself,” Luitjen said. “Everyone else in that room was Hispanic and it wasn’t like you were trying to have a conversation where you would whisper something because you knew it would offend someone.”

You mean the room full of non-white people, some of whom need to appear in front of a court to argue their status, didn’t immediately get in this judge’s face and call him out for his racist comments? WHAT A SHOCK!

What an asshole. In a reasonable system, every single one of this man’s decisions, over his entire career, would be reviewed and appealed on the grounds of racial bias.

Local judge barred, apologizes after making racial slurs [KSAT-12]

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.

2 Prosecutors Have Their Law Licenses Suspended For Covering Up Police Beating

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Michael Waller was beaten by a St. Louis police officer, Thomas A. Carroll, in 2014. Carroll is no longer on the force, and is in fact serving a sentence of 52 months for the incident, but the aftermath is still reverberating through the legal community.

As described in an ethics opinion, after Carroll beat up Waller, who he believed had broken into his daughter’s car, Carroll told his friend, a prosecutor, Bliss Worrell about it. Worrell then told two other prosecutors, Ambry Nichole Schuessler and Katherine Anne Dierdorf, of the beating and called Carroll on speakerphone and let him tell the three assembled prosecutors himself. As reported by ABA Journal, Schuessler responded not with shock or horror, but with a homophobic and racist joke:

Later that day, Worrell brought a cellphone into an office where Dierdorf and Schuessler were sitting and let Carroll tell his own story on speakerphone.

During the phone call, the detective said he kicked the suspect, punched him in the face, hit him in the back with a chair and stuck a gun in his mouth, the opinion said. Schuessler then commented, “I bet that’s not the first big, black thing he’s had in his mouth.”

Worrell then filed false charges against Waller, including a felony charge of fleeing custody, to justify his injuries. Worrell told Dierdorf and Schuessler, as well as another prosecutor, about the charges she filed against Waller. That other prosecutor, accompanied by Schuessler, reported Worrell’s charges against Waller to a supervisor. During the inquiry, Dierdorf told Schuessler that, “I told them I don’t know anything. You don’t tell them you know anything, either.”

As a result of the incident, Worrell was disbarred and sentenced to 18 months of probation and 140 hours of community service. And the subterfuge of Dierdorf and Schuessler during the investigation became the subject of an ethics inquiry.

The Missouri Supreme Court indefinitely suspended Dierdorf and Schuessler for not being forthcoming during the process, as reported by the St. Louis Post-Dispatch:

The court’s ruling cited “the severity of Ms. Dierdorf’s misconduct as a result of her dishonesty and instruction of others to conceal information about the incident” and Schuessler’s “repeated dishonesty during and interference with the federal prosecution of the police detective” in their decision.

Despite the court’s opinion, Dierdorf’s lawyer objected to his client’s punishment:

In an emailed statement, Dierdorf lawyer Michael Downey called the suspension “inconsistent with the facts, its own precedent, and what is appropriate to protect the public and maintain the integrity of the judicial system in this case.”

He said Dierdorf had “promptly and repeatedly attempted to remedy her earlier misstatements but was rebuffed by her supervisors” and that she voluntarily produced thousands of text messages to the FBI.

Dierdorf may apply for reinstatement to law practice after three years, and Schuessler may apply after two.

headshotKathryn 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).

From Pro Basketball To Biglaw, No Matter The Court, You’ll Still Work Your Ass Off

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In basketball, working yourself to death physically pays off to a certain point, but then you have to be careful because you don’t want to get injured. It’s similar here. I have to put things down and go home.

Now it’s time to be a champion in a different court. And this time I get to win on behalf of someone else. That’s the piece I’m really looking forward to.

— Iciss Rose Tillis, formerly of the Detroit Shock, the New York Liberty, and the Los Angeles Sparks, commenting on the similarities between her WNBA career and her new career as an associate at Jackson Lewis.

Staci ZaretskyStaci 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.

Government Contracts Associate Attorney

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Kinney Recruiting is working with an AmLaw 100’s elite Government Contracts Group to identify an associate to join its practice. We are seeking an attorney with at least one year of experience with government contracts and a law firm background. This firm’s Government Contracts Group is one of the largest in DC and is led by some of the contracts industry’s most prominent partners.

The hired attorney will represent clients ranging from the largest defense contractors to lean entrepreneurial companies whose primary customer is the US government. An associate will forge relationships with clients, create strategic plans, and manage legal solutions that mitigate problems before they arise. This firm is offering an outstanding compensation and a platform that provides an associate with the tools necessary to build a career in the government contract space.

If you are interested in learning more about this Government Contracts Associate position then please apply through this posting or submit your resume to jobs@kinneyrecruiting.com.

Icing On The Cake: 3 Considerations For Protecting Recipes In Your Business

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(Photo via Getty Images)

Vacations have a way of placing things in perspective, perhaps in unexpected ways.  As summer draws to a close, many (including myself) return from vacation harboring great memories of family and fun.  Sometimes that fun involves not just great locales, but great food and drink.  Being an intellectual property attorney, I couldn’t help but think about the great recipes and drinks I enjoyed and how they are (or aren’t) protectable.  When it comes to the restaurant and hospitality industry, such recipes require more than just mixing together the right ingredients in the right amounts, and oddly enough, developing intellectual property protection around them is not any different.

Let’s start with copyright law. To the uninitiated, you may not realize that recipes are not protectable subject matter under copyright law.  Although copyright law states that an original work fixed into a tangible medium of expression qualifies a work a copyrightable, recipes generally do not qualify.  Why?  First, recipes generally list specific ingredients and their amounts — unfortunately, such lists are not copyrightable subject matter.  As explained in Circular 33 of the U.S. Copyright Office entitled “Works Not Protected By Copyright”:

A recipe is a statement of the ingredients and procedure required for making a dish of food. A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable. As a result, the Office cannot register recipes consisting of a set of ingredients and a process for preparing a dish.

Even though there may be some effort and trial and error in getting the recipe “just right,” the simple truth is that the simple listing of ingredients and how to prepare them are not enough to qualify for copyright protection.

What about patent law?  Technically, the short answer is that such recipes may be protectable under patent law, but this is a difficult path to navigate here.  Although patents may be granted for any “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” according to Title 35 of the United States Code, Section 101,  the invention would need to be novel and non-obvious to be patent eligible.  In other words, it is exceedingly hard for the recipe to contain a combination of ingredients that is “new” and not otherwise some variation of known ingredients.  Further, such combinations and/or variations may be “obvious” to someone skilled in the art (i.e., a qualified chef or experienced bartender).  I am not saying that it is not impossible to obtain patent protection, but in the context of most recipes, obtaining patent protection is just not a viable option.   Further, even if viable, the limited term of protection may not correlate to the long-term strategy of the business and should be carefully considered.

So what is left?  More than you might think, actually.  Trademark and trade secret law weave themselves quite nicely into the mix.  Most chefs are already keen on protecting their recipes as trade secrets — keeping the proportions, instructions, and other “know-how” in the creation of the foodstuff under wraps fits nicely into trade secret law.  That said, protecting such elements under an appropriate trade secret program requires that specific steps be taken to ensure protection under applicable state law. Trademark is also helpful in denoting a brand’s signature foodstuffs (such as Colonel Sanders’ Kentucky Fried Chicken mix of seasonings and preparation of signature fried chicken, et al.) and distinguishing them from others; however, it only designates the brand and does not protect the specific ingredients or processes.  Like a recipe that is not quite right, the intellectual property protection strategy here requires something “more.”

So what is a restauranteur to do?  Whether starting your own restaurant, creating a new menu in an existing restaurant chain, or anywhere in between, here are three considerations worth chewing on:

1.   Copyright Can Protect Certain Elements of a Recipe. Although procedures, processes, and methods of operation cannot be protected under copyright law, explanations of why a particular step or activity needs to be performed, as well as illustrations of such processes, are protectable expression.  Circular 33 specifically supports this proposition, stating that “a recipe that creatively explains or depicts how or why to perform a particular activity may be copyrightable [including] the written description or explanation of a process that appears in the work, as well as any photographs or illustrations that are owned by the applicant.” Granted, you do not want to rely solely on these elements for protection, but they should be considered when developing an overall intellectual property strategy for the food business.

2.   Trade Secret Protection Requires More Than Secrecy.  This point should be obvious, but you’d be surprised how often it is overlooked.  Of course, trade secrets enjoy such status by being, well, secret; however, qualifying as a trade secret under the applicable state law is not a given and should be carefully addressed.  For example, the Texas Uniform Trade Secrets Act not only requires that the information “derives economic value … from not being generally known,” but that “the owner of the trade secret has taken reasonable measures under the circumstances to keep the information secret.” What measures may be deemed “reasonable” are subject to interpretation, and navigating these requirements should involve competent intellectual property counsel.

3.   Trademarks Can Be a Recipe’s Next-Best Friend. Trademarks help not only distinguish goods and services, but also designate origin. When used correctly, trademarks can support a brand to which the consumer identifies and, therefore, operate to strengthen goodwill and affinity with your recipe (rather than a competitor). For example, a real Dark n’ Stormy is not just any dark rum and ginger beer, but Gosling’s Black Seal Bermuda Black Rum Since 1806 and Gosling’s ginger beer (and in the interests of full disclosure, I love the drink and absolutely agree). Granted, the brand is strengthened by their prepackaged version of the drink marketed under the same name, but you get point — trademarks can help round-out protection for the foodstuff if filed, prosecuted, and policed correctly.

Protecting recipes is anything but straightforward under intellectual property law, but after years of practice in the field, I am not surprised.  Protecting intangibles usually requires a layering of various forms of intellectual property to develop the appropriate level of protection.  When it comes to recipes, this is absolutely true.  So don’t get stuck with a bitter aftertaste and take the time to address these elements correctly — when you get it right, well, it’s just icing on the cake.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Federal Judge Royally Embarrasses Himself Hitting Reply All In Spat With Fellow Judge

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All Judge Emmet Sullivan wanted was to alert the courthouse about an upcoming science seminar. It was exactly the sort of nice blast email that populates the inboxes of workplaces of offices across the country. Then Senior Judge A. Raymond Randolph had to barrel in with a reply all response that has the ethics folks looking into his judicial temperament.

Judge Sullivan gave everyone a heads-up about an upcoming event aimed at providing judges with a primer on the basic scientific concepts involved in climate change-related litigation. Fairly straightforward stuff about how carbon dioxide works that wouldn’t be out of place in a middle school classroom.

Judge Randolph replied to everyone that this was “nonsense” saying, “The supposedly science and stuff you are now sponsoring is nothing of the sort.”

Now, I’m not saying Judge Randolph is an ignorant dumbass — he’s actually saying that himself — but it’s an impressive display of judicial hubris to declare that, in his berobed opinion, he knows more about science than scientists. This guy is a step removed from an anti-vaxxer.

Thankfully, other judges jumped in and called Randolph’s response “accusatory” and “quite disturbing.” But what’s actually disturbing is that Randolph is actually hearing matters involving these concepts. Yet he says stuff like this:

Randolph viewed it differently, saying in his memo that judges attending a climate science program put on by the Environmental Law Institute “lend credence to one side of the climate change debate that is quite improper” because of a host of litigation on the issue.

Except it’s not a “debate” and pretending that it is requires remarkable and disienguous mental gymnastics. Ethics experts interviewed by the Washington Post indicated that Randolph should recuse himself from matters involving climate change in the interest of maintaining the appearance of impartiality. He was set to hear an appeal of the case against the EPA for rolling back emissions standards. He’s been replaced on that case, suggesting something may have happened. Whether this is a long-term fix or just Randolph laying low until this blows over remains to be seen.

A federal judge in D.C. hit ‘Reply All,’ and now there’s a formal question about his decorum [Washington Post]

HeadshotJoe 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.

Want To Be Happy? Don’t Be A Lawyer.

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‘Why did I pick this career?’

Law students and attorneys are struggling with mental health and substance abuse issues, and it continues to be an unspoken reality in law schools and law firms across the globe. In fact, according to a 2016 study conducted by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs, 21 percent of licensed, employed attorneys qualify as problem drinkers, 28 percent struggle with some level of depression, 19 percent demonstrate symptoms of anxiety, and 23 percent are stressed out.

But does going to law school and becoming a lawyer cause depression? According to Alex Palmer, the author of “Happiness Hacks,” it certainly doesn’t help, and it likely doesn’t lead to much happiness. Here’s a relevent excerpt from his recent CNBC piece about how to achieve long-term happiness.

5. Don’t be a lawyer

Maybe it’s all the lawyer jokes, but those who practice law have been found to be particularly unhappy. A 1990 study from John Hopkins University found that lawyers were 3.6 times more likely than non-lawyers to suffer from depression. Researchers point to three main reasons as to why lawyers have a hard time finding happiness:

  1. Prudence is one of the main qualifications for lawyers, which can often translate to skepticism or pessimism.
  2. The high pressure put on and low influence given to young associates are the sort of work conditions that result in low morale in other workplaces.
  3. The work — at least in the U.S. — is often a zero-sum game where your win is someone else’s loss, creating a hyper-competitiveness that also drains one’s sense of workplace satisfaction.

No one is saying you can’t find happiness as a lawyer, but sad as it is, the deck may be stacked against you. Best of luck as you attempt to beat the odds.

Most law schools have counseling and psychological services resources that students and graduates can turn to if they are in crisis or would like counseling, even after hours. If these services are not available at your school, and if you or someone you know is depressed and in need of help, please call the National Suicide Prevention Lifeline (1-800-273-8255) or a lawyer assistance program in your state (don’t be fooled by the name; these programs also provide services to law students). Remember that you are loved, so please reach out if you need assistance, before it’s too late.

Don’t retire early, buy a home, or be a lawyer if you want to be happy, researchers say — here’s why [CNBC]

Staci ZaretskyStaci 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.