This Supreme Court Justice Describes Herself As A Twitter Lurker

(Photo by Brendan Smialowski/Getty Images)

I’ve never had a Facebook account, but I do lurk on Twitter. So I use a different name and I never tweet myself. But, you know it’s sort of interesting what you see sometimes.

— Justice Elena Kagan, describing her social media habits during prepared remarks at the New York State Bar Association’s annual gala, where she received the organization’s 2020 Gold Medal for her impact on the legal profession. Kagan says she uses an anonymous name on Twitter so she can see what other people are tweeting.


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.

Litigation Finance Firms, How Do They Work?

When you think about the litigation finance industry, you obviously think about the Insane Clown Posse’s seminal “Miracles.” Actually, you almost certainly don’t, but let’s roll with it. Much like the magnets the group holds out as an inscrutable natural wonder to be cherished, litigation finance is increasingly a reality of the legal landscape but very few people take the time to consider how this industry really works.

Bloomberg Law put together this short video to explain this growing business. There’s enough information here to blow your brains.


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.

An Exoneration And Weinstein Update

Rafael Ruiz, Barry Scheck, and others celebrate Ruiz’s exoneration. (Image by Toni Messina)

A lot of television trucks and reporters were stationed outside 100 Centre Street last week continuing the stakeout of the Harvey Weinstein sexual assault trial.

Eccentric people were there as well. The lady who, on exiting criminal court, saw a ready audience and gave a three-hour extemporaneous harangue against her ex-boyfriend. The single protestor holding a sign calling for the revocation of the recently implemented bail laws in New York. The women wearing red and black with black lace tied around their eyes pointing toward the courthouse.

Media draws attention seekers, and the Weinstein trial had its fair share.

But something important was happening in the courthouse across the street, too, that was just as media worthy. It spoke to why every defendant, even someone like Harvey Weinstein, merits the presumption of innocence.

Rafael Ruiz was convicted after trial of being part of a gang that raped an 18-year-old woman on a Harlem rooftop in 1984. Even though he took the stand and testified that he could not have been a participant for a number of logical reasons, he was still found guilty and sentenced to 25 years.

He served that time, got out and, only this week, was exonerated for the rape he didn’t commit. Due to a series of missteps by police and witnesses, the victim identified Ruiz as being among the men who’d raped her. They’d arrested Ruiz after the victim gave the wrong number for the apartment she’d visited and, by happenstance, when police went there, Ruiz was visiting his brother. Even though he didn’t match the description of the perp the victim gave, his photo was put in a photo array and she picked him out. Then instead of using a five-person line-up, police placed Ruiz alone in a room behind a two-way mirror. She identified him as being one of the gang who’d raped her.

She claimed Ruiz had driven her to the scene of the rape, but Ruiz testified he didn’t know how to drive.

In 2003, after losing his appeal, Ruiz’s family hired an attorney to investigate the case anew. William M. Tendy discovered the mistake involving the apartment address and spoke to the victim. She admitted feeling pressured by police to identify someone. She also said she was uncertain she’d picked out the right man.

Finally, in 2019, the Innocence Project determined that DNA from the rape kit in the case did not match Ruiz’s DNA.

Last Thursday, Ruiz was in court to hear a judge pronounce him innocent.  Having withstood the horror of spending 25 years in prison for a crime he never committed, and being unable to find stable work for the past ten years due to that criminal record, being pronounced not guilty was a moment of elation. Reporters followed him through the hallway to ask questions and take photos of him with his defense team.

Just 20 feet away, another phalanx of media waited for developments in the Weinstein trial. They didn’t turn to watch Ruiz’s moment in the spotlight, but his exoneration is a lesson for all of us.

No one is guilty, no matter how heinous the crime, until proven so by a court of law.

Weinstein had a tough week watching witness after witness describe sexual encounters with him. None of them painted him in a favorable light. One went as far as describing him as having “deformed” genitals and being “intersex.”  She called him dirty and said he “smelled like poop.” But what she didn’t say was that he raped her using physical force that placed her in fear of “immediate death or physical injury” –- elements of the crime of Rape in the First Degree. In fact, she continued in a sexual relationship with him even after the first encounter which, according to her, involved coerced oral sex.

The Weinstein case differs from the Ruiz trial in that Ruiz’s was a case of mistaken identity. Weinstein’s lawyers admit he was involved in sexual escapades with women but argue that they consented to his advances for their own personal gain.

He may have been disgusting, pushy and insistent, but unless the jury matches the evidence with the very specific elements of the crimes of Predatory Sexual Assault (an A felony) — and Rape in the First Degree (a B felony), he should not be found not guilty of the top counts, and deserves the presumption of innocence as much as Ruiz did so many years ago.


Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

The Least Dangerous Dozen: A Modest Proposal For NFL Player Safety

Biglaw Firm Encourages Associates To Use Preferred Gender Pronouns In Email Signatures

As Biglaw firms across the globe continue their efforts to promote diversity and inclusion among their ranks, some prominent firms are taking it a step further by recognizing that pronouns matter for their transgender, genderqueer, and nonbinary employees.

To that end, tipsters say that Sidley Austin recently offered its firmwide approval and support for associates to add their preferred gender pronouns to their email signature blocks. In fact, the firm recently highlighted this practice in one of its Tech Tip Tuesday emails. Check it out, below:

A source at the firm shared this powerful note with us about the importance of diversity and inclusion at Biglaw firms, even through actions as “small” as supporting the use of preferred gender pronouns in email signatures:

Although I’m not transgender or gender-fluid, I am still incredibly proud of Sidley for being one of the few Biglaw firms that I know of to do this, and I would encourage more firms to take the leap. I know a lot of people don’t necessarily understand why this is important, or think that because they don’t “need” to provide their pronouns they shouldn’t bother adding the pronouns themselves. However, it can be incredibly isolating being the “only” person who needs/wants to self-identify pronouns, so there is power and support in having others do it first/with you. It’s such a small and easy thing that we can all do to be more inclusive and welcoming, and it can make a huge impact on people feeling marginalized or unseen.

This is a remarkably simple move, but one that goes pretty far in normalizing the practice and setting the tone of inclusion. Does your firm support the usage of preferred gender pronouns in email signatures? Please let us know.


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.

Kim Kardashian Reacts To Law School Practice Questions Featuring Kim Kardashian

(Photo by JB Lacroix /WireImage /Getty Images)

Kim Kardashian’s kwest to esquire kontinues!

As many who frequent Above the Law already know, Kim Kardashian wants to be a lawyer. Though she isn’t actually in law school (not having a bachelor’s degree makes that tough), she is studying via apprenticeship to be a lawyer with plans to take the bar exam in 2022.

Of course, because it is Kim, she’s taken to social media to document the process. She shared a criminal law issue spotter that cast Justin Bieber as a criminal mastermind, complained about the fact that law student life sucks, explained that she neglected her Keeping Up With the Kardashians livetweeting duties to keep up with torts homework, and she bailed on summer holiday festivities as she continued with her contracts homework. She even has a favorite law professor — University of Washington contracts professor Steve Calandrillo — who she’s shouted out on Insta.

Up next in Kim’s law school(ish) adventures is studying for the California baby bar. She’ll need to pass that exam if she wants to continue her studies, so it’s a top priority. According to Kim’s Instagram stories, she’s really been buckling down and studying all the time: “When I even have an hour off, I do all the test questions and practice.” What’s made the experience uniquely Kardashian is test questions that are tailored exactly to her.

That’s right, thanks to bar prep company JD Advising, Kim’s been working on sample Multistate Bar Examination (MBE) questions written all about her and her family. Obviously, as she posted on Insta, she loved it, saying, “They gear them towards me and my products — stuff to really help me understand.”

So, do you think you can ace the Kardashian spin on bar prep? Here are a few of the personalized questions you can try your hand at:

Kim spent her Labor Day studying Contract law. She was feeling tired and stressed out so her husband, Kanye, decided to surprise her with a deluxe spa package from her favorite spa. He purchased the spa package for Kim and told the spa Kim would be contacting the spa to set up an appointment at the day and time of her choosing.

On the day that Kim went to the spa for her scheduled appointment, the spa did not have the ingredients for the facial that came in the deluxe spa package.

If Kim sues the spa for breach of contract, will she be successful?

(A) No, because Kanye, not Kim, entered into the contract with the spa.
(B) No, unless Kim could show that she detrimentally relied on the contract.
(C) Yes, if the spa was not able to substitute an ingredient of similar value.
(D) Yes, as an intended third-party beneficiary.

And a crim law question to try:

A woman was driving, distracted by the Kim Kardashian: Hollywood app on her phone. She was so distracted that she inadvertently hit a construction worker. The construction worker was injured and went to the Intensive Care Unit at the local hospital. However, the construction worker survived.

Is the woman guilty of attempted murder in a common law jurisdiction?

(A) Yes, she is guilty of attempted murder in the first degree.
(B) Yes, she is guilty of attempted murder in the second degree.
(C) No, because she did not have the specific intent.
(D) No, because she did not come dangerously close to committing the crime.

And don’t forget about torts:

A man wanted to impress a woman who he knew was a huge Kim Kardashian West fan. The man knew that the woman was especially delighted by the fact that Kanye West had taken Kim to Las Vegas to see Celine Dion on their five-year anniversary. The woman mentioned this to the man.

The man decided to make the woman a Celine Dion playlist. He asked the woman out to lunch. She said yes. He gave her the Celine Dion playlist at the lunch and she was impressed.

When lunch was over, the man kissed the woman. The woman did not realize that the man thought they were on a date. She did not want to be kissed by the man.

Is the man liable for battery?

(A) Yes, because his acts constituted an offensive touching of another.
(B) Yes, because it was not reasonable to believe that going out to lunch constitutes a date.
(C) No, because the woman was not harmed in any way.
(D) No, if the man was reasonable in believing that the woman consented to the kiss.

Check out the answers to these questions — plus a bunch more — over at JD Advising’s website.


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).

How To Navigate The Shades Of Collaboration Conversations

There are a few conversations that I hear among my colleagues every day. Often, they revolve around a theme of collaboration, with phrases like “we are very collaborative” and “we are looking for a collaborative solution.” Bu these phrases seem to have a different meaning every time.

The word “collaborative” is one of the most overused, vague buzzwords that everyone seems to throw around today just to improve appearances. As long as you add “collaboration” –- to project, technology, process, behavior, or anything else –- it must be a positive development. Just adding that word alone must make it fit the definition of twenty-first-century lawyering, right?!

When it comes to a “collaboration” discussion, I love asking “how” and “why.” This is where your law school skills and, in my case, experiences as a litigator in a past life, come in handy. After all, you can take a woman out of the law, but not the law skills out of the woman.

Here are a few questions to ask yourself when evaluating your own collaboration process.

How: Sequential v. Simultaneous

First, when discussing collaboration, I like to understand whether it is sequential or simultaneous. In other words, do we take turns, or do we work together at the same place and time?

Sequential collaboration systems –- for example, check-in and check-out –- is a form of a ticketing system. It is akin to the ticket you get before waiting in line at the DMV or a sandwich shop and hold onto until your number is called. Such a dated system is not collaborative, at least in the true sense of the word. It is aimed at creating order in an otherwise complex situation.

Simultaneous collaboration is very different. It allows different stakeholders to be at the same place, at the same time, contributing together. Simultaneous collaboration is an opportunity to gain multiple efficiencies because everyone is speaking to each other in real time. These are not available with the sequential, ticketing system.

Who: Within the Legal Organization? With Others in the Company? With Stakeholders Outside of the Company?

Second, who will be collaborating? Is the collaboration limited to employees within your legal department or does it reach the rest of your company? Does it allow outside stakeholders to chime in? Increasingly, we create multi-stakeholder mashups where contributors from inside and outside of your organization contribute to the final product

Relatedly, if you allow collaboration of multi-stakeholders, then it is worth asking on what terms and how deeply. Will everyone participate equally? Will anyone have an approval — and veto — power? Will anyone be allowed to observe and chime in? Importantly, who makes the final decision and under what circumstances? Is there anyone who leads the collaborative process?

Of course, as with any subject, there are no shortage of questions you can ask about “collaboration.” In my experience, focusing on “how” and “why” gets me closer to understanding what collaboration means in a specific context. The bottom line is this — a lot of substance is lost when buzzwords are thrown around. Your training and experiences as a lawyer more than equip you to have a substantive, clear conversation, not a superficial one.


Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

Top Biglaw Firm Wows All Employees With New Fertility And Family-Planning Benefits

Here at Above the Law, we know how difficult it can be to have children and successfully return to work, so we make it a habit to applaud the expansion of Biglaw firms’ parental leave programs — especially if they’re gender neutral and applicable to all firm personnel, from staff members to associates. What we rarely have the opportunity to praise are firms that offer health benefits that include fertility treatments and family-planning services — not because these benefits don’t exist, but because they’re not publicized as often as parental leave plans are.

Hearing that you need assistance to conceive a child can be heartbreaking, and paying for the assistance can be financially out of reach, even for Biglaw employees. That’s why benefits covering fertility and family-planning services are viewed as major perks.

Which firm is willing to step up and assist its associates and staff members when it comes to starting families? It’s Weil Gotshal, and firm management says diversity is at the heart of these offerings. The American Lawyer has the details on Weil’s offerings:

Through a partnership with the fertility management firm WINFertility, both non-J.D. professionals and attorneys enrolled in Weil’s health benefits plan can elect to do up to three in vitro fertilization cycles. On average, one IVF cycle costs $10,000 in the U.S.

Additionally, employees are being offered elective egg freezing with one free year of storage, a benefit specifically requested by several firm lawyers.

The firm will also reimburse its attorneys and staff looking to adopt or conceive through surrogacy up to $25,000 per event and offer a slew of adoption and surrogacy specialists. The average U.S. adoption costs around $40,000 and surrogacy, on average, costs between $75,000 to over $100,000.

These benefits, along with other recently announced services, are part of Weil’s plans to compete in the Biglaw benefits arms race to attract and retain diverse employees.

“I think in part this is about attracting diverse talent to make sure that this is the kind of firm that will support them in any way that they want to build their family in the future. It’s also a retention tool to let them know that we support them throughout their lives,” [Meredith] Moore, [Weil’s director of diversity and inclusion,] said.

Kudos to Weil on its new family-friendly suite of benefit offerings. This is something we’ll keep an eye on as firms continue to cater to work-life balance requests from millennial employees and diversity demands from clients. Hopefully your firm is will decide to offer important benefit policies like these soon if it’s not doing so already.

Weil Rolls Out Firmwide Adoption and Fertility Reimbursements [American Lawyer]


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.

Stealth Layoffs And Shortchanging Associates

While reports say law firms are still killing it out there, law firm leaders have already expressed deep concern over the economic outlook. Could firms be staring down another massive recession? Well, if history is any guide, the first harbinger of troubling economic times will be the stealth layoffs — a string of departures chalked up to vague “performance issues” designed to clear the decks while arousing minimal attention.

At this point, we don’t have enough intel from tipsters to confirm what’s going on at this particular firm, but if this blind item sounds like your firm, please let us know with a confidential email to tips@abovethelaw.com. Don’t worry, we’re not going to reveal our sources.

The whispers we’ve heard is that a top global law firm is quietly laying off attorneys in the United States after failing to secure a merger partner last year. If true, this could reflect a botched growth strategy because as recently as a few months ago, the firm was expanding in its U.S. presence.

Beyond the layoffs, one tipster suggests the firm is shortchanging the associates it is keeping on the payroll. According to this report, some attorneys are being docked class years when it comes to pay while still being billed out at their actual seniority. That would just be a naked profit grab. This tipster said some attorneys were being docked as much as two classes. A fifth-year getting knocked back down to a third-year would be a $60K pay cut.

As we said, with only anonymous tips so far, we can’t definitively say that this is a firm policy as opposed to isolated incidents that might have an innocent explanation. But if a major firm is already walking down this road, could an industry-wide rough patch be far behind?


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.

Picking Experts For Trial

(Image via Getty)

Your bad: Send me a few emails praising my column on trial strategy, and I’m likely to crank out more of those columns.

Like this one.

Here’s a thought on picking experts at trial.

Do not necessarily pick the most qualified person. Pick the expert who will resonate with the jury.

Here’s the story:

The question at trial was the value of a piece of African art.

The other side retained a leading expert in the field. She was the curator of the African art collection at a prominent European museum. She testified in French; a translator gave the English version of her testimony.

(At the start of her direct testimony, plaintiff’s counsel, who spoke fluent French, chatted with her for a while in French: Voulez vous this and parley vous that. The judge finally broke it up: “Okay. We have to conduct proceedings in this court in English.” I get up on cross: “Bonjour, madam.  Bonjour and soup du jour; that’s all my French.” You can go high or go low. I’m a low kind of guy.)

Anyway, we couldn’t find any curators of fancy museums to serve as our expert, so we hired a guy who taught college art and was a regular on the television series “Antiques Roadshow.”

We put our guy in the box.

He started giving his credentials.

He says that he appears on “Antiques Roadshow.”

The judge picks up his gavel, holds it in his hand, and says, “How much is this worth?”

Everyone smiles.

I’m doing my best to restrain myself. This whole trial turns on credibility. The curator says the piece of art is worth a fortune; our guy says that it’s junk.  And the judge just endorsed the credibility of our guy. The judge’s comment may have been a joke, but the judge asked our guy to put a value on something.

That can’t hurt.

The jurors look up.

We hear one of them whisper, “I’ve seen that guy on TV.”

Our guy finishes his testimony.

He hangs around for the last day of trial.

After the verdict, jurors are asking him for his autograph.

Who do you think won the case?

Remember: You may prefer a local expert to a national (or international) one.  An expert from the local state university is often better than an expert from Oxford. You may prefer a person with street cred to a person with academic credentials.

And the person with the most Ph.D.s is not necessarily the best expert witness.


Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.