Category: News Feeds

The past year has forever shifted how attorneys and firms work. But with unprecedented challenges came new lessons and opportunities.

Featured this week in the LawSites Resource Center is a whitepaper by NetDocuments that addresses the unique challenges that now face the legal industry and how professionals can meet them.

Topics addressed in the whitepaper include:

• Four major themes revealed during 2020.
• Top challenges small to medium sized law firms face in a post-2020 workplace.
• Five strategies to thrive in 2021 and beyond.

Download the report for free.

Be sure to check out the full array of free materials available in the LawSites Resource Center, which includes white papers, product guides, case studies, industry analysis and more.

Back in law school, there was a boy in my class who was terrible with time management.

Everyone knew it, but it was particularly evident any time an assignment was due because you could see he had barely slept. His hair was super messy, his eyes were glazed over, and he let out a huge yawn every five minutes (and not just because the teacher was droning on). The funniest thing was when really trying to stay awake. He would force his eyes open really wide and sit as upright as possible.

It would seem like he was awake, but the worst was still to come. After swaying like a tree in the breeze as he fought back waves of exhaustion, he tried a new tactic. He would sit with his elbows on his desk, holding a sharpened pencil under his chin! Any time his head began to droop, he would get pricked, suddenly (hopefully) able to focus for a few minutes before it happened again.

That sounds crazy — and it is — but I only realized the craziest part when I entered the corporate world. Attorneys not only normalize a lack of sleep but glorify it! Some even make it seem like a self-sacrificial act of heroism. To be honest, I believe it is a self-defeating act of stupidity!

Clarity of mind is a key element for any profession, and I have found it to be one of my best assets. It guides me, not only in my position as a CEO, but also in college, law school, and every other aspect of life. Your clarity of mind is critical and directly related to your sleeping habits.

If it helps you to understand, let me break down my philosophy on sleep.

First, sleep is not a currency. You should not be exchanging sleep for other things, thinking you’ve made a good or healthy purchase. As a matter of fact, you shouldn’t be exchanging sleep at all!

Second, your well-being is priceless so, even if sleep were a currency, you still wouldn’t be able to buy anything because of the effect it has on you. I will occasionally settle for seven hours of sleep, but I know I usually need at least eight. In an ideal world, I would be getting ten, with those extra two hours acting like a dessert after the main course. You cannot have it every night without any consequences. You still have responsibilities.

Third, there is a balance to be found between work, rest, family, friends, and self-improvement. Sleep ensures that each of those interactions will be clear and impactful because you are well-rested.

I informally polled LinkedIn on the phenomenon and received quite a few responses that boiled it down to being a matter of ego. Someone in my network coined the term “Machoville” to explain how most lawyers live in a psychological town where everything is a test, a competition, or an act of heroism, where those who suffer the most win. In my opinion, this kind of self-inflicted suffering deserves neither sympathy nor glory.

I have more than just one bone to pick with this issue. The most obvious consequence is that it is unhealthy, inhibiting your ability to think clearly. It clouds your judgment, lowering the quality and efficiency of your work.

Bottom line?

Rest well. Don’t compromise your sleep. That is how you maximize your output and impact.

---

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. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Finally, maybe I just have to thank America’s broken legal system for making it possible to make stories like this.

— an excerpt from Rosamund Pike’s acceptance speech after she won the award for best performance by an actress in a motion picture, comedy, or musical at the 2021 Golden Globes for her role in “I Care A Lot.” In the film, Pike portrays a court-appointed legal guardian who uses the conservatorship system’s loopholes to find ways to defraud her elderly clients. Watch the official trailer, below.

---

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.

It all started so well. Back in November Sidney Powell vowed to “release the Kraken” and send Trump back to the White House in triumph.

“Georgia’s probably going to be the first state I’m going to blow up and Mr. Kemp and the secretary of state need to go with it,” she said, promising a “biblical” campaign of litigation culminating in victory at the Supreme Court.

But now it’s March, the Supreme Court has delivered a final blow to Powell’s election litigation.

That would be the Arizona and Wisconsin tentacles being unceremoniously tossed overboard, without even the token consolation of a grouchy dissent from Justice Thomas et al. on the importance of deciding these issues before the next election.

As attorney Mike Dunford points out, there may be some severed tentacle of the Arizona suit still wriggling lifelessly around the Ninth Circuit, but Powell’s white whale dream of consolidating her Michigan, Georgia, Arizona, and Wisconsin litigation into a fearsome sea beast is deader than lutefisk.

Remember when Powell botched the pleadings and filed that snarky motion crapping all over the Supreme Court clerk?

The Arizona and Wisconsin Petitions were electronically filed and hand delivered to the Court on December 12. Nonetheless, on December 17, the Clerk’s office marked both “Rejected” on the Court’s ECF database. When inquiry was made about this notation, undersigned counsel was informed that a Clerk’s Office analyst had disallowed them, for reasons unspecified, without participation by any Justice of the Court. Counsel was informed that an explanation would be provided via U.S. Mail.

We find this (presumably innocent) lapse atypical of the proud traditions in the Office of the Supreme Court Clerk. More important, we are confident that deficiencies in the Arizona and Wisconsin Petitions, if there be any, are curable. We respectfully request that the Court deem those submissions filed nunc pro tunc and consolidate them, once filed, with the Michigan and Georgia Petitions.

Who’d have thought that passive aggressive posture wouldn’t play with the Justices, right? Powell demanded that the court grade her homework as if it had been turned in on time and allow her to merge four cases with radically different fact patterns and procedural postures, NBD.

Surprising no one but perhaps Powell herself, the Court booted the Georgia Kraken suit on February 11 and the Michigan tentacle on February 22 — both without comment.

And with today’s order list, the hulking creature is finally slain, leaving only a mild intestinal hangover for Powell and her compatriots. Just a $1.3 billion defamation suit from Dominion. Plus a $2.7 billion claim from Smartmatic. Oh, and a motion for sanctions and attorneys fees in Michigan seeking to go after Powell’s license to practice law. Nothing that a little Pepto Bismol won’t clear up! And if all else fails, blame the court clerk — it works every time!

---

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Barclays has suffered more than its fair share of legal, regulatory and judicial tongue lashings over the years and lived to tell the tale. Still, Jes Staley & co. couldn’t have felt particularly encouraged by this bit of banter from the bench.

As “I’m not a cat” cements its place in the national lexicon, the viral videoconference marks one more courtroom mishap in an age of remote trial practice.

One year into the pandemic, we want to benchmark how remote litigators are now approaching their work — their attire, setup, tech stack, and more. 

Litigators, please take this very brief survey to give us your input — and get a sense of how your own practice is keeping pace. 

A fundamental problem should be acknowledged at the outset of any discussion regarding what’s come to be known as “cancel culture.” The problem is no one has been able to come up with a principled definition of the term. To be sure, serious people have tried to define it, but even these attempts suffer from total reliance on subjective, nondefinable, and unprincipled terms.

Despite not being able to come up with a principled definition, many serious people still persist in claiming that cancel culture is somehow a big problem for the country and the culture of free speech or open debate. But these cancel culture alarmists suffer from a number of blatantly obvious factual realities that discredit their claims.

Let’s begin with the oft repeated cancel culture alarmists claim that free speech or open debate is somehow being stifled because “[e]veryone else lives in fear of the digital Thunderdome.” The glaring problem with this claim is that more people than ever before are participating in open debate. In other words, there is no evidence to suggest that open debate is being threatened. What all evidence does show is that when prominent people speak, they are being confronted with more criticism from the masses who, until the age of social media, did not have the technological capability to voice their dissent so directly. So, when cancel culture alarmists claim that what they are worried about is maintaining an environment where people can speak their minds more freely, it becomes absurd when they get upset when people do just that. Nothing whatsoever about the legal or even cultural aspect of free speech suggests that anyone should be insulated from a Thunderdome of criticism. Indeed, I submit the marketplace of ideas was always meant to be a Thunderdome.

Another problem with cancel culture alarmists is their arguments suffer from what First Amendment attorney Ken White (Popehat) calls a “motte-and-bailey problem.” For any who are not aware, a motte-and-bailey is a fallacy whereby an arguer conflates two positions that are vastly different. For an illustration of how cancel culture alarmists use the motte-and-bailey let’s use an example whereby an institution or company fires someone because a vast amount of people outside of the institution or company demand it on Twitter or by threat of boycott. According to cancel culture alarmists the fact that somebody can be fired because a “Twitter mob” demands it is a horrible development for our culture. But is it?

To be sure, there are undeniable examples where mass demands to fire someone has created victims which no one, including myself, can or should deny.

Equally certain, however, is that in many, many, many, many, instances it can be reasonably argued that the firing was morally justified given the behavior at issue. Indeed, threat of the digital Thunderdome represents the only type of pressure the otherwise powerless people can bring against such grotesque, racist behavior. The problem with cancel culture alarmists is that they do not take any time to distinguish the bad examples with the good. But as Ken White observed is this wonderful debate, cancel culture alarmists also refuse to acknowledge “the fact that boycotts, group public condemnation, and even demands for firing are the sort of speech that comparatively obscure and powerless people have available to them.”

A light must also be shed on the amount of organized hypocrisy you see surrounding cancel culture alarmists. As a San Francisco 49ers fan, I remember quite clearly the reaction by one leader in particular, who conservatives are now literally worshipping with golden statues, toward NFL players who knelt during the national anthem. Conservatives cheered when the orange-painted loser of 2020 demanded peacefully protesting players should be fired or physically dragged off the field. But wait, wouldn’t that make the orange man and his cult following proponents of cancel culture? Not according to them of course. Even when they (I would argue rightfully in this case), “cancel” a speaker at their uncancelling America party they don’t seem to grasp the irony of it all. But it is difficult, if not impossible, to find greater hypocrisy on any issue than the kind exhibited by cancel culture alarmists.

As I am sure that many serious folks will continue to maintain there is something alarming about cancel culture by pointing out the legitimate harm that has happened to innocent people I will end with this point: the solution or remedying to actual injustices can’t be that we focus our attention on an undefinable, unprincipled, hypocritical term. And by focusing on this term, you are in fact giving legitimacy to countless shameless hacks who invoke the term to label any opinion that is critical of their side as CaNcEl CuLtUrE. At a minimum, if folks are going to keep using this worthless term they should have to focus as much, if not more on the terms misuse as the misuse happens far more frequently and presents greater danger of stifling open debate. Moreover, call it cliché to say but to embrace First Amendment freedoms like free speech or free association means having to take the good with the bad. Hate speech causes harm. The orange man’s words have caused death and literally threatened democracy. But I remain opposed to anyone who says we should abandon free speech protections as they represent our greatest bulwark against any threat. And labelling the orange man as a proponent of cancel culture does absolutely nothing to address any of the problems his speech generates.

---

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Back in 2018, LexisNexis unveiled their Context application, taking Ravel Law’s AI technology, marrying it to the LexisNexis data, and producing a remarkable “killer application” for legal artificial intelligence. By typing in the name of your judge, the system would show not just their record in adjudicating substantially similar questions but highlight the exact language and case citations that the judge defaults to whenever hearing that issue. The initial launch also gathered expert reports allowing easy reference to root out the mercenary expert who flip-flops on specific issues every time the wind blows. Last year, the company expanded the offering to include company data, providing an easily navigable snapshot of a company’s litigation and news profile.

Today, the company announces the latest extension of the Context universe — Contextiverse? — the ability to search attorneys.

With Context Attorney Analytics, you can find opposing counsel instantly and highlight the instances where your issue has come up before and see exactly how your adversary handled it. Just as you might use the judge analytics, now you can see the language and citations that attorneys routinely deploy putting you in a position to predict the key points to distinguish in your new filing.

From the overview screen, you get a good primer on your research target. From here you can drill down to look up some of these many mentions, or jump into the arguments in context with a wide array of available filters. That’s where the real fun begins.

How many hours did associates bill to compiling that sort of data?

It might sound dismissive, to say that nothing about this announcement surprised me, but that’s not the intention. I think everybody who saw the initial Judge and Expert Analytics tool knew that something like this was coming. It’s the next logical step in the continuing evolution of the LexisNexis Context offerings. Wherever there are insights to be had, it was inevitable that Context would make it there.

With a few keystrokes, Context Attorney Analytics extracts and highlights the exact language an attorney has used in briefs, pleadings, motions and arguments in cases that are similar to yours and shows how well they fared in court. In addition, its comprehensive search and robust filtering capabilities can deliver relevant attorney-related content, including new stories, jury verdicts and settlements, expert witness materials, and more, eliminating hours of research.

“Knowing the language that opposing counsel has successfully used in similar court cases can give attorneys critical insights and a tremendous advantage when preparing for trial,” said Sean Fitzpatrick, CEO, LexisNexis North America. “No other analytics offering directly connects legal language argument activity and written judicial opinions for specific attorneys.”

While the focus of the discussion around the product focuses on the value it brings to understanding opposing counsel — which is undoubtedly the best long-term application of the technology — it strikes me that it could provide some measure of the self-reflection the profession historically lacks. Type in your own name and see if you’ve managed to become a one-trick pony yourself. Have you developed crutches that others might easily exploit? When the Judge Analytics tool came out, the unconfirmed rumor floating around was that judges were furiously checking up on themselves.

Folks on the other side of the bench might be surprised what they can learn about themselves.

Earlier: Know Companies Better Than They Know Themselves With The Latest LexisNexis Offering
Getting Inside A Judge’s Head

---

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.

From contracts, to liability, to risk, clients are facing unprecedented questions related to COVID-19. A year into the pandemic, are you prepared to advise them?

In a treatise from PLI Press, COVID-19 and Other Pandemics: Business and Legal Challenges, public health and safety regulation experts James T. O’Reilly and Philip Hagan offer background and analysis that lawyers can use. The first publication to address these complex, evolving issues, the treatise combines practical advice with the latest scientific research and guidelines from key government agencies.

Here are some key points for businesses – and their counsel – to consider as they begin to assess the impact of COVID-19 and to prepare for its long-term consequences:

Contracts are key. If you haven’t brushed up on force majeure since law school, now is a good time to revisit this and other contract concepts. A chapter on “COVID-19, Contracts and Frustration Defenses” provides an overview of contract law for businesses who may have seen their operations interrupted by the pandemic when they, their vendors, or third parties were unable to fulfill contracts. In addition to force majeure clauses, O’Reilly and Hagan explore issues of foreseeability, and defenses to non-performance like impossibility, impracticability, and frustration of purpose.

Employers should continuously evaluate risks and liabilities in their workspaces. OSHA has provided recommendations for how businesses can evaluate the risk of COVID-19 spreading in their workplaces and design systems for preventing transmission. These include both engineering controls, such as workspace redesign and upgrades to office air filtration systems, and administrative controls, which reduce person-to-person contact through “staggered work shifts, downsizing operations, delivering services remotely, and other exposure-reducing measures.” In the treatise, O’Reilly and Hagan adapt these and other recommendations into actionable guidelines.

The book includes an overview of workplace liability claims, looking at potential employer liability for employees who contract the virus on the job. The authors discuss potential theories of liability that employers should be aware of and the evidentiary difficulties that the parties will encounter. In that context, they also dive into the complexities of contact tracing as it relates to employer liability and evidence of infection. In addition, they discuss liability risks arising not just from employees catching the virus, but from customers and other members of the public catching the virus. The authors provide an overview of certain tort concepts, an explanation of workers’ compensation programs, and once again draw on OSHA guidance, or lack thereof, and explain the interaction of these concepts with respect to employer liability.

Focus on active response. Regardless of their type of business, all employers should maintain active response plans that minimize potential COVID-19 exposures to their employees and customers, the authors say. The CDC and other government entities provide guidance that can be incorporated into business operating scenarios.

Plan for “black swans.” In other words: expect the unexpected. Now that a rare event with extreme global consequences has in fact occurred, businesses will endeavor to structure contracts and business plans with risk scenarios in mind. When counseling businesses on planning and liability, think about these “black swan” events and develop strategies accordingly.

To download a complimentary chapter of COVID-19 and Other Pandemics: Business and Legal Challenges from PLI, click here.

Visit PLI’s Coronavirus Developments page to access related webcasts and on-demand programs.

---

Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

Ed. note: Please welcome our newest columnist, Tahmina Watson of Watson Immigration Law, an immigration law boutique in Seattle with a focus on business immigration law. She’ll be writing about U.S. immigration law and related issues. 

I am so thrilled to be one of the newest columnists with Above the Law.

I started practicing immigration law in 2006 in Seattle. It was a reluctant choice initially. Having gone through the immigration process of moving from the UK, where I was a barrister, to the United States, where I became a lawyer, immigration law was not my first choice. I envisioned only asylum cases; I didn’t really know it could be more. But as life would have it, immigration law — and all its complexities — kept following me around until I succumbed to it. And it was then that I realized it was my calling in life.

My experiences of living in different countries, being of South Asian heritage (Bangladeshi heritage, specifically), and going through the immigration process in the U.S., made me understand and relate to my clients instantly. And they to me. Suddenly, my immigrant background became an asset and my lived experiences a source of empathy.

When I started my own law firm in 2009 — albeit timidly at the encouragement of my husband, who happens to be a patent lawyer — I immediately found myself helping a lot of people affected by the recession.  Skilled immigrants, who were being laid off, found themselves out of status and potentially facing removal. Many told me they had always wanted their own startup firms — but were hindered in one form or another mostly because a suitable startup visa didn’t exist. It was then that I became really interested in immigration policy and reform and developed the passion and empathy needed to be part of the necessary change.

And that is how I started my life of blogging and writing. It eventually led to my first book in 2015, The Startup Visa: Key to Job Growth and Economic Prosperity in America (affiliate link), launched that year at South by Southwest.  Coincidentally, that book is even more relevant in 2021 in the midst of a global pandemic that has hobbled the U.S. economy. (More on that in the coming weeks!) Most recently, having survived the Trump reign and his attack on immigration, my second book, Legal Heroes in the Trump Era (affiliate link), is the story of my work and that of other inspiring lawyers during that time. If you ever grow disillusioned about why you got into law, this book will likely remind you about the ideological sense of law and order you wanted to be part of.

Since 2009, I have built a successful practice focused on business and family immigration and naturalization. I have maintained a blog, been an advocate and activist, and, since 2015, hosted a podcast about immigration. (I have had two beautiful daughters along the way). I love that I can make such an impact on the lives of my clients and my community in a meaningful way. I am a voice for my clients because so often they have none.

Being on the ground helping clients, seeing the economic trends as they unfold and keeping an eye on what’s happening in Congress, give me an insight that I wouldn’t otherwise have. Any immigration lawyer can tell you heartbreaking stories of the stress and hardship we and our clients have endured over the past four years. I lead the response committee of the Washington Chapter of American Immigration Lawyers Association (AILA) during that time, and both my practice and activism have given me the privilege of learning many new lessons. I feel my voice is even more important now to bring those lessons to the forefront, to give a voice to my clients, elevate issues that I see as important, and help highlight policies and laws that need to be changed.

So, I hope through this column I can give you insights into the world of immigration law to explain how current law and policies affect my clients and the community, why and how they should change, and more importantly why it matters.

I love talking immigration. In fact, when we came up with the name for my podcast Tahmina Talks Immigration, my husband started to tease me that I can talk and talk and talk! So, no question is too big or small. If you have any questions, comments or want to know about something particular, feel free to let me know at tahmina@watsonimmigrationlaw.com.

---

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America (affiliate links).  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.