Category: News Feeds

Over the course of my career, I have worked for both large and smaller law firms. Some people may think that bigger law firms have all the advantages in litigation since they can deploy the most resources and talent to handle a given legal issue. However, smaller firms have many advantages of their own and can adopt strategies to effectively litigate cases against larger law firms. There are a few strategies that lawyers at smaller firms can employ when litigating against larger firms that may have more resources.

Plan

One of the benefits of larger law firms is that they can put numerous lawyers and other legal professionals on a project in order to produce work product on a tight deadline. Smaller law firms may have difficulty producing work product in a short amount of time because smaller law firms usually have fewer attorneys and less bandwidth that can be devoted to legal matters. Of course, there are ways in which that work can be farmed out to other lawyers, but that might not be an option depending on the finances of a case.

However, if small firm lawyers plan, conduct research, and begin writing work product early enough, they can be on an equal, if not far superior, playing field against bigger law firms. For instance, earlier in my career, I believed that I would be on the receiving end of a massive motion to dismiss filed by a large law firm. In order to prepare for the inevitable motion practice, I started beginning my opposition research even before the lawsuit was filed. This also had the added benefit of allowing me to review copious materials related to my causes of action, and I was able to bolster my papers prospectively in order to account for arguments that could be made against my causes of action.

Of course, lawyers cannot predict everything that another attorney will argue in motion practice. In addition, it rarely makes sense to write a facts section or other elements of papers too far in advance, and if a motion is never filed, the work done on opposition research is mostly wasted. However, if the finances of the case permit work to be performed far in advance, it often pays to perform such work, especially since this could offer numerous benefits to the representation.

Attack Procedural Issues

One of the easiest ways to defeat motions is to point out how the motion or other part of the litigation process is procedurally defective. Lawyers at Biglaw firms may not know as much about the procedures of certain jurisdictions, especially state courts, since they do not often engage in the same volume of cases as small-firm lawyers and are often in federal court where bigger cases are usually litigated. Earlier in my career, I remember watching a partner at a large law firm being forced to attend CCP in Brooklyn and being befuddled by the procedures there, even though any street lawyer would have been able to handle the process with ease.

In any event, judges love to decide matters on procedural grounds since they often need to do less work this way, and showing how Biglaw lawyers made procedural mistakes can be a good method of asymmetrical litigation. For instance, I once had to oppose a nasty motion to compel and spoliation motion, and the papers were very well written. However, the jurisdiction required that lawyers submit an affirmation noting how they tried to resolve a matter before seeking judicial intervention, and this was not adequately done in our case. I pointed out to the court that the required affirmation had not been supplied, and this was the basis for denying the motion. In this way, a few paragraphs of argument were able to defeat a motion that was dozens of pages long.

Financial Pressure

In some ways, lawyers at small firms can use the financial pressures of litigation in order to face off against larger law firms. Biglaw firms often charge several times more per hour than smaller firms. Moreover, smaller law firms are far more likely to have alternative fee arrangements with their clients which might eliminate financial burdens from the equation of pursuing strategies in litigation. Of course, in some matters, large clients will pay any cost in order to be successful in litigation, and in such cases, financial issues may not make a large impact on cases.

However, in smaller and medium cases, smaller firms can sometimes play a war of attrition against larger law firms because each motion, deposition, discovery demand, and other aspect of the litigation may cost the client of a large law firm several times more than the client of a smaller law firm.

All told, larger law firms definitely have many advantages in litigation, and there is a reason why many large companies hire large law firms for serious matters. Nevertheless, smaller law firms can still litigate against larger law firms using a variety of asymmetrical litigation tactics which can have benefits to clients of smaller law firms.

---

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

While some Biglaw firms have mandated that associates and staff members return to the office on a regular, everyday basis, others have simply put an end to the five-day, in-office workweek, encouraging employees to come to the office a few times a week, with no pressure for facetime. But what if your firm let you know that you didn’t have to go back to the office for the rest of the year?

That’s exactly what’s happening over at Cooley. In a memo sent earlier this week by Mark Pitchfield, the firm’s administrative and legal practice partner, he noted that thanks to the pandemic, the firm had “evolved to such a degree that our workplace of the future will be neither fully remote nor fully in person.” What does that mean for Cooley going forward? Here’s more from the memo:

Consistent with that evolution, for the balance of 2021 across our US offices, we will not institute a mandatory return date or require a minimum number of in-office days for those whose job duties permit remote work. For the remainder of this year, we welcome all whose personal circumstances and comfort levels permit to begin reacquainting yourselves with office life and with one another. With everyone’s health and well-being as our essential priority, and with the goal of making our workplaces as safe as reasonably possible, by Labor Day everyone working in or visiting one of our US offices must be fully vaccinated.

Cooley associates need not return to the office anytime this year, but the firm expects that anyone who plans to go back to the office be vaccinated. We’re noticing a trend here that more and more firms are expecting employees to be vaccinated before returning to the office. Will your firm be mandating the vaccine for all?

Getting back to Cooley’s “reopening” in name only…

We will remain a workplace for the future, characterized by trust, support and agility – a place that best suits our people, our clients and our culture. To those ends, we are committed to staying on the leading edge of creativity and flexibility while ensuring our ability to deliver world-class legal services. Given this, and the fact that we must remain vigilant about our health and well-being, now is not the time to delineate precisely what the post-pandemic work environment will look like. We will, of course, provide more information about 2022 closer to the end of this year.

Kudos to Cooley for recognizing that things are still up in the air when it comes to the pandemic, and for realizing that the firm should not let all the lessons learned during their time away from the office go to waste. We look forward to seeing what the firm’s hybrid office policy looks like in 2022.

What has your firm announced as far as a reopening plan is concerned? The more information is out there, the more likely it is that firms will be able to establish a market standard for a return to the office.

As soon as you find out about the reopening plan at your firm, please email us (subject line: “[Firm Name] Office Reopening”) or text us at (646) 820-8477. We always keep our sources on stories anonymous. There’s no need to send a memo (if one exists) using your firm email account; your personal email account is fine. If a memo has been circulated, please be sure to include it as proof; we like to post complete memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file. Thanks.

---

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.

Jones Day continues to be a black box — let’s break that open. Morgan Stanley is urging its outside counsel to get back to the office. To what extent do clients get to dictate how law firms run their business? And we talk about cruise lines suing Florida and a Catholic school suing Michigan claiming that making schoolchildren wear masks is sacrilegious, which seems like a stretch.

Special thanks to our sponsors, Lexicon and Nota.

Parental leave is designed to afford workers an opportunity to take care of tiny humans, it’s not supposed to be a time when you get assigned additional high-stakes work. But that’s exactly what happened in the St. Louis prosecutor’s office.

A murder case against Brandon Campbell was dismissed last week by St. Louis Circuit Judge Jason Sengheiser, because the prosecutor’s office had “abandoned its duty to prosecute those it charges with crimes” after the office no-showed for three separate court hearings and missed a court-order production deadline. Campbell was recharged with crimes, but it begs the question — why didn’t anyone show up in the first case? It turns out the attorney assigned to the case, Kimberly Arshi, was only given that assignment a week after she’d already begun maternity leave.

Circuit Attorney Kimberly M. Gardner blamed the dismissal of charges against Campbell on “internal policies and procedures regarding family medical leave.” She said “corrective measures are needed to further prevent any future repeat occurrence of the incident in question,” but failed to give any reason why no one else was assigned the case while Arshi was on leave.

Besides this case, St. Louis Post-Dispatch reports Arshi was also assigned at least nine (9!) other felony cases while on leave including a death penalty murder case, two other murders, three robberies, and two assaults. This is more than a simple administrative slip up. This is a massive miscarriage of justice, especially given the lack of a plan to have someone cover while she was gone.

Peter Joy, a law professor at Washington University, told the Post-Dispatch that 12 weeks — a common length for maternity leave — “is not a long time in felony cases. It would depend on what the trial date is, and also when the person is anticipated back. So it may be reasonable because experienced trial lawyers may be able to pick up a case and get it ready in a couple months.” But still not a reason why no one was assigned to cover Arshi’s cases.

Nick Zotos, a defense lawyer in one of the cases Arshi was assigned while away, said, “It’s just a small reflection of what’s going on in the office. Either they don’t care or they’re sloppy.”

And he’s not the only one with that opinion:

Matt Waltz, a public defender for clients in at least two cases recently assigned to Arshi, said that when he took medical leave some time ago, his office did not assign him any new cases. He speculated that assigning Arshi cases while she’s on leave was a stall tactic until she returned.

Earlier this week, Arshi reportedly resigned from her position. Hopefully her next job will do a better job respecting parental leave.

---

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. 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).

The NXIVM sex cult case somehow managed to get wilder.

The organization’s former leader Keith Raniere watched on via teleconference from prison in Arizona while his lawyer, Marc Fernich and Judge Nicholas Garaufis got in a yelling match followed by half an hour of a silent staredown.

At issue was Fernich’s request to delay the hearing by an hour to attend the funeral of his friend and mentor. While that’s a valid reason for a delay on paper, Judge Garaufis denied the request because the funeral was in the morning and the hearing wasn’t until 2 p.m. Commuting from Queens can be a nightmare, but it’s not a four-hour nightmare. Add in that this hearing required moving a prisoner around on the other side of the country and any requested delay should be strongly disfavored.

Even though this was all settled over the weekend, Fernich decided to raise it again at the hearing itself and that’s when things got real:

Fernich said the denial of his request for an hour’s delay to the proceeding to allow him to attend the funeral violated “human decency and professional courtesy.”

Garaufis stood up from his chair, picked up a box of tissues and pointed at the attorney during a screaming match.

That is both incredibly funny and… probably inappropriately harsh. The requested delay was properly denied and it was absolutely inappropriate to try and relitigate it at the hearing itself, but this might be too mean. And when it comes to the boundaries of acceptable snark, I’m a frighteningly lenient audience.

After Fernich offered what Judge Garaufis clearly saw as grandstanding, the judge shouted, “Be seated or I’ll have you arrested.” One more trade of barbs and…

Garaufis then sat back down and the courtroom fell into a deep silence.

The court sat virtually mute for 30 minutes.. Raniere, live over a video feed from his Arizona penitentiary, scratched his face and crossed his arms as the awkward silence reigned.

The quiet ended when Fernich stood and apologized to the judge, ending the stalemate.

Everything about this case is a circus. Raniere was ultimately ordered to pay $3.5 million in restitution to his victims. If this upsets him, Judge Garaufis has some tissues for him.

Brooklyn federal judge in courtroom screaming match with sex cult lawyer who wanted hearing delayed to attend colleague’s funeral [NY Daily News]

---

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.

What do associates at major law firms care about more than money? Prestige, of course. But, at the end of the day, sometimes being a leader when it comes to compensation is enough to boost a firm’s prestige. As luck would have it, the closely watched Vault 100 rankings are here to remind lawyers at the nation’s largest law firms about exactly which ones are considered the most prestigious.

In last year’s Vault 100 rankings, Cravath — the firm that matched Milbank’s $190K associate salary scale three summers ago with over-the-top monetary compensation for senior associates and matched the generous new salary scale set by Davis Polk this summer — managed to retain its number 1 spot, with Wachtell Lipton edged out of second place by Skadden for the first time in the history of the Vault rankings. Was Cravath able to keep its cachet as the most prestigious Biglaw firm in the country in the latest Vault rankings?

Of course it was. Here’s what Mary Kate Sheridan, Vault’s senior law editor, had to say about Cravath’s placement in the latest rankings: “Cravath and prestige go hand in hand, with the firm securely atop the Vault Law 100 year after year and also within the top 10 of multiple practice area rankings including the top position in General Corporate Practice. When Cravath speaks, other firms follow. The firm has established industry standards on hiring and compensation for years, and even when it isn’t the first to move, Cravath’s decision to join influences the market—as with this year’s compensation and special bonus announcements.”

Biglaw may be on the Davis Polk scale, but Cravath remains the namesake for salaries because of its prestigious pull, with survey respondents referring to the firm as an “industry trend-setter” and a “compensation leader.”

Although Cravath stayed on top, this year, there was some movement when it came to the Top 10 in the Vault rankings. Here are the Top 10 Most Prestigious Law Firms based on Vault’s Annual Associate Survey for 2022:

1. Cravath, Swaine & Moore
2. Wachtell, Lipton, Rosen & Katz
3. Skadden, Arps, Slate, Meagher & Flom
4. Sullivan & Cromwell
5. Latham & Watkins
6. Kirkland & Ellis
7. Davis Polk & Wardwell
8. Simpson Thacher & Bartlett
9. Paul, Weiss, Rifkind, Wharton & Garrison
10. Gibson Dunn & Crutcher

This is the fourth year in a row that these firms have been in the Top 10, but as you can see, we had a two pairs of flip flops among them. At the tippy top, Wachtell has reclaimed its No. 2 position after losing the spot for a blip in time last year, and because fame is sometimes fleeting, Skadden is back with a bronze medal in hand. At the bottom of the top, Paul Weiss and Gibson Dunn have traded places. Surprised Davis Polk didn’t move? The Vault Associate Survey was conducted between March and May 2021 — before the firm’s monumental salary move. Perhaps we can expect it to move up a few spots in next year’s ranking.

Click here to see the rest of Vault’s prestige rankings.

Congratulations to all of the Biglaw firms that made the latest edition of the Vault 100 rankings. How did your firm do this time around? Email us, text us at (646) 820-8477, or tweet us @atlblog to let us know how you feel.

Vault’s Top 100 Law Firms For 2022 [Vault]
Introducing Vault’s 2022 Top 100 Law Firms! [Vault]

---

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.

On July 11, 2021, Israel took a significant step forward to protect LGBTQ+ parenthood equality. Its Supreme Court ruled that hopeful gay dads-to-be — just like heterosexual couples and single women — must be permitted to access surrogacy to have a child, and must be able to do so within six months of the ruling.

You see, the court had already ruled in favor of gay couples being able to engage in a surrogacy in Israel. A year earlier, the court found that the Israeli law that expanded access to surrogacy to single women but excluded single men and gay couples “disproportionately harmed the right to equality and the right to parenthood,” and was thus unlawful under Israeli law.

The court gave the legislature a year to rewrite the law. Initially, the deadline was March 2021. Then it was extended to September 2021. However, the legislature failed to make progress on the court’s mandate — not only under the leadership of previous Prime Minister Benjamin Netanyahu (recently ousted), whose coalition always included religious conservative factions who consistently opposed any form of LGBTQ+ equality but also under the recently formed government. The new leadership was supposed to bring winds of change, but it quickly concluded that it would not be able to do much better on this front.

The new government gave its official notice to the Supreme Court that it would be politically unfeasible to advance such a bill — and the court responded only a few days later by issuing the latest ruling that the surrogacy law must be read to include single men and gay couples. The court gave six months for the Ministry of Health to engage in any necessary rulemaking to effectuate the change.

For an excellent summary of the fraught road that led up to the ruling, check out this article by U.S. surrogacy attorney Rich Vaughn of the International Fertility Law Group.

First Comes Love, Then We Skip Straight To The Baby Carriage

Israel joins the list of countries that have a patchwork of laws treating LGBTQ+ families inconsistently, at best. The latest Israeli ruling is a positive step for hopeful LGBTQ+ parents-to-be, for sure, but fascinatingly, those same couples who are now permitted to use surrogacy-assistance to expand their families, are still not permitted to marry within the country. It’s a little meshuga.

Israel does not even permit same-sex civil marriage. Marriage, in Israel, is considered a religious institution, and must be completed (same as divorce) under applicable religious rules. Gay couples may, of course, marry abroad in jurisdictions like the United States that permit it, and a foreign marriage does receive some level of recognition within the country.

Israel demonstrates that marriage equality and the right to parenthood by surrogacy do not always go hand-in-hand. In the United States we, of course, have both. Kind of. LGBTQ+ couples have a right to marry (as determined in 2015 to be a constitutional right in the Obergefell case) and are permitted to form their families by surrogacy in most states. There are exceptions, like Louisiana where the state’s questionable law permit only married heterosexual couples using their own gametes (no donor egg or sperm) to use a surrogate.

In other countries, like Spain and France, same-sex marriage is in, but surrogacy — for any sex, orientation, or marital status — is completely out. And in Russian and Ukraine, surrogacy is fine, and it is fine to compensate the surrogate, but only for married heterosexual couples.

So confusing!

This Is Really Big

Victoria Gelfand, an Israeli family formation attorney, described her reaction to the court ruling in an interview. She found the ruling almost an “unbelievable” success. She explained that this lawsuit, fighting the discriminatory nature of the surrogacy law in Israel, started in 2010 — over a decade ago! Partial verdicts and various initiatives have come and gone, without much success.

Gelfand has assisted hundreds of couples forming families through surrogacy abroad since 2005. In 2014, with a hopeful initiative in the works then, she recalls asking couples if they were considering waiting for the law to change in Israel, instead of spending more money to go abroad. Some responded that they didn’t trust the government’s agenda to change any time soon. Their pessimism, of course, was right. Now, because of the Israeli judiciary, couples in the surrogacy process abroad have a big decision to make — keep going, or wait for six months to see if this really happens. Those hopeful parents will also have to weigh how feasible it will be to move forward when a surrogate-gestated baby boom strikes Israel with greater force than ever experienced in the country since the enactment of the law on surrogacy in 1996.

With many positive signs — including the support and positive reaction of the Ministry of Health — this looks like it is the real deal. Six months from now, single men and gay couples in Israel should be able to form their families through surrogacy without leaving the country. Let’s hope nothing goes fakakta in that time.

---

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

* McDonald’s facing $500M class action sexual harassment suit. I thought this was a family establishment? [Bloomberg Law]

* Missouri continues very American tradition of discussing how to talk about race with no spoken input from Black folk. [Kansas City]

* Suddenly, vaccinations are bipartisan. Should we expect more mandates? [The Atlantic]

* District Judge blocks Arkansas law that bans most abortions. [PBS]

* Balancing Privacy and Profit is hard to do amid COVID, but it will get done. Hopefully. [Bloomberg Law]

---

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. Before that, he wrote columns for an online magazine named The Muse Collaborative under the pen name Knehmo. He endured the great state of Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com.

Jerking Off To A Supreme Court Decision? And a random one at that.

More Raises: For Blank Rome, Duane Morris, and Eversheds.

Have A Great Time While You Can, Summer Associates: Because it won’t last.

Explosive New Sexual Assault Case: Against a former New York Judge.

The bigger they are, the harder they fall. And Michael Avenatti was big.

In 2018, ATL named him “Lawyer of the Year” after he dominated headlines and delivered the goods. He managed to prove that Trump had paid Stormy Daniels for her silence about the affair, laundering the money through his eponymous company. And Avenatti unearthed bank records proving that Michael Cohen had used his proximity to the president to extract cash from multiple companies with business before the Trump administration.

And then … things went totally off the rails.

This month, Avenatti was sentenced to 30 months in prison for attempting to extort Nike. Next year, he’ll face charges of stealing Stormy Daniels’ book advance in New York. And today he’s on trial in California for allegedly stealing a multi-million dollar settlement won for a paraplegic client. Also bank fraud, failure to file tax returns, wire fraud, etc.

And that’s where things went even more off the rails.

Thanks to live tweets by Law.Com reporter Megan Cuniff, we know that US District Judge James Selna has just accepted Avenatti’s request to represent himself pro se, relegating his highly capable attorney H. Dean Steward to “standby counsel.”

Naturally this prompted the entirety of Law Twitter to double over laughing at Avenatti’s dogged determination to screw over one last client. And who doesn’t appreciate a good belly laugh, right?

The kerfuffle commenced a couple of hours ago, before the potential jury pool was dismissed for lunch.

Avenatti was famously arrested during his own disbarment hearing, and was suspended from the practice of law in California a year ago. Nonetheless, Steward moved that Avenatti should be able to participate as co-counsel.

But prosecutors argued that this might be confusing to the jury, and the court agreed.

Faced with the choice of shutting the hell up or exploding his case, Avenatti formally requested to represent himself pro se. Under questioning, Avenatti admitted that, in a long career as a civil litigator, he’d never actually tried a criminal case. Although he did cite to his participation in his own trial in New York just recently.

And although he confessed to being unfamiliar with all the elements of the many crimes alleged in the 36-count indictment, Avenatti got his wish. When the jurors returned, Judge Selna informed them that the defendant would henceforth be representing himself, and that that they were to take no inference therefrom.

Not being members of the jury pool, though, we will take the obvious inference that Avenatti has lost his damn mind.

Well … good luck to him!

---

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