Category: News Feeds

Ed. note: This is the second in a series on the changing practice of law in varied areas. Read the first installment here. 

It’s a development tinged with irony: Just as attorneys and clients are cut off from their literal conference tables by COVID-era social distancing, pulling up to the figurative table is more important than ever before. 

According to John A. Goldstein, who counsels and advises clients on commercial real estate and finance transactions out of the Chicago office of Greensfelder Hemker & Gale, P.C., lawyers are placing a stronger emphasis on communication.

When loan payments become difficult, Goldstein explained: “We say to clients, ‘Don’t just default.’ We say, ‘You need to talk to the lender. That’s when you’ll save yourself, as long as you communicate.’”

The necessity of discussion pertains to the attorney-client relationship as well. 

“Your client is no longer just Joe who wants to see his building,” Goldstein said. “Now, lawyers need to discuss how a client’s business is going. Is he able to deal with his employees? Is the client having trouble? Do we need to have a dialogue?”

Attorneys must approach their practice with a new sensitivity as the pandemic roils so many aspects of the commercial real estate business.

Work of a Different Nature

One notable difference in the world of CRE nationally has been fewer new commercial loans being made, according to Goldstein.

Statistics from the Federal Reserve bear this out. CRE loans increased 2.6 percent in the third quarter of 2020 compared to the same quarter the previous year. This may seem like good news until one considers that this is the lowest year-to-year increase in at least half a decade, and 2020 didn’t start out that bad: The year-to-year change for the first quarter was 5.6 percent.

In addition, the commercial loan delinquency rate for the third quarter of 2020 was 1.00 percent, seasonally adjusted, for all commercial banks, the highest it’s been since 2015. For CRE attorneys, statistics like this can mean plenty of work, just of a different nature.

“Conversations between borrowers and lenders resulting in modifications and workouts” have ramped up, Goldstein said. “We’re seeing the restructuring of payment terms and the forgiveness of loan covenants on a temporary basis.”

Workouts don’t have to be complicated. 

“A lender might say, ‘You can pay zero for six months and then make it up by paying double,’” Goldstein explained. “Yes, some companies are going under, but the lenders don’t want that either.”

Meanwhile, many parties have moved to take advantage of low interest rates. 

Brian L. Lewis, chair of the real estate, development and finance group for Ryan, Swanson & Cleveland, PLLC, in Seattle, said his firm does a lot of work with national homebuilders. Thanks to the low interest rates, “we’ve been really busy acquiring property.”

Refinancing has also heated up. 

“A small change [in rates] can result in enough of a savings to justify the costs,” Lewis said.

These low rates are expected to persist. The federal funds rate has been sitting at zero to a quarter percentage point. At a press conference following the December 2020 meeting of the Fed, Chairman Jerome Powell said that, “Overall, our interest rate and balance-sheet tools are providing a powerful support for the economy and will continue to do so.”

Alan Nochumson, the founder of Nochumson, P.C., a full-service real estate firm in Philadelphia, said construction loans were hard to come by in the beginning of the pandemic. 

“You could feel that people were holding back. A few clients had to put a gun to their lender’s head,” he said. “Bigger institutions had backed off, but now the loans are happening again.”

“Better Than Eating 100 Percent.” 

In keeping with other areas of CRE practice, leasing has transformed. According to Fed statistics, the delinquency rate for leases in the second quarter of 2020 was 1.54 percent of the portfolios of all commercial banks, seasonally adjusted, the highest it’s been since 2010. The third-quarter rate was 1.46 percent.

Goldstein said that while he continues to represent tenants in the retail and industrial sectors, he’s not working on as many new leases. “I’m seeing a lot of subleasing. I’m also seeing restructuring, temporary rent forgiveness, and rent abatements.”

The goal may be for a tenant to sublet for the whole payment, but these days it’s more common to get something less. 

“At least the tenant makes some of it back,” Goldstein said. “That’s better than eating 100 percent. 

Lewis reported that it didn’t take long into the pandemic for lease reworking to get underway. 

“I think in a lot of cases, companies large and small, affected or not affected, just automatically sent out notices saying, ‘We can’t perform, we need an adjustment on rent.’ A lot of those are legitimate. They are small businesses shut down by local government orders.”

Tenants-in-distress can be found across a broad spectrum of industries. Restaurants, gyms, salons, and retail are the obvious candidates. Others, perhaps, are not so obvious.

“We have a parking garage client — although this is more of an insurance coverage matter — their revenue has plummeted because no one is coming downtown to park.”

The issue with this client involved interruption coverage for the pandemic. 

“When the government has forced you to close and you have contagious disease coverage, you have to show the presence of the disease,” Lewis said.

A tenant might need to make a similar demonstration to invoke a force majeure provision in a lease, a type of clause stating that the fulfillment of terms may be excused if an act of nature like pestilence precludes it. Lewis noted that force majeure clauses generally do not provide relief from payment obligations, however.

“Typically, force majeure excuses some kind of performance obligation,” he said. “For example, if a lease says you have to operate for so many hours a day and you can’t operate because the government has shut you down.”

Nochumson in Philadelphia said he hasn’t seen a precipitous drop-off in new leasing activity. 

“I just drafted a lease for a brewery in West Philadelphia,” he said. “These things take time anyway.” 

His clients are moving ahead, arranging the components of their deals before full-fledged business activity resumes.

An Overriding Pall

No doubt, almost everyone is looking forward to the resolution of the pandemic. 

For Goldstein, it’s not so much because his business has suffered — deals are still happening — but more the “overriding pall over everything because of fear and health concerns.”

When the vaccine is widely distributed and in-person contact is less fraught, “I feel positive that there will be the rebound of all rebounds,” he said.

---

Elizabeth M. Bennett was a business reporter who moved into legal journalism when she covered the Delaware courts, a beat that inspired her to go to law school. After a few years as a practicing attorney in the Philadelphia region, she decamped to the Pacific Northwest and returned to freelance reporting and editing.

Biglaw firms are finally starting to put their money where their mouth is when it comes to diversity and inclusion. At least two firms — Dorsey & Whitney in 2019 and Hogan Lovells in 2021 — have announced that approved diversity and inclusion-related work will be billable for attorneys and will count toward bonus thresholds. Now, another leading law firm has stepped forward to announce that all timekeepers, not just lawyers, will be able to receive billable-hours credit for their diversity work. The firm is the first to offer a program like this.

Reed Smith, a firm that came in at #26 in the latest Am Law 100 rankings, announced this new policy earlier this week. Under this new protocol, all timekeepers at the firm will be able to allocate up to 50 hours of work and activities related to its Diversity, Equity, and Inclusion program (DE&I), its Women Initiative Network program (WINRS), and its Racial Equity Action Plan (REAP) as billable time. This policy takes effect immediately and is retroactive to January 1, 2021. Here’s a very thorough list of what will be counted for billable credit at Reed Smith:

The DE&I, REAP and WINRS work and activities that qualify for credit include:

• Leading or organizing events, activities or projects;
• Serving in a leadership role on firm committees or sub-committees;
• Developing or delivering training programs related to diversity or gender issues;
• Presenting at, or preparing materials for use in, diversity- and gender-related programs;
• Attending training programs or conferences related to diversity or gender issues;
• Participating in Reed Smith’s reverse mentoring program, or serving as a mentor or sponsor in an effort to support diverse talent; and,
• Participating in client-sponsored or promoted diversity- and gender-related activities.

Casey Ryan, Reed Smith’s Global Head of Legal Personnel, explained the firm’s rationale behind offering diversity-related billable hours for all timekeepers:

This policy enhances our robust Associate Life initiative,” said “Working on diversity initiatives provides an opportunity to lead on issues of import, build leadership skills and make connections, all experiences that benefit associates in the development of their lawyering and other professional skills.

Reed Smith’s Global Managing Partner Sandy Thomas had this to say:

Building an inclusive culture is integral to our business and should be rewarded and incentivized, not left to chance. Diversity is an area where Reed Smith has always been a leader in the legal industry, and this new policy is a real investment behind our own commitment and goals.

The move to billable diversity-related hours is part of a larger effort at the firm. By 2024, Reed Smith hopes to see a 50% increase of Black lawyers, improvement of Black lawyer and staff attrition rates, and an increase in the percentage of Black leadership in the firm. Billable credit is a great way to make sure everyone at the firm is pulling toward these very important goals.

Earlier: Care About Biglaw Diversity? Well, Now You Can Bill For It
Biglaw Firm Introduces ‘Diversity Hours’ That Count Toward Associate Billable Requirements

---

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.

Legal writing is often a dull, bland thing. And that’s to be expected, most motion practice is deeply immersed in the facts and specific applications of the law that aren’t particularly interesting, except to the parties involved. But sometimes filings transcend the case they’re a part of and become of general interest.

Such is the motion for sanctions in the Michigan election fraud case. If you’ll recall, the Michigan case was part of the bonkers Kraken litigation strategy touted by lawyer Sidney Powell. With the theories of the case widely debunked (and you know, Joe Biden was sworn in as the 46th President of the United States), the case has moved to the Rule 11 phase. Earlier this month, the City of Detroit filed a motion for sanctions and requesting the court refer the seven attorneys involved — including Powell and Lin Wood — to their local bars for disciplinary action. The plaintiffs responded with an off-the-wall theory that sanctions somehow require ink signatures, which belies the advent of things like computers and the internet.

Well, now Detroit has filed their response, and their attorney, David Fink, comes out swinging. As reported by Law & Crime, the opening salvo in the filing draws a direct line between the dubious theories of the instant case and the January 6th insurrection which left five people dead with rhetorical flourish:

“Let there be no mistake, there is blood on Lin Wood and Sidney Powell’s hands and on the hands of all those who pushed this lawsuit,” Detroit’s attorney David Fink wrote in the opening lines of his blistering 22-page legal brief on Tuesday evening. “Brian Sicknick, a Trump supporting Capitol Police Officer, died defending the Capitol against those who were deranged by plaintiffs’ counsel and their ilk.”

“Rosanne Boyland, of Kennesaw, Georgia, who fell prey to the election lies, was crushed to death by fellow rioters,” the brief continues. “The life of Ashli Babbitt, a 35-year-old Air Force veteran from California, was cut short because she tragically believed the lies spread in this lawsuit. Ms. Babbitt’s final tweet was a retweet of L. Lin Wood stating, ‘Mike Pence @vp @Mike_Pence must resign & thereafter be charged with TREASON,’ and ‘Chief Justice John Roberts must RESIGN.’”

The filing also dispenses with the terrible argument that Powell and Wood are somehow immune from sanctions because they didn’t sign the filings with ink:

“In the present case, each attorney either signed frivolous documents or advocated for frivolous positions,” their legal brief states. “Indeed, this case was not local counsel’s case; it was Sidney Powell’s case. She announced she was filing it. She promoted the claims and the ‘experts.’ It was also Lin Wood’s case. He announced he was filing it. He promoted the claims, even adopting the Parler username @krakenwood.”

As my colleague Joe Patrice noted in previous coverage of this case, sanctions are always an uphill battle. But the City of Detroit is certainly making a great argument for them.

---

Kathryn 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).

We’ve covered so many bad faith bills that are attempting to undermine Section 230 for silly and disingenuous reasons. However, I expect we’ll be seeing many more bills coming up that actually mean well, and have good intentions underlying the bill… but are still problematic and may make things worse. A new example of this is a not-yet-introduced bill from Rep. Yvette Clarke, along with Rep. Mike Doyle. They’ve released a “discussion draft” of the bill which they’ve dubbed the Civil Rights Modernization Act of 2021. This bill does two things that so many Section 230 reform bills do not: (1) it appears to attack an actual, clearly stated problem, and (2) it attempts to take a narrow approach to it.

Unfortunately, as currently written, the bill fails to deal with the actual problems, and is likely to create a wide variety of unintended consequences that do a lot more harm than good.

The idea behind the bill is simple: it’s to add yet another exemption to Section 230, such that it would no longer apply to civil rights law in one specific situation: when dealing with targeted advertising. This bill comes almost directly in response to a report from ProPublica years ago showing that because of Facebook’s ad targeting tools, landlords were able to exclude users by race. This is horrific and bad, and takes the world back to decades of horrific and regrettable US history where redlining was the norm, and communities were designed (with support of the government) to exclude people of color. Civil rights laws were supposed to help end that practice, and it’s completely understandable to be horrified to see that Facebook may have been inadvertently bringing it back.

Of course, after that report came out, Facebook promised to update its policies and tools to deal with this, explicitly banning discriminatory practices within its ads and promising more enforcement against such ads. Of course, as we know, content moderation at scale is impossible, and a follow-up report by ProPublica a year later… found the problem still existed. Facebook blamed a “technical failure” on missing those ads, but… yeah… not a good look by Facebook.

Another year and a half after that, Facebook once again announced changes to its policies for dealing with discrimination in advertising, noting that it came after a bunch of civil rights organizations had sued the company over the discriminatory ads. This was part of a settlement of the lawsuit with those groups. Of course, just a week and a half later, Facebook got hit with another lawsuit, this time from the US government over these same discriminatory ads.

Meanwhile, last summer, the Markup found… the same type of discriminatory ads on Facebook. So, whatever Facebook is doing, it hasn’t been able to solve this issue.

Given all of that, it might seem totally reasonable to argue that this bill makes sense. But, if you start to peel back the layers, that does not appear to be the case, and this bill might do a lot more harm than good. First off, let’s go back to the core reason why Section 230 exists in the first place: to put liability in the right place. There is nothing, right now, that stops anyone from properly holding landlords who advertise in a discriminatory fashion liable. Indeed, if they’re the ones doing the targeting in this manner, it seems only appropriate to correctly accuse them of violating Fair Housing laws. And, if you go after many of them for abusing targeting tools in this manner, that will hopefully get rid of much of the problem simply by convincing the ad buyers themselves to avoid such discriminatory and disgusting practices.

But it gets worse from there. As Public Knowledge pointed out in an article last year, holding a platform liable for some types of speech can lead to significant suppression of important and useful speech:

While an unpopular opinion among some, the fundamental ideas behind Section 230 around third party speech are still sound. Online platforms are not like publishers that can vet and stand behind every user post, and we want online platforms to have a free hand to moderate content without fear of liability for what they take down. A regime where platforms are responsible for third-party discriminatory conduct could very easily make platforms chill the speech of their users for fear of liability. We have evidence that this would likely be the case as seen in platform’s struggles to curb COVID-19 misinformation. Current content moderation AI is not as sophisticated as some of the platforms would like us to believe, especially when moderating the content of BIPOC people. Complicating this even further is that the roles of the platform and the user (employer, realtor, financial institution etc.) are not always clear. Did the user engage in the discriminatory action with the tools provided by the platform or did the platform present discriminatory tools to an unknowing user? A recent study showed that even when given neutral advertisements, Facebook showed different ads to different groups at different rates even when controlled for population, which highlights that even under the best intentions there may be a need to prioritize the platform’s liability as opposed to the third-party content of the advertiser or user.

And, let’s be realistic about what’s likely to happen if a bill like this became law. The threat of liability in a realm that, as noted in the paragraph above, is effectively impossible to deal with, would lead to a vast overreaction and clamping down of incredibly useful tools — and could do more harm than good for the very people it seeks to help and support. For example, in the past few years (in part thanks to the power of the internet) a large number of new companies have sprung up that provide healthy & beauty supplies, with a target of serving people of color who are often not as well served by the market.

It’s not difficult to see that, as a result of this law, Facebook and others completely block out the ability to effectively target audiences like this, even when it’s totally appropriate and non-discriminatory. But the risk of liability may be too high for internet websites, and therefore, you end up back in the regrettable world where the default advertisement targets a white middle-class consumer (as it has for decades) because anything more accurately targeted… runs the risk of liability under such a law.

Another way to think of this, is that there are times when it is entirely non-nefarious to target members of a specific community with ads based on a particular characteristic. If you’re selling Passover Hagadadahs, you tend to want to target a Jewish population. You might advertise in Jewish magazines or publications. That’s not violating civil rights law, and it wouldn’t if you ran those advertisements aimed at Jewish people online either. But, because of the very risk of liability, websites might ban all such targeted advertising entirely, leading again to end result where those niche communities are underserved, because the only ads you can place are targeted at the most mainstream, least common denominator audiences.

That seems like the opposite of what people who support civil rights should want.

And then there’s a very serious question of whether or not Section 230 is even a problem here in the first place. As noted above, Facebook has already been sued multiple times by both civil rights organizations and the government over the ads. And while it’s true it has tried to use 230 in response to the HUD lawsuit, we already have a somewhat similar case on the books, which is considered one of the key Section 230 cases. In Fair Housing Council of San Francisco v. Rommates.com, the 9th Circuit found that Roommates was not protected by Section 230 for discriminatory content that it created. In that case, also involving housing and race, Roommates created a pull down menu letting users select a preferred race of a roommate. And the court found that since that pulldown was created by the company and not a 3rd party, it was not immune from the lawsuit. (For what it’s worth, an oft-forgotten coda to this story is that even though the court rejected Roommates’ Section 230 defense, years later, it found that the company had not actually violated fair housing discrimination rules).

There’s one other reason to be very wary of this civil rights carveout for Section 230: there’s a very, very big chance that rather than being used to crack down on discrimination in housing, it would be abused by white nationalists to demand access to services that don’t want them. If you look at the actual case law of where civil rights claims have been brought in an attempt to get around Section 230, you find a series of highly questionable cases — including a Russian internet troll farm, a proudly misogynistic video blogger, a Twitter user who lost his account for tweeting hateful content directed at Daily Show host Trevor Noah, a guy who claims he lost his Twitter account for expressing his “heterosexuality and Christian affiliation,” and a well known white supremacist — all of whom claimed their civil rights were violated by being removed from social media.

Most of those claims were rejected on Section 230 grounds, but opening up the possibility of removing civil rights law from Section 230’s protections may lead to a flood of similar lawsuits from truly awful people who are mad that they were removed from social media for hateful views, and claiming that such removals violate their civil rights.

Again, the bill almost certainly comes from a place of good intentions. And there are quite reasonable concerns about how Facebook’s targeting in particular has been used to discriminate in housing, and possibly in other venues as well (such as jobs). But that’s not a problem that we need 230 to fix. Instead, you’d think that a smarter approach would be to go after those doing the actual discrimination.

In summary, this bill is:

1. Not clearly needed / mistargeted
2. Likely to harm marginalized communities by limiting some of their own perfectly reasonable advertising abilities
3. Already dealt with in the Roommates case
4. Likely to be abused by terrible, terrible people, to claim their hateful views are being discriminated against.

Seems like perhaps not the best approach.

Removing Civil Rights Law From Section 230 Will Create Many New Problems, While Failing To Fix Existing Ones

Biggest MAGA Conference Threatens Politico With Bogus Lawsuit For Reporting On Conference Troubles
The Wall Street Journal Kisses Big Telecom’s Ass In Whiny Screed About ‘Big Tech’
Papers Please Has Something To Tell You About The ‘No Fly’ List And It’s Going To Make You Sad

After years of advocacy, California finally agreed to permanently lower its passing cut score last year from 1440 to 1390. This new score still made the California bar exam more difficult to pass than most jurisdictions, including legal industry hub New York, but grievance hounds still found a way to complain about the decision.

But this decision made an awkward remainder of applicants who achieved a 1390 or better on the February 2020 exam, but were told that they needed to retake the fall exam anyway.

That didn’t make any sense to anyone who bought the NCBE’s party line that their exam is standardized by psychometricians and a score on one examination is just as good as the score on a later examination. Nor did it jive with past precedent, which offered five years of retroactivity for cut score changes. The state supreme court pretended not to hear these arguments and the state legislature ultimately held hearings, but we can report now that the state will expand its provisional licensing program to include applicants who scored between 1390 and 1439 between July 2015 and February 2020.

It’s been a long time coming, but at least there’s some justice to this. Congrats to everyone who passed the test before for finally getting that recognition.

Earlier: California Supreme Court Refuses To Apply New Cut Score Retroactively

---

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.

The bar exam: it’s perhaps the biggest rite of passage for anyone entering the legal profession. Not surprisingly, it usually comes with a fair amount of stress and uncertainty. Choosing your bar exam course shouldn’t add to it.

At JD Advising, we understand that the bar prep course you choose can seriously impact your entire bar exam experience. That’s why we’re here to address the biggest bar prep concerns we hear from our students year after year. If you can avoid these pitfalls, you’ll have the confidence and skills you need to pass the bar exam.

Without further ado, here are students’ top three bar prep concerns and how JD Advising addresses each of them.

1. How will I have time to learn everything for the bar exam? 

One of the reasons the bar exam is so stressful is that it covers many topics.  But, it only tests a few of them in any given year. Fortunately, you don’t need to know everything in order to pass. What you need to know is what’s actually tested. 

Here are a few key points to keep in mind: 

• We show students which topics are highly tested. While the exam topics may seem completely unpredictable, they’re not entirely random. JD Advising has invested significant time in determining which topics are most frequently covered on the bar exam. And while our outlines cover every topic that is fair game for the exam, we point students toward the topics that bar exam testers tend to focus on more than others. 
• Our outlines clearly show you when topics are tested. Other popular bar courses don’t delineate between tested and non-tested topics. JD Advising’s outlines are different. When you look at a subject like evidence, you won’t just see all the pertinent topics, you’ll also see what’s highly tested and what’s not. For example, you might see that relevancy and hearsay were tested on several of the most recent bar exams, while there hasn’t been a question about authentication in 20 years. These stats are updated in our outlines every new administration of the exam and presented visually, so you can plan your studying around what’s tested most often.
• Our outlines are visually appealing. Most law students tend to be visual learners, which is why we’ve made our outlines colorful and full of charts and other tools designed to help your retention. 

If your outline doesn’t present information the way you like to learn it, it won’t be effective, no matter how much black letter law is crammed into it.

Besides great outlines, you need great practice questions. JD Advising uses practice questions released by the National Conference of Bar Examiners. These officially released questions are the best questions to prepare you for the bar exam. JD Advising includes practice questions in an easy-to-use, online Qbank. This allows you to customize your practice exams so you can review the subjects you need to review. 

A screenshot of our multiple-choice question study aid builder is below. 

JD Advising is an all-inclusive course that comes with all the lectures, outlines, and practice questions you need to maximize your chances of passing the bar exam. There is no need to buy any supplemental resources as with some other bar prep courses. We also give you schedules and to-do lists to break everything down into manageable pieces. 

Simply put, when you focus on what’s tested most, you have the highest chance of success.

2. How do I know that I will pass the bar exam? 

No course can guarantee that you’ll pass the bar exam – if they do, you should find a different course. What we can promise, though, is that we’ll give you the best possible tools to do it.

• JD Advising has a very high pass rate, including an 82.1% pass rate for first-time takers. Our high pass rate is one of the reasons that law schools and law firms across the nation partner with us. This includes Ivy League law schools and Am Law 200 law firms. 
• Our course is taught by expert, full-time bar exam instructors who know the exam inside and out. We include Q&A sessions with instructors, a discussion forum where you can pose questions, and individualized essay feedback from a single attorney essay grader throughout the course. JD Advising’s prep course is tailored to what’s actually tested and we teach you how to study based on that.
• We offer options tailored to you. In addition to our standard course, we also offer a more personalized course that includes status check-ins, extra essay-grading, the ability to ask questions to our instructors and attorney experts at any time. Many students find the extra interaction and individualized feedback to be important for knowing they’re on track.

Regardless of your budget, though, our courses are designed to put you in the best possible position to pass the bar exam if you commit to preparing for it. Your success is our success.

3. What’s the #1 biggest mistake that first-time bar exam takers make? 

There’s no reason you would know how to prepare for and pass the bar exam going in – it’s not something that law school teaches you. Every year students make a number of common mistakes that are easy to avoid. That’s where we come in.

Here are some of the most common mistakes made during bar exam prep and how JD Advising helps you avoid them:

• Using course-invented exam questions rather than questions from previous exams – We always provide you with previously released questions that have actually appeared on prior exams. 
• Ignoring practice essays in favor of multiple-choice questions because you think you mastered essays in law school – We teach you that bar exam essays and law school essays are two very different things, and train you to write answers that will be scored highly by exam graders.
• Only starting to memorize at the end and getting overwhelmed – We teach you how to start memorizing from day one, telling you exactly what to memorize and including it in your weekly schedule, making bar prep far more manageable. What you memorized in week one will still be with you in week five.
• Lacking confidence going into the exam because you couldn’t adequately evaluate your own work – We give you comprehensive instructions for self-grading your work as you go, giving you an extra layer of confidence that makes you feel mentally ready for the exam.
• Not doing enough practice questions and essays to master your timing – When we assign essays and performance tests, we spread them out throughout your bar prep cycle so you become comfortable with them and don’t run out of time on exam day.
• Focusing on the quantity of practice questions rather than quality – We give you previously released questions and the ability to evaluate your performance on them, so you know you’re on track to pass. You’re not just checking boxes and doing thousands of practice questions in a vacuum.

Peace of mind and bar exam prep may seem to be contradictory concepts, but our mission at JD Advising is to make them go hand-in-hand. We’ve created a new model of bar prep that  gives you the confidence you need to pass the bar exam and also helps you avoid the common pitfalls along the way. Contact us today to learn more.

While the historic GameStop short squeeze rivaled the climactic scene of “Trading Places” in creating demand for Wall Street explainers this week, a retailer that may have rented you the film on VHS made an unlikely return to the headlines. 

As Bloomberg reported, BB Liquidating — the final remnant of the insolvent Blockbuster Video — spiked 774% on Tuesday and more than 300% on Wednesday, despite the reality that stockholders are typically wiped out in a bankruptcy.

Some commentators have noted a correlation between the nostalgia surrounding brands like GameStop, BlackBerry, and Express and their appeal to “meme stock” investors.

Blockbuster may be a prime example: Its last remaining branch in Bend, Oregon, has recently become famous for hosting ’90s-themed slumber parties — although they are now booked through Airbnb. 

Bankrupt Blockbuster Joins Reddit-Inspired Retail Rally [Bloomberg]
GameStop, BlackBerry and Nostalgia [Trader’s Insight]
You Can Now Rent The World’s Last Blockbuster For A ’90s-Themed Slumber Party [The Washington Post]

---

Jeremy Barker is the director of content marketing for Breaking Media. Feel free to email him with questions or comments and to connect on LinkedIn. 

Joe Biden has certainly been busy since taking the oath of office as president just over a week ago, seeking to undo as much of the American carnage wrought by his predecessor as possible with the stroke of a pen. He’s sought to reverse Donald Trump’s environmental, diplomatic, propagandistic, racial, ethical, pandemic-exacerbating and other policies through a raft of executive orders, memoranda, instruments, beseechings, proclamations and directives.

Alright, there are more proposed changes to the bar exam than just dropping Family Law. They’re also ditching Trusts and Estates, Conflict of Laws, and Secured Transactions. And the test will be taken on a computer.

Beyond that, it’s hard to tell what this new exam is going to look like in five years when they finally roll it out. The only thing we can tell from this announcement that after the pandemic forced a reckoning with the rot and fundamental uselessness of the bar exam in accomplishing its sole stated mission of guaranteeing that licensed attorneys are fit to practice we’re going to get… more or less the exact same test.

The NCBE website explains what this new test means in the clearest terms they can muster:

The Board’s approval paves the way for work to begin on the implementation of the Task Force’s recommendations. Major steps of the implementation will include

• developing content specifications identifying scope of coverage;
• drafting new types of questions for integrated testing of knowledge and skills;
• ensuring accessibility for candidates with disabilities;
• field-testing new item formats and new exam content;
• conducting analyses and review to ensure fairness for diverse populations of candidates;
• evaluating options for in-person computer delivery of the exam;
• establishing scoring processes and psychometric methods for equating/scaling scores;
• developing test administration policies and procedures;
• assisting jurisdictions to prepare and supporting them in activities such as setting passing score requirements and amending rules to align with changes to the exam; and
• providing study materials and sample test questions to help candidates prepare.

From what I can tell… they’re going to have a test. Seriously, I’ve read 1L resumes with more robust work experience descriptions. One of the items is literally “write new questions” which, like, no kidding.

Maybe there’s a graphical method that sheds light on this:

That… didn’t help much at all.

It’s nice to see “skills” gets some lip service, especially after the NCBE dismissed a comprehensive academic study that prescribed more skills testing as fake news. But based on what they’ve written, it seems like the skills they’re talking about testing amounts to just slapping the existing “skills” tested by the MEE and MPT into the MBE and calling it a day and that’s not what we’re all talking about.

An integrated exam reflects a fundamental shift from the current Multistate Bar Examination (MBE), Multistate Essay Examination (MEE), and Multistate Performance Test (MPT), which are discrete components covering specific knowledge and skills and using single items of the same format within each component.

Or maybe it’s more accurate to say they’re smashing the MBE and MEE into the MPT. But whatever.

Amit Schlesinger, executive director of legal programs at Kaplan, points out that this new exam’s move to computer format is a pretty big deal and obviously from the perspective of preparing students to take the test, an integrated exam presents new challenges:

These are the biggest changes to the bar exam since 1972, when the Multistate Bar Examination was introduced, so it’s not such a coincidence that these sweeping changes include its potential elimination. In most states, your MBE score is worth 50 percent of your score, so in a few years when the new exam launches, it will look and feel substantially different than the one we have today. The shift to an online modality probably has many students thinking, “What took them so long?” Most major licensing exams and admissions exams, including the GRE, GMAT, LSAT, MCAT, the NCLEX-RN exam, and most steps of the USMLE medical licensing exam, are already taken on a computer. We also know that this is a direction that the National Conference of Bar Examiners had been moving in since before the pandemic. While this probably sped the transformation along, the die was already cast in some respects in 2019 when they launched the computer-based Multistate Professional Responsibility Examination.

And yet with the weight of the criticism around licensure focused on “client interaction and negotiation” or “making the law school curriculum matter” or “ending the fixation on generalism” or doing frankly anything that might reflect the actual practice of law, announcing that a few obscure subjects will be dropped, the test will move to a computer, and throw three test components together for some NCBE Megazord leaves concerned observers flat.

Legal tech guru Richard Susskind tells a story about power tool executives being asked by their bosses “what do we sell?” The wrong answer that most people volunteer is “drills.” In reality, what they sell are “holes.” Clients want a hole, and the drill is just the best delivery mechanism the company currently offers. But the job is to sell the client a hole.

Reading through the recommendations as well as the three phase reports that fed into it, one can’t help but feel like the NCBE writes tests and walked into this “three-year study” determined to deliver another test as substantively similar to what they’ve been doing as possible. The profession needs competent attorneys, not “12-hour tests you can give in a ballroom.” If the latter was once the best method to deliver the end product, it certainly isn’t now. Jurisdictions now, more or less, require three years of accredited legal education and yet this expensive endeavor is somehow disconnected from licensing. The practice of law is more specialized. Advancements in technology have radically changed how attorneys interact with clients. Any serious effort to reform the licensing process would take all of this into account.

Instead we’re getting a drill.

But a computerized drill!

---

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.

As the coronavirus crisis rages on across America, with deaths having reached 427,626 as of the time of this writing, Biglaw firms seem to be employing a wait-and-see strategy when it comes to the vaccination of their workforces. According to CDC guidance, lawyers and legal professionals will be in the next vaccine distribution group, so law firms are quickly losing time to make decisions on their vaccine policies.

Will Biglaw firms require their lawyers and staff to receive the COVID-19 vaccine? In a brief survey conducted by Above the Law, 48% of respondents said they thought their firms should require vaccination, while 41% said their firms should encourage vaccination, but not require it.

One Biglaw firm has decided to come out as the first to make this important decision for its employees. Will other law firms follow the lead?

Davis Wright Tremaine has announced that once its employees are eligible to get vaccinated, they will be encouraged to do so soon as possible. Thereafter, only those who have been vaccinated will be allowed to enter the office or to attend firm-sponsored events. In the future, the firm will require proof of vaccination. Lawyers and staff members who are unable to be vaccinated due to a disability, advice of a medical provider, or religious beliefs will be able to explore reasonable accommodations with the firm.

“DWT continues to place the health and safety of all of our lawyers and staff as our highest priority. As vaccines against COVID-19 become increasingly available, we are adopting a policy to safeguard the health of our employees and their families, our clients and visitors, and our communities,” said Jeff Gray, DWT’s managing partner. “We believe it is our responsibility to do our part, and we need everyone’s help to be able to get back to more normalized operations as quickly as we can.”

Not only will Davis Wright Tremaine provide paid time off for its employees to receive the vaccine and recover from side effects, if needed, but the firm will also reimburse employees for the cost of the vaccine in the event the government or insurance does not cover it. If the firm is able to do so, in-office COVID vaccinations for lawyers and staff will be offered, just like prior flu shot vaccination clinics that the firm offered.

DWT has asked that all of its employees continue to work from home until vaccines are widely available and significant portions of the population have become vaccinated, unless office work is absolutely necessary. If a lawyer or staff member must come to the office, all firm health and safety guidance must be observed (i.e., mask wearing and social distancing), even if that employee has been vaccinated.

Now that one Biglaw firm has offered reasonable guidance for COVID-19 vaccinations, it’s highly likely that others will announce their own plans — plans that will no doubt echo the one that Davis Wright Tremaine has already rolled out.

Which firm will be next to issue its vaccination policies? The Biglaw world is impatiently watching and waiting.

Earlier: Will Biglaw Firms Require Lawyers And Staff To Get The COVID-19 Vaccine?

---

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.