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The legal thread that binds our nation has been stitched into place by appellate lawyers. These attorneys handle challenging, high-stakes problems that can only be resolved in our federal appeals courts or at the Supreme Court, and to thank them for all of their hard work, the National Law Journal puts together an annual “hot list” of the law firms with the best appellate practices.

As usual, the NLJ Appellate Hot List is filled with prominent firms and litigators. This year, these top appellate lawyers were asked about the most valuable lessons they learned at the start of their careers. Here are some of their answers.

Paul Clement, a partner at Kirkland & Ellis:

Be kind. The bar is a small world, and life is long. Today’s adversary is tomorrow’s co-counsel or client, at least if you treat them with respect and courtesy.

Allyson Ho, a partner and co-chair of the appellate and constitutional law practice group at Gibson, Dunn & Crutcher:

If you aim for perfection, you’ll hit excellence. Details matter—whoever said “don’t sweat the small stuff” wasn’t an appellate lawyer.

Shay Dvoretzky, a partner at Jones Day:

The client’s goal may transcend the legal issue in a particular case. So always understand the client’s objective first.

Kannon Shanmugam, a partner at Paul, Weiss, Rifkind, Wharton & Garrison:

As a young lawyer, you’re going to make mistakes. The key is to learn from those mistakes and never to make the same mistake twice.

Lisa Blatt, a partner at Williams & Connolly and chair of the firm’s Supreme Court and appellate practice:

Own your own style. Being an effective advocate—as well as someone who enjoys the job long-term—requires sincerity and a thick skin.

Elbert Lin, a partner and appellate practice co-chair at Hunton Andrews Kurth:

The lesson that’s stuck with me the longest is that first impressions are lasting impressions. Be extra cognizant that first time before a judge or interacting with another lawyer.

Without any further ado, these are the 24 law firms with the best appellate practices in 2020 (listed in alphabetical order):

Congratulations to all the hard-working lawyers recognized. Well done!

The 2020 Appellate Hot List [National Law Journal]

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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.

Photographer Michael Barrett Boesen took an early loss in a federal case he initiated against United Sports Publications, LTD based on a claim that the news gathering organization committed copyright infringement. The defendant had filed a motion to dismiss the action grounded on it embedding an Instagram post published by tennis player Caroline Wozniacki, focusing on a defense of fair use. On November 2, the U.S. District Court for the Eastern District of New York granted the motion.

The decision should be of importance for all publishers that are using social media content published by others within their articles. When the embedded content is the focus of the article, use of the image in the embedded content should generally be construed as a fair use.

However, this ruling should not be interpreted as one that provides free rein for the republication of third-party content originally disseminated on social media. The opinion should not be read as one that allows people to embed social media posts because they merely wish to use the images contained in the social media postings and believe that such actions can serve as workarounds to copyright infringement.

In the instant case, the defendant embedded an Instagram post by Wozniacki, who announced that she was retiring from professional tennis. The copyrighted content was not even owned by Wozniacki but, instead, photographer Boesen. The defendant’s article focused on Wozniacki’s career and embedded her Instagram post for context.

Prevailing on a motion to dismiss in a copyright infringement case based on fair use grounds is not a simple task. The moving party must convince the court that the use of the copyrighted content was fair after looking at four distinct factors.

The key concerning the purpose and character of use factor was that the use of the copyrighted photo was one where the copyrighted work itself was the subject of the story, thus transforming the function of the work in the new context. It was determined, referencing prior case law, that an article that embeds an Instagram post featuring a copyrighted photo and reports on that post is transformative. The fact that the publisher was a for-profit business has no effect on the transformative nature of the content at issue.

“This conclusion, which aligns with well-settled case law, does not give publishers free reign to copy and paste copyrighted images at whim whenever they appear on Instagram or Facebook,” the opinion states. “Rather,
it draws a line that balances photographers’ interest in protecting their copyrights with reporters’ interest in covering social media events.”

The second factor, nature of the copyrighted work, was found to tip slightly in the defendant’s favor, mainly because the photograph was a published work appearing on the plaintiff’s own sites as well as Wozniacki’s Instagram. The third factor, amount and substantiality of the portion used, favored the defendant based on it merely embedding an image, which retained Instagram’s markings and diluted the image. Further, Wozniacki had previously chosen to use a lower resolution version of the original.

Finally, with the effect of use on the market factor, the court found that it was implausible for defendant’s use to compete with the photographer’s business or affect the value of his work. Further, the cropped, low-resolution photograph was deemed to be a poor substitute for the original, which is language that will certainly be used by future defendants who embed social media posts into their content.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

This election is a raging dumpster fire of misery. And there’s one reason for that: Donald Trump has been spreading lies to his cult of stupid people, telling them that there is widespread voter fraud despite all evidence to the contrary, because he has been losing.

Yet, this country wasn’t founded by slouches. Sure, they had no indoor plumbing and had certain other obvious flaws (like, uh, you know, support for slavery). But our Founders did anticipate just the kind of electoral theft that Trump is trying to perpetrate. Over the centuries, the safeguards against a big orange dummy stealing the election have filtered through the various levels of government, right on down to the local polling station.

I can’t speak for all counties throughout the country. But I can speak for mine. That’s because I served as an election judge this year.

“Wait a minute,” my regular readers might say. “You’re a partisan hack! How can you be an election judge?”

Absolutely true. I would much prefer a Joe Biden administration to four more years of the country I love crumbling into the dustbin of history. I don’t think that is a surprise to anyone who has ever read pretty much anything I have written.

But, in this state at least, not only is partisan hackery not a disqualifier: it’s a requirement. Election judges here must declare their party of preference, and certain election tasks may only be completed by two election judges, one of either major party. These tasks include helping a curbside voter with special needs cast a vote, and delivering the ballots at the end of the night. In such sensitive tasks, there is an election judge for each major party keeping each other honest. No one casts a ballot without judges of both parties overseeing the validity of the process.

Maybe a more one-off consideration this year is why I’m serving as an election judge at all. This is a first for me, not because I don’t think it’s an important task, but because I just assumed people generally had it covered before. This year, I was asked to serve as an election judge. The city I am working for was having trouble finding people.

My head judge called me about 10 days before the election, sounding a bit worried. She asked me how comfortable I am with confronting people. Very, I said. As important context to that, I am a muscular white litigator in his mid-30s. It went without saying that my presence alone would be an asset against the dumbfuckery we’re all expecting this year, given that poll workers are usually on the older and frailer side of physicality. We have relied so heavily on the patriotic service of retired folks to work the polls that we have taken for granted not only the importance, but the relative difficulty, of the task. This time around, we have to specifically combat susceptibility to intimidation on the parts of voters and election workers. Much of this has always been a problem, but now we’ve all been made more aware of it. Like it or not, steps had to be taken against physical intimidation at the polls this year. And they were.

Finally, I would be remiss if I did not mention Minnesota Voters All. v. Mansky, 138 S. Ct. 1876 (2018). What a word-salad of judicial punting that train wreck of an opinion is. At any rate, the very least we can derive from it is that voters in certain states probably can’t wear shirts or buttons or hats directly promoting the candidates on the ballots (if they want to cast a vote, anyway). As to what else may or may not be prohibited, your guess is as good as mine. But rest assured, we election judges have at least tried to keep the MAGA hats and sun’s-out-guns-out Biden tank tops from entering the polling place.

So, there you have it. Hopefully by the time you’re reading this we have a free and fair election result that you can be a little more assured of the validity of by reading this column. And hopefully I haven’t been shot by some wingnut at the polling station.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Facebook from time to time reminds me how old I am by showing me pictures of myself at various times in the past. While recently perusing my news feed, I was reminded that six years ago this month, I argued my first appeal in front of New York’s Appellate Division, Second Department. The photo brought back some vivid memories of waiting anxiously in the attorneys’ room before my appeal was called, and my brother Adam showing up to witness me deliver my first appellate arguments. At the time, I was about two years into my legal career, so it was kind of a novelty that I was arguing an appeal. However, my experiences over the years have shown me that younger lawyers should argue more appeals and motions for a variety of reasons.

One reason why younger attorneys should be more involved in oral advocacy is because they often devote more effort and dedication into arguing appeals and motions than senior lawyers do. Partners at numerous firms often have many tasks other than practicing law. This includes originating business, reviewing bills, ensuring that bills are paid, and dealing with administrative functions at a law firm. Moreover, partners often have more cases to oversee than associates, since they usually have several associates under their supervision who each has their own portfolio of cases. This can limit the amount of time and attention partners can devote to arguing motions and appeals.

However, associates are more likely to take pride and ownership over the opportunity to argue a motion or appeal. For instance, when I was assigned to argue my first several appeals, I was honored to be given the opportunity to participate in the appeals. I spent a significant amount of time reviewing the appellate record, briefs, and cases cited by both sides. Even though I was given a set number of hours to bill for preparing oral arguments, I ended up spending far more hours during my free time preparing for the appeals. I remember taking the briefs and appellate records with me whenever I was on the subway so I could thumb through the documents constantly. The extra consideration associates may give to oral arguments can provide clients the best possibility at success on an appeal or motion.

Younger lawyers should also argue more appeals and motions because they are often more familiar with a case than a partner or other senior lawyer. Associates often need to do the research and draft the briefs necessary in the appellate or motion process. By completing this work, associates are often more familiar with the arguments that will be most successful in a matter and the particular facts associated with a case.

One time earlier in my career, I drafted papers for a high-stakes summary judgment motion. The motion was based on some complicated estoppel arguments that required a detailed understanding of the law and facts of the case. It was eventually decided that the partner would argue the motion, presumably because the partner had argued many more motions than me up to that point in my career.

However, the partner was extremely busy at the time, and had not been closely involved with that particular case for years. He asked me to summarize all of the arguments orally to him before the motion hearing, and I am not sure that the partner read all of the papers that were submitted for the motion. At oral argument, the partner seemed extremely flat-footed when pressed on some issues, and he was unable to answer a few basic questions posed by the court and the other side. Our adversary, however, was extremely well-prepared, and it showed. In the end, our client had an unusually bad outcome after the summary judgment arguments. If I as the younger attorney had argued the case, perhaps I would have presented the arguments more effectively, and we should have selected the advocate who was most knowledgeable about the case.

Younger attorneys should also argue more appeals and motions since many jurists like seeing younger lawyers in their courtrooms. From my own personal experience, judges are more likely to give younger lawyers the benefit of the doubt and flexibility than older attorneys who should know better about the practice of law. One time, when I was waiting to argue an appeal, I saw an advocate (who was either a law student under supervision or a young attorney) absolutely crush oral argument on a criminal case. Not only were the judges impressed with this advocate’s arguments, but they also seemed wowed by how a young advocate could do so well on her first appeal. I have a feeling this perception helped that advocate’s client receive the best consideration possible. Some judges even actively try to incentivize lawyers to select junior attorneys as oral advocates. Many state and federal judges read this column and email me regularly, and I would love to hear the opinion of jurists about whether younger lawyers can make an impact on oral arguments, but from my own experience, it doesn’t hurt.

All told, senior attorneys like to argue appeals and motions themselves, since it is often seen as an honor to go to court on a case. Nevertheless, younger attorneys should argue more appeals and motions in many circumstances to best advance the interests of a client.

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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.

Last night, I stayed up as long as I could, hoping to see the end of a very tumultuous, divisive election. Based on the polls and the poll of polls, I anticipated that most media outlets would project a Joe Biden win before midnight. But that was not the case. The difference in votes were so close that the vote counters in a few states decided to continue counting in the morning. While I was a bit disappointed, when I look out my window and see all of the local businesses boarded up in anticipation of a riot, maybe it is best to let everyone get some sleep.

But from the results I have seen so far, there is no guaranteed “blue wave” that all of the Biden supporters were bragging about and what some Republicans were fearing. The Democrats are expected to maintain control of the House of Representatives although their chances of winning control of the Senate are uncertain.

As for the battle for the White House, the Democrats were unable to flip Florida, Ohio, and Texas as many believed they would. And the rest of the states can go either way until all of the votes are counted.

Even if Democrats are able to control the government in 2021, their control will be fragile. This means they may have to work with Republicans on some issues or see another change in the midterms.

So what happened? Why wasn’t this election a quick cakewalk for the Democrats?

The most logical explanation is that the pollsters were wrong. Maybe their attempts at “randomizing” their sampling group did not work out the way they expected. Or they didn’t get enough participants so they had to make bigger guesses. Or perhaps some people didn’t want to disclose they wanted to vote for Donald Trump.

Or maybe the influencers, celebrities, and random social media commenters were wrong. A lot of people were saying that the blue wave was coming because of the increase in by-mail voting. When I asked them why they assumed all of them would vote Democrat, all I got was speculation. They said things like: “People will vote quickly if they are unhappy with the current government.” Or, “People don’t want to catch COVID, and that is all Trump’s fault.” And some people simply said, “Because [F] Trump.”

So will polling be credible in the future? Or will people take it as seriously as professional wrestling? I think so, but a lot of changes will have to be made. First, some media companies will need to get out of the polling business altogether or hire an outside company to do their polling. One example is the New York Times. While I generally respect the publication, their recent actions — such as the suspicious resignations of James Bennet and Bari Weiss — might make nonliberals hesitant to talk to them. Others who are angry at them may just troll them with false responses. I also think that Fox News, MSNBC, and CNN should take similar action. Because of the perceived bias of their brands, they are more likely to get false answers from hostile participants.

Also, the public and journalists should not blindly give substantial weight to what celebrities say. Celebrities are people, and they are entitled to their opinions. But I don’t think many people are going to vote based on who a celebrity endorses. Instead, most just feel better about their decisions and beliefs if they see that a celebrity agrees with them.

Hopefully by the time this gets published, the election results will be finalized and there won’t be a lawsuit afterward. [Ed. note: LOL, still no final results. -SZ] While there might be some changes after the election, it will not be a blue wave that was promised by pollsters, influencers, and celebrities. One thing is certain. These people have lost their credibility. How much they lost depends on who wins the White House.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

Yesterday, a publicly-listed British company called Hipgnosis Songs Fund announced a $323 million deal to buy the rights to 33,000 songs including The B-52’s “Love Shack,” Fleetwood Mac’s “Go Your Own Way” and Mariah Carey’s “All I Want For Christmas.”

Spinning Gold
Hipgnosis has been one of the most aggressive buyers of song rights in recent years, having raised over $1 billion to assemble a catalog of hits. The company sees dollars pour in whenever one of its songs is streamed, purchased, or performed.

For Hipgnosis and its backers, music royalties offer a relatively stable source of income that is uncorrelated with other asset classes. And in a world of near-zero interest rates, big money is listening: 

* Michael Cohen, President Trump’s former lawyer, suggested he voted for Joe Biden. No surprise there. [Hill]

* Police have released video of vandals tagging the home of a prominent New York City attorney. [New York Post]

* Major companies are urging law firms to enlist more diverse legal teams to handle client work. [Wall Street Journal]

* A Michigan attorney has been arrested for obtaining signatures for a petition opposing the emergency powers exercised by Michigan’s governor. [Michigan Live]

* A South Florida attorney has been disciplined for posing as her adversary’s client online and writing a fake negative review. This lawyer may have too much free time… [Miami Herald]

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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.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

Which was the last state to lift the ban on alcohol sales on Election Day?

Hint: The Election Day ban on alcohol sales started in the mid-1880s and was intended to discourage bribery at the polls ( a long-standing U.S. tradition dating back to George Washington), but wasn’t lifted until 2014.

See the answer on the next page.

Things have, shall we say, deteriorated quickly for Leon Black. The story of the Apollo Global Management co-founder’s unfortunate relationship with the execrable Jeffrey Epstein has gone from “nothing to see here” to “alright so maybe there are 75 million things to see that these goddamned yellow journalists insist on continuing to bring up but no one cares, really” to “OK so maybe people do care but we’re looking into it (again)” to “if you’re gonna stop investing with people who hung out with a known pedophile you’re gonna have a hard time finding anyone to take your money” to The Wall Street Journal literally looking right past him in a matter of weeks.