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Lately, I have seen a lot of interest from lawyers wanting to set up their own practices. Maybe they are sick of being an employee. Or they didn’t get the job or promotion they wanted. Or they got laid off. Or that’s what they always wanted to do.

So for the next few columns, I will write about what it takes to set up a simple law practice. When I mean simple, I mean a practice with minimal overhead, costs, and management. I am hoping these columns might be useful for new attorneys or experienced employees who want to start their own firm. It might be useful for law firm owners who want to cut costs or “get back to basics” while the world is changing. But this column is one opinion and should be read with similar columns on this topic as I am sure I’ll miss a few things.

The Things You Will Need To Pay For

Annual state bar dues. Average $250/year.

City or county business license. Average $200/year.

E-fax machine ($15 – $50 startup fee plus monthly or annual subscription fee). Unfortunately, some people still use fax machines. Not a lot but enough to justify paying for one. Thankfully the startup and recurring costs are pretty negligible. You do not need to get an actual fax machine. Your computer along with your printer or scanner can also fax the documents.

Computer, printer, and scanner ($0 to $1,500). If you already have one of these, then good for you. Otherwise, invest in a reliable laptop at a minimum. As for printers, a good all-in-one device that can print, scan, and fax should be enough. While laser printers have slightly better print quality, they are also more expensive. As a rule of thumb, you do not need a laser printer unless you do a lot of printing.

As for a standalone scanner, it might be a good idea to have if you have a truly mobile practice and want to scan documents on the go. Good options are the Fujitsu Scansnap series or the Neatdesk scanner. Otherwise, if your printer can also scan documents, that should be enough.

Office supplies ($100 – $900). Most regular office supplies are inexpensive so startup costs should not exceed more than a few hundred dollars. However, you might want to invest in office software like Microsoft Word and Excel so you can set up billing and print your own letterhead and mailing labels.

Professional attire ($1,000 – $5,000). Look, I know we are working from home, and the lawyer dress code may have relaxed a bit. But we are respected professionals. And some of us are paid more per hour than what people in some countries make in a month. Our clients trust us with their money, intimate details, and even their lives. So we have to look the part. While you don’t need to spend $1,000 or more on a suit, you should look like you have.

Things You Will Need That You Do Not Need To Pay For.

Employer ID Number (EIN). An EIN is useful for a lot of things. First, it can act as a substitute for your social security number. A client may ask you to complete a Form W-9 before they pay you. Unless you have an EIN, you will have to input your social security number on that form. Second, you will need one to set up a business bank account. Third, you will need one to have employees and file federal and state employment tax returns.

Thankfully, getting an EIN is free and fairly simple. You can apply for one through the EIN Online webpage. In most cases, you will get an EIN almost immediately after completing the application.

Second bank account. Technically, you do not need a second bank account if you are fairly organized, do not have multiple sources of income, and have a credit card solely for business expenses. But generally, a second bank account used exclusively for your practice is a good idea.

Now I said second bank account. Not a business bank account. I’ve found that for simple practices, a separate business account does not provide any advantages. The only advantage is that your business name will be printed on checks. So establishing a business checking account might be a good idea if your business issues a lot of checks.

On the other hand, setting up a business bank account might require more work. You may need to have an EIN. Also, some banks require you to pay a monthly service fee unless you maintain a minimum balance (usually ranging from $1,000 to $5,000).

For new or simple practices, you might be better off getting a second personal account, particularly if it is free. Make sure that this second account lists your business address on the checks.

Google Voice. Assuming you have a smartphone, the Google Voice app is a must. It is free. Also, it gives you a second phone number that can be used for calls and text messages. Finally, it can record and email voice messages. And it also gives you a voice transcript (although it is not perfect).

Google Calendar. Google calendar is a great scheduling tool. It can send you reminders through your phone or through email.

Things You Do Not Need To Pay For

A limited liability entity. A lot of attorneys ask whether they should set up a corporation or a limited liability company (LLC) as soon as they start practicing. The two main reasons for wanting to do so is to protect their assets and for tax savings purposes. Also, they may have worked for attorneys who have set up entities for their practice.

The entity might not provide the protection you were hoping for. In almost all states, operating under a limited liability entity does not shield you from professional malpractice liability. It might also not help you get out of a debt, especially if you sign as a personal guarantor in case the entity defaults on their payments.

As for tax purposes, most lawyers opt to choose an S-corporation and a rare few use a C-corporation. While this subject deserves a column of its own, generally, it is better to wait until the practice starts making significant money before incorporating. Otherwise the costs of maintaining the entity will exceed the tax savings. For example, in California, it costs $800 per year to keep a corporation in good standing. The corporation must also pay a $25 annual statement of information fee. Also, you may need to pay $100 to $300 per year to purchase payroll software or hire a payroll service. Finally, you may need to pay state unemployment and disability taxes. This is because the corporation must pay the managing shareholder like an employee and must pay them a reasonable salary. So a corporate practice must save at least $1,000 in taxes in order to break even and justify the corporation’s existence.

Based on the above, you may be better off waiting until your practice starts making money before setting up an entity.

Marketing and advertising. Keep a few things in mind. First, marketing and advertising can be free — you simply need to advertise yourself. It’s slow, and occasionally dull but it eventually works.

Second, and most importantly, marketing and advertising are crapshoots. You don’t really know what works and what doesn’t, no matter what some salesperson’s “analytics” tell you. As such, as a general rule, you should spend only the amount you can comfortably afford to lose.

Startups should at a minimum spend money on a simple website and business cards.

In these pandemic times, there are less in-person networking events and more virtual events. So be familiar with conferencing apps like Zoom. And you may want to spend more time in social media groups.

The above are the bare-bones minimum startup fixed costs to start a simple law practice. I am sure I am missing a lot of other expenses. So depending on your situation, you will spend anywhere between a few hundred and a few thousand dollars to get started. In my next Simple Practice column, I will discuss recurring expenses such as rent. If you have questions or suggestions, feel free to reach out to me.

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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.

Partners may have wide latitude to run their practice as they see fit, but one of the fundamental principles of legal representation is, you know, that you are representing the interests of a client. So that means — as a bare minimum — lawyers cannot settle cases without approval from their client first. Yes, even when the client is an insurance company.

Asher Brooks Chancey was fired from his position as a partner in the Philadelphia office of Am Law 200 firm Goldberg Segalla in May 2018. This was after he settled cases he was working on without informing the insurer, Knight Insurance Group, that hired his then firm. Chancey self-reported the lapse in judgment to ethics regulators in September 2019 and was temporarily suspended at that time. Now, the the Pennsylvania Supreme Court has weighed in with its final judgment.

Chancey has been suspended, on consent, from the practice of law for three years, retroactive to his temporary suspension in September. In settling on the punishment, the court cited mitigating factors including his self-reporting, lack of other misconduct, remorse, and Chancey’s diagnosis of depression and anxiety.

As reported by ABA Journal, Knight Insurance has filed malpractice claims over the conduct:

Chancey is accused of agreeing to settle auto accident cases in amounts ranging from $35,000 to $1.5 million without informing the Knight Insurance Group. He is also accused of failing to tell the insurance group about scheduled arbitration hearings and default judgments, failing to file court documents, failing to respond to discovery requests, and failing to pursue evidence.

Chancey has not commented on his suspension.

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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).

You know how there are some stores that you just can’t stay away from? I guess lawyers and judges have difficulty in staying away from the stupid store. It’s not that hard to do, but there’s something almost magnetic about its allure.

It seems that I am visiting the stupid store more often than I used to. Whether that’s because the past few months of confinement have addled minds or because people don’t think before they talk (that NEVER happens to lawyers and apparently judges as well), or because people are just cranky, crabby, and now displaying their true beliefs. Whatever. It’s ugly out there. I don’t know if anyone remembers how to be kind or ever tries to be any more.

So, in the stupid store, there’s now presently a run on nastiness, vitriol, and vituperative words along with plain old-fashioned foot in mouth, and there’s plenty in stock to go around. Let’s go shopping with a judge and check his shoe size. Two Maryland lawyers also shopped there, and they have been suspended for essentially cleaning out the supplies of nastiness, vitriol, and blatant prejudice.

Here in my very own Central District of California, the chief judge, Cormac Carney, who just assumed the chief judgeship last month, has resigned that position. Intemperate comments did him in. The chief judge was bewildered by blowback arising from his use of the term “street smart” to refer to the Clerk of the Court and Court Executive, Kiri Gray, a black woman, a term that he considered complimentary to Gray. Then Carney complained that criticisms of his remark were analogous to the conduct of the Minneapolis cop who put his knee on George Floyd’s neck. Really? You can read the entire story here.

Miscommunications and hurt feelings abounded. Perhaps there is a lesson here for all of us in how to communicate, how not to communicate, and if it prompts any of us to count to ten before speaking, so much the better. Usually, less is more. I used to think that sincere apologies could soothe hurt feelings, but I am not so sure these days. Since there did not seem to be any way that the chief judge and the clerk/executive officer would be able to work together, the chief judge resigned as chief judge but retained his position as a federal judge.

We can all probably agree that the indefinite suspensions imposed on two government lawyers in Maryland who used vile, even terrifying, words in emails on the job, no less, were completely justified. First, you would think that government lawyers using government emails would be way more temperate in their language, but you would be wrong.

One of the two lawyers indefinitely suspended was an administrative law judge, James Andrew Markey, the other an attorney advisor, Charles Leonard Hancock. Both were working for the Board of Veterans Appeals. The Maryland Court of Appeals opinion about the two speaks for itself. Read it and be mindful of the lessons to be learned and what not to say in emails or any other form of communication that can be seen by others.

The group of employee lawyers communicating through email chain called it a “forum of hate.” (Their words, not mine.) Great words to use in emails, hardly the kind of language appropriate in any email, let alone a government email system.

Let’s just take some examples that the court identified: in response to a photograph of Hancock’s son’s all-white Little League team, Markey asked where the white sheets were and stated “ ‘[b]onfire’ after every victory[,]” referencing the Ku Klux Klan. In another, Markey referred to an African-American woman, a chief veterans law judge, as “a total b [****.]”

Among many other examples, Hancock referred to the aforementioned CVL judge as a “Ghetto Hippopotamus” and “a despicable impersonation of a human woman, who ought to [have] her cervix yanked out of her by the Silence of the Lamb[s] guy, and force[-]fed to her.” Nauseating, disgusting, vile.

The Veterans Affairs Office of Inspector General discovered the e-mails, the Veterans Administration terminated Markey, and Hancock voluntarily retired, a smart move on his part. Eventually, their actions came to bar counsel’s attention. Not a moment too soon.

What did the two attorneys have to say for themselves? They claim that their private exchanges fell outside the ethics rules. Oh, please. On a government email system? Really?

Adopting the hearing officer’s conclusions, the Court of Appeals said that the conduct of the two attorneys was related to the practice of law, “knowingly manifesting bias and prejudice based upon race, sex, sexual orientation, national origin, and socioeconomic status.” They were acting as lawyers when they made the remarks and thus their conduct was prejudicial to the administration of justice.

These were not “stray remarks.” In the words of the hearing officer, the numerous emails contained statements that were “racist, misogynistic, xenophobic and homophobic.” Thus, the discipline imposed. According to the court, Markey is already suspended for reasons unrelated to this case, and Hancock is inactive. They should both stay that way but if there’s any attempt to try change their statuses, their indefinite suspensions would take effect.

What boggles my mind, whatever is left of it, is how could two lawyers who have been in practice for years (1988 and 1994) could be so stupid. Obviously, they shopped at the stupid store, and it seems there is plenty of inventory left in stock.

So, lessons to be learned? You never get into trouble by being quiet; it’s when we open our mouths (I see a foot). We lawyers love to talk, love to email, love to text. Three ways we earn our money and three ways we get into trouble.

Even with the pandemic raging, the stupid store is one store that will never go out of business.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

It should come as no surprise that restructuring is big business right now. Restructuring attorneys at large-enough law firms are getting calls from headhunters telling them things like “restructuring is a hot practice area” and that it is a “great time to make a move”. While this is true, anyone with an internet connection and a set of eyes can draw this conclusion with little analysis. Let’s dig deeper to cover why this is happening and what it means for different classes of attorney.

1. Partners with a Strong External Reputation

We talk to a lot of partners in all practice areas, but let’s face it: bankruptcy partners have not been in fashion for a long time. Certain firms (Kirkland and Weil, to name two) have always had their heavy hitters, but they were not going to move and hiring senior people with business was not something they have ever pursued heavily. Less profitable firms have jettisoned these practices as often as they have bolstered them. The bull market of the last decade-plus has absolved company after company of its sins and caused bankruptcy and restructuring to be an unfashionable skillset. That situation has now changed. The inherent value of a debtor-side restructuring practice is that fee applications are approved by the courts, and as long as the fee application comes with the firm’s actual rack rates for the attorneys, it will be approved. Thus, if there are significant debtors winding up in the bankruptcy courts and you are a partner at a less profitable firm who has the ability to capture those clients, you are leaving a lot of money on the table keeping yourself busy at rates lower than the “big shops” are charging for their third and fourth year associates. As one bankruptcy partner told me last week, “Five more of my client firms are entering bankruptcy court next week, two of them big boys. What am I doing charging $850 per hour?” Let’s have a conversation if this describes you as well.

2. Senior Associates, Counsel, and Junior Partners 

Large firms set rules against hiring non-partners into partner positions, but rules are made to be broken. Especially in the current environment, with regard to restructuring, these rules are being broken regularly. There has probably never been a better time for a bankruptcy counsel or income partner to jump ahead to obtain the “P” or equity, respectively. Of course, even in such an in-demand practice area, associates and counsel must be strong contenders for partnership at their own firms as well, meaning that they show strong emotional intelligence, business sense, and legal skills.  But if you have these things and are just jammed up, this a way for to jump the line.  Because of the weakness in the restructuring practice area generally over the last several years described above, this problem is endemic. Just the other day a client told us that, while they would like to hire a senior associate/counsel candidate or ours with strong skills and experience in restructuring, they could not hire her right now because there are three very senior lawyers in her class at the firm in restructuring, all working like crazy, and all hoping to get the elevation to partner. The likelihood at that firm, mind you, is that none of them will make it – but that’s a different story and not one for print.

In this as in all games, timing is everything. But the time is now for promotions in restructuring. Recently, we worked with an Amlaw 100 firm to recruit a counsel/senior associate from a tier-1 restructuring practice. He joined as partner.  Talking to the MP of the hiring firm yesterday, we learned that listing this new partner on a pitch helped this firm win a debtor-side bankruptcy representation in the new partners’ third week. Given the firm’s institutional client base, the thing most special about the representation is that it was not lost to a restructuring powerhouse. The managing partner raved about this new partner because with this one deal, he probably just paid three years of his own partnership share. Another example is a candidate with a similar pedigree as the first attorney – senior associate at a tier-1 restructuring practice with very little opportunity for upward mobility.  The only difference is, he did his search in 2019 instead of 2020.  At that time, he was turned down by a number of firms with smaller restructuring practices.  The attorney did end up being placed as partner at an Am Law 200 firm, but with much less fanfare. Come to think of it, we need to check on him!

The takeaway is that not only is this a time to try to get a lateral promotion, but that we are constantly in touch with law firm leadership about their needs and strategies.

3. Local Restructuring Counsel

One of the perqs we provide our clients, candidates, and friends is a daily newsletter listing the week’s lateral moves, articles about firm expansions, and a section on bankruptcy filings.  The bankruptcy filing section lists the case, court, and all the law firms listed on the matter, from the “big cheese” law firm leading the deal to local bankruptcy counsel.  Local counsel lawyers with the pedigree and experience typical of a top-tier restructuring firm can use this opportunity to lateral to a larger shop for a pay raise.  Of course, this is also a boom time for these local counsel partners who are fed work from the larger restructuring shops.  But a more junior lawyer who does not yet have these relationships should consider a move – it’s the same work and you’ll be paid better.

Feel free to reach out to us anytime at jobs@kinneyrecruiting.com to reach the whole team (and get the whole story).

On June 21, the Chief Justice of the United States took a walk and fell, cracking his head so badly that he required stitches and an overnight stay in the hospital. For some reason, the American public only learned that the most powerful lifetime official in the country was injured on the evening of July 7.

Despite his brush with slip and fall practice, Chief Justice Roberts is now “fine.” That his last fall back in 2007 was brought on by a seizure — arguably intensifying the public need to know about his fall — was brushed off by doctors, who blamed this fall on “dehydration,” which is never a valid excuse unless you’re canceling a concert where you furiously dance for a couple hours.

And let’s not glide over the double standard that RBG sets off a media firestorm when she gets the sniffles, but Massive Headwound Harry here got to peacefully lounge around the hospital with nary a word. It sucks that a woman is constantly dragged into breathless news cycles where people — on both sides, depending on the president — construct a public narrative about how she has to retire as physically unfit for office, but when the man with a history of seizures busts his head open it’s lost in a news dump.

Gabe Roth of Fix the Court issued this statement:

“The ‘need to inform the public’ is more substantial than Roberts pronounces. Regular health disclosures would give us faith that our nation’s top jurists are capable of handling the rigors of their jobs, and they may even help the justices themselves reflect on their abilities to continue in their positions,” Roth added. “I’m glad Roberts is okay, but based on the way this came out, amid the court’s consistent lack of transparency, I’m appalled.”

Look, it’s actually terrible that there’s a public interest in even the minor private health records of a government official. Unfortunately, that’s what the country signed up for when it turned a life-tenured priesthood into the arbiters of the most important conflicts over government policy. Until we embrace the wisdom of term limits for active judgeships, the public is entirely justified in expecting reports on the justice’s morning stool samples like the royal stand-ins they are.

Thankfully, thanks to quick action and attentive hospital service, Roberts was healthy enough today to strip millions of women of their access to health care.

Chief Justice Roberts recently spent a night in a hospital [ABC News]

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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 data has infiltrated nearly every facet of the legal industry, legal analytics are in high demand. Lex Machina, a recognized leader in the legal analytics field, offers practice area modules that provide valuable, strategic insights into federal district court claims for many of the most popular legal specialties in today’s market. 

The latest addition to Lex Machina’s legal analytics arsenal is its new torts module, which provides data on civil claims in federal district court for torts, including premises liability, negligence, assault and battery, defamation, invasion of privacy, intentional infliction of emotional distress, and medical malpractice.

We recently sat down with Carla Rydholm, Director of Product Management at Lex Machina, to discuss some of the features of the new torts module and how it can change the practice of law for torts practitioners.

Can you give us some background on why the torts module was created? 

Lex Machina wants to bring legal analytics to all areas of the law. This is the latest in a series of modules we’ve created on different topics. Torts is a big data set in terms of total cases. It’s also an everyday aspect of doing business — torts are everywhere and have a very broad social and economic impact. 

Lex Machina is an expert at legal analytics for federal district court. We’ve been offering our product since 2010, and we’re now adding a torts module because we know we have a large, high-value data set on damages and dispositive rulings, and excellent data for counsel, parties, judges, and expert witnesses. The new module is really exciting to us because we’re able to uncover a lot of meaningful trends. We’re bringing data to an area of law that’s ripe for analysis and analytics.

What does the torts module cover? Can you give some examples of how it can be used?

Torts has a large volume of available data. There are nearly 200,000 cases, covering a breadth of situations, with the common theme that a party seeks compensation for loss or harm caused by personal injury or reputational harm. With that much litigation out there, knowing what your prospective client has seen before in their prior cases, or what’s happened recently, can be helpful to informing case strategy. 

The torts module can be used to obtain analytics in a number of ways, including running party searches, brushing up on how often elements of a given tort have been ruled on, searching for a particular court or judge,  searching for specific law firms or counsel, and analyzing the damages typically awarded in similar cases. 

For example, with damage awards, you can focus your analysis from all tort cases down to damage awards resulting in a particular court, for specific subsets of cases, including premises liability, motor vehicle, medical malpractice, Federal Tort Claims Act, and mass tort cases. Once you’ve identified the relevant awards in the district court of interest, for example “pain and suffering (torts)” in the Southern District of New York, you can narrow them down even further by judgment source, such as jury verdicts and filter by the torts premises liability case tag. So, in a matter of seconds, you can go from 200,000 tort cases to just a handful of jury verdicts in premises liability cases in the Southern District of New York with a damage award for pain and suffering.  For any results, the full underlying cases are always available.

Damage awards is just one example. Other common uses for the module include running party searches, getting information on typical case timing for budgeting purposes, and understanding both your potential clients and your competition in order to best pitch for new business. 

Can you talk about some of Lex Machina’s apps that might be useful for torts law?

Apps work very differently than the main module. The idea with apps is that they’re an easy way to get an answer to a very specific question — you would use apps when you want to answer pre-curated questions.

Right now we have nine apps that work across all our different practice areas. For example, Courts & Judges Comparator can be relevant if you’re considering transferring venues. Law Firm Comparator could either be used by one of our corporate users to assess law firms, or by a law firm that wants data to anchor real world objectives on experience and success rates. Early Case Assessor is a quick way to gain insight on a party and their attorney, while Attorney Team Analyzer has a corporate use case when in-house counsel is trying to understand the difference between different attorney teams. 

There’s also a tenth app, Expert Witness Explorer, that’s specific to product liability and torts. This is where we’re continuing to expand what we’re doing with expert witnesses, starting with these two practice areas, where experts are especially vital. Having experts is a critical part of trial strategy in torts in terms of establishing that there was an injury or what duty the defendant owed the plaintiff, whereas experts are more commonly used for determining damages in other practice areas. In product liability and torts, liability itself often hinges on that expert testimony, so we’ve developed this app specifically to address the needs of those fields. You can see if an expert witness has previously been challenged, what the outcome was, or if their testimony has been limited in any way.

How can lawyers make the best use of the new torts module?

One major use case is counseling clients — talking through what the case strategy is, budgeting, expected case outcomes, and how to make important case decisions. Having objective, real-world data definitely anchors your ability to provide sound counsel. 

We also have a customer base that’s more strongly rooted in litigation. People who are in the business of litigation, for example litigation finance, have a particular need for data analytics because they deal with cases that could result in big damage awards, and torts certainly falls in that category. 

Finally, we also have customers that use litigation data to set big picture business strategies. Analytics help them understand how they did financially in the previous year and provide a very holistic market analysis of what’s currently happening. When Lex Machina first started, even explaining what we were doing took a long time. Now there’s an expectation that databases exist and that you should be able to access every case that ever happened before and evaluate patterns for cases like yours. These clients expect to be able to easily assess everything that’s happened across a business or a firm. Lex Machina makes that possible. So that’s a big internal use case for us as well.

When will the torts module be available to the public?

We released it to our current customers on June 30th. Our full launch, including a webcast, will be on July 9.

Judge Darleen Ortega has spent 17 years on the Oregon Court of Appeals and she’s learned a thing or two about the bar exam as she’s watched from her judicial perch. So when Oregon opted to join Utah and Washington in granting emergency diploma privilege in light of the COVID-19 pandemic and she saw mainstream outlets write the usual jeremiads about the “danger” to the public of a world without a bar exam, Judge Ortega let everyone know exactly what she’s learned about the bar exam.

It’s pretty much useless.

The editorial board of the state’s biggest newspaper — who are, notably, not practicing lawyers or judges — penned a piece repeating the usual talking points about “protecting the public” and called upon the state to put an asterisk next to any lawyer who earned their license via diploma privilege. For “transparency.” Because growing up in the time of COVID definitely means your career should enjoy a permanent Scarlet Asterisk!

Judge Oretega… take it away:

Every year, the examination weeds out people who, I can attest, were very ready to practice law. The test, while difficult, does not screen for the skills actually needed to demonstrate minimum competence. Instead, this very expensive test requires people who, to varying degrees, can’t afford it (having just completed a very expensive three-year course of study) to spend considerable time and money on another course that aims to teach them to pass the bar examination. The exam requires them to answer questions under timed conditions that do not parallel the realities of actual practice. Indeed, answering a client’s questions quickly from memory would in most cases constitute malpractice. And a major portion of the examination consists of multiple-choice questions that aim to trick the test-taker, requiring them to choose the best among several slightly wrong answers.

I will repeat again, “the practice of law is an open book exam.” As Judge Ortega notes, this insistence on running students through “law school pub trivia” to get a license defies the very point of practicing. A useful bar exam would present applicants with a novel problem and give them three hours to research online and bang out a memo, but instead we make tax attorneys memorize hearsay exceptions by rote.

The fact that the test is difficult and that significant numbers of people fail it each time does not prove its legitimacy. The passing score is set to ensure that a significant percentage fails, lending to the appearance that the examination is screening for competence without actually doing so.

I have this specific argument with people all the damn time about the California bar exam. It’s not “harder” than any other bar exam, it’s that California arbitrarily decides to cap the number of new attorneys — in the face of massive access to justice problems — leaving people more than capable of practicing law under the New York rules sitting on the sidelines in California. That’s not about protecting the public, that’s about protecting a guild in a manner designed to harm the public.

That the Oregonian editorial spilled digital ink bemoaning “a quarter of bar examinees usually fail” should embarrass them. That they did so without bothering to look up the fact that Oregon artificially maintains one of the highest cut scores in the country should compel a retraction.

The public is no better protected by this examination than it would be without it; indeed, I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.

As discussed yesterday, the MPRE and character and fitness reviews are designed to catch the behavior that actually harms the public. And, yes, there are unscrupulous law schools in the world that churn out graduates unprepared to practice law but hyperprivileging a clumsy exam to punish those students on the back end is a terrible substitute for cracking down on those schools.

As for tagging graduates with a career albatross for having the temerity to “enter school in 2017 with a master plan to graduate during a pandemic to avoid the bar,” Judge Ortega concludes:

Although it may be awhile before a consensus is reached as to a defensible way to establish minimum competence to practice law, we should be very careful not to punish those who have just been deemed eligible for diploma privilege by suggesting that they are getting away with something by taking that option, or by requiring that their bar license come with an asterisk pointing out that they did not take the bar. We should not contribute to any presumption that they are not competent. They have suffered enough in this season of upheaval, uncertainty, trauma, and risk, and not for a good cause. The granting of diploma privilege doesn’t expose the public to any risk greater than they already faced with a bar exam. For those who are convinced that something more than a law degree is necessary to establish minimum competence, we should address that question without further burdening this group of graduates, who did not create the problem and have suffered quite enough.

Exactly. Let’s at least let these future lawyers off the hook and then set out to have a serious discussion about what does and does not best serve the interests of the public.

And let’s make sure newspaper editorial boards have nothing to do with that process.

Opinion: Reassessing value of bar exam is long overdue [Oregon Live]
Editorial: No bar exam, no problem – except for the public

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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.

It’s just the nature of reality that large swaths of people are going to deny the nature of reality. But, as some of my more reasonable friends keep reminding me, many of these people are not irredeemably lost. They’re just misinformed.

So, I’m going to try to correct some of that in response to two very bad arguments against taking COVID-19 seriously that I’ve still been hearing lately.

COVID-19 Is No Worse Than The Flu

To be fair, this was a hell of a persuasive argument back in March. Of course, in mid-March, only about 60 Americans had died of COVID-19, and while a lot of people were warning that a far higher number of deaths was coming, the modeling at the time was all over the place. Some models were indeed predicting a death toll within the range of a bad flu season. I, myself, speculated that perhaps the lifesaving effects of a slowing economy would outweigh the deaths caused by coronavirus, in terms of immediate mortality alone, anyway. (I was wrong about that.)

The CDC estimates the annual number of influenza deaths using mathematical modeling and collaboration with state and local health departments in 13 geographically representative areas in the United States. That doesn’t give an exact number of flu deaths in a given season, but it gets pretty close. During the worst flu season of the past decade or so, the CDC estimated that the upper end of the possible range was 79,000 deaths. In contrast, the least damaging flu season in that period resulted in about 12,000 deaths in this country.

As I’m writing this, the United States coronavirus death toll is at 129,882, according to Reuters. The official death toll will likely be at more like 133,000 by the time this article goes to print. Obviously, that makes this pandemic far worse than the deadliest flu season in recent memory, and more than 10 times worse than the least bad flu season in recent memory. And coronavirus deaths on a large scale in the U.S. didn’t even start until mid-March — we’re not even four months in. While we don’t know reliably what the death rate for COVID-19 is yet, almost all credible research conducted so far suggests it is much higher than that of the seasonal flu. By six months into this pandemic, we will have lost at least twice as many Americans as we did in the worst flu season in recent memory. Remember, that’s with social distancing, lockdowns, and mask-wearing going on to some degree or another during most of that six months too. It’s worse than the flu.

But They’re Overcounting Coronavirus Deaths

Nope. Actually, coronavirus deaths are probably being underreported, and it’s fairly straightforward to demonstrate that numerically.

Figuring out the cause of death to put on a death certificate has never been an exact science. Since most people do not get autopsies, the cause of death on most people’s death certificates represents more of an educated guess by a medical professional. For many people counted in the coronavirus death toll, their causes of death are educated guesses by medical professionals.

But it’s looking quite clear that those educated guesses are undercounting, not overcounting, coronavirus deaths. How many people die in a “normal” year is known, and scientists can use that data to predict, within a reasonable range, how many people are expected to die in a subsequent year absent some special circumstance leading to excess mortality. A new study from Yale found that from March 1 through May 30 of this year about 122,300 more deaths happened in America than would normally be expected. You can look at the CDC data yourself and see that there were periods this spring when there were close to 20,000 more deaths per week than expected (you can also see this phenomenon in the data, on a much smaller scale, over the 2017-18 winter, which was that particularly bad flu season I was talking about earlier). The excess 2020 deaths are occurring despite deaths from other causes, like motor vehicle accidents, being down. (I was right on that prediction, at least.) Something’s caused six figures more of us to die this year than would be otherwise expected. There’s no other explanation for these deaths, and the medical professionals whose job it is to judge what’s killing people think it’s the coronavirus and there’s pretty solid evidence.

So, if you have family members or coworkers who are still saying coronavirus is no worse than the flu, or that officials are overcounting coronavirus deaths, well, they’re demonstrably wrong. Maybe share this article with them and hope they’re the kind of people who are capable of changing their minds when presented with evidence. Admitting when you are wrong is wisdom, not weakness.

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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.

Hedge fund frauds come in all shapes and sizes. Some guarantee modest but literally unbelievably steady low double-digit annual returns. Others offer the same results, but on a quarterly basis. Equally bold con men report annualized returns of better than 50%, brought down by disappointing years in which they returned (well, not actually, but you get the drift) a mere 13.14%. The still more brazen offer triple-digit returns that (ought to, anyway) strain credulity.

Any of the above claims should raise suspicions among would-be investors. Promises of returns of between 1,200% and 40,000% should raise suspicions by anywhere from 100% to 4,000%, by our reckoning. Coupled with the pledge that said returns would come from “‘prime bank’ financial instruments,” those suspicions should probably have been heightened, to skepticism at a minimum. Now, if one were still interested in the opportunity, a simple Google search of the principals’ names might seem in order, one which would turn up a nearly $4 million scam “involving fictional trading of securities purportedly issued by major international banks,” but still producing weekly $1 million returns on an investment of $50,000. And still:

* Chief Justice John Roberts was hospitalized last month for head injuries he sustained in a fall while walking around his neighborhood. [CNN]

* The Trump family is continuing its efforts to prevent the publication of a tell-all book written by President Trump’s niece. [Daily Beast]

* Disappointingly, there are still some Biglaw firms that have zero black partners. [American Lawyer]

* The Supreme Court announced yesterday that the first women appointed to oversee the justices’ security and publishing opinions are retiring. Thank you for your service! [AP]

* A lawsuit has been filed in an attempt to preserve a mural that shows depictions of slavery at the University of Kentucky. [New York Times]

* Milwaukee County’s top lawyer has been suspended for failing to satisfy CLE requirements. Just goes to show you that no attorney is above the law… [Milwaukee Journal Sentinel]

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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.