Category: News Feeds

Pro Bono Week, recognized at the end of October, is a time to celebrate the incredible difference pro bono can make. With individuals and businesses across the nation facing unprecedented challenges due to the pandemic and economic downturn, this work feels more urgent than ever this year.

Practising Law Institute (PLI) is known for providing CLE and other professional development nationally, but the 80+ year-old organization is also heavily invested in pro bono. Kara O’Brien, Vice President of Programs, and Janet Siegel, Director of Pro Bono Services, spoke about PLI’s mission and offerings.

Can you tell us more about PLI’s commitment to pro bono?

Kara O’Brien: PLI has long been committed to providing attorneys with the training they need to represent individuals in a pro bono capacity. It is really at the heart of our mission as an organization. We have a three-pronged approach to providing access to our programs for attorneys who are interested in serving underrepresented communities. With widely available scholarships, free Pro Bono Memberships for legal aid and nonprofits dedicated to providing pro bono legal services, and significantly discounted pro bono programs, our training is accessible and affordable.

Why is this so important to your organization?

KO: PLI has always supported the legal profession and, more broadly, the rule of law. We believe that increasing access to justice ultimately strengthens the rule of law for everyone and we are proud to play a part in that endeavor.

What does PLI’s Pro Bono department focus on?

Janet Siegel: Our Pro Bono team works to raise awareness of the great need for pro bono representation, especially now during this pandemic, and offers training to support attorneys so that they can better represent pro bono clients. We offer programs on a wide number of substantive topics including immigration, domestic violence, criminal justice, housing, nonprofit organizations, consumer bankruptcy and veterans’ issues.

How are these programs developed, and what does PLI do to ensure that its offerings are fresh and relevant to law firms and practitioners?

JS: We constantly follow legal developments and have a great team that can quickly produce and adapt relevant content for our audiences. We’re also very lucky to have highly experienced faculty from both law firms and legal services organizations who review our programs to ensure their relevance and timeliness.

With that in mind, how have you adjusted your program offerings in response to current events? How have those programs been received?

JS: This year, we offered a series of remote and on-demand programs on the impact of COVID-19 on immigration, nonprofit organizations, housing, and employment, as well as best practices and ethical issues in providing remote legal services, all of which drew very large audiences. In response to the protest movement in the wake of George Floyd’s death earlier this year, we quickly organized our civil rights, diversity and related programs so that they could be accessed easily at pli.edu/accessjustice.

Because this is an election year, our program on Voter Rights (now available on-demand) was of great interest as well. We also have a large ongoing curriculum of immigration programs generally, which continue to attract large numbers of attendees.

What would you advise law firms and lawyers looking to get more involved with pro bono?

JS: If your firm has a Pro Bono Manager, that is always a good place to start. Many firms can match you with pro bono matters that meet your interests or help you with skills you wish to develop. Anyone interested in taking on pro bono representation but concerned that they need additional training should check PLI’s pro bono page at pli.edu/probono. We offer programs for all experience levels, led by highly knowledgeable faculty who are deeply committed to access-to-justice issues. Our programs will also give you information about the many opportunities for pro bono and possible organizations to contact.

In addition to training on substantive law, we offer several skills training and ethics programs. Find something that matters to you and jump in. Lawyers have told us that their most rewarding work comes from their pro bono efforts.

Is there anything else you’d like people to know about pro bono at PLI?

If you’re interested in learning more about pro bono in action, our podcast Pursuing Justice: The Pro Bono Files tells the “real-world stories” of attorneys taking on various types of pro bono representation.

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

Last night, the Los Angeles Dodgers beat the Tampa Bay Rays to win the 2020 World Series. It was the Dodgers’ first title in 32 years. One fateful decision changed the momentum of the game.

For the first six innings, Tampa Bay had a 1-0 lead. This was because their starting pitcher, Cy Young Award-winning Blake Snell was doing very well. He struck out nine and gave up only two hits. His performance was compared to Hall of Famer Sandy Koufax.

But on the sixth inning, right after Snell gave up a base hit, Rays manager Kevin Cash replaced him with Nick Anderson. This decision backfired as Anderson gave up two runs on that inning including one due to a wild pitch. Unfortunately for Tampa Bay, they were unable to recover from this.

I don’t follow baseball so I was confused by Cash’s decision. I didn’t think a pitcher would be substituted out after giving away only two hits. I thought substitutions happened when a player was losing his edge and giving up numerous hits and runs.

I was told that the manager replaced Snell likely because he relied on analytics. There is a massive trove of data on baseball statistics, such as games played, the outcomes, and player attributes. All of this information is analyzed and synthesized to give teams advice and determine who is likely to win a certain game and when a pitcher should be relieved. There is even a term for it: Sabremetrics. I suppose it’s not much different than watching two computer AIs play each other on a baseball video game.

The problem is that analytics isn’t foolproof, as Tampa Bay learned the painful way last night. In fact, if every team used analytics to plan their season, only one team will benefit while the rest will either have to get different players or a more powerful AI that can synthesize the data better.

This made me wonder about how much the legal profession relies on their own analytics when making decisions.

We rely on precedent to predict how a similar case will be decided. We analyze a judge’s past decisions to prepare briefs and oral arguments that will persuade the judge to rule in our favor. We vet a juror based on race, education, social and economic standing, and a host of other factors to see if they will be sympathetic to our client. The opposing counsel’s attorney’s reputation and accomplishments could also play a role on how to proceed with the case.

With developing AI and machine learning technologies, the analysis will be more detailed. They will look at court decisions, law review articles, judges’ speeches, an attorney’s Yelp reviews and any other information they can find on the web.

Another problem is access. The richer law firms will likely be the early adopters of this technology and will use it to their clients’ advantage. While smaller firms with more modest or indigent clients will have to wait until the technology meets their price point. This unfairness is nothing new. The richer can buy more resources because they have the money to do it.

So let’s say a lawyer has a strong case, and he thinks he is likely to win at trial. But what if the “analytics” say that the judge will likely rule against his motions? Or the AI program thinks the jury will likely rule against his client? Of course, no one can say. Just as no one can tell whether Tampa Bay would have won last night if Blake Snell had stayed in the game.

Relying on analytics might not get you the result you want. Whether it is litigation or transactional work, there are a lot of moving parts at play. Some parts we can predict with great accuracy while others are a crapshoot. Judges and jurors are human beings and can change. Attorneys can lose their edge or become better as time passes. Economies and laws can change.

In the future, people and professionals will rely more on analytic data to help guide their decisions. But analytics is still at best an educated guess. In a changing and unpredictable world, it might still be better to rely on your intuition, especially if it has served you well in the past.

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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.

Multiple federal bills have been crafted with the intention to provide college athletes with the right to commercially exploit their names, images, and likenesses (including this). Five states have already passed legislation and had their respective governors sign the bills into law with regard to college athletes’ commercial use of their names, images, and likenesses (NIL), with Florida currently the first to make the law effective, on July 1, 2021.

Whether the federal government, NCAA, or more states act first to provide college athletes with these same rights that most of their colleagues currently enjoy has yet to be made clear. However, at this time, hardly anyone is willing to publicly disagree with the fact that rights of publicity are those that should be enjoyed by all college students, including athletes. That was not always the case.

With monumental change on the horizon, one may wonder where this right to commercialize one’s identity came from and why it has become such a big deal as of late. Furthermore, it is worth noting that one’s right to control and exploit one’s publicity rights often includes, but is not limited to, name, image and likeness, and the same should be true with regard to the rights that college athletes are about to begin enjoying. Rights of publicity can extend to the use of one’s voice, signature, nickname, jersey number, and even gestures or mannerisms.

What may be surprising to some is that a person’s right of publicity has not been codified by statutes in all 50 states. Only about half of all states have created statutes concerning these rights. The vast majority of states have; however, recognized such rights by way of common law, and the prevailing view is that unless a state has outright rejected the right, it is determined to be a right possessed by constituents in such jurisdiction.

It is interesting that currently no national law providing all individuals with a codified right of publicity exists, yet there are multiple bills proposed to create a federal protection to college athletes. In theory, college athletes could go from being one of the least protected classes with regard to rights of publicity to the most shielded group of individuals in the United States. A fair question to ask of Congress is why not expand the focus of recent efforts to propose a national right of publicity bill to cover all individuals, with specificity afforded to cover college athletes against any wrongdoing of the NCAA or member institutions?

The first state to have expressly provided the right of publicity to individuals by way of statute was New York which, in 1903, made it unlawful for anyone to use the name, portrait, or picture of any living person without prior consent for advertising purposes or purposes of trade. Originally, New York viewed these rights as a byproduct of an individual’s right to privacy. It was not until 50 years later that the Second Circuit Court of Appeals would distinguish an individual’s right to publicity from his right to privacy.

The big challenge to rights of publicity claims is the First Amendment, which provides, in part, freedom of speech that allows use of another’s identity, but in limited circumstances. One such exception is when a person’s publicity rights are used for newsworthy purposes. Where this could come into play for college athletes is when a third party decides to use a player’s name, image, or likeness for entertainment and amusement purposes as opposed to true commercial exploitation. As such, third-party uses will need to be properly vetted prior to any action being taken based on potential claims of misappropriation.

In conclusion, the rights that will soon be offered to college athletes truly go beyond name, image, and likeness and are part of a complex area of the law that covers an individual’s right to publicity. It is a right that was conceptualized only a century ago and is still not uniform throughout the 50 states. While some on Capitol Hill appear to be enamored by the thought of providing a national right to college athletes, they may want to take a step back and consider whether a national right should be afforded by law to all Americans.

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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.

[I]t’s a lifetime appointment. I’m not going to try to change that at all.

There’s some literature among constitutional scholars about the possibility of going from one court to another court and not always staying on the Supreme Court. But I have made no judgment.

— Democratic presidential nominee Joe Biden, in response to reporters’ questions as to whether he supports term limits for Supreme Court justices. Rep. Ro Khanna (D-CA) recently proposed a bill that would limit future justices to 18-year terms on the Court, ending life tenure via statute, not Constitutional amendment.

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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.

“It would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws,” the president said yesterday. “I don’t believe that. So we’ll see what happens.”

President Trump failed to mention exactly which of “our laws” would be broken by delaying the declaration of a winner to count all the ballots. After all, the 1887 Electoral Count Act allows 41 days for states to name electors to the Electoral College for an official vote.

It took six weeks for the New York City Board of Elections to declare Rep. Carolyn Maloney and City Council member Ritchie Torres the victors in their respective primaries, and democracy didn’t come to an end. Nor did anyone sue alleging that counting all the absentee ballots somehow violated “our laws.”

Nevertheless, the Trump campaign is currently using its very limited dollars on dozens of lawsuits to limit the number of ballots counted. Yesterday it sued Clark County, Nevada, demanding the elections registrar turn over the signature on each ballot as it comes in, along with the signature on file with the county. It’s probably a coincidence that this would allow the state Republican party, which is also a plaintiff in the suit, to scan party rolls at its leisure and challenge every Democratic ballot as it comes in.

The campaign is also demanding the names and party affiliations of all poll observers, by precinct and shift. And while they’re at it, they’d like “any other official, representative, candidate or delegate from the democratic [sp] party regarding the 2020 election.”

You know, just your standard public records request, not harassing litigation meant to get as many votes tossed in deep blue Las Vegas as possible.

That’s in addition to a different suit the campaign and local party filed against Clark County seeking an injunction prohibiting it from beginning to count mailed ballots. Why Trump is going all out in a state where Biden has led consistently for months is unclear. Nor is it clear how these suits will help ensure a result on November 3, in accordance with “our laws.”

Although the argument seems to hold sway with Justice Brett Kavanaugh, who theorized in a meticulously researched (AHEM) opinion that it was more important “to be able to definitively announce the results of the election on election night, or as soon as possible thereafter” than to actually count the votes.

Aaaaaand, even as we type, the president is at it again.

Here on Planet Earth, we’ve never had certified vote tallies on election night. But if we do get results on the evening of November 3, the president is not likely to be very happy about it. Pennsylvania and Michigan will probably take several days to tally their votes. But after the 2000 hanging chad debacle, Florida overhauled its laws to allow speedier processing, including preparing mail-in ballots for tabulation before election day. So, if we know who the next president is in the wee hours of the morning on November 4, it’ll almost certainly be because Trump lost Florida, all but obliterating his path to 270 electoral votes.

As Politico reports, the president is deploying thousands of lawyers and poll “observers” to challenge the result of this election and generally gum up the works to bring the result into doubt. The GOP is clearly gearing up for another Brooks Brothers Riot. So it’s pretty ironic that the previous preppy uprising sparked changes in state law which may put down the planned rebellion before it even gets started.

Maybe “ironic” is the wrong word. How about … fitting?

Trump campaign, Nevada GOP sue Clark County for detailed records on ballot counting process [NVIndy]

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

The United States receives considerable criticism over its lack of regulations when it comes to assisted reproductive technology, especially sperm donation. As a small break from reflecting on our own flaws, today we focus on a peculiar case revealing that other countries, too, have issues.

Donating For Discounts

Neil Gaskell and his wife endured 14 years of trying to conceive before finding success with IVF in Australia. When the British couple moved back to the United Kingdom, they sought out additional fertility treatments, hoping to conceive a second child. Gaskell’s sperm must have caught the attention of someone at their IVF clinic because, after a first failed round of IVF, Gaskell was approached by the clinic to become a sperm donor and told his sperm had “superman strength.” In exchange, the clinic would reduce the fees for the couple’s next round of IVF to £1,200 from £3,500.

Wait. What?! In the United States, most donors are paid $50 to $100 per donation. By contrast, Gaskell was offered a discount of £2,300 — throw in the exchange rate, and you’re at about $3,000. Ironically, it is illegal to pay sperm donors in the United Kingdom more than their expenses. However, clinics are permitted to offer discounts on treatment in exchange for donations. I’m not sure I understand the policy underpinnings of this system. If we are worried about money being coercive, offering discounts to couples in the especially vulnerable position of needing fertility treatment would seem even more coercive than the American system — advertising to college kids who are looking to upgrade their ramen for a few nights. Maybe U.K. sperm clinics are desperate for good product?

But that isn’t even one of the legal issue in this case.

Not For Same-Sex Couples

Gaskell agreed to donate in exchange for the discount. However, when donating, he specifically noted that he required that his donations not be given to same-sex couples. Gaskell made the clinic staff “write that down.” And he later explained that he also did not want his sperm going to single women, but didn’t think he had to explicitly state that, since the clinic described his sperm as going to families (which, to him, evidently did not include single women).

Apparently, the clinic did not say something like “oh you know what, we actually have all the sperm we need now so never mind.” Instead, they didn’t object. This was not an illegal requirement, after all, at that moment. However, a mere few months later, the Equality Act came into law in England, which prohibited discrimination against same-sex couples.

How Many Families?

Gaskell recounted how the clinic assured him that his donation would be used for only two or three families. And, anyway, the regulations prevented the donations from being used with more than 10 families. Spoiler alert: the clinic was really trying to really get its money’s worth from Gaskell.

Moreover, as frequently happens in these cases, the donor’s wishes were not exactly followed. An official audit of the clinic by the UK’s fertility regulator — the Human Fertilisation and Embryology Authority — revealed that Gaskell’s sperm had helped three same-sex couples have five children, and three single women have four children. An additional four children were conceived with Gaskell’s sperm by heterosexual couples, resulting in a total of 13 children.

The clinic disclosed the findings to Gaskell. And Gaskell sued.

Not A Bigot

Gaskell has publicly explained his strenuous objections to his sperm being used to help same-sex couples, and that his lawsuit is not an indicator that he is “homophobic” or a “bigot.” He asserts that such accusations “couldn’t be further from the truth.” (Oh?) He says: “This wasn’t about discriminating against same-sex couples … but you can’t argue with biology. It takes a man and a woman to create a child, and it’s my view that if children are being born with my sperm, they must have a mother and a father.” After a four-year legal battle, the clinic recently settled with Gaskell, with Gaskell walking away with a five-figure out-of-court settlement.

(Non-)Informed Consent

I spoke with U.S. assisted reproductive technology legal expert Catherine Tucker on the case for perspective. She was more sympathetic to Gaskell’s cause. “What we have here is the intersection of two important medico-legal concepts — informed consent and nondiscrimination.” Informed consent simply means that a patient knows what he or she is getting into when agreeing to donate a body part, whether it be sperm, eggs, blood, a uterus, or something else, and the patient voluntarily chooses to participate. A key component of informed consent, Tucker explained, is understanding what your bodily donation will be used for — whether that be research, education/training, or for another patient. So here we have a situation where informed consent and nondiscrimination concepts conflict. And informed consent trumps nondiscrimination every time. With proper informed consent, this patient could have chosen not to participate in this arrangement.

I am hopeful that improvements in technology — and, like, people — will lead to less and less of these cases. Or, if nothing else, maybe the fear that all errors will be caught as a result of prolific home DNA testing will act as a strong-enough deterrent for strict self-regulation. In the meantime, let’s hope that all of Gaskell’s kids have a better outlook on parenting than he does.

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

In one of the national reckonings over systemic discrimination and disenfranchisement in recent years, that about the treatment and role of women known as #metoo, Goldman Sachs emerged not only relatively unscathed, but even improved. It pledged to seek gender parity in junior hiring, insisted that those companies seeking the Goldman seal of approval in going public put at least one non-penis-haver on their boards, welcomed back a top female refugee from the Trump administration while pointedly closing the door to a male one, and even elevated a woman to the role of heir apparent to CEO David Solomon.

Sure, some Supreme Court clerks represent the cream of the crop in young legal talent: the all-star performers of the country’s top academic institutions girded by outstanding turns clerking for the nation’s most renowned appellate jurists. Bringing these standout performers into a law firm is more than worth the $400,000 bonus that’s become the standard.

But then there are the clerks who presumably helped Justice Kavanaugh write his bonkers concurrence in DNC v. Wisconsin Legislature.

Unsurprisingly, we were initially focused on Kavanaugh’s bizarre assertion that counting votes placed before election day after election day amounted to “changing” the result — a stupid claim for which he was properly chastised by Justice Kagan, who noted, “But there are no results to ‘flip’ until all valid votes are counted.” Literally no one issues a result on election day — networks make calls that night, but states don’t. But, as an Originalist, I’m sure Kavanaugh was remembering how they called the 1800 election at 9 Eastern and broadcast that by satellite to every state.

There are other mistakes of course. Mark Joseph Stern noted that Kavanaugh cited Bush v. Gore as unanimously decided — or more accurately he cited the holding that only 3 conservatives issued in Bush v. Gore as unanimous by wrongly attributing it to Bush v. Palm Beach County Canvassing Board. Kavanaugh was there working on this very case, so this is just pure disingenuousness. Similarly, Stern points out that Kavanaugh cited a bunch of shadow docket cases as historical precedent, which takes a lot of chutzpah or a broken research software account.

But Kavanaugh being a liar is something we’ve known since at least his confirmation hearings. That’s not news.

But one passage stuck out when I dug into the opinion more.

The States are aware of the risks described by Professor Pildes: “[L]ate-arriving ballots open up one of the greatest risks of what might, in our era of hyperpolarized political parties and existential politics, destabilize the election result. If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode.” Pildes, How to Accommodate a Massive Surge in Absentee Voting, U. Chi. L. Rev. Online (June 26, 2020)

Now… that seemed weird, because Rick Pildes does not strike me as the kind of guy who would say we should throw out valid ballots. And it turns out he’s not!

We heard a whole lot about Kavanaugh’s clerks. Indeed, we heard them invoked in a disturbing fashion just today. But where were they on this one? Shouldn’t someone with passable critical reading skills been able to Inigo Montoya this one and tell the boss, “You keep quoting Professor Pildes, I don’t think he says what you think he does”?

But it actually gets so much worse. Tierney Sneed sat down with the rambling opinion and succinctly put it:

Indeed.

Like the citation to Merrill II for the proposition that district courts shouldn’t second-guess state legislatures. Except Merrill was about a district court striking down a state Secretary of State voting restriction because it wasn’t passed by the state legislature. It’s very much the opposite of what Kavanaugh is trying to support here.

Or, as Sneed notes, a random aside about how even socialist Vermont isn’t changing its voting rules because of the pandemic, despite the Vermont office expediting the distribution of mail-in ballots for the express purpose of expanding opportunities to vote.

These are “citing red flag cases” level fuck-ups. Especially when absolutely none of them are necessary cites. He didn’t need to quote Pildes for his inane suggestion that we should just never count the troops (who of course are among the most likely late-arriving ballots every election), and he didn’t need to add Merrill II to the string cite, and he didn’t need to throw in a Vermont reference to own the libs. Summer associates don’t make these mistakes, why are they happening at the Supreme Court?

The reason, friends, is the steady erosion of the federal clerkship under the Federalist Society’s watchful eye. Elite law students are already turning down clerkships with these judges and that just feeds a cycle of awarding prestigious clerkships to the law student who ordered the most Chick-fil-A for their club’s weekly “serious academic debate” about whether immigrant children should be kidnapped or just chemically castrated.

While there are specific conservative clerks who really are smart enough to be the next ABA Not-Qualified federal judge, the problem with the FedSoc-Industrial Complex is that ideologues are learning at the knees of ideologues that precedent doesn’t really matter. And that’s how you train a generation of conservative lawyers to muck up basic citation.

It’s also why firms are starting to wise up about jumping at the first clerkship they see. A partner told me a while back that they used to just jump at clerkships and now they have to take a second and say, “Wait, with who?”

Not that it matters for Kavanaugh’s clerks. They’ll all doubtless go to Jones Day on schedule.

Earlier: Donald Trump’s Devaluation Of The Federal Clerkship

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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.

My parents have been married for more than 40 years at this point. Throughout the 35 years of that marriage that I’ve been around for, my mom has been fond of reminding me why she was so keen on getting an education after she finished high school: so that if she stayed married it was because she actually wanted to, not because she was economically trapped in marriage by a higher-earning partner.

By and large, college is indeed an extremely wise financial investment for the individual. According to a comprehensive report from the Georgetown University Center on Education and the Workforce, a bachelor’s degree is worth $2.8 million, on average, over a lifetime.

The degree my mom got from the University of Minnesota wasn’t a bachelor’s, but she did fine during her long and successful career as a dental hygienist in small town America. She definitely met her goal of being financially self-sustaining (and apparently never felt the need to leave my dad, thankfully, despite being able to outperform him financially).

But sometimes I think the intangible value of education to our society as a whole gets overshadowed by the material results for individuals. Even though it wasn’t a four-year program like it is today, the dental hygiene program at the University of Minnesota was no place for academic slouches in the 1970s. Year after year as a child, I’d travel to the U of M for follow ups to my congenital cataracts eye surgery, and once we arrived on campus my mom would tell stories about her gross anatomy lab when she was a student there many years prior.

If you don’t know what a gross anatomy lab is, well, put down your drink if you’re having a coffee or something. That’s a class where you dissect human bodies (ones that their former occupants were kind enough to donate to science).

Why does a dental hygienist need to know how to dissect an entire human body? Well, some would argue she doesn’t. I don’t know that those folks would want someone poking around in their face with a sharp metal instrument without knowing exactly where all the arteries were, but maybe that argument carries a little more weight when we get below chest level.

But forget about a dental hygienist, there are a lot of things to learn about human biology that are useful in making a good citizen out of anyone, anywhere. Like, you know, that vaccines work. Or that wearing a mask helps keep respiratory viruses out of your face-holes.

There is a reason that about two-thirds of whites without a college degree voted for Donald Trump in 2016, while only 38 percent of whites with a four-year college degree voted for Trump. Uneducated people are generally not as good as educated people at determining when they are being lied to, because they are not as good at distinguishing between the credibility of different sources. There is a reason why so many uneducated people are still sticking with Trump in 2020, despite the fact that his pandemic nonresponse needlessly cost hundreds of thousands of lives and his only major policy accomplishment was a tax bill that harmed them to give away money to obscenely rich people. These folks do not (yet!) have the wherewithal to determine that the Fox News pundits screaming lies at them all day are not actually on their side and are not equivalent sources to the thousands of whiny liberal scientists, economists, and frazzled Above the Law columnists gently urging self-beneficial corrections to their worldview.

People (bad ones) make fun of baristas with college degrees, but every good citizen should have enough of a post-secondary education to vote competently, to determine fact from fiction to some meaningful degree. It doesn’t matter how tangential that education may be to how an individual ultimately earns a living. There’s dignity and intrinsic value in any kind of real, legitimate education, just like there is dignity and intrinsic value in any kind of real, legitimate work. In a more utopian American — maybe one where absolutely everyone could get at least two years of education after high school without going into debt — perhaps that would be self-evident.

My mom has a Joe Biden sign in her front lawn in a small town awash with Trump-flag-waving quarterwits because, unlike many of her peers, she learned how to think critically. I’m not going to totally credit a gross anatomy lab for that. But it sure didn’t hurt.

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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.

Most people would generally agree that attorneys are part of a serious profession. Indeed, the courthouses in which lawyers operate include lined columns, cathedral ceilings, and other attributes which give the judiciary an august perception. In addition, most law firm websites include the familiar rows of professional headshots of attorneys in professional attire, which seemingly conveys the serious attitudes of lawyers at that firm. On social media, lawyers often post somewhat dry client alerts, presentations, and other media that buttress the argument that lawyers are serious professionals. Most legal writing, whether it be briefs, memorandums, or pitch letters, is often monotonous and formulaic in order to convey the importance of what is being discussed. Nevertheless, in my personal experience, lawyers can have a bigger impact in court and relate more to their clients if they are sometimes less serious.

I first realized the impact of lawyers acting less seriously when I was in law school. At that time, I received literature about a variety of different law firms that were recruiting on campus. Each of these brochures had the same bland skyscrapers and professionals in suits, and it was easy to mistake one of these firms for another. However, one of the documents was different, and the tagline of the brochure was “are you ready to rock with ___” (the blank was the name of the firm that kind of rhymed with “rock”). I really appreciated that this firm was less serious and different, and this nontraditional approach made me want to work at that firm.

Firm nicknames are another way in which attorneys can benefit by acting less seriously. There is a large Biglaw firm which has a nickname that is identical to a common curse phrase. Hilariously, the firm seems to have embraced this nickname, and their URL is even this curse phrase. People within the legal profession enjoy referring to this firm by the common curse phrase, and I even spoke to an in-house professional earlier this year who said he knows people who hire the firm because of the nickname! By acting less seriously and embracing some humor, this firm has distinguished itself in the marketplace, and this shows the power of being less serious as a lawyer.

Lawyers can also have more success at originating business if they sometimes act less seriously and connect with prospective clients on a more personal level. Of course, some clients prefer to have a serious, somewhat cookie-cutter lawyer upon which they can rely, and you can often read the room to know that this is the side you should present at a pitch meeting. However, many clients want their attorneys to be colorful characters that are real people just like them.

For instance, one time, I was pitching work that a client had been shopping around to a number of law firms. The client showed up to our meeting in shorts and flip-flops and was an extremely laid-back kind of guy. During the pitch meeting, I used somewhat colorful language to describe the client’s adversaries and the weaknesses in their arguments. I could see the client’s face light up at hearing this, and he soon thereafter chose my firm for his portfolio of work. He frequently referred to the colorful language I had used in subsequent conversations, and it was clear that acting less seriously and relating to the client on a more personal level allowed me to stand out in the legal marketplace.

Being less serious can also help lawyers with their advocacy before courts. Legal writing can oftentimes be extremely formulaic, and if we are being truthful, pretty boring. Most lawyers present their arguments in a rigid style and use bland legalese to make their points. Of course, it makes sense that writing should be easy to digest by litigants and courts so people can review materials as efficiently as possible.

However, great legal writing is interesting to read, and tells a story with metaphors, colorful language, and perhaps a few jokes. I first witnessed the power of this writing style when I was in Biglaw, and worked with a fellow associate who was masterful in the art of legal drafting. This associate would use interesting quotes, sports analogies, colorful metaphors, and other devices in order to make his point. Even though this style of writing was somewhat unusual, he wrote many of the briefs we submitted, and this creative writing was effective at conveying our points.

Even in oral advocacy, being less serious can be advantageous to attorneys. Judges are regular people like the rest of us, and their eyes can gloss over at a bland argument just like anyone else’s. As a result, using colorful language, relatable examples, and maybe a few jokes usually doesn’t hurt in oral advocacy. I remember earlier in my career, I argued an appeal in front of the Appellate Division in New York for a case involving a man who fell from a height of seven feet. I related that I was nearly seven feet tall (actually 6’9’’, but it’s kind of close!) and this didn’t look too high from my perspective. The judges appreciated my humor, and they could relate to one of my arguments more readily. Numerous state and federal judges read my columns and have emailed me over the years, and I would love to hear the opinions of jurists on this issue. In any case, it is possible that being less serious and thinking outside the box can help with oral advocacy.

All told, as I have related before, attorneys are fun people to be around, and indeed, I am really going to miss kicking back with my lawyer colleagues at holiday parties this year. However, the legal profession can be really serious and boring at times. Nevertheless, if lawyers act less seriously in certain circumstances, they may be able to originate more business and be better advocates for their clients.

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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.