Category: News Feeds

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

A week or so ago, the head of the U.S. Patent and Trademark Office, Andrei Iancu, who has been an extreme patent maximalist over the years, insisted that there was simply no evidence that patents hold back COVID treatments. This is a debate we’ve been having over the past few months. We’ve seen some aggressive actions by patent holders, and the usual crew of patent system supporters claiming, without evidence that no one would create a vaccine without much longer patent terms.

Iancu was questioned about how patents might hold back life-saving innovation and he brushed it off like this was a crazy question:

Iancu said while it is necessary to ensure that critical treatments are widely available to the public, intellectual property rights “must always be respected,” especially during crises like COVID-19.

Without adequate protections, Iancu warned that companies would lack incentive to invest substantial time and money in developing treatments for the next global health crisis.

Again, that makes no sense. The “incentive” to invest is in the demand for the product itself. Governments around the world are going to pay for any vaccine because it’s necessary and the boost to any economy is going to be well worth making the developers of a vaccine very, very wealthy.

Iancu also shot down the idea that patents might be used to limit access to a vaccine:

Dorian Daley, who asked the agency director to address concerns that intellectual property relating to COVID-19 might “create a barrier to access that would be problematic.”

“Where is the evidence of that?” Iancu countered, though he noted that the U.S. has “tools at its disposal” — such as the “march-in” rights under the Bayh-Dole Act, which allows the government to invoke rarely used powers to override patents — in the event that additional access is needed.

Of course, historically, the pharma industry flips out any time anyone mentions march-in rights, which is why the government basically never ever uses them.

But just to highlight how ridiculous Iancu’s statements were, just days later, Pfizer, Regeneron, and BioNTech — all working on COVID treatments (including the antibody cocktail that President Trump took from Regeneron) — were all sued for patent infringement for their COVID treatments.

Allele Biotechnology and Pharmaceuticals filed two lawsuits against the three drugmakers on Monday. The San Diego firm alleges that Pfizer and BioNTech, with its investigational COVID-19 vaccine BNT162, and Regeneron’s REGN-COV2, were developed using Allele’s mNeonGreen fluorescent protein without the company’s permission.

So, it certainly appears that patents are getting in the way of some COVID-19 treatments.

And then to make an even stronger point, pharma company Moderna — which had been facing a ton of questions about how its patents might delay COVID-19 treatment — has announced that it will voluntarily agree not to enforce the patents during the pandemic.

Moderna Inc. said it wouldn’t enforce its patents related to Covid-19 vaccines during the pandemic, in an effort to not deter other companies and researchers from making similar shots.

“While the pandemic continues, Moderna will not enforce our Covid-19 related patents against those making vaccines intended to combat the pandemic,” the company said in a statement on Thursday.

This is a welcome surprise, but it still underlines two key points: yes, absolutely patents can and will get in the way of important life-saving innovations, and the idea that these companies “need” patents to develop these drugs is clearly bogus. Indeed, as KEI points out in a blog post about Moderna’s statement, it’s good to see the company admit that even after the pandemic is over, its patents may get in the way of important life-saving innovation, and pledges to make sure that it will be more open to licensing its patents after the pandemic:

It is notable that Moderna has addressed both the pandemic and the post pandemic period, stating “to eliminate any perceived IP barriers to vaccine development during the pandemic period, upon request we are also willing to license our intellectual property for COVID-19 vaccines to others for the post pandemic period.”

The key point: even if Iancu pretends otherwise, people actually in the space know that patents can and will get in the way of life-saving innovation, rather than acting as an important incentive.

It’s long past the time we recognized how damaging patents are for innovation in many different industries, including pharma, and having a Patent Office boss who simply denies reality is fundamentally unhelpful and anti-innovation.

U.S. Patent Boss Says No Evidence Of Patents Holding Back COVID Treatments, Days Before Pharma Firms Prove He’s Wrong

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Bankruptcy lawyers who are living at work while working from home will likely remain swamped for the foreseeable future, according to data released this week. 

The legal services firm Epiq reported on Monday that in September 2020, new commercial Chapter 11 filings increased 78% versus September 2019, and that the first nine months of 2020 had one-third more filings than there were in the same period of the prior year. 

Epiq’s managing director of corporate restructuring, Deirdre O’Connor, adds some context in a statement:

“After a slower August, we see an increase in Chapter 11 filings in September both month over month and year over year. These commercial filings are primarily small businesses that do not have access to capital or stimulus. Unfortunately, those bankruptcies will continue to rise in the current economic environment. For the largest companies, opportunistic investors are providing much needed capital to supplement the lending capabilities of more constrained traditional banks. However, the most over-leveraged distressed companies could succumb to a formal restructuring due to lack of credit support and overall sector decline.”

Monday also saw the launch of the Leopard Law Firm Index, a law firm rating tool that provides some insight into lateral hiring and other trends in practice areas including bankruptcy.

As law firms compete for this prized talent pool, the Leopard Index reveals that Cozen O’Connor is leading the Am Law 200 in one key metric, bringing on eight bankruptcy lateral partners in the past 12 months. 

It’s probably safe to say the new additions have hit the ground running.

Chapter 11 U.S. Commercial Bankruptcy Filings up 78% in September [Epiq]
The Leopard Law Firm Index [Leopard Data Solutions]

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

“And I got pressure on me / Seven days a week, it’s game seven on me / Life will test you out, you live through that, that’s testimony” — Big Sean

This week, I had the opportunity to catch up with Anjie Vichayanonda, Founder of Leg Up Legal, whose mission is to disrupt and revitalize the legal industry pipeline by providing meaningful mentorship to everyone.

During her years of practicing law, she learned how important it is to have good mentorship and sponsorship in your legal career. While she has been fortunate to have some wonderful and amazing mentors throughout her career, she realized that many others have not been so fortunate. So she set out to help prospective and current law students find good mentors and guidance early on before they embark on their career paths so that they develop the skills to get the right start.

As an attorney turned entrepreneur, first-generation Asian-American, intellectual property lawyer, and career coach, Vichayanonda has a trove of career and life experiences she leverages to help others on their legal career trajectories. Her energy and passion are contagious, and she will no doubt mentor countless students and inspire the next generation of attorneys and young professionals.

Without further ado, here is a (lightly edited and condensed) write-up of our conversation:

Renwei Chung: Can you share with us a little bit about your background and career path?

Anjie Vichayanonda: I am a first-generation Asian-American lawyer. My parents are immigrants from Thailand and both engineers. I didn’t know any lawyers personally when I decided to go to law school, so I tried to seek out advice from lawyers about what law school I should go to, what type of law I should practice, and what actual steps I needed to take to become a lawyer.

I cold-called over 50 lawyers to try to learn about their career paths. I only was able to connect with three lawyers, but luckily, one took me under his wing and became my mentor. He introduced me to dozens of other lawyers, and helped me decide which law school to attend and what type of practice area to focus on.

I graduated from the University of New Hampshire School of Law and practiced trademark and copyright law for five years before launching Leg Up Legal.

RC: What motivated you to start Leg Up Legal and what are you focused on during these crazy times?

AV: My first mentor taught me how to connect with lawyers on a meaningful level and build long-term professional relationships. He taught me how to “walk-the-walk and talk-the-talk” and ask the right questions. I realized how difficult it was for prospective and current law students to build up the courage to speak with lawyers and learn how to follow-up with lawyers to keep their relationships going.

Throughout my career, I mentored other young lawyers and law students to pay forward the kindness that I had received from my mentors. I watched my mentees struggle with many of the same questions and issues that I did. I realized that there still was not a good way for prospective law students to meet lawyers on a large scale or learn how to interact with them. So, I built the Leg Up Legal mentoring platform for prospective law students to connect with lawyers and learn how to build their first professional relationships.

RC: I came across your profile through a LinkedIn post and you seem to be very intentional in how you leverage social media. Any advice for fellow attorneys interested in creating engaging content?

AV: Thank you! Here’s my tips and tools:

• Use a content scheduler. I plan out and schedule my social media for the week on Saturdays. It helps you post consistently and at peak engagement times no matter your availability.
• One of my attorney friends recommended Shield for Google Chrome and I love it. It’s easy to see the performance of all posts at a glance. You can see what type of content performs well so that you can focus on creating that type of content.
• Hashtags on LinkedIn are really underutilized. You can use up to three hashtags in a post. If you’re going to create branded hashtags, you need to tell people how to use it. “Follow the hashtag #________ for tips on …” Putting that call to action in the post makes it way more likely that people will follow it and come to rely on it.

RC: We talked about being first in our families to pursue the law in our initial chat. What surprised you most about your time at law school or working at a law firm?

AV: My goodness, what didn’t surprise me is probably a much shorter list. What surprised me is how little most students understood about what the practice of law really is all about before they decided to pursue law school.

Law school doesn’t give you much time to do career exploration, and you have to start applying for summer internships and jobs a lot sooner than you think so you should really take some time before law school to connect with a lot of legal professionals and get an idea of what practice areas interest you.

You can go through every gateway to becoming a lawyer — taking the LSAT, attending law school itself, and taking the bar exam — and still have no idea what the actual practice of law is like if you don’t seek out opportunities to really talk to lawyers about what they do. You have to drive your own career exploration, and you have to start as early as possible.

RC: Much is written about the lack of diversity at law schools and law firms. What are your thoughts on this issue?

AV: The lack of diversity is a systemic issue that begins long before law school. If you want to meaningfully improve diversity in our profession, it is not enough to start diversity initiatives at the law school level. You need to start at the undergraduate level or even before.

Many law firms and legal employers invest in “pipeline” programs at the law school level, including internship, fellowship, and mentoring programs for diverse students, but these programs only help the lucky few who make it into law school in the first place.

Thousands of worthy diverse candidates get left behind at the gates. If you want to improve diversity in the profession, you have to help diverse prospective law students develop an interest in law, nurture it with mentorship, and give them access to affordable LSAT prep and law school application prep if you want them to even make it into law school.

RC: You have a very impressive bench of Advisors at Leg Up Legal. We actually featured Caren Lock on ATL before. How do you choose your advisors and what type of relationship do you have with them?

AV: Caren is wonderful. She has known me the longest, and I met her through my first mentor so she’s seen my career evolve all the way from before law school to now. When I dove into the world of entrepreneurship, I knew right away that I was out of my element.

While being a lawyer and having a past career in marketing helped me in many aspects of building my business, I knew I needed a team of people who were experienced in many other areas to help guide me and Leg Up Legal. I chose my advisors because they all had experiences working with our three distinct types of customers: undergraduate universities, legal employers (and associations), and individual college students.

We have individual and group meetings to exchange ideas. They help me stay grounded, provide feedback and strategy, facilitate introductions, and some even participate as mentors in our mentoring program.

RC: COVID-19 has taught, and continues to teach, our society a bunch of lessons. What have you learned during this pandemic era?

AV: Relationships and human connection are vital during tough times. Now more than ever, we’ve seen students reaching out for guidance and emotional support. Having people to support you makes all the difference when you encounter difficulties and challenges. We started hosting a bunch of free events on Zoom to allow prelaw students, current law students, and lawyers to connect with each other and bond.

You can create real, lasting friendships and meaningful mentoring relationships through virtual mediums. I’ve seen it happen with my own eyes. We hosted a huge two-week virtual legal career boot camp in September for incoming law students, and I watched people have the most frank and emotional conversations during that event. And I’ve seen it happen time and time again in our virtual events and through our virtual mentoring program.

You have to get over the initial mindset that online interactions are just less personal. They don’t have to be. If you don’t believe me, come hang out on one of our events, and you’ll see.

RC: It was great chatting with you. Is there anything else you would like to share with our audience?

AV: We host a bi-weekly Virtual Happy Hour for ALL prelaw students, current law students, and lawyers to help create new networking opportunities and the registration links for those are included in the Weekly Zoom Meetup emails. We’ve had law students and lawyers from all around the U.S. attend. Register for the bi-weekly happy hour here.

For one-on-one networking and informational interviews, join our LinkedIn group, the Leg Up Legal Virtual Coffee Club. If you join the group, you can set up one-on-one virtual coffee chats with prospective law students, current law students, and attorneys.

Lastly, feel free to connect with me on:

On behalf of everyone here at Above the Law, I would like to thank Anjie Vichayanonda for taking the time to share her story with our audience. We look forward to following her successes and wish her continued achievements in her career.

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Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

On a cold, windy day in December of 1903, Orville and Wilbur Wright took the contraption that they built in their bicycle shop in Dayton, Ohio, and attempted to do what no one had yet achieved. On Kill Devil Hill in Kitty Hawk, North Carolina, Orville Wright flew their “Wright Flyer” airplane 120 feet in a 12-second flight. While it was a stunning accomplishment that day, it was a far cry from the eventual commercial success of aviation. Little would they realize the first customers for their invention would be the United States Army and the French government, and that their invention would change the face of modern warfare during the course of the first World War.

Throughout history, technology innovations like the printing press, electricity, flight, manned space travel, and the rise of the internet have been the catalyst for great societal change and even geopolitical changes. These changes can be profound and result from the natural flow of events. Some are good, and some are bad; and while some are intentional, many are unintentional.

We’ve seen a transformation underway within the legal industry for some time now, and the pandemic is continuing to accelerate these changes. From what we have observed in recent months, many of the technologies that were reshaping the practice of law have now become necessary, and resistance to digital workflows is no longer a viable option for many legal professionals. In the midst of this transformation, we can draw some observations about how the industry can cope with what’s next. 

The adoption of digital solutions and workflows will continue to accelerate. The abrupt shift to remote work brought to light how prepared (or not prepared) organizations were for such a change, and those who did not have an infrastructure to accommodate remote work had to build one as quickly as possible. Tools like natural language searching, e-discovery, predictive analytics, artificial intelligence, and robotics were already being applied to the practice of law, and we are likely to see higher adoption rates for these technologies for specific use cases such as research, billing, and contract management. As a result of the pandemic, I believe that resistance to change — which was named as one of the top barriers to change by both corporate legal departments and law firms in the 2020 Wolters Kluwer Future Ready Lawyer Survey — will be less of an obstacle for organizations moving forward.

Certain solutions will mature more quickly as a result of the accelerated transformation. As solutions get adopted, they move through phases of maturity as they are applied for specific-use cases and gradually become better, more effective, and more sophisticated. Prior to the pandemic, litigants in the State of New York could not e-file documents, but that has changed since the state shut down in March. That is just one example of how much change and adaptation has been implemented in a very short amount of time. We are likely to see not only a faster rate of adoption, but a faster rate of maturity for solutions that are becoming more widely used.

We shouldn’t resist the change — we should embrace it. While we are likely to return to a new version of “normal” in the coming months, some of the change we have experienced is likely here to stay — and rather than resist it, we should look for ways to leverage it. In his classic marketing treatise, “Marketing Myopia,” Theodore Levitt outlined how the railroad industry viewed the burgeoning airline industry as a threat. The airline industry certainly was a disruptor to the railroads — but if the railroad industry had viewed themselves as being in the transportation industry, they might have recognized their strengths to embrace the disruption. Railroads had the customer base of mobile Americans that traveled by rail, an extensive marketing and ticketing infrastructure, and the right of ways and political muscle to connect city centers to airports. In short, had the railroads embraced technological change, we might be flying the Baltimore and Ohio Airlines and connecting on high-speed rail to downtown locations. Legal professionals should look for ways to embrace the change that we are seeing within the legal industry not only as an inevitability, but as an opportunity to capitalize on their strengths, improve efficiencies, and become more competitive.

Some of the shifts toward increased use of technology and innovation that we are experiencing now could be the beginning of much greater leaps in tech’s impact on the practice of law, with consequences that we can’t yet grasp. The Wright Brothers could not have imagined a frustrated passenger arguing with a customer service agent at Chicago O’Hare about missing a connection on a cross-country flight due to weather delays: in 1903, people would have found it inconceivable to travel from New York City to San Francisco in one day, even with a missed flight connection. For better or worse (though probably for better), urgency to innovate has been thrust upon the legal industry, and lawyers should be mindful of the change — and the possibilities — in order to best prepare for whatever comes next.

People, process, and technology present opportunities for positive social impact. Innovation is about solving a problem in a unique or different way. Successful technology adoption will always change processes and affect people as we innovate. We are living in transformational times just as the Wright Brothers were. I would challenge the legal profession to think broadly as we innovate. Let’s think about how to advance the profession, but also purposefully and intentionally consider the opportunities that innovation presents to positively impact societal issues. Can a particular project also include a pro bono component or enable greater access to justice? Could the re-engineering of processes be the catalyst to change hiring and recruitment and help balance the under-representation of women and minorities within the profession? Let us all thoughtfully embrace change and imagine how we can influence change for the greater good.

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Ken Crutchfield is Vice President and General Manager of Legal Markets at Wolters Kluwer Legal & Regulatory U.S., a leading provider of information, business intelligence, regulatory and legal workflow solutions. Ken has more than three decades of experience as a leader in information and software solutions across industries. He can be reached at ken.crutchfield@wolterskluwer.com.

As lawyers, we’ve sworn an oath to ‘protect and defend’ the United States Constitution, and it is our duty to take a stand at this critical moment in our nation’s history. The fundamental rights of hundreds of millions of Americans are at stake. Rushing to confirm Judge Amy Coney Barrett will cause irreparable damage to the public’s faith in the Supreme Court, the rule of law, and our democracy.

— Traci Feit Love, president of Lawyers for Good Government, commenting on the open letter that the organization, in partnership with Alliance for Justice, submitted to the United States Senate objecting to the Supreme Court nomination of Amy Coney Barrett. The letter is signed by more than 5,000 attorneys representing all 50 states and the District of Columbia, including 165 law professors and 13 judges. Click here to see the letter.

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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.

Here’s what the Justice Department’s own manual on the Prosecution of Election Offenses has to say about publicizing investigations in the middle of an election.

In investigating an election fraud matter, federal law enforcement personnel should carefully evaluate whether an investigative step under consideration has the potential to affect the election itself. Starting a public criminal investigation of alleged election fraud before the election to which the allegations pertain has been concluded runs the obvious risk of chilling legitimate voting and campaign activities. It also runs the significant risk of interjecting the investigation itself as an issue, both in the campaign and in the adjudication of any ensuing election contest.

Shorter DOJ: Don’t do it. It’ll just wind up perverting the election even further.

And yet, according to ProPublica, an official in the Public Integrity Section laid out a change in decades old policy, just in time for the November election.

The email announced “an exception to the general non-interference with elections policy.” The new exemption, the email stated, applied to instances in which “the integrity of any component of the federal government is implicated by election offenses within the scope of the policy including but not limited to misconduct by federal officials or employees administering an aspect of the voting process through the United States Postal Service, the Department of Defense or any other federal department or agency.”

So the Department is going to publicly announce investigations and prosecutions of mail-in voting right away, allowing them to be immediately weaponized by a president who has insisted against all evidence that there will be rampant fraud with mail-in ballots?

That’s mighty convenient!

Would this be a retroactive blessing of the breathless announcement by the U.S. Attorney’s Office for the Middle District of Pennsylvania that they had recovered a whopping nine military ballots that had been thrown away by the Luzerne County Board of Elections? Later it emerged that a temp had opened all the mail at once, mistakenly spoiling a handful of ballots. Hoping to avoid any appearance of wrongdoing, the Board immediately contacted the FBI. And for their pains they found themselves cast by both the president and the White House spokesperson as part of a nefarious plot to steal the election.

The president and the indefatigable Kayleigh McEnany have similarly flogged claims of a Wisconsin postman throwing ballots in a river — or was it a ditch? — when no such ballots ever existed.

It’s not a good look, particularly considering Attorney General Barr’s history of both interfering in prosecutions to help the president’s friends and his blatant distortions of DOJ electoral fraud cases. You don’t have to squint hard to see this move as a prelude to a flurry of announcements from various U.S. Attorney’s Offices that they’re hot on the trail of some evildoing electoral fraudsters hellbent on stealing the election from Donald Trump. And if, after fifty news cycles hyping the narrative that mail-in voting is illegitimate these prosecutions turn out to be nothing at all, well …

¯_(ツ)_/¯Or is it …

Just kidding, it’s this one.

DOJ Frees Federal Prosecutors to Take Steps That Could Interfere With Elections, Weakening Long-standing Policy [ProPublica]

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

Another day, another Biglaw firm that’s decided to roll back its coronavirus crisis austerity measures. Back in April, Mintz Levin — a firm that found itself in 87th place in the latest Am Law 100 ranking — announced compensation cuts ranging from 5 to 10 percent, depending on employees’ role within the firm, with partners shouldering a great deal of the firm’s financial burdens by holding back 40 percent of their distributions and reducing their draws by 5 to 10 percent.

Earlier this week, the firm announced via email (available in full on the following page) that it would be doing away with those cuts as of the October 23 payroll. Here are some additional remarks from Mintz Levin’s managing partner Robert Bodian:

The firm is doing well, and at the mid-year mark we are exceeding budget, and we were delighted to be able to make this change. There remains uncertainty, of course, in how events will impact the second half of our fiscal year, but we are hopeful that we will have sufficiently strong results at the end of the fiscal year to consider other adjustments, such as retroactive pay and discretionary bonuses (we already announced that the hours bonuses will be paid for fiscal 2021).

Congratulations to everyone at the firm on the good news. Let’s hope the folks at Mintz Levin see some retroactive pay by the end of 2020.

(Flip to the next page to read the Mintz memo in full.)

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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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.

In my work as a legal recruiter, I speak every day with lawyers looking for new opportunities. Because of my background and contacts in litigation, many of the candidates I connect with are litigators.

As law firms continue to roll back their austerity measures and even announce fall bonuses, they are starting to pick up their hiring as well. For litigators with superb credentials — a strong academic record from a top-14 law school, one or more federal clerkships, and experience at a top-10 law firm — opportunities can be found.

And for litigators looking to explore non-firm opportunities, there are options as well. These opportunities are also highly competitive, but the required credentials and background are quite different from those sought by firms.

Here’s an excellent example — and an excellent opportunity.

A rapidly growing litigation finance firm is looking for a director of business development to help the firm find high-quality investment opportunities. The focus of the role is on originations — sourcing new matters to invest in, as well as building long-term relationships with deal sources — and so the successful candidate will have a strong background in both litigation and sales.

Here are the requirements for the role:

• 10-plus years of total work experience
• a law degree (J.D.)
• experience with complex litigation
• at least three years of experience in sales or business development in the legal sector, ideally with the marketing and selling of sophisticated, big-ticket products or services to lawyers or law firms
• experience with frequent business travel in the past and a willingness to be on the road at least 50 percent of the time
• integrity, enthusiasm, and a team-oriented approach

Because of the travel involved, a somewhat central location in the United States would make the most sense (e.g., Chicago, Dallas, or Houston). But the fund is flexible on location as long as the candidate is willing to travel to both the East and West Coasts on a regular basis.

This position represents a superb opportunity to join a successful, growing player in an exciting and dynamic new field. It offers geographical flexibility as well as flexibility with one’s schedule; the firm is not particular about where or when the hire works, as long as the individual delivers results. The compensation is excellent: a six-figure base salary, plus the potential to earn multiples of that through incentive-based compensation tied to performance.

If you have both the litigation and sales background to be a competitive candidate for this position, please feel free to reach out to me to learn more. Thanks, and I look forward to hearing from you.

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by David Lat, a managing director in the New York office, where he focuses on placing top associates, partners and partner groups into preeminent law firms around the country.

Prior to joining Lateral Link, David founded and served as managing editor of Above the Law. Prior to launching Above the Law, he worked as a federal prosecutor, a litigation associate at Wachtell Lipton Rosen & Katz in New York, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. David is a graduate of Harvard College and Yale Law School. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

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Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices worldwide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

Credit where credit’s due. Back when a botched online exam was only a glimmer in the eyes of bar examiners around the country, National Conference of Bar Examiners chief Judith Gundersen quipped of the impending tire fire, “Why don’t you interview me Oct. 6?” Only a very tiny sliver of the legal landscape was holding onto that receipt and if she just ghosted on this pledge like she was bar exam tech support there would be few if any consequences. But she actually went through with it!

Gundersen’s follow-up interview with Karen Sloan dropped yesterday afternoon. Rather than forge a comprehensive take on her answers, let’s just follow along as I read it in real-time. Join me on this journey:

You said the online exam was a success. How do you define a success? What factors are you looking at? If you think about why we did this in the first place, our goal was to give candidates, or examinees, the ability to safely take the bar and have the opportunity to become licensed. And to give jurisdictions that didn’t feel they could give an in-person bar exam the option to do that. By that account, it’s certainly is a success. We did that.

Indeed. If you set expectations at “it happened,” then it was certainly a success.

For the true fans out there, check out how she describes the online exam like it was her idea instead of a proposal from individual states that the NCBE tried to vigorously undermine and only begrudgingly got on board. They commissioned material last week to use in their next lobbying blitz against online exams.

I’m hearing skepticism from examinees about these early, good numbers that states have put out. What explains this discrepancy between how examinees seem to feel the test went and then these early numbers? We’ll see. The proof will be when the results come out, when examinees’ files are uploaded and their scores are being graded. I’m not saying there weren’t tech issues—I understand that there were—but most of the tech calls were resolved quickly.

“Quickly” is in the eye of the beholder. It does seem as though most tech calls took less than an hour, but not much less than an hour. The balance of the reports seems to run from half and hour to 90 minutes. And these figures don’t tell the whole story as many people claim tech support often required them to engage in multiple shorter 10-15 minute calls that are assuredly not being added up in this cheery debrief. This also counts just the people who got connected even though many of the reports describe calling and giving up after 30-40 minutes.

Will there be some analysis of the tech issues people had—even if those problems didn’t prevent them from actually completing the exam and uploading answers? Is there a way to gauge that? I think so.

She thinks so. There is not, at present, a plan to conduct a post mortem on the tech issues. This answer can’t be stressed enough — the people charged with ensuring that professional licensing is handled effectively isn’t sure if they’re going to make sure the exam they just gave worked. And lest you think that’s just Gundersen being colloquial:

Are individual jurisdictions going to analyze their own data, or will that happen at the NCBE level? We’re meeting with all jurisdictions, so it will probably be a combination of both—between ExamSoft, the jurisdictions and the NCBE as well.

No, there really isn’t a strategy here. It’s all by the seat of their pants. And it all goes back to the very first answer: the definition of success is that the test happened, not whether or not it was the best or even an adequate exam. They don’t care if data was compromised, computers broken, or passwords hacked. The exam… happened. The bar exam industrial complex lives on. Huzzah!

Sloan keeps trying, in a very steady, understated manner, to get Gundersen to acknowledge the gravity of what just transpired. She asked about applicants who dropped out before the exam even happened or who withdrew mid-exam — even citing “demographics” in an effort to subtly call attention to the widespread reports that people of color withdrew in disproportionate numbers because the facial recognition algorithm wouldn’t recognize them. Gundersen said any evaluation of these problems would be left up to individual jurisdictions.

Do you have a sense that that’s an analysis jurisdictions plan to do? I don’t know.

Just really galling.

I have to ask you about people urinating on themselves during the exam. I heard from more than one person—and these are credible accounts—that they peed in their seats during a session because the rules prohibited leaving the view of their cameras. What do you make of that? The first I heard of this was in the story you wrote yesterday. For me to comment on it, I think would be speculative. I don’t know the facts of the individual cases. I can assure you that we will be looking at what jurisdictions learn about any issues like this that may have arisen. There were breaks every 90 minutes. For people who needed accommodations, there were shorter sessions.

A couple of takeaways. First, I guess Gundersen isn’t reading Above the Law. Second, if true, this amounts to a disqualifying failure in planning from national leadership. “How will this system deal with bathroom breaks?” should have come up at some point in this process. It may not be a day 1 concern, but over the course of the months that went into planning this, a responsible organization would have flagged it. They already got to see it happen in the UK!

And let’s talk accommodations. Gundersen waves it around like a silver bullet, but it’s existence in theory doesn’t erase the reality. States place onerous restrictions on accommodations and people with confirmed medical conditions get rejected for accommodations all the time. One state asked applicants to stop being diabetic for the sake of the test! Accommodations aren’t a solution in practice. Moreover, this isn’t even the sort of thing accommodations are intended to address. Sometimes people have to go to the bathroom. We also had someone withdraw because she got her period during the test — that’s not a situation that accommodations can fix either.

For her part, Sloan is clearly taken aback by this answer:

But for you as a bar examiner, what was your reaction when you read that? Like I said, it was the first I had heard about it, so I was surprised. We want people to have an optimal testing experience.

Remember, that back in April the NCBE thought it was optimal that all states keep holding in-person exams so it seems “optimal” may be on a sliding scale based on whatever protects the NCBE’s interests at the moment.

Another issue that a lot of people have complained about is the MBE [multiple-choice] questions. Many people said they felt this week’s questions weren’t comparable to those in their study materials or previous exams. “Poorly written” was a phrase I heard quite often. That is 100% false. The questions we used on this exam were fully developed, fully vetted questions that were prepared by our drafting committee members—as always—and that were administered in the past under standard testing conditions as scored items.

“We can’t have written bad questions because we wrote them.”

In fairness, the questions on this exam are always shitty. It flows from the fact that the bar exam is not, despite its PR copy, a test of minimum competence, but rather an intentionally confusing test designed to guarantee a certain percentage of failures. That these questions have appeared on other tests isn’t dispositive — the test almost always breaks down with about 40 percent straightforward material, 40 percent more difficult but gettable questions and then 20 percent complete left-field curveballs where multiple answers are technically correct and examinees are forced to choose more or less at random between them. Applicants this week reported a test skewed wildly toward the last category and the testimonials of those who have already passed bar exams and were merely sitting in a new jurisdiction lend those claims a lot of credence.

Having talked to quite a few examinees this week, my sense is that the process leading up the bar and the online test itself has really left a bad taste in the mouths of many. They are really unhappy with how this unfolded. What would you like to say to them? We’re certainly sympathetic to anyone who experienced an issue during the remote exam. With respect to the entire bar exam cycle, there were a lot of people working night and day to try to make licensing options available. I understand it’s a very hard time for applicants—to have spent their second semester online, and to be confronted with the pandemic and the uncertainty. I completely understand the anxiety and the resentment and anger about it. But a lot of people were working hard to give them opportunities to get a license.

No, they weren’t.

These folks weren’t “working hard to give [applicants] opportunities to get a license” or they would have advocated granting licenses the way Gundersen herself got her license… without an exam. Or they may have advocated for open book exams that more accurately track the actual practice of law like they had in Indiana, or pushed for an apprenticeship track as an alternative, or designed an enhanced CLE program with iterative quizzing for this class.

The NCBE and the state examiners behind the online tests weren’t working hard to give applicants opportunities to get a license, they were working hard to ensure the bar exam is maintained in its current form. They were working hard to protect a monopoly. They were indeed working hard to keep a lid on licensing opportunities.

And so far all that hard work has paid off… for them.

National Bar Exam Leader Defends Online Test Amid Reports of Tech Failures and Poorly Written Questions [Law.com]

Earlier: NCBE President Gives Trainwreck Of An Interview
Like COVID-19, Online Bar Exam Is A Disaster And Was Entirely Preventable
The Online Bar Exam Amounted To Two Days Of Cruel Vindictiveness

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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.