Category: News Feeds

The catchphrase of the latter days of the Nixon administration was “what did the president know, and when did he know it?” Today, America is asking “what did the president breathe and when did he breathe it?”

America’s chief executive, who has consistently denigrated the use of masks during the pandemic has now presented the country with an exercise in high-stakes contact tracing. Did Trump contract the illness from senior advisor Hope Hicks? RNC Chair Ronna McDaniel? How often were all these people getting their “routine” tests? Were they infected at the debate where Republican guests refused to wear masks? Remember a bunch of these people decided to be a part of this picture over the weekend:

Why is the Notre Dame president circled? Well, because he just tested positive too!

Now, the Cleveland Clinic reports that the candidates both tested negative before the start of the debate, meaning Trump personally did not have the virus over the weekend when he brought out Amy Coney Barrett and blew up his own political future. But that doesn’t mean someone in Trump’s inner circle didn’t already have it or that someone in that sea of faces isn’t responsible for bringing it into the White House.

Judge Barrett has already had COVID, but one guy who was at that event and was seen hugging people without a mask on was Senator Mike Lee, who has now tested positive for the virus. He also went ahead and met with ACB on Tuesday where they glad-handed with Mitch McConnell, Lindsey Graham, Mike Crapo, Cory Gardner, Rick Scott, Ted Cruz, John Thune, and Chuck Grassley (third in the line of succession!). One presumes Lee has continued to meet with these folks and others all week as the Judiciary Committee Republicans work overtime to ensure the Voting Rights Act doesn’t exist by this time next year.

Lee has already spouted off that he wants to go forward with the hearings despite having a highly contagious disease that’s killed 200K Americans because it’s a small price to pay for exhausting Donald Trump’s political usefulness to the Republican Party.

The fact of the matter is that all of these people — including Judge Coney Barrett who may still be a carrier even if she has immunity — need to quarantine now. If that slows down the nomination process, there’s plenty of time during the lame duck session for them to complete the hijacking of constitutional order that they began by refusing to vote on Merrick Garland. If there aren’t any rules anyway, why not? There’s still a 5-3 conservative majority on the Court to squelch any close election issues so that doesn’t apply any additional pressure.

One thing’s for sure: we’re watching the “least dangerous branch” wreak absolute havoc on the other two right now.

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.

On Monday, examinees in 19 states will attempt to take an online bar exam (though Oregon’s exam is for the small subset of applicants who don’t qualify for its diploma privilege program). We’ve had data breaches, decrypting rumors, a complete tech support breakdown, and serious racial discrimination concerns over the facial recognition algorithm’s performance. Make no mistake, even though the decryption fear is seemingly fixed by a massively improved password design since the summer, most of these issues aren’t resolved. Just this morning we received complaints from two jurisdictions over waiting on the phone for hours to fix a problem.

But through it all, when there was doubt, bar examiners have remained determined to do it their way.

And so we come to next week.

Is there a contingency plan if this doesn’t work? Hard to say. Judith Gunderson of the NCBE infamously responded to this concern with “I would be very surprised if that happened, given all the good and thoughtful professionals who are working on this. Why don’t you interview me Oct. 6?” When confronted with serious criticism, bar examiners are responding with childish taunts. Florida, which will not be going next week, has announced that they’ll move to an email exam like Indiana did in the “unlikely event” that something goes wrong.

The whole bar exam plan reminds of Donald Trump’s insistence that people don’t need to wear masks. It’s a strategy that worked for him perfectly for months. Right up until it didn’t.

It simply didn’t have to be this way. There was an opportunity here to engage in a critical reexamination of how the profession is regulated. An opportunity to end the reliance on a one-time generalist exam for an increasingly specialized profession that sees the most risk to the public coming from attorneys later in their careers. We could rewrite the process to ensure that it really was about minimum competency and public protection instead of a cash grab for test designers. We could finally protect the folks getting preyed upon by subpar law schools that know they’re ultimately not responsible for their own students thanks to the bar exam. But, in most states, we’re going to do none of that needed work because entrenched interests don’t want it.

Worst of all, many state supreme courts and bar examiners across the country flatly refused to attempt to repair the frayed confidence applicants have in the exam procedure.

Applicants will study hard this weekend. Just like they studied hard in July. And in September. And for some of them, last February. And now in October. This group of applicants has been jerked around based on empty claims and ill-informed adherence to tradition and it’s not fair. Not fair to them and not fair to the public.

Hopefully the exam goes smoothly next week. But I’ve considered 14,000,605 futures and we only win in one of them. There’s just not a lot to suggest it will go perfectly in all the jurisdictions that are trying to pull it off simultaneously. It’s clear that the folks at ExamSoft are trying to make it work. But it’s an endeavor fraught with so much risk and run by examiners who have such naked contempt for applicants that it’s easy to see it going wrong.

But even if it succeeds at whatever passes for “smoothly” these days, damage to these applicants is already done and the ongoing drag upon the profession that is the unquestioned reliance upon the bar exam goes on.

Good luck applicants. We support you… because it sure looks like the people who ostensibly run this show don’t.

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.

Hmmm, working to undermine the peaceful transition of power that has characterized the American democracy since Washington is not why *I* went to law school, but YMMV.

Listen, I know behind every modern election there’s a team of lawyers waiting to forward their interpretation of a hanging chad (and Lennon Parham was glorious in that role, FYI), but this year’s different. We have a president that won’t commit to accepting the election results and, hell, yesterday’s New York Times front page story was Trump Escalates Push To Erode Trust In Election. So… yeah, if American democracy somehow survives 2020, working on behalf of undermining the election process may not have the same glow as working on Bush v. Gore did for the previous generation of GOP lawyers. And even noted GOP election lawyer Benjamin Ginsberg has come out and said this is a terrible look for Republicans:

“The president’s words make his and the Republican Party’s rhetoric look less like sincere concern — and more like transactional hypocrisy designed to provide an electoral advantage.”

But the lawyers for the Trump campaign have been hired. And the same way we call attention to the good work Biglaw does, we have to call out the, erm, more embarrassing work too.

Politico has the details on the firms working on the election for Trump:

Most Republican attorneys are being tapped from a trio of law firms: Consovoy McCarthy, which defended Trump in his effort to stop Congress and New York prosecutors from receiving his financial records; Jones Day, which has raked in millions from the Trump campaign since before the 2016 election; and King and Spalding, which once employed FBI Director Christopher Wray.

Consovoy McCarthy is a litigation boutique firm that was started in 2014 and made a name for itself in conservative circle by challenging Harvard’s affirmative action policies. And Jones Day, well, you know Jones Day. The firm was home to former White House Counsel Don McGahn. The Trump campaign reportedly took new work away from the firm when the presidents relationship with McGahn soured, but currently finds themselves in the middle of election work. King & Spalding has picked up a number of lawyers who once worked for the Trump administration like Sally Yates, Rod Rosenstein, and Dan Coats. But they also have lawyers that’ve been critical of the Trump administration, like Sally Yates, Rod Rosenstein and Dan Coats.

But whatever the reason for getting involved in election legal work on behalf of the president, this kind of notoriety undoubtedly doesn’t sit well with lots of folks the firms may want to recruit.

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).

There’s no denying that Kirkland & Ellis is one the nation’s greatest law firms. Not only does the firm offer a compelling combination of prestige, profitability, and pay (not when it comes to special fall bonuses, mind you), but now it’s once again shattering the market on partners.

Bigger is apparently better at Kirkland, because earlier this week, the firm announced its largest-ever partner class. This year, the firm welcomed a partner class of 145, up from 2019’s record class of 141, 2018’s class of 122, and 2017’s class of 97.

But how many of these new partners will enter the firm’s equity ranks? Last year, the firm had 450 equity partners and 636 nonequity partners. The American Lawyer has some information on the firm’s tiered-partnership structure:

Kirkland is well known for its large class of nonequity partners, which helps boost its profitability. The firm is also known for an “up or out” approach to partnership, meaning large-scale promotions to its partnership don’t make its equity class top-heavy. The firm had 450 equity partners last year, according to ALM data, among its total lawyer head count of 2,598.

The American Lawyer in 2012 found that roughly 20% of Kirkland’s income partners join the equity tier after meeting a four-year eligibility threshold. Additionally, about 43% of attorneys promoted between 2010 and 2013 were still at the firm in 2017, according to an American Lawyer report on the subject that year.

As far as diversity is concerned, Kirkland opted not to show photos of its new partnership class (unlike last year), but from what we can tell, once again, the firm’s new partners are looking mighty male and mighty white. On the bright side, about 60 of the firm’s new partners are women (up from 46 last year), but minorities still seem to be underrepresented. You’d think that with a group of lawyers this large, a little more attention would have been paid.

It continues to be important for firms to know that these subjects won’t go unnoticed. Diversity and inclusion matter — to a firm’s current lawyers, to potential recruits, and perhaps most importantly, to clients.

Kirkland Again Tops New Partner Promotion Record [American Lawyer]

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 addition to your resume, representative matters sheet, and J.D. transcript**, as a lateral litigation associate candidate, you will need to include a writing sample with your application materials. Candidates often ask me for guidance on what type of writing to use.

Unfortunately, there is no perfect answer, as each reader is different. But here are a few guidelines:

• There must be absolutely, positively NO typos or grammatical errors in the writing.
• The writing should be very clear and not convoluted. Do not confuse complex writing with good writing. Stay away from overly academic writing.
• The closer the writing is in terms of style and industry focus to something you’d be writing in your new position, the more helpful it will be in terms of assessing your abilities. That being said, good writing is more important than subject matter.
• You must be able to say honestly that you were the primary drafter of the work, with limited edits/revisions from others. But everyone understands it’s unrealistic if you’re producing work you did for a firm that NO ONE else has given any input.
• Most firms are looking for something in the 8-15 page range — give or take. I wouldn’t get hung up on exact length unless the firm specifies. If needed, you may send something longer and direct the reviewer to a specific 8-15 page section.
• Be sure the writing is redacted for any confidential information, if necessary. In particular, redact the client/parties’ names and any other key identifying items. It’s often best to play it safe by using a brief, motion, or other writing that has been filed publicly — if you don’t have to redact, the writing is likely to flow better. But client memos are just fine if properly redacted.
• Be sure you can talk about the subject of the writing articulately (after refreshing your memory at least). Be prepared to discuss the writing and the matter in an interview.
• Some decision-makers will give the writing sample more weight; others will not read it at all. We don’t always know the reason why a candidate is not selected for interviews, but I’d be shocked if the writing sample makes or breaks it. Don’t overthink it!

My best advice? Go with your gut. What do you feel (not think) is the best example of your best writing?

** Generally, when applying to a firm as a lateral associate, you will need to provide a resume, representative matters sheet (a “deal sheet” for corporate associates), a J.D. transcript, and a writing sample for litigation candidates. Very few positions will also require an undergrad transcript. For more senior positions, a business plan might be helpful. Of course, it’s also essential to convey to a firm your reasons for wanting to make the move, but when applying through a recruiter, it’s the recruiter who drafts the cover note; you do not need to draft a formal cover letter.

Abby Gordon

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by Abby Gordon, Senior Director at Lateral Link, who works with attorney candidates on law firm and in-house searches, primarily in Boston, New York, and Europe.

Prior to joining Lateral Link, Abby spent seven years as a corporate associate with Cleary Gottlieb, focusing on capital markets transactions for Latin American clients in New York and for the last five years for European clients in Paris. A native of Boston, Abby holds a J.D., cum laude, from Georgetown University Law Center and a B.A. in government and romance languages, magna cum laude, from Dartmouth College. Abby also worked with the International Rescue Committee as a Fulbright Scholar in Madrid, Spain. She is a member of the New York, Massachusetts and Maine Bars and is fluent in French and Spanish (and dabbles in Portuguese and Italian). You can view additional articles by Abby here.

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.

Joe and Kathryn chat with Charlie Harrel, COO of Opus 2, about building platforms that make virtual hearings actually work. We all saw the ad hoc Zoom rooms of the early days of the pandemic, but conducting real trials, arbitrations, and mediations requires a lot more than a simple videoconference. Harrel talks about designing a product that increasingly serves the domestic and international hearings securely and as seamlessly as possible. They’ve run over 800 days worth of virtual hearings since March so they appear to be on to something.

In 1995, Georgetown Professor Deborah Tannen wrote about an experience with an attorney that still scans as frighteningly plausible today. Tannen reported in Harvard Business Review, “I observed with some amazement an encounter among several lawyers engaged in a negotiation over a speakerphone. At one point, the lawyer in whose office I was sitting accidentally elbowed the telephone and cut off the call. When his secretary got the parties back on again, I expected him to say what I would have said: ‘Sorry about that. I knocked the phone with my elbow.’ Instead, he said, ‘Hey, what happened? One minute you were there; the next minute you were gone!’”

How many of us can instantly picture someone we work with pulling this kind of two-bit stunt?! I fear it’s far too many. I’ve discussed in this space before how bad lawyers traditionally are at admitting when they’re wrong. I’d argue we’re even worse when it comes to actually apologizing for our errors and bad behavior.

The Sorry State

The practice of law isn’t exactly structured to teach us to give apologies to those we’ve wronged. Quite the opposite, actually. Many of us spend most of our time locked in adversarial situations, advocating on behalf of others. Whether we’re negotiating deals across a table or arguing cases across a courtroom, we often find ourselves wanting to project power and authority, or at the very least unimpeachable competence and dogged pursuit of our clients’ goals. The conventional wisdom many of us are taught or absorb is that apologies negate that professional image we try to cultivate when heading out into the world to do our jobs.

Apologies are implicitly a recognition that both the giver and receiver are subject to an equal playing field, governed by rules and norms that are larger than the specific circumstances we find ourselves in. By apologizing, we’re acknowledging that we did something wrong and that we owe some social debt or obligation to the recipient of the apology. Admitting that can seem, to some of us, unacceptable when engaging in legal battles where every inch of metaphorical battleground counts. Why show a sign of weakness to opposing counsel, who might use that weakness to our client’s disadvantage?

The problem with this philosophy is that apologies exist for a reason. They’re a necessary social construct, a way of acknowledging and making amends when we’ve damaged our relationship with someone. Thousands of years of cultural development have given us a bounty of ways to apologize and repair the wrongs we’ve committed. When we convince ourselves that apologies are an unacceptable sign of weakness, we’ve taken an important tool out of our toolkits. Chefs don’t cook food without salt. Painters don’t work without brushes. Why should attorneys, who are fundamentally communicators, leave one of our most important tools unused?

The mindset that apologizing is a sign of weakness is deeply toxic to its adherents, both personally and professionally. On the professional side, refusing to acknowledge wrongs done damages our standing in our communities and often makes our work more difficult. I could probably list 10 opposing counsel off the top of my head that I dislike working with because I know they’ll abuse my team without even a hope of apology. My cases against those attorneys are uniformly less pleasant, more time-intensive, and less efficient for everyone involved, whether client, attorney, courthouse personnel, or professional staff. It’s bad for everyone’s sanity, bad for clients’ bottom lines, and bad for the practice.

Not Just Wrong, But Harmful

The basic premise is also, to some extent, bull. Refusing to acknowledge that you’re wrong doesn’t make you strong or tough. It makes you unreflective, crass, and probably less effective than you could otherwise be. Anyone who’s studied negotiation in depth for any amount of time will tell you that brute-force dominance is rarely a winning negotiation strategy. Finesse, rapport, and finding unexpected common ground are usually far more effective, and apologizing for wrongs done can actually be an asset to those strategies, rather than a detriment.

The anti-apology mindset also unfairly undercuts those attorneys who don’t subscribe to it. Some attorneys aren’t afraid to recognize the wrongs they do and take care of others around them by apologizing. In work environments where apologizing is seen as weakness, these attorneys can be looked down upon or dismissed, consciously or not.

Bringing It Home

We also should remember that, as Kurt Vonnegut said, we are what we pretend to be. When we adopt an all-offense, no-apologies mindset for our work against other attorneys, that mindset tends to bleed into our nonprofessional lives. No one should treat their spouse, children, or loved ones the way they treat opposing counsel, but maintaining a firm divide between those worlds is tricky at best. If we spend 2,000 hours a year at work treating apologies as a sign of weakness, why would we be surprised if we continued doing that during our off hours? If you ask Malcolm Gladwell, by our fifth year we’ve basically trained ourselves into experts at disregarding the wrongs we do to others. If we spend our days being bullies, we’ll probably spend our nights as bullies, too.

Pushing back or emphatically making a point can be part of practicing law, and unless something fundamental changes about the human psyche, learning to deploy an apology from time to time is going to be a skill every attorney needs to learn. That’s still no excuse for being a jerk. Our business is one of communication and relationships. If we can’t allow ourselves to take care of one another, to acknowledge our mutual humanity and apologize when we hurt someone else, we’re making ourselves worse attorneys and worse people. That’s simply not an acceptable outcome.

Our profession stinks at apologizing. Recognizing that apologies are a sign of compassion, and not weakness, is a good first step.

James Goodnow is the CEO and managing partner of NLJ 250 firm Fennemore Craig. At age 36, he became the youngest known chief executive of a large law firm in the U.S. He holds his JD from Harvard Law School and dual business management certificates from MIT. He’s currently attending the Cambridge University Judge Business School (U.K.), where he’s working toward a master’s degree in entrepreneurship. James is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created and run a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.

* A federal judge has refused to dismiss a lawsuit filed by the federal government against John Bolton for publishing a memoir without prior approval. Guess the government doesn’t celebrate the guy’s entire catalog… [New York Times]

* A group of former Department of Justice lawyers are accusing Attorney General Barr of illicitly helping President Trump win reelection. [Hill]

* A Texas judge, who admonished and grabbed at a paralegal for sitting in a seat designated for lawyers, has been disciplined. [Texas Lawyer]

* Check out this primer on the Twenty-Fifth Amendment, which is being discussed after President Trump announced he has COVID-19 earlier this morning. [NPR]

* A new lawsuit accuses Kris Jenner of committing sexual harassment against a former bodyguard. [Fox News]

* A wrongful death lawsuit has been filed after a fan suffered a heart attack at a Philadelphia Eagles game. If he ate any Philly cheesesteaks, that probably also didn’t help… [Philadelphia Business Journal]

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.