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

According to data collected by NALP for the law school class of 2019, what is the difference between the overall mean salary for graduates and the mean salary at law firms?

Hint: Firm life may not be your dream (or maybe it is, idk), but it will help you pay off your loans faster.

See the answer on the next page.

FACT: Women are making pennies on the dollar.

It is worse for women of color.

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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

When you’ve presented your closing argument to the jury with reference to a summary chart, they may have no idea how creative you were in finding the particular claim or defense that got you to this point. When you make a seemingly perfect, pithy argument regarding a case distinction in your brief, the judge or her clerk reading your brief may have no idea how hard it was to find that seemingly on-point case. When you surprise your deponent with a particularly tough email he has to answer questions about, he may not realize that this email didn’t jump out in the review and even appears to have been intentionally buried by the deponent’s counsel so that it was hard to find.

But the jury will notice the typo in the chart. The clerk will cringe to see you didn’t use the official reporter to reference the case. And the deponent and his lawyer will chuckle when you stand up and your fly is open.

These anecdotes are silly, except I based them all on real-life examples (thankfully, these happened to other people, but I can only write “thankfully” because I probably didn’t notice my own typos or sartorial miscues in similar situations). And, I promise you, the audience in each case judged the lawyer even though, as noted, the lawyer and her colleagues may have done a fantastic job of being creative, thoughtful, and simply working extremely hard. My colleagues and I know that those are what wins — very thoughtful work and very hard work. But we also know that we are not judged on that hard work or creativity since it often doesn’t come through. And, to a huge degree, that’s okay — we are not here to stroke egos. We are here to win for our clients.

However, we will be judged — and this can interfere with winning — by how we present ourselves. It may not be fair. Indeed, many of the ancients complained at how unfair it was that beauty gave advantage (even as they often fell over themselves lauding it). But life isn’t fair. The nearly 200,000 deaths (so far) in the United States that have been caused by COVID-19, with massive overrepresentation among the poor, among Blacks and Hispanics, and among those who didn’t have adequate healthcare access, are a growing testament to how life is not fair.

Your job as a trial lawyer is not to whine about the unfairness of life, but (frankly, be grateful for how good you have it) figure out how to serve your clients and win, acknowledging that you make your arguments, you build your case, you try your matters to juries and judges and arbitrators, in this real, if unfair, world that focuses on the visual. This is a world where you must always be aware of how your work appears.

More than one new staffer at our firm either marvels or expresses horror at how frankly anal we can be when it comes to the filing process or even when simply submitting a letter to an adversary. I wish I could say we never make mistakes. But we make few, and we pay attention to appearance since we — and, thus, in too many ways, our clients and our positions — will be judged by appearance. To be clear, what I’m calling “appearance” can be more than just how pretty something looks. For example, a typo is not simply bad because it makes you look bad. And it’s not bad since your point is unclear — relatively few typos are so bad that the reader doesn’t understand the point. But the reader gets slowed down and can miss the argument, or at least not get the point as persuasively, since that reader got stopped by your typo. Appearance matters in all parts of a trial lawyer’s world since all of our work in the end is for some other audience.

Keep being creative and thoughtful. Keep working very hard. But make sure you also do all of that while being aware always of how you work, and how you appear, so that you can win for clients.

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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

Cops lie. Cops lie enough there’s a term for it: testilying. Honest prosecutors don’t want lying cops on the stand dirtying up their case with their impeachable testimony. Unfortunately, police unions are powerful enough to thwart this small bit of accountability. “Brady lists” are compiled by prosecutors. They contain the names of officers whose track record for telling the truth is so terrible prosecutors don’t want to have to rely on their… shall we say… misstatements in court.

Unfortunately, these lists are often closely-guarded secrets. Judges aren’t made aware of officers’ penchant for lying. Neither are defendants in many cases. But they’re called “Brady” lists because they’re supposed to be disclosed to defendants. The “Brady” refers to Brady v. Maryland, where it was decided prosecutors are obligated to turn over possibly exculpatory information to defendants to ensure their right to a fair trial. This includes anything that might indicate the cop offering testimony might not be telling the truth.

The Massachusetts Supreme Judicial Court has ruled [PDF] prosecutors have an obligation to inform defendants of officers who have made their “Brady” lists. Two cops who made false statements in a use-of-force report were granted immunity for their testimony in front of a grand jury. The district attorney prosecuting a different criminal case handed this information over to the defendant. The cops challenged this move, claiming their grand jury immunity should have prevented this exculpatory information from being given to the defendant and discussed in open court. (h/t Matthew Segal)

The cops argued there’s no constitutional duty to disclose this information (under the US Constitution or the Commonwealth’s) unless failing to do so would alter the outcome of the trial by creating reasonable doubt where none previously existed. The Supreme Judicial Court says that argument is wrong under both Constitutions.

First, prosecutors have more than a constitutional duty to disclose exculpatory information; they also have a broad duty under Mass. R. Crim. P. 14 (a)(1)(iii) to disclose “[a]ny facts of an exculpatory nature.” This duty is not limited to information so important that its disclosure would create a reasonable doubt that otherwise would not exist; it includes all information that would “tend to” indicate that the defendant might not be guilty or “tend to” show that a lesser conviction or sentence would be appropriate.

[…]

Second, even if prosecutors had only their constitutional obligation to disclose, and not the broad duty under our rules, we would not want prosecutors to withhold exculpatory information if they thought they could do so without crossing the line into a violation of the defendant’s right to a fair trial.

The acceptable standard under the Constitution is not “see what you can get away with.” This is an obligation, not a nicety to be deployed at the prosecutor’s discretion.

A prosecutor should not attempt to determine how much exculpatory information can be withheld without violating a defendant’s right to a fair trial. Rather, once the information is determined to be exculpatory, it should be disclosed — period. And where a prosecutor is uncertain whether information is exculpatory, the prosecutor should err on the side of caution and disclose it.

In this case, the information was definitely of the possibly exculpatory variety. Lying cops who’ve admitted before a grand jury they falsified reports should definitely be considered impeachable witnesses. Whether or not the information is determined admissible at trial is beside the point.

[T]he ultimate admissibility of the information is not determinative of the prosecutor’s Brady obligation to disclose it. Where the information, as here, demonstrates that a potential police witness lied to conceal a fellow officer’s unlawful use of excessive force or lied about a defendant’s conduct and thereby allowed a false or inflated criminal charge to be prosecuted, disclosing such information may cause defense counsel, or his or her investigator, to probe more deeply into the prior statements and conduct of the officer to determine whether the officer might again have lied to conceal the misconduct of a fellow police officer or to fabricate or exaggerate the criminal conduct of the accused.

The cops also argued their immunity from prosecution during their grand jury testimony should shield them from any adverse consequences. Wrong again, says the court. The immunity only covers prosecution for the admitted crimes. It is not a shield against reputational damage that may result from this information being made public or handed over to defendants.

An immunized witness, like others who are not immunized, may prefer that the testimony not be disseminated by the prosecutor, especially if it would reveal the witness’s dirty deeds, but that preference does not affect whether the information is exculpatory or whether it should be furnished to other defendants. Once disclosed, the immunized testimony may be used to impeach the immunized witness, provided that the testimony is not being used against the witness in a criminal or civil prosecution other than for perjury. In sum, a prosecutor’s obligation to disclose exculpatory information is the same for immunized testimony as for all other testimony. There is no higher Brady standard applied for a prosecutor to disclose immunized testimony.

The Court wraps this up by laying down the law: this is Brady info and it needs to be disclosed to defendants. The SJC is not fucking around.

[W]e conclude, as did the district attorney, that the prosecutors here have a Brady obligation to disclose the exculpatory information at issue to unrelated criminal defendants in cases where a petitioner is a potential witness or prepared a report in the criminal investigation. That obligation remains even though that information was obtained in grand jury testimony compelled by an immunity order. And the district attorney may fulfill that obligation without prior judicial approval; a judge’s order is needed only for issuance of a protective order limiting the dissemination of grand jury information.

More broadly, we conclude that where a prosecutor determines from information in his or her possession that a police officer lied to conceal the unlawful use of excessive force, whether by him or herself or another officer, or lied about a defendant’s conduct and thereby allowed a false or inflated criminal charge to be prosecuted, the prosecutor’s obligation to disclose exculpatory information requires that the information be disclosed to defense counsel in any criminal case where the officer is a potential witness or prepared a report in the criminal investigation.

That’s the standard in Massachusetts. And bad cops are on notice there’s pretty much nothing they can do to escape the consequences of their own actions. This is as it should be. Now, if the courts could just make sure prosecutors and police departments are actually compiling Brady lists, we’d be set. At least in this Commonwealth.

Top Court In Massachusetts Says Prosecutors Must Provide Info On Bad Cops To Criminal Defendants

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Lawyer Forward has embarked on an ambitious — and possibly crazy — series exploring how lawyers can transform themselves into “known experts.” For the duration of the series, you can find weekly round-ups Fridays here on ATL. In addition to the kick-off episode outlining the concept, this week’s installments include “Specialization vs. Generalization,” and “Why Expertise Matters.”

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

Additional Lawyer Forward Known Expert resources

Remember when Jay Powell was a hopelessly garbled Fedspeak novice, like Mike Bloomberg speaking Spanish only worse? When he couldn’t help explaining things in his native plain English rather than his adoptive bureaucratic tongue? Well, he’s come a long way, in terms of fluency if not central banking competence. And while he’s unlikely to ever write a dictionary of the special language like his predecessors, he’s adding a new term of art to its lexicon. As with all proper Fedspeak, at first inattentive hearing it sounds like English, albeit a very soporific dialect thereof. But the true adepts and linguists of what is formally known as Central Banking English know that the word “powerful” in this context means precisely the opposite.

Lucky for Marsha Blackburn, the U.S. Constitution protects the right of every American to be ignorant in public. Because the junior senator from Tennessee celebrated Constitution Day by doing just that.

Yesterday the senator posted a video encouraging her followers to “spend some time” with the Constitution and “realize what has kept us a free nation for the last 244 years.”

“Google it online!” exhorted the senator, of the document which was signed … 233 years ago.

“We will never rewrite the Constitution of the United States,” tweeted the co-sponsor of several proposed amendments to ban gay marriage and flag burning.

Which is idiotic, considering we’ve already rewritten the thing twenty-seven times. But saying stupid sh*t is protected by the First Amendment, so … knock yourself out.

But if we’re going full originalist, why not respect the holy Founding Fathers’ original intent? Go for broke and get rid of all those blasphemous edits!

Unfortunately Senator Blackburn, whose popular election was set out in the Seventeenth Amendment, won’t be able to vote at all in the absence of the Nineteenth. But if we intend to honor our Framers, sacrifices must be made.

Sure, it will be hard to fund the government without a federal income tax, but perhaps Senator Blackburn is planning to make up the deficit by reimposing a poll tax. We’re only 46 days from what promises to be a massively high turnout election, so that might work!

Although disenfranchising everyone but white men might put a bit of a crimp in that plan. It would, however, guarantee a Trump victory. Or four, since we’re getting rid of the Twenty-Second Amendment!

Hopefully the Confederate states won’t re-establish slavery in the absence of a Thirteenth Amendment. We might face some international pushback if we return to the Three Fifths Compromise.

And without the Second Amendment, Marsha Blackburn will probably lose her coveted “A” rating from the NRA. But maybe she’ll gain a new roommate if we cancel the Third Amendment and start billeting troops in American homes. Silver lining!

Or maybe American “Greatness” derives not from a centuries-old piece of paper but our continued striving toward a more perfect union. Maybe we the people can honor the Constitution by working to establish justice and liberty, not just engaging in jingoistic celebrations of an imaginary heyday.

Because the Blessings of Liberty are for red states, and blue states, D.C. and Puerto Rico, Black, and white, and people of every race and religion. So in this moment of division, let’s not conscript our founding documents as a cudgel against our political opponents.

We the people means all the people, and the Constitution belongs to all of us.

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

Children, assets, estranged relatives. These are the common issues that testators address when writing a last will and testament. Who should raise the kids? Who can manage the money? Who should have nothing to do with my estate and my legacy? In recent years, another concern has been determining who will control, review, and collect one’s electronic accounts and assets upon death.

Social media, email, and online business transactions are not just for millennials. Especially given the current pandemic, people pay bills, manage assets, and communicate with others through their screens and keyboards. Usernames and passwords have replaced handshakes and voices. Aside from property management, the internet has opened a world of interaction for individuals, connecting us more quickly and frequently than ever before.

How often do we find out about a tragedy (or a celebration) from a Facebook post or an Instagram feed? How many times has someone’s social media account gone silent for too long, and it is discovered that she is in distress, or worse.

When someone passes away, a fiduciary is appointed to manage the decedent’s affairs. This is an executor if someone dies with a last will and testament or an administrator if not. Sometimes, if assets are held jointly or with a named beneficiary, a fiduciary does not even have to be appointed for an estate, rather the surviving owner or beneficiary produces proof of death, likely completes some forms, and receives the corpus of the account.

Marshaling assets is easy when they can be seen or touched. Collecting the jewelry, reviewing the bank statements, and producing the deed are usually straightforward and easy for a fiduciary to accomplish. Rounding up a decedent’s social media accounts, apps, photos, bank accounts, and liabilities can be tedious, especially when the usernames and passwords are stuck in an inaccessible computer, phone, or tablet.

In recent years, it has become fairly common to include clauses in a last will and testament that give authority to an executor to control a decedent’s digital assets. This includes the power to access, change, use, cancel, or dispose of a digital device or digital account that is held on a digital or electronic device. These include email, social network, healthcare, file sharing, credit card, utility, and service accounts. Further, an executor can be given control of data, games, texts, music, miles, points, records, and photos. This kind of a provision is imperative for the executor who is trying to piece together the decedent’s financial and social lives. Many powers of attorney also include such language. A power of attorney is a document used while someone is alive to control finances in the event of incapacity. Especially during the scary times we live in, if someone were to become incapacitated, it is important for an appointed agent to have access to those assets and information, including electronic accounts.

The question becomes what happens if someone passes away without a last will or becomes incapacitated without a power of attorney and their files need to be accessed? What can be done not only to secure someone’s assets and information, but to manage their legacy?

Generally email and social media accounts are managed under specific terms of service agreements. Sometimes the agreements contain provisions regarding a user’s death and sometimes they do not. Social media platforms that address the issue of a user’s death range from electing to delete the account upon death to memorializing a page so that friends can continue to post. A fiduciary can request that a deceased user’s account be deleted, if she can demonstrate that she has the authority to make such a decision and can prove the death occurred. Most states now have laws that pertain to social media accounts, emails, and other electronic accounts wherein certain individuals are able to gain access to a decedent’s electronic accounts if certain criteria are met.

As is the case with any assets and possessions, care should be given to the protection and accessibility to these items upon their owner’s death. It is best practice to make a list of all usernames and passwords and to keep them in a secure place, perhaps with a last will and testament. Alternatively estate planning can also make certain to provide specific authority under a testamentary vehicle so that electronic assets may be easily marshaled, preserved, and deleted, if necessary. After all,  your estate also includes your Fortnite coins.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

While COVID-19, economic downturn and protests against police brutality have turned many lives upside down, most lawyers are still doing great (financially, at least). But how many are doing good?

Quite a few, it turns out. I am happy to say that I know of hundreds of lawyers who have volunteered to help vulnerable people escape lonely, painful, and completely unnecessary prison deaths.

When COVID-19 began to spread in our nation’s federal prisons, the organization I lead, FAMM, joined with the National Association of Criminal Defense Lawyers (NACDL) and the Washington Lawyers’ Committee for Civil and Urban Affairs (WLC) on an emergency project to get as many sick and elderly people as possible out of harm’s way. We knew a viable mechanism existed called the federal compassionate release program.

For nearly 40 years, the federal government’s compassionate release program has given people in prison the chance to apply for early release if they could demonstrate they were dying or suffering from a debilitating, chronic illness. Until very recently, however, the federal Bureau of Prisons (BOP) controlled compassionate release, and it routinely ignored or denied everyone who requested compassionate release. Jailers gonna jail and all.

But in 2018, President Donald Trump signed the First Step Act, which included a provision to allow people in federal prison and their families to appeal BOP denials in federal court. The new law also said prisoners could go to court if the BOP failed to respond to their application within a reasonable time. Thousands of sick and elderly prisoners, many of whom did not need to be in prison any longer and who were now being targeted by a deadly disease, finally had a legitimate shot at early release.

Our organizations were ready to help them. Two problems: We had no money and no staff. We simply were not in a position to represent thousands of people who needed to file motions in federal court. What we needed were lawyers — check that, free lawyers — and lots of them. We started something called the Compassionate Release Clearinghouse with the goal of recruiting and training pro bono lawyers to represent federal prisoners and their families, especially in areas where the nation’s amazing federal public defenders were swamped.

That was in March. Over the past six months, hundreds of attorneys at law firms around the country have answered the call. They have donated thousands of hours to help at-risk federal prisoners and their anxious families try to secure compassionate release.

Some firms stepped up big time. Sidley Austin volunteered teams of paralegals to help screen the thousands of requests for help that poured in, and dozens of lawyers at the firm stepped up to represent prisoners. Talented attorneys from other firms, including DLA Piper, Blank Rome, Zuckerman Spaeder, Epstein Becker & Green, Mayer Brown, Jones Day, and Venable undertook representation of individuals in federal prisons across the country. Many knew little to nothing about compassionate release, but they were eager to receive training and start taking cases as quickly as possible.

Their efforts are saving lives. More than 1,400 vulnerable people have been granted compassionate release from federal prison this year. (Just 125 won early release last year.) These releases have also saved taxpayers millions of dollars.

Families have expressed overwhelming gratitude for the pro bono attorneys and federal defenders who rescued their parents, spouses, and children from dying alone in a prison cell. The volunteer lawyers have said the experience has changed their lives, too.

Elizabeth Bailey, an associate at Buckley LLP in Washington, D.C., won release of a man who was in a persistent vegetative state. She convinced the court that his continued incarceration served no purpose, especially during a deadly pandemic. After the ruling, Bailey said, “There was so much emotion and relief. When you work on something like this, you end up getting to know the most intimate details of a client’s life. You think about them when you’re not working, wonder how they are doing and worry for their family.” Even after the pandemic passes, she said, her work with the Compassionate Release Clearinghouse “will continue to color my practice and, indeed, my life.”

Sounds a bit more fulfilling than doc review.

We and our partners are immensely grateful to all of the attorneys and firms who have given, and continue to give, of their time and talent to help the families with whom we work. Their generosity belies every cliché about lawyers. They didn’t seek any recognition, but they certainly deserve some -– and now they’ve gotten it.

If any attorney or firm is interested in volunteering for the Clearinghouse, please contact Mary Price at mprice@famm.org.

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Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.