Category: News Feeds

Last February, the legal research company Casetext launched Compose, a first-of-its-kind product that uses artificial intelligence to help create the first draft of a litigation brief in a fraction of the time it would normally take.

At the time, as I wrote in this February blog post, cofounder and CEO Jake Heller said the product was “poised to disrupt the $437 billion legal services industry and fundamentally change our understanding of what types of professional work are uniquely human.”

While the product initially covered a limited set of core motions related to federal civil procedure and discovery, Casetext said it would roll out other motion collections over time for specific areas of law.

Today Casetext is introducing the first of those new collections — a set of 18 employment law briefs — 16 related to wage and hour cases in federal courts as well as under state law in California and New York, and two Title VII motions that are a preview of a forthcoming larger set of employment discrimination briefs.

This initial employment law collection will eventually be expanded to include two briefs relating to defending against Title VII claims.

The set of wage-and-hour briefs released today cover motions in federal courts to:

• Compel discovery.
• Seek conditional certification.
• Certify a class.
• Decertify a class action.
• Request summary judgment.
• Compel arbitration (applying general contract law principles).
• Compel arbitration (applying California law).
• Compel arbitration (applying New York law).

In addition, for wage-and-hour cases under both California and New York law, the collection includes briefs in support of motions to:

• Compel discovery.
• Certify a class.
• Seek summary judgment.
• Compel arbitration in California state court (applying both federal and California law).
• Compel arbitration in New York state court (applying both federal and New York law).

The two Title VII briefs for for motions to dismiss and for summary judgment.

Draft A Brief in Five Minutes

During a media preview on Tuesday, Heller demonstrated how he could use Compose to draft a brief in support of a motion for summary judgment in five minutes.

As I explained in my February post about Compose, the drafting process begins by selecting the type of motion, the court, the parties, and the position to be taken by the party you represent, for or against the motion.

You are then presented with a treatise-like list of all the available arguments for that motion. As you choose an argument, Compose then shows you the legal standards and rules applicable to that argument. As you see these standards displayed, you simply click Add and it shows up in the draft brief on the right side of your screen.

The lawyer continues this process, perusing the available arguments and standards, and then clicking Add to add a fully composed paragraph to the brief that states the rule, including citations. The text is fully editable, either within Compose or later when the draft is exported to Word.

“Picking arguments to add to your brief is like choosing pastries at a French patisserie,” Heller said when he first demonstrated this product during Legalweek last February.

In Heller’s demonstration Tuesday, it actually took him about eight minutes to draft the brief, but I doubt many lawyers would complain about an extra couple of minutes. And while Compose can be used to produce a fairly substantive draft, it is not a finished product ready for filing. You still need to draft the statement of the case, the facts, and other sections, tie it all together, and put it into the correct format.

More Coverage than A Treatise

Casetext says that its wage-and-hour collection for Compose is comprehensive in its coverage. During Tuesday’s demonstration, cofounder Laura Safdie said that the collection includes:

• 1,102 arguments.
• 5,354 legal standards.
• 25,236 citations.

By comparison, Safdie said that they analyzed a major treatise covering wage-and-hour cases and found that it had just 248 citations in the section related to summary judgment motions. Compose has over 3,000 citations for those motions, she said.

The Secret Sauce

If this were the entirety of Compose, it would be impressive technology. But Compose includes an additional feature, driven by artificial intelligence, called Parallel Search, that makes it even more impressive — and more useful when actually drafting a brief.

Parallel Search uses advanced natural language processing to follow you as you draft your arguments in the brief and then automatically provide you conceptually relevant precedent. Notably, Casetext says this works to find analogous caselaw, even when the cases do not use the same language.

In Heller’s brief-drafting demonstration on Tuesday, he pretended he was representing drug manufacturer Pfizer in a lawsuit brought by a salesperson working as an independent contractor. Using Parallel Search to draft his arguments, he wrote the statement:

“Pfizer’s salespeople work independently and sell on their own, and so are not employees covered under the FLSA.”

Parallel Search then provided cases to support that statement. Although that sentence never identified Pfizer as a pharmaceutical company, Parallel Search understood to deliver cases related to the pharma industry, and it also knew to deliver cases related to an FLSA exemption for outside sales people.

During Tuesday’s demonstration, Javed Qadrud-Din, Casetext’s director of machine learning, said that Parallel Search grew out of Casetext’s own need, in developing Compose, to have a search tool that could find support for legal propositions, even when courts used completely different language.

An example of Parallel Search’s ability to understand concepts.

He offered several examples of how this transformer-based neural network is able to learn to understand words and sentences in context. For example, this statement was entered into Parallel Search:

“Target’s employees were uncompensated while waiting for loss prevention inspections before leaving work.”

It returned the following statement from the case Frlekin v. Apple Inc. (9th Cir. 2020):

“Employees receive no compensation for the time spent waiting for and undergoing exit searches, because they must clock out before undergoing a search.”

Thus, Parallel Search understood that “uncompensated” was the same as “no compensation,” that “loss prevention inspections” were similar to “exit searches,” and that “before leaving work” was similar to “must clock out.”

What It Costs

Casetext sells Compose as a separate product from its legal research service. For now, it is offering free trial access to Compose for anyone who requests an account.

In general, Casetext sells Compose to larger firms on a subscription basis. Firms can subscribe to Compose in its entirety or just to specific collections. Casetext did not provide specific pricing.

When Casetext launched Compose in February, it offered special pricing for solo and small-firm attorneys by which they could purchase access on an a-la-carte basis.

A spokesperson said the company is currently rethinking its pricing for smaller firms to make Compose more accessible.

The Bottom Line

In a study it released in July, Casetext said that compose allows litigators to draft briefs 76% faster than they otherwise would.

Insofar as the study involved only 13 lawyers and relied on their estimates of the time it would normally take them to write a brief, it was not exactly scientific.

But what cannot be doubted about Compose is that it enables lawyers to create a first draft in substantially less time than they would otherwise require.

Not only that, but it provides lawyers a high degree of assurance that they have at least considered all the arguments available to them, regardless of whether they choose to use them.

This argument reflected a legislative amendment from this month.

Further, Casetext says the arguments in Compose are kept current with changes in the law. In an example shown by Safdie Tuesday, an argument reflected a September amendment of a California statute.

Something Heller said back in February still resonates today:

“Compose commoditizes the parts that lawyers never liked working on and clients never liked paying for. At the end of the day, what’s left is the lawyer’s imagination, creativity, intelligence and persuasiveness in the brief-drafting process.”

Casetext calls Compose a game-changer, and this may be one of the few times in the annals of marketing where that is not an exaggeration. If you are a litigator, try it for yourself. It won’t cost you anything. And if you are an employment litigator, you now have even more reason to try Compose.

Have you ever lived in a stale ashtray? A fireplace? That’s what it is like now up and down the West Coast. If you have travel plans to come this way in the immediate future, change them. Do not come. We haven’t seen blue sky, at least here in California, for more than a week. We’ve had the worst smog in almost three decades. Friends who can escape do, to Wyoming or Utah or places further east. Look at the air quality in San Francisco, Portland, Seattle, Vancouver.

But we West Coasters are not the only ones suffering right now. Just say the names “Laura” and “Sally” and those who live in the southeastern United States get it, literally. I’m not about to debate climate change. I will simply say “Res ipsa loquitur.”

We lawyers hate a vacuum. Perhaps that is why we rush to fill silence, figuring that such silence must be bad. If a deponent takes a minute or so to answer a question, we usually note on the record that he has taken 60 seconds or so to answer the question asked. And the implication is that the deponent was stalling, trying to create a better answer or simply being evasive before answering. We all learned in evidence class about silence in the face of an accusatory statement and so we impatiently wait for the answer, and that rush for an answer is not necessarily a good idea.

Hesitation can equal evasion in our world. I don’t think it should. Thoughtful answers, answers responsive to the question don’t necessarily pop out of a person’s mouth immediately. I think it’s like the driver who, immediately upon the light turning green, lays on the horn, as if the few seconds makes any difference. (I do chortle when that driver in a hurry, usually cocooned in an expensive car, must stop at the same light as I do. Tortoise v. Hare, just another example of the adversarial concepts we lawyers seem to thrive on, or if not that, tolerate, as if we had any choice.)

A recent article in Inc. magazine says that both Tim Cook and Jeff Bezos “embrace the rule of awkward silence.” The article says that the rule has always been valuable but today, in a world where everything is “just in time,” “I want it now,” “what’s taking so long?” that rule has become even more valuable.

So, what exactly is this rule? The author of the article, Justin Bariso, says it’s simple: When faced with a challenging question, instead of answering, you pause and think deeply about how you want to answer. This is no short pause; rather, it involves taking more than several seconds (10, 20, or longer) to think things through before responding.

“No short pause?” Uh-oh. How many attorneys have the patience to wait for an answer without thinking something nefarious is going on, we of the suspicious minds? Not many, I’m afraid. It’s reaction that attorneys look for, not necessarily the thoughtful response that answers the question. Bariso says that the rule is valuable as a tool of emotional intelligence, balancing thought and emotion, instead of simply reacting. Much of what occurs in deposition is reaction. Usually deponents have other things to do, and they just want to get the depo over with.

So, in a sense the “rule of awkward silence” is the opposite of immediate gratification. Work with me here. The past six months have shown the limits of immediate gratification. Toilet paper? Wipes? Paper towels? Have we stopped hoarding yet? There are many psychological experiments about immediate gratification, the 1972 marshmallow one probably is the most well-known. Recent research has revealed that the kids do better on the test when they cooperate. Cooperate? What a concept. I wish lawyers would do it more often.

Instantaneous communication has been the watch word for our world. Emails, faxes, and the like must be answered rightaway. Don’t think, just respond. A young lawyer feels that she must answer emails rightnow. No, she doesn’t, especially when responding right away leads to a pissing contest with opposing counsel. Fun, right? Not so much. Whatever happened to time to respond? What about writing something and waiting for a while before hitting send? Whatever happened to time? Where has it gone and what have we done with it?

Yes, the rule of awkward silence is … awkward, until you get used to it. Taking the time to formulate the answer and reply in a way that makes it clear what your answer is, without ambiguity, is a good thing. We are so uncomfortable with silence that we fidget during it. We check our phones, multitask, because the thought of just being quiet and waiting makes us nuts. The concept of stifling ourselves is something we did not learn in law school. Commenting on the length of time that it takes the deponent to answer a question can backfire.

Bariso lists several reasons why the rule is beneficial: it causes you to think critically and not just say the first thing that comes to mind. Spending time before answering can mean more thoughtful answers (this assumes that the answer is not simply “yes, no, or I don’t know”).

Even a little more time can make the answer more confident and assertive. Take time to think before answering a client, opposing counsel, anyone. What’s the rush? Is another minute taken going to make a difference in this pandemic and smoky world? I don’t think so.

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

The excitement is building at 383 Madison Avenue. JPMorgan Chase staffers have been slowly returning to their temporary headquarters for months now, but for the first time since March, some of them—namely, senior sales and trading officials, will be required to leave their socially-isolated home setups and return to midtown. This is very, very important, according Jamie Dimon.

Work output was particularly affected on Mondays and Fridays, according to findings discussed by Chief Executive Officer Jamie Dimon in a private meeting with Keefe, Bruyette & Woods analysts…. “The WFH lifestyle seems to have impacted younger employees, and overall productivity and ‘creative combustion’ has taken a hit,” KBW’s Brian Kleinhanzl wrote in a Sept. 13 note to clients, citing an earlier meeting with Dimon.

The president just spent the entire morning tweeting that there’s no way he could lose unless the election is rigged, and the Assistant Health and Human Services Secretary for Public Affairs was fired yesterday for telling his supporters to buy guns and ammunition in a lunatic rant about Democratic hit squads.

There are Trump supporters telling reporters that they’ll commit suicide if Biden wins in November, with one believer in the rampant pedophilia conspiracies flogged in the Trump wingnuttosphere telling Time, “I would honestly try to leave the country. And if that wasn’t an option, I would probably take my children and sit in the garage and turn my car on and it would be over.”

But Bill Barr hasn’t heard anything at all about that.

Here is a bit of free advice from someone who spends a lot of time practicing in the field of intellectual property: It is often best to stay away from creating any branding that includes, “JUST [INSERT WORD] IT.” More likely than not, the first thing that comes to mind is Nike’s popular and registered slogan, “JUST DO IT.” The U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB) would agree.

On September 10, the TTAB issued a ruling that sustained an opposition filed by Nike against an individual applicant, Jon K. Muntean, who sought to register the trademark, “JUST BELIEVE IT.” Muntean was not looking to directly compete with Nike. Instead, he was interested in registering his mark for use mainly in connection with business consultation services to assist businesses, organizations, and individuals in the planning, management, and conducting of fundraising activities via the sale of new and recycled products (apparel, pens, decals, stickers, home goods, and other fundraising items).

Key considerations in any likelihood of confusion analysis are the similarities between the marks and the similarities between the goods and services, and the opposer bears the burden of establishing that there is a likelihood of confusion.

The applicant argued that swapping out the word “DO” for “BELIEVE” created two entirely different commercial impressions, while Nike said that the marks are similar because they start and end with the same words and are each only three words long. Furthermore, Nike argued that the meanings of the marks are similar in that they both reflect a “call to arms,” encouraging consumers to either follow through with their goals (Nike) or believe in something (the applicant).

“Obviously DO and BELIEVE are different words and have different meanings, but action and belief are intertwined concepts, particularly in sports and religion,” stated the TTAB opinion. “For example, one of Opposer’s recent advertising campaigns include a reference to the importance of belief in improving athletic performance and personal development. Opposer’s advertising campaign featuring former NFL player Colin Kaepernick included the exhortation ‘Believe in something. Even if it means sacrificing everything.’”

The TTAB also noted the fame of the “JUST DO IT” mark and that a purchaser is less likely to perceive differences from a famous mark (citing a prior case where the finding was that “JUST JESU IT” is confusingly similar to Nike’s popular mark). In fact, the opinion made a reference that AdAge magazine deemed Nike’s mark the first runner-up to “Diamonds Are Forever” as the 20th century’s “Top 10 Slogans.”

Even in comparing the goods and services, the TTAB highlighted that fame remains a dominant factor independent of the consideration of the relatedness of the goods. That aside, the TTAB found that the applicant’s services and Nike’s goods and services are related inasmuch as they both encompass the sale of apparel. It also discussed Nike’s involvement with numerous community initiatives and other charitable causes.

Nike was given the green light to just keep doing what it does, which includes vigilantly going after any applicants who file to register trademarks similar to its own.

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

The CARES Act was designed to provide financial assistance to businesses and individuals that are likely to be adversely affected due to COVID-19. Here are some tax provisions which may lower or defer your future tax bills.

Net operating losses. When businesses experience a loss during a tax year, the loss could be carried back to a prior year to get refunds or carried forward to future years to reduce future taxes. In 2018, the Tax Cuts and Jobs Act disallowed the carryback of losses and limited carryforwards so they can only be applied to 80% of a business’s future income.

The CARES act allows NOLs in 2018, 2019, and 2020 to be carried back five years to offset taxable income during those years. It also allows carryforwards to offset 100% of taxable income in 2019 and 2020. But in 2021, the 80% carryforward limitation is restored.

Because the NOLs can result in refunds or reduction of future taxes, businesses that are breaking even may want to consider increasing their spending between now and the end of the year.

Also, be mindful that your state may not allow NOL carrybacks in determining state taxable income. This disparity can create a situation where your business can have different NOL carryover amounts when calculating your federal and state taxable income.

Retirement distributions. The CARES Act provides three special rules for retirement distributions taken in 2020. First, any withdrawal made while under the age of 59½ can withdraw up to $100,000 without incurring the 10% early withdrawal penalty. Second, the distribution will be included in taxable income in equal installments for three years. Finally, if the distribution is repaid within three years, then the tax consequences can be undone.

This distribution is available to anyone who has been diagnosed with COVID-19 or has family members diagnosed with COVID-19. It is also available to anyone who has suffered adverse financial consequences due to COVID-19.

Employers are allowed to opt out of this plan. So employees with 401(k)s will need to get their employer’s authorization before obtaining this distribution.

The purpose of these rules is to give assistance to people who have suffered financially due to COVID-19. However, it does provide some planning opportunities. People in lower tax brackets might opt to not repay the distribution. Instead, they should pay the tax and put money into a Roth IRA where the contribution is nondeductible but the appreciation and future distributions are nontaxable.

Employment tax deferral provisions. Businesses with employees can take advantage of tax deferral opportunities. Since these are deferrals, the deferred amount must be paid back.

The CARES Act allows employers to defer payments of the employer’s portion of Social Security and Medicare taxes. These payments can be withheld from their required deposits or when making payment with the employment tax return.

The deferred amount can be repaid in two installments in the distant future. The first half of the deferred taxes must be repaid by December 31, 2021. The other half must be repaid before December 31, 2022.

However, businesses cannot take the deferral retroactively. In other words, if the business paid all employment taxes in the past, they cannot ask for a refund of the amount eligible for the deferral.

Some businesses may want to take advantage of this deferral rule mainly due to the distant repayment requirement. But they are taking a bet that they will have the money to pay the deferred amount in addition to their current employment taxes. Businesses that are currently struggling but anticipate surviving should think hard before using this deferral. Businesses that don’t need the deferral probably shouldn’t take it unless they know what they are getting into.

The other employment tax deferral is the one President Donald Trump enacted through his executive memorandum in August. More details about this are here but generally, employers can defer payment of the employees’ portion of their Social Security tax between September and December 2020. The deferred amount can then be repaid through an extra withholding between January and May 2020. The memorandum suggests that forgiveness is possible but there is currently no guidance.

This deferral has been heavily criticized. There is no benefit to employers and it might create financial difficulties for employees living paycheck to paycheck. In my opinion, this deferral is best used by closely held entities where the owner is the only employee or where there are a few highly trusted employees.

With some planning, the above provisions can reduce or defer your future tax bill. But plan carefully as some of the deferred taxes have to be paid back eventually.

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Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

The majority of partners recognize there’s a lot of different things you can spend your money on as a law firm. Having an office that’s bigger than somebody else just because you’re a partner, I just don’t think most people are motivated by that anymore. There may be a lot of hubris in the legal profession, but I don’t think that’s what most people think of as a top priority.

— the leader of an Am Law 100 firm who asked to remain anonymous to discuss industry news, commenting on the fact that Biglaw offices are going to be forever changed thanks to the pandemic that drove attorneys and staff to work from home. “[I]t will be the rare firm that won’t go to uniform-size offices,” that leader added. Kenneth Wiesehuegel, a senior associate at architecture and design firm Gensler who works with Am Law 100 and 200 firms, had this to say about Biglaw firms shrinking their real estate footprints, “The bottom line is it comes down to money. Rent comes out of partner pockets, so are they willing to pay rent on their office if they’re really not spending their time there?”

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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.

Ed. note: Litigation finance is transforming the fields of both law and finance. To help our readers gain a better understanding of what litigation finance entails, we’ve partnered with Lake Whillans to present an ongoing series so you can better understand how litigation funding works, its pros and cons, and its past, present, and future.

In August 2020, the American Bar Association released its Best Practices for Third-Party Litigation Funding.  In this Part I of a two-part post, we highlight some of the key issues the ABA raises and suggest how counsel might best interpret the document.  In the upcoming Part II, we will speak with Marla Decker of Lake Whillans to learn more about the ABA’s recommendations and how they compare to current standard practices among reputable litigation funders.

The ABA first weighed in on litigation funding in 2012, when the ABA House of Delegates adopted its white paper on litigation finance, which was then still an emerging phenomenon in the United States.  Since 2012, third-party litigation funding has become increasingly widespread.  In light of the growing variety of funding structures and developments in case law regarding disclosure of funding agreements, ethical issues, and the legality of financing arrangements, the ABA Section of Litigation Federal Practice Task Force decided that it was time to revisit the subject.  Notably, the task force drafted its Best Practices without soliciting the participation of the major litigation funders.

Although the title of the document refers to “Best Practices,” the ABA explains: “The phrase ‘Best Practices’ is used as a shorthand for issues that should be considered before entering into a litigation funding arrangement.”  Accordingly, counsel should understand the ABA’s contribution as fundamentally an issue-spotting exercise and not as a set of inflexible recommendations.

The Best Practices can generally be divided into four main categories: (1) disclosure, (2) documentation and structure, (3) professional responsibility, and (4) privilege and work product, which topics are The organization is imperfect.  For example, in the disclosure section, the ABA addresses both the question of whether a funding agreement may have to be disclosed to the court or tribunal and also the question of what disclosures an attorney should make to a client in connection with arranging litigation funding.  The latter question might more logically have been treated as a subset of professional responsibility questions.  Nonetheless, the best practices cover the topics that are consistently the most analyzed by observers and participants in the industry. 

Counsel may wish to pay particular attention to the following issues raised in the Best Practices document:

Distinction between claimholder and law firm funding.  The ABA divides funding into two broad classifications, which it refers to as “Lawyer-Funder” arrangements and “Client-Funder” arrangements.  It also discusses portfolio funding agreements, in which the funder invests in several cases pertaining to the same claimholder or litigated by the same law firm.  Counsel should note that there are two dimensions here.  One is the entity receiving funding: claimholder or law firm. The other is the scope of funding: single case or portfolio.  Four combinations are possible: (1) funding the claimholder to pursue a single case, (2) funding the claimholder to pursue a portfolio of cases, (3) funding a law firm to litigate a single case, (4) funding a law firm to litigate a portfolio of cases.  Single-case law firm funding is relatively uncommon—when law firms receive funding, it is more typically tied to a portfolio.  

The Best Practices characterize these next three suggestions as “common to all types of funding:” 

Documentation of the funding terms.  The ABA emphasizes the importance of committing all material funding terms to writing, including the nonrecourse nature of the funder’s investment and precisely how any recovery will be apportioned between the claimholder, the funder, and (if applicable) the claimholder’s counsel.  The cost of funding will be an important consideration for any claimholder, but other terms also matter greatly.  For example, “[p]rovisions for termination and withdrawal are some of the most important issues to consider in any funding agreement.”  The time to ensure alignment of expectations between claimholder and funder is before any funds have been disbursed.

Claimholder control of case strategy.  The ABA encourages claimholders to speak with potential funders about the anticipated role of the funder during the pendency of the litigation, in order to establish appropriate boundaries.  In particular, it is essential to ensure that the claimholder will retain control of litigation strategy (such as settlement decisions) throughout the case, without any interference from the funder.

Disclosure of the funding agreement.  The ABA advises that “[t]he careful lawyer should assume that the litigation funding arrangement may well be examined by a court or the other party at some point in litigation.”  Although it is possible that such disclosure will be required, it is hardly assured.  Disclosure norms vary by jurisdiction and by type of matter (e.g., disclosure may be warranted in the context of funding for a class representative whereas disclosure in a commercial case between sophisticated parties may not be appropriate).  Counsel should research the disclosure practices of the relevant court or arbitral forum rather than make blanket assumptions about the likelihood of disclosure.

All of the recommendations are underpinned with ethical considerations, and the Best Practices also devote a section to this topic.  The ABA stresses that counsel must be mindful of his or her professional responsibility obligations in the relevant jurisdiction when considering any aspect of the impact of litigation funding on the lawyer’s practice.  The Best Practices document cites various rules that may be relevant, leaving attorneys to assess applicability to their particular situation.  Given that funding has become a mainstream component of modern litigation and arbitration, the intention seems to be to remind counsel to consider professional responsibility—as in any other aspect of an attorney’s practice—rather than to dissuade lawyers from informing clients about funding options.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Please welcome the MothersEsquire Board of Directors to our pages.

If you’ve been told, “But you don’t look like a lawyer/judge/general counsel”…

If someone’s ever assumed you were the legal assistant or court reporter because of your gender…

If you’ve been overlooked for an opportunity because someone assumed you wouldn’t have time since you’re a mom…

If you’ve found out you were being paid a lower salary than a more junior male attorney…

If you’ve ever been bullied out of an origination or passed over for a promotion based on your gender…

If you’ve ever been denied the ability to take a tampon into the bar exam with you…

If you’ve been forced to pump in your car or on a bathroom floor during a trial or legal conference…

If you’ve ever been asked if you were going to have more kids in an interview…

Or, if you’re a dad who has ever been denied paternity leave at your firm (or received the message that you aren’t actually allowed to use the available paternity leave policy)…

…Then perhaps you will consider a donation to MothersEsquire. If you’ve experienced these transgressions, you aren’t the only one! MothersEsquire and DadsAtTheBar exist to advocate for gender equity and address the motherhood penalty and caregiver bias in the legal profession.

MothersEsquire, Inc. is a national non-profit organization focused on advocating for gender equity in the legal profession.  More than 5,000 members strong, MothersEsquire brings together talented and ambitious lawyers and law students who are either already moms or are planning to become moms, and who recognize the inherent challenges of the motherhood penalty on women’s careers.

MothersEsquire serves as a community of support for women lawyers across the span of their career and parenting years.  So, whether our members are currently working as full-time attorneys or as stay-at-home moms, MothersEsquire is there to provide a network for guidance and advocacy.  The group has a laser focus on being a catalyst for changes that remove systemic barriers to women’s success in the legal profession, rather than advising women on how to change to fit into a broken system.

Now, MothersEsquire has launched its “Mission: Possible” Capital Campaign that runs until the end of September. We are raising funds to hire a part-time Executive Director and to support our top three target advocacy initiatives through 2021: (1) Parental Continuance policies, (2) #PumpUpTheBar to support nursing mom lawyers, and (3) normalizing parenthood in the legal profession.

Parental Continuance Rule

A Parental Continuance Rule shifts the burden to the opposing party to prove it would cause undue harm to the case when a new parent requests continuance on a case, as opposed to having the parent subjected to potential unconscious caregiver bias. MothersEsquire advocates for each state to adopt a Parental Continuance Rule, wherein courts would presumptively grant a request for a parental continuance by either parent (whether birth or adoption) in an ongoing litigation matter, with some exceptions for child welfare and incarcerated individuals.

Parental Continuance Rules have been adopted in North Carolina and Florida.  MothersEsquire was instrumental in the successful advocation of the adoption of the Florida Parental Continuance Rule with the Florida Association for Women Lawyers.

Having every state and territory adopt this rule would help the judiciary apply a fair approach for men and women embarking on the journey into parenthood and decrease the impact of unconscious bias on decisions around continuances.

The legal profession as a whole, and the judiciary especially, should acknowledge the importance of child-rearing and supporting members of the bar who choose to practice law and build families, as well as the disproportionate impact of the failure to acknowledge parental continuance requests on women litigators’ careers.

#PumpUpTheBar Campaign

#PumpUpTheBar is a campaign focused on critical — and imminently solvable — issues that affect women lawyers.  Phase I of the advocacy effort will focus on asking every Bar Examination Board in the U.S. to ensure that they have clear, easily accessible, and reasonable accommodations available for women to accommodate three important medical necessities during the Bar exam: 1. breastfeeding/pumping accommodations; 2. accessibility to menstrual products of choice; and 3.  provision of necessary bathroom breaks for pregnant women or women in need due to heavy menstruation. If each Bar Examination Board will pledge to a clear, reasonable, and easily accessible policy addressing these issues, women will have fair and consistent support for their medical needs while taking one of the most stressful exams of their lives. Women in 2020 and beyond should not continue to be negatively and irreparably impacted by these clearly gendered issues.

Future phases of #PumpUpTheBar will work to ensure that every bar association provides reasonable and private breastfeeding accommodations at conferences and meetings, and that courthouses provide designated breastfeeding facilities for attorneys who practice there.  Sending women to pump in hot cars in parking garages, unsanitary bathrooms, and other random, unsecured spaces is unacceptable and is one of the many indignities that women lawyers face while simply trying to do their jobs.

Normalizing Parenthood in the Profession

One of the ongoing advocacy efforts of MothersEsquire is focused on the core of our mission:  normalizing parenthood and addressing, head-on, the motherhood penalty and caregiver bias that remains pervasive in the legal profession. Through elevating our members’ voices — by providing them with opportunities to publish articles, speak on podcasts and at conferences, and serve in leadership roles that address gender equity in the profession — MothersEsquire brings to light the ways in which caregiving lawyers, and disproportionately, mothers, face structural barriers to their success in the profession.  Through our various social media platforms — MothersEsquire Facebook Group, Facebook Page, LinkedIn, Twitter, Instagram — we connect women lawyers globally to network, share referrals, and exchange tips and tricks to successfully manage both a legal career and parenting responsibilities.

We also continue to grow our “brother network” through the Dads At The Bar Facebook group and address the issues that are inherent, and often unspoken, about the challenges of juggling a demanding legal career and fatherhood.

Finally, our founder authored a children’s book, My Mom, the Lawyer, which aims to help children see their lawyer-moms as smart and talented and as community helpers, and gives them a tool to discuss common issues and questions that children have about lawyers.  All proceeds from sales of My Mom, the Lawyer go directly to MothersEsquire’s advocacy efforts.

MothersEsquire works stridently to keep clearing the path created by the many trailblazing lawyer-moms before of us to ensure, as Justice Ruth Bader Ginsburg said, “Women [will be] in all places where decisions are being made.”

If you want to join MothersEsquire’s efforts to combat the motherhood penalty and caregiver bias, please consider a tax-deductible donation, or a corporate or firm sponsorship.  Donations — whether they be $10 or the amount of one billable hour — all make a difference!

DONATE HERE

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FOLLOW ALONG + BE A PART OF OUR NETWORKS

MothersEsquire Facebook Group, Dads At The Bar Facebook Group, Facebook Page, LinkedIn, Twitter, Instagram

Good news, the recent bonus bonanza spreading.

Cooley got the COVID appreciation bonuses ball rolling (even if they were later overshadowed by Davis Polk and others with a more generous scale). And their appreciation isn’t limited to just associates. They are sharing the love with staff as well. The firm has announced that at the end of the month, the firm will be distribute an appreciation bonus to all professional staff.

Nicely done! And during a time when staff positions have been particularly hard hit by layoffs (even elite firms like Skadden and Cleary have laid folks off), it’s great to see some Biglaw staffers rewarded for the hard work they do to keep Biglaw running.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

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

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).