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Flatten the Research Curve

Flatten the Research Curve

Wolters Kluwer

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

How many states are currently planning on administering their July 2020 bar exam?

Hint: The number of states represents 37.3 percent of the July 2019 test takers.

See the answer on the next page.

Attorney General Bill Barr thought he could end the Michael Flynn prosecution by canning all the hard-working Department of Justice prosecutors and having a flunky declare that the government is dropping the case. A case that they’d already won.

That’s… unusual.

And it’s also the sort of thing that requires leave of the court.

Debevoise partner John Gleeson, a former Eastern District of New York judge, joined the Michael Flynn case at Judge Sullivan’s invitation to, in a nutshell, provide an independent answer to the question of whether or not Judge Sullivan should grant leave to allow the DOJ to walk away on the brink of sentencing and, separately, whether or not Flynn should be held in criminal contempt for now claiming that he wasn’t telling the truth when he admitted under oath to committing crimes.

So what did Judge Gleeson think about the DOJ’s arguments for dropping the case? A little inside baseball here, but the word “pretextual” gets prominent billing and that’s not good for the prosecution:

The Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding. They contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact.

Twitter is replete with lobotomized non-lawyers (and sometimes just bad lawyers) trying to sell the cockamamie theory that Flynn was entrapped by some sort of illegal government sting operation. The basic tenets of this argument don’t hold up to scrutiny — the dates don’t even match up in most cases — but they’re still bleating about FBI collusion.

Judge Gleeson found collusion alright. But not where those folks think it is:

Rule 48(a) was designed to “guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants.” In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. That is what has happened here.

Corrupt. Hooboy.

If Trump wants his buddy cleared, all he has to do is pardon him. There’s a constitutional process sitting right there! It would still smack of corruption, but there’s nothing anyone can really do about it. But instead, Barr cooked up this scheme that ends up failing to accomplish the goal and obliterating the reputation of the Department of Justice in the process. These people are the Wile E. Coyote of politics.

Oh, and what about that criminal contempt claim?

The Court has also asked me to address whether it should issue an order to show cause why Flynn should not be held in criminal contempt for perjury. Flynn has indeed committed perjury in these proceedings, for which he deserves punishment, and the Court has the authority to initiate a prosecution for that crime.

It was hard for even the most ardent MAGAheads to deny that Flynn’s two confessions under oath weren’t lies. Prosecutors can put defendants under duress but a sophisticated government official with high-powered Biglaw counsel can’t really retreat to the “oh, I had no idea what I was doing” defense.

The good news for Flynn is that Gleeson isn’t recommending a separate contempt charge, suggesting that Judge Sullivan just add it to his consideration of the sentence for the underlying crime.

(Check out the whole thing on the next page.)

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.

Welcome listeners to this COVID-19 Special Report podcast presented by our friends at Wolters Kluwer and hosted by Evolve the Law Contributing Editor, Ian Connett (@QuantumJurist).

This report features Ken Crutchfield, Vice President & General Manager of Legal Markets at Wolters Kluwer Legal & Regulatory US, who has more than 30 years experience at the convergence of software and information technology

Listen in as Ken and Ian examine the new role of a general counsel in a post-COVID legal environment and what legal professionals should be keeping in mind as we begin to reopen our economy. All of this and more on this week’s COVID-19 Special Coverage Podcast.

I am a well-educated, decent-looking white man. The closest I’ve ever come to being societally oppressed was the time a cantankerous Hy-Vee clerk in Missouri refused my Minnesota driver’s license as an acceptable form of ID to buy a six-pack of Leinenkugel’s.

Given my position of privilege, I didn’t think it my place to write much about the death of George Floyd and the resulting unrest until I’d had the opportunity to think things over, and more importantly, the opportunity to actually join the people on the streets for whom racial inequality is a daily, lived experience. I was in Minneapolis last Thursday, the day of the first of several memorials planned for George Floyd. I didn’t really get very near to the actual ceremony. Instead, I chatted with a few people I knew, and some I didn’t. I looked at several once-familiar buildings, now little more than burned-out shells.

My girlfriend was volunteering at a Minneapolis church. She’s not religious (nor am I), but the neighborhood churches didn’t mind, and hands were needed to pass out food, laundry detergent, clothing, and other household supplies to help struggling members of the community through this tough time. My girlfriend told me what people most appreciated were the diapers and baby wipes for those with young children at home. Some gathered supplies not for themselves, but to make deliveries to neighbors without vehicles. A steady flow of donations came in to replenish the stock as items went out.

Later, I had a thrice-delayed flight to New Orleans that was once again scheduled. On the way to the Minneapolis airport, the riotous fallout, visible in only a few brief flashes from I-35, looked distant compared to the immediate mountains of road construction rubble.

The next day, following several hours of awkwardly clean coronavirus-era travel, I marched with my cousin to the seventh night of protests in New Orleans. Thousands gathered in the French Quarter outside of Jackson Square. The gated park that surrounds a statue of President Andrew Jackson, who was a slave holder, had been locked. Jackson Square was declared closed by the authorities earlier in the day amid calls by some protesters for the statue’s removal.

The French Quarter was a sad shadow of its carefree Mardi Gras iteration. Many of the shops and restaurants had boarded-up windows. No one could agree if it was a prophylactic against vandalism during the pandemic shutdown, a measure in anticipation of a riot, or a bulwark against the tropical storm that was slowly blowing in from the Gulf.

People carried signs:

Black Lives Matter

No Justice No Peace

Police Reform NOW

History Has Its Eyes On Us

Proud To Be A Veteran, Ashamed To Be An American

The World Is Watching. Now’s The Time To Speak.

Almost everyone wore a mask, although bare faces dotted the crowd here and there. Some protesters rolled coolers into the street to pass out sandwiches. My cousin tried, with limited success, to give away cookies.

Speakers kept the crowd rapt for minutes, then hours. Some used fiery rhetoric to decry police violence, yet they all urged calm. The demonstration remained entirely peaceful.

There was a point, though, when an object flew past the woman speaking at the front of the crowd. I perked up from my position at the back of the mass of people, where I’d been leaned up against a pillar scribbling furiously in a pocket notebook. “We’re calm,” said the speaker. “We’re calm,” she repeated. “But if you’re not all about what we’re doing here, please leave.”

“If you are about what we’re doing here, clap once,” she said. A wave of sound pulsed back and bounced off the buildings. “Clap twice!” They did. “Clap three times!” I dropped my notebook and pen and clapped.

The speaker urged the crowd to part “like the Red Sea.” A white man near the front turned from the stairs that served as a stage. He was wearing a mask pulled high over his face, tactical pants, and a T-shirt, which had printed on it in bold letters, “Fuck Gun Control.” The man slunk out the back toward the setting sun, and the rally continued.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Over the past couple weeks, we have seen vigorous legal argumentation in hearings — by Zoom, of course — as to who has the legal right to be a United States citizen. Two cases — that of little Simone Mize-Gregg and Kessem Kiviti — stemmed from the U.S. government’s denial of citizenship to a child born abroad through surrogacy to a married same-sex couple where at least one parent is a United States citizen.

The U.S. government applied the “out of wedlock” section of the immigration code to both families despite their being married, arguing that the regular “wedlock” section requires that the parents of the child not only be married, but also that both parents be biologically related to the child. In response, the parents argue that that interpretation is incorrect, since the language of the statute, you know, doesn’t say that.

Two weeks ago, the United States District Court for the Northern District of Georgia heard argument by the government and the attorneys for two U.S. citizen dads (that’s right, both parents are citizens in this case), Derek Mize and Jonathan Gregg. Mize and Gregg are arguing that their daughter ought to be considered a US citizen. The government contends that, while Mize is a U.S. citizen by birth, he is not a genetic parent to the child and therefore does not pass his citizenship to his daughter. Gregg, on the other hand, is a genetically connected parent to their daughter. However, he is a U.S. citizen through his U.S. citizen mother, but born and raised in England. When looking to the “out of wedlock” section of the immigration code, a U.S. citizen genetic parent must also meet a U.S. residency requirement (which does not appear in the married parent section), to pass citizenship to a child born “out of wedlock.” The government contends that Gregg does not meet the residency requirement and therefore does not pass US citizenship to his daughter.

The attorneys for the family laid out their case that the government was (1) not abiding by the immigration code, and (2) doing it in a way that raised some serious constitutional questions.

Of intense debate was the question of the meaning of the statutory words “born of … parents.” The family’s attorneys argued that a child can be “born of” a married couple without being genetically related to both parents. After all, assisted reproductive technology (ART) with the help of donor eggs, sperm, and embryos, is common and growing. Moreover, traditionally, parents without genetic connections have long been recognized as parents through a marital presumption of parentage. For example, even 50 years ago, if a woman conceived a child genetically related to someone other than her spouse, the spouse was always legally recognized as the parent of the child.

The government’s attorney, however, argued that the plain meaning of “born of” requires that there be both a legal connection between the parents and the child and a genetic connection between both parents and the child.

Separate But Equal?

Last Friday, the District Court for District of Maryland held argument in the Kiviti case. Like in Mize-Gregg, the issue was the citizenship of the Canadian surrogate-born daughter of two dads, Roee and Adiel Kiviti. Different court, different judge. But the case involves similar facts and the same legal team for plaintiffs. While much of the debate was similar to the Mize-Gregg hearing in Georgia, the government attorney attempted to argue that there was little reason to be concerned for the non-U.S. citizen child, since she could just go through the naturalization process. To that, the judge had an interesting retort, “are you saying that [that process] is ‘separate but equal’?” For all of you junior litigators, I’ll tell you that it’s never a good sign if a judge asks you that question!

Citizenship by birth and naturalization are not, in fact, equal. You probably already thought of the first distinction, which is that naturalized citizens can never be president. More likely to be an issue, though, is the long and expensive nature of the naturalization process. Also, the decision to grant an application for naturalization is, at the end of the day, itself discretionary. The government can choose not to grant any application for U.S. citizenship. And then, even if you succeed at naturalization, the U.S. government can de-naturalize a citizen, if it so chooses, under certain circumstances. The government cannot, however, revoke citizenship to those who are entitled to it by birth.

Immigration Equality, a nonprofit with a focus on legal representation and advocacy for LGBTQ+ and HIV-positive community members, has been leading the charge in both of these cases, as well as two others of a similar nature. The most famous of the four cases — partially for the pure outrageousness of the facts — is that of Andrew and Elad Dvash-Banks. In that case, a married gay couple had twin boys with the help of a gestational surrogate in Canada. When the dads went to process the U.S. passports for the twins in order to move to Los Angeles to be closer to family, they found themselves in the bizarre situation where one twin was granted citizenship, while the other twin was denied.

The family prevailed in a case before the 9th Circuit, with the judge ordering that the government issue a U.S. passport for the other twin. However, ever conscious of the consumption of government and judicial resources, the government went ahead and appealed the decisions, and, despite having a lot of new judges in its ranks, the 9th Circuit Court of Appeals has been taking its sweet time getting to the case.

A fourth case, that of a married same-sex female couple, Allison Blixit and Stefania Zaccari, whose second child is being denied U.S. citizenship based on the same “born of” logic of the U.S. government, is in a bit of a transition. The case was moved from the District of Columbia to the District of New Jersey, following the family’s relocation to the Garden State, and is still pending a hearing.

The representation in the hearings for both the Mize-Gregg family and the Kiviti family included, in addition to Immigration Equality, Biglaw powerhouse Morgan Lewis Bockius, and Lambda Legal.

I had a moment to catch up with the Executive Director of Immigration Equality, Aaron Morris, to get his thoughts on the latest judicial movement. Morris noted that it is always hard to “read the tea leaves” from a judge’s questions, no matter how positive a hearing seems in your favor. However, he remained optimistic that justice would, ultimately, prevail.

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

I haven’t been out with the protesters. You know I am old, which automatically puts me in the high-risk category. Plus, I have an autoimmune disorder … Strike Two! If I put a knee down for even a minute, it would be ugly. Getting old is not for sissies, but at least I have had the chance to grow old, which is more than can be said for George Floyd.

If you have ever read any of my rants on diversity and inclusion — and there have been a fair number of those over the years — now is the time to redouble our profession’s efforts. We have not been at the forefront. I don’t care what other professions or businesses have done or not done. I care about what we, as lawyers, have done and have not done. Does anyone else see the irony that a profession purportedly dedicated to justice and fairness has been dragging its heels on making us look more like what this country and certainly my state look like?

These two examples show we have a long way to go: this Wisconsin lawyer needs a refresher in common courtesy to both protesters and police these days. The lawyer should pay for coronavirus test for the protester. Spitting at someone is never cool, especially now. Disciplinary charges are pending, as well they should.

Remember “sticks and stones may break my bones, but words will never hurt me?” Au contraire. Which is worse? Spitting and assaulting or lawyers who think that words never hurt? What is wrong with us? I know we’re only a microcosm of the society at large, but really?

It’s not just diversifying legal practice but legal tech as well. As Bob Ambrogi notes in his blog, one aspect to increasing diversity is for consumers to buy products from diverse vendors, not just the same old, same old. It’s not different really than trying to get that first break in whatever career or trying to become a member of a union that requires a certain number of gigs before membership. Sometimes that first break is all that is needed. We all had one, didn’t we? Or if we didn’t, we should have had.

It’s no different in the legal profession. It’s an opportunity, the hand up that allows people the chance to show what they can do. How will COVID-19 affect efforts to diversify the profession? Since the profession’s response so far to diversity and inclusion efforts has been “meh,” I wonder if the pandemic will give the profession cover to not increase those efforts.

As if this is any indication, African-American applicants to law school are down.

This is not what we should want to see.

Even when African-Americans pass the bar, they don’t have the same career opportunities or opportunities for advancement. Black attorneys make up less than four percent of the lawyers in Biglaw, and barely over two percent of partners in the AmLaw 200. African-Americans compose 13 percent of the general population.

We lawyers speak out against injustice for our clients, arguing (or blustering or whining, whatever works) something is unjust or unfair. But we don’t seem to have much of a voice when it comes to diversity and inclusion. Why is that? And please don’t tell me it’s the clients that drive the decision as to who staffs a case. That should be our call, not the clients, but we often wimp out because it’s a “good client” that we don’t want to lose.

General counsel must share in that metaphorical knee to the neck. Donald Prophete’s opinion is worth the read.

So, it’s one thing to call for change, but it’s another thing altogether to make change happen? How do we do that? How do we improve our profession so that it looks more like this country demographically? How do we increase the pipeline of African-Americans who want to become lawyers but find barriers at every turn?

The experiences of a female African-American associate at a Biglaw firm explain how difficult professional life can be.

Women associates have a hard-enough time, but layer on the additional factor of being black, and it’s much worse.

Corporate America promises to do better, but that’s been heard before, again and again, ad nauseam. As a recent article in the New York Times pointed out, it’s not just criminal justice that needs attention, but economic justice. Whatever happened to the Occupy movement a decade ago protesting economic inequality?

Biglaw has trumpeted its commitment to racial justice, to stamping out racism. ATL has collected statements from approximately 60 law firms. So, how will those words translate into action a year or two from now? Will the needle have risen on the number of black lawyers in Biglaw? Will there be any more black partners? Any more black senior partners?

What steps will firms and corporations take to increase the number of black lawyers, the number of black law students? Any more black general counsels? Any more black lawyers in corporate legal departments? Any more black law school graduates? Talk has always been cheap. The legal world should not go back to business as usual. It shouldn’t but will it? All the firms’ statements are variation on the same theme that racism is evil and should be eradicated. What changes do firms and corporate legal departments intend to make? How will we know about them? And what will happen if changes are not made?

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.

As numerous lawyers already know from firsthand experience, many courts have had to adapt to the ongoing COVID-19 pandemic in order to continue operations while social distancing. A number of courts, especially in areas hard-hit by the pandemic — like New York and New Jersey, where I practice — are conducting virtual hearings and conferences because of current health concerns. In many circumstances, courts have used Zoom, Skype for Business, and other platforms in order to conduct virtual operations, which was rarely done before the pandemic. However, the tried-and-true method of holding court proceedings by phone is the most efficient way to conference matters in most circumstances.

Even before the COVID-19 pandemic impacted the courts system, it was not uncommon for court proceedings to be held by phone. Sometimes, attorneys were stuck in traffic and could not be at an appearance on time, so they were allowed to call into the proceedings remotely. At other times, attorneys had conflicts, and were given the ability to call into conferences by phone so that everyone was available to conference a case at a time that was acceptable for a court. In other instances, when conferences concerned trivial matters, courts did not see the need to bring all the parties into court to discuss the matter, and judges were content with holding conferences by phone. Most attorneys are used to calling into court conferences, and this typically involves using a call-in number and access codes, a process that is pretty hard to mess up.

However, since almost all court operations are being conducted remotely, many courts for the first time have been using videoconferencing platforms to hold court conferences recently. It has been difficult for many lawyers to get used to this new technology. As this website has covered at length, some attorneys have even appeared shirtless, in bed, or with unprofessional backgrounds while participating in videoconferenced court proceedings. I’d like to hope that this was due to misunderstandings about the technology, but we can’t count out the fact that some lawyers may have simply not understood decorum over videoconferenced court proceedings.

In any case, there are other practical concerns with videoconferencing court proceedings, which I have noticed while participating in remote court conferences over the past several months. If someone is on a videoconference, it is much more difficult for them to change rooms. Most people call in to remote court proceedings from home, and it is sometimes necessary because of noise and distractions to change locations. However, it is very difficult and awkward to change locations in your home when you are videoconferencing, since it is hard to keep the camera on your face, and other people on the call can see you moving around.

Furthermore, the use of videoconferencing apps is causing significant delays in some court proceedings. Sometimes attorneys need to download software in order to participate in videoconferenced court proceedings, and this can hold up appearances. In addition, issues with the internet can make the audio and visual feeds extremely choppy, which can make it difficult to understand what some people are saying. Moreover, videoconferencing usually makes the process of attending a court proceeding more stressful. When people videoconference, they need to make sure their space looks tidy, wear professional clothes, and take extra steps to ensure that people do not bother them during the call. Since people are usually home with some level of craziness already going on all around them, this can make an already stressful event even worse.

While it is understandable why courts wish to connect with attorneys through video, many judges have continued to simply hold phone conferences recently, and the results have been mostly great. Although people may sometimes talk over each other a little more on a telephone conference versus a video conference, this is usually not a big deal unless there are numerous attorneys on a call. Indeed, I recently attended a settlement conference by telephone, and although the case did not settle, the conference went smoothly. All of the parties could understand each other, and if the judge wanted to speak to one attorney without the other attorney listening, he could just call each lawyer directly. I admit that I have been on phone conferences that went too long, and the next conference called in, interrupting our conference. In addition, I have been on some videoconferenced court proceedings that have gone very smoothly. However, by and large, court conferences by phone have been the most efficient and least stressful way to hold remote proceedings.

All told, if the Supreme Court is conducting their oral arguments by telephone, courts across the country should also consider ditching videoconferencing in favor of the old-fashioned conference call. Dozens of judges and litigators have emailed me over the years, and I’d love to hear any input from jurists or practitioners about why videoconferencing is preferable for run-of-the-mill court conferences. Of course, evidentiary hearings, trials, and proceedings that require people to be seen may be better by videoconference. However, holding most remote court proceedings by phone can help reduce stress and eliminate technical challenges inherent with videoconferences.

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.

How is the employment scene looking for recent law school graduates? We’ll start with the good news: compared to the class of 2018, a larger percentage of 2019 law school graduates were able to find full-time, long-term jobs where bar passage was required or for which a law degree offered an advantage within 10 months of receiving their degrees. About 81 percent of 2019 graduates landed these plum jobs, up from 78.6 percent in 2019. In fact, these are strongest entry-level employment statistics in more than a decade. Hooray! Congratulations, one and all.

Now, for the bad news: the good news we just discussed wasn’t so good after all, because while the total number of desirable law jobs recent graduates landed increased by 720, more than 300 fewer law school graduates were trying to secure jobs. This is the sixth straight year that the declining number of law graduates has propped up their employment rate.

So, with fewer law school graduates competing for jobs, one would assume, or hope, that would mean that fewer law school graduates were unemployed 10 months after receiving their degrees, right? Wrong (and this data pre-dates the pandemic, so things could look even worse now for 2019 graduates).

Law.com produced several helpful charts based on law school employment data for the class of 2019. Today, we will highlight the most alarming chart of all, the law schools with the highest percentage of unemployed graduates. Here are the top 10 law schools on that chart for your sadistic viewing pleasure:

1. Pontifical Catholic University of Puerto Rico: 30.99 percent
2. Inter American University of Puerto Rico: 26.37 percent
3. Appalachian School of Law: 25.81 percent
4. North Carolina Central University: 23.93 percent
5. Western Michigan University: 22.26 percent
6. Golden Gate University: 21.50 percent
7. University of San Francisco: 21.01 percent
8. University of Puerto Rico: 20.24 percent
8. Southern Illinois University: 20.24 percent
9. Santa Clara University: 17.54 percent
10. Western State College of Law: 16.98 percent

That was depressing. (Once again, we suspect that all three Puerto Rico law schools landed on the list due to the fact that the island was devastated by Hurricane Maria and later by earthquakes and has been in recovery mode ever since.)

Click here to see the rest of the law schools with the highest percentage of unemployed graduates, as well as other informative charts detailing the law schools with the highest percentage of graduates working in Biglaw and in state and federal clerkships.

Are you a recent law school graduate who hasn’t been able to find a job? What has your law school done to help you? We’re interested in learning about your experiences — good or bad — and may anonymously feature some of your stories on Above the Law. You can email us, text us at (646) 820-8477, or tweet us @atlblog.

Law Grads Hiring Report: Job Stats for the Class of 2019 [Law.com]

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.