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How Much Damage Can He Do From Home?: Bill Barr self-quarantines.
87-Year-Old’s Attempt To Take The Bar Exam Likely Futile: And it’s probably not the only story of futile exam taking we’ll get today.
Ed. Note: Welcome to our daily feature Trivia Question of the Day!
According to the Leopard Law Firm Index, presented by Leopard Solutions in partnership with Above the Law and Adam Smith, Esq., which practice area has experienced the most headcount growth to date in 2020 at the Top 200 law firms?
Hint: The practice area has seen headcount balloon by 61 percent this year.
See the answer on the next page.
“You have an impressive resume …” said Judge Noonan of the Ninth Circuit Court of Appeals, his gaze fixated on the piece of paper, sliding down the page in what felt like slow motion.
What was I thinking, detailing just about EVERY achievement since birth?!
He continued going line-by-line through my resume, painstakingly s-l-o-w-l-y.
S-L-O-W-L-Y. . .
Slowly enough for me to admire his historic chambers, notice the woodcutting on his antique mahogany furniture, and approximate (and then actually count!) his numerous leather-bound books.
He was still in the preamble.
What was I thinking?!
More complimenting.
I am making this now-centenarian (he was only 80 at the time!) suffer through my 8.3 font (and 6.1 spacing!).
I no longer felt clever …
The steady flow of (very slow!) compliments continued.
I was at the edge of my seat.
He was ONLY about one third through page 1.
“Judge Noonan, if you like me so much, why don’t you give me an offer on the spot?” I blurted out and regretted it immediately.
What kind of desperate person (let alone future lawyer!) says this to an esteemed federal appellate judge?! Who did I think I was?
Judge Noonan lifted his head (very slowly!), smiled knowingly, and said, “If you want it so much, the job is yours.”
I got lucky that day, to be sure. Judge Noonan was open to my hijinks and had a playful side himself. But I learned a valuable lesson that day: it turns out that the future belongs to the doers and builders. It belongs to those who demonstrate initiative and then take steps to make them come true and have an impact. And then once you’re in a position to show that impact — when you’re in Judge Noonan’s chambers with your resume in his hand — you just need to make your power felt.
Today, as the legal field is crowded with talent and extraordinary capabilities, it is more important than ever to show your own ability to take initiative and following through with actions.
But this is especially true for in-house legal positions. Fortunately, there are endless ways to do it.
Focus On Impacting The Outside In The World Or Your Industry
For example, I recently spoke to Simon Zinger about the General Counsel Oath. He explained that following the global pandemic and developments in the United States, it is clear that many companies struggle with, among other things, diversity, equity, and inclusion. The General Oath is a tool for the legal leaders to lead the change and move in the right direction. It encourages legal leaders to lead, highlight small wins, and celebrate progress.
Also available on Apple Podcasts, Google Podcasts, and Spotify.
Embrace The Internal Opportunities To Impact Operations And The Bottom Line
Other times, showing initiative internally is effective. In talking with Lourdes Fuentes Slater, it became apparent that in-house lawyers can take initiative, make progress, and have a significant impact on digital transformation. Redefining a modern legal department is a real opportunity. Legal technology is no longer an option, it’s a necessity. Companies are often hesitant to implement innovation, but more and more, that hesitation will create unnecessary roadblocks to success. Take the chance to do so.
Also available on Apple Podcasts, Google Podcasts, and Spotify.
Pursue Unconventional Adventures In And Out Of Law
Why limit your initiatives to law? Heather Stevenson first ran a business and then found her way back to law. When she returned, she did so with a more rounded point of view and was thus able to create a broader impact. It is hard to find the courage to stray from the traditional legal career path, but there are numerous and unpredictable rewards available to those who make atypical choices, especially in the legal field.
Also available on Apple Podcasts, Google Podcasts, and Spotify.
Where there’s an opportunity for innovation and growth, there’s an opportunity to take initiative. This is true in all walks of life, but especially in a field like law that is constantly seeing fundamental changes.
I encourage you to learn a new skill, bring it to your workplace, and make an impact. Doing so will not only improve your current environment and make a real difference in real time, but it’ll show future employers and bosses that you are willing to take initiative and leave a positive change in your wake. That’s a timeless skill.
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.
Think about this scenario: A mother of college-age kids decides to pursue her passion as an interior designer and love of the European modernist aesthetic, and simply starts posting her ideas own Instagram and Twitter. As her following grows, she begins to promote videos of her design tips on her own YouTube channel. As a result of her efforts, she develops a substantial YouTube subscriber base (millions of subscribers) and a similar following on Twitter (not to mention Facebook and Instagram). By all accounts, she is the epitome of 21st century online success — she not only obtains significant ad revenues from her YouTube presence and now thriving design business, but has created for herself an incredible reputation as an online influencer. So what does Section 230 immunity have to do with this scenario? More than you may think (or want to imagine).
How? With such success, she suddenly starts dealing with the unthinkable: some “fans” on her Facebook page object to her use of certain Native American fabrics in her European designs as “improper cultural appropriation.” She counters that she is celebrating these patterns as part of a juxtaposition against more modern lines and design, to no avail. Facebook (and Instagram) promptly take down a large number of her posts. The Twitterverse jumps on the bandwagon, calls for her removal, and her account is suspended. YouTube soon follows suit. She is now not only watching her entire social media presence crater, but her business suffer to the brink of collapse. What’s worse, is that she has zero recourse against any of the platforms. Why? Not just terms of service that heavily favor the platform but more importantly — you guessed it — Section 230 immunity.
As you probably know, there has been a lot of attention this year about Section 230 of the Communications Decency Act, most of it pushed by political speech on social media platforms and some fairly strong feelings on both sides of the issue. I have written on this subject most recently here, and find this issue is not an easy one to address. On one hand, many advocate that Section 230 is essential to free speech on the internet and such immunity cannot be curtailed. On the other hand, a significant number of voices (many in Washington, D.C.) insist that Section 230 immunity should not only be severely limited but even cease altogether. It shouldn’t surprise you that I think neither of these approaches work, but that is because the issue is more nuanced than politicians would have you believe and more important than a political talking point.
I won’t recount the basic structure of Section 230 immunity (I have already written on that here), but suffice it to say that there are two main parts to the protections afforded to interactive service providers: First, Section 230 shields online service providers from civil liability for defamatory, tortious, and even illegal content that its users post onto the platform (such as third-party comments posted in response to an article posted on a social media platform). I believe that the vast majority of people would agree with this proposition to a point — to the extent the interactive service provider does not know the activity is defamatory or illegal, most people would reasonably agree it should not be held liable for it. Despite this point, current Section 230 jurisprudence goes much farther. The bigger issue, it seems, is what such providers do (or don’t do) with respect to accessing such content on their platform and whether they are doing so in good faith. Here are three reasons that the status quo on Section 230 immunity is no longer acceptable:
Based on the legislative history, Congress expressly sought to encourage online platforms to offer a “forum for a true diversity of political discourse.” It is catastrophically ironic that in this day and age, Section 230 jurisprudence has induced such providers to not only lose sight of Congress’ express intent here, but ostensibly abandon it. The argument is not about the neutrality of online service providers from my perspective, but about their methodology and consistency of its application. It’s high time that we rethink Section 230 consistent with this original intent, and we should accept nothing less.
Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.
During the first week of law school you are indoctrinated with the concept that you can only understand the law if you read and understand the written decisions of judges. This is because, under the common law, the principle of stare decisis is the bedrock of all knowledge. In law school this means many hours reading cases and preparing digests of specific rulings — known as holdings — and the reasoning behind them, as well as how to differentiate dicta, which is that part of the decision that is not relevant to the holding. One of the teachings in law school is that there is no substitute for hard work and the members of the Law Review, which is the most prestigious student group with the highest grades, consisted generally of those students who studied the most.
When I started my own firm, I initially focused on new issues and representing companies raising money. But the stock market went into a rapid and long decline. Some of my clients turned to me and asked me to defend them in regulatory enforcement actions and to handle litigation. As a one-person firm competing against large Wall Street law firms, I realized that hard work was critical to the survival and success of my nascent practice. Fortunately, Westlaw was a new legal research product which enabled us to compete. We were now able to do a much more comprehensive search. We also found that in reading the cases we developed new threads and ideas for further research.
But research is only the beginning of your hard work. In litigation, you need to spend the time and energy to develop an initial strategy. Two of the tools we use at my current firm are 1) develop a case plan at the outset, which is continuously revised and expanded during the lifetime of the matter, and 2) a weekly plan for what needs to be done the following week by the responsible partner, the associates, and the analysts.
Another tool I use is what I call my instant memo file. When I have an idea, I dictate it out, as well as what needs to be done to develop that idea, and I immediately put it into the file for that matter. The case team also meets periodically to discuss long-range strategy and further ideas that need to be pursued to figure out how to win the case or successfully defend our client in a government regulatory matter. Preparing for this type of meeting can involve substantial work because you need to organize your thoughts and ideas based on the legal and factual research that has been have done.
Reviewing and analyzing documents to be produced by your client for privileged materials and reviewing those produced by opposing counsel and other parties for “hot documents,” can be extremely time-consuming, but it is critically important.
Working hard also means working smart. Artificial intelligence has become an important research tool in cases where a substantial amount of documents is produced. It enables us to more effectively and efficiently conduct documentary review and to set up a program to enable us to easily locate key documents. Although this involves a significant expenditure of money, if the client is able to pay the costs of the third-party vendor, in the long run you get a much more comprehensive and reliable document search at a lower overall cost. An integral part of AI legal research is not only to initially develop a plan, but then to use samples to modify the research plan and search terms to make the review more effective.
Hard work, organization, and planning are critical in producing documents to be filed with the court or administrative agency. I always find preparing an outline and drafting the papers to be an ongoing and cumulative process. You cannot simply draft perfect papers in one shot. After you do a rough outline, in almost all cases there is more research to be done and the need to review the documents you have available to you. Once you have prepared a draft, you need to send it out to your client, expert witness, and possibly others for their review and comments. Once these comments are received and analyzed, you need to revise your drafts. Each time a draft comes back I try to take a fresh look and often make substantial revisions. It is hard work but it must be done to end up with the best product possible.
At my firm we have a unique procedure for filings. The attorneys have to be done with their writing and revisions 24 to 48 working hours before the papers need to be filed to enable the analysts to complete the filing process, which is time consuming and detail focused. This includes, among other things, a line edit of the text to make sure that everything is clear, properly spelled, and grammatically checked. It also involves a fact check, including checking that the exhibits or referenced documents are accurately described in the text. It also involves checking that the legal citations comply with the Blue Book and applicable state style guide.
The end product of a well thought out, well-argued, and winning product is the result of hard work by a number of people at your law firm.
Charles Hecht is an entrepreneurial lawyer who had his own firm for 39 years and recently joined Balestriere Fariello as a partner. He specializes in innovative solutions to complex litigation, arbitration, and securities transactions. He values teamwork, which is one of the reasons why he joined a New York City boutique law firm. He and his colleagues represent domestic and international clients in litigation, arbitration, investigations by governmental agencies, and securities transactions. You can reach him via email at charles.hecht@balestrierefariello.com.
(Image via Getty)
It’s just completely exhausting, to be honest. It diminishes everything you’ve gone through at school. It feels like the end is nowhere in sight. It really sucks not to work in the legal field, especially after I was already offered a position, have all these years in law school, had internships and experience. To not be able to work in that field feels like so much work for nothing.
— Ivonne Antonian, a recent graduate of Florida A&M University College of Law, commenting on what her life has been like as she’s tried to take the Florida bar exam during the coronavirus crisis. Antonian had a job lined up at the Orange-Osceola Public Defender’s Office, but because she won’t be taking the bar exam until next week and won’t know her results for a few more months, she won’t be able to start there. Like many other recent law school graduates, she’s been living off credit cards. She plans to apply for Florida’s supervised practice program, but if she doesn’t find another job in the legal field soon, she says she’ll have to find something outside of the law to support hereself.
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.
From solos to vereins, the legal industry in recent months has adapted to unprecedented circumstances by ushering in a largely new way of practicing law.
In a survey conducted in partnership with our friends at AbacusNext, we unpack the numbers underlying this massive change — particularly exploring how the quarantine has moved numerous high-tech offerings from “wish list” to “necessity.”
Broken down by firm size and practice area, our data includes:
Download your free copy below.*
* By filling out the form, you agree to receive messages from Above the Law and its Partners.
Today is day one of the online bar exam being administered in jurisdictions across the country, one of which is California. And while we fully expect it’ll be a disaster (you can email us or text us 646-820-8477 with your own bar exam horror story), now’s not the time for recriminations. Now is the time to just wish each bar applicant the best of luck on what is arguably the most important test of their lives.
Speaking of someone who deserves all the good luck today, the San Francisco Chronicle (via TaxProfBlog) has a story about 87-year-old Porter Davis who has his dreams on the line.
Davis attended law school in the 60s, and took the bar exam then. Unfortunately, he failed four times. But the 87-year-old, who says he believes in being optimistic, thinks 2020 is really his year. And he says, “This year is probably my last chance. A lot can happen when you’re 87.”
The Chronicle gives a brief insight into Davis’s study regimen, and, well, it seems unique and not at all how I remember bar prep:
Davis, a retired real estate broker and former construction worker from Larkspur, dug up all his old law books. He paid $2,500 for a bar exam study course consisting of 12 more law books. He’s studying, at least several minutes every day.
Davis recently sat down at an outdoor cafe near his home to show how a man who is running out of time studies for an exam. Davis, who claims to be the oldest person ever to take the bar exam, picked up the first of his 12 exam-prep books and began turning the pages quickly. He looked at each page for about one second, before turning to the next page.
“I’m getting a mental image of the material,” he said. “I’m taking a photograph that goes into your subconscious mind.”
It took him a full half-minute to study the first 30 pages of the book.
“I don’t believe in memorizing things,” Davis said.
I hate to be the one to break it to Davis, but memorizing things is pretty much all the bar exam is.
But, alas, his chances of actually taking the test are not looking good:
The exam registrar sent Davis a form letter saying the office couldn’t find records of the four bar exams that Davis flunked in the 1960s, which would have entitled him to try again.
Transcripts from the second of the two law schools Davis attended, which also would entitle him to try again, have also gone missing. (Davis does have four years of law school transcripts from two schools, The Chronicle confirmed.)
The registrar refunded Davis his $830 bar exam fee.
The Chronicle reports Davis hired a lawyer, natch, and reached out to local representative to try and take the bar exam. Though it doesn’t look like he’ll be able to sit for the exam this time around, good for him for keeping the dream alive.
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).
(Photo by Drew Angerer/Getty Images)
Have you been hunkered down in your house for six months, dutifully wearing a mask every time you ventured out for necessities, worrying about your kids’ education, and frantically trying to hold on to some sense of normalcy via Zoom happy hours?
HAHA, SUCKERS!
Bill Barr has been doing exactly none of that. And despite the White House Covid cluster, he seems to have no plans to do so.
The September 26 reception for Judge Amy Coney Barrett in the Rose Garden followed by indoor receptions appears to have been the coronavirus kickoff event at the White House.
Here’s the SCOTUS nominee breathing all over Justice Scalia’s elderly widow, with Bill Barr chatting up HHS Secretary Alex Azar in the background. (Not pictured: MASKS.)
And here’s Attorney General Barr in close conversation with Trump’s debate coach Kellyanne Conway, who has since tested positive for coronavirus.
Attendees at the event were given a rapid Covid test at the door, and then ushered into the Rose Garden, where they were invited to exhale on each other to their hearts’ content.
Unfortunately, the Abbott Labs ID Now test favored by the White House is not intended for diagnosing asymptomatic cases. As the New York Times notes, it fails to detect as many as a third of infections in people who have not yet begun to show symptoms. And now two senators who attended the event have tested positive, in addition to Conway, Chris Christie, Kayleigh McEnany, the president, and the First Lady.
For his part, Barr was seen at the White House twice this weekend for “testing,” and claims to have gotten a negative result. Whether this would be from the same Rapid ID-type test administered before last Saturday’s “Ookie Mouth” party is not clear.
Barr initially announced a decision not to quarantine, in contravention of a CDC recommendation to stay out of circulation for two weeks after exposure to an infected person. But now his spokesperson Kerri Kupec has announced that he will stay home after all, out of an abundance of caution. But only for a few days, after which he’ll be back in the office like usual, fit and full of beans, ready to burn down the Justice Department like he’s done every day for the past two years.
Hosanna!
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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