Category: News Feeds

“What is a KPI?” was one of the most common responses from solo and small-firm lawyers when we asked them which metrics were most important in managing their practices. Meanwhile, their peers focusing on such KPIs as matter velocity and timekeeper utilization are poised to overtake their competitors. Clearly, technological and operational savvy varies wildly among small law firms, from unreconstructed Luddism to the bleeding edge of early adoption. Where does your practice fit in? Our free report, The Small Legal Practice Tech Adoption Landscape, will help you benchmark your practice and inform your efforts to innovate and optimize your own client service.

In late 2019, Above the Law fielded a survey of attorneys at small and mid-sized law firms. We wanted to hear about the choices that were being made regarding technology and the role it could play, or does play, for such practices. We asked respondents about their tech toolsets, including analytics, AI, client management tools, and other emerging technologies. We asked about the steps that have been taken towards integration and automation, and the platforms that may have helped these processes. All of this data is segmented by position and practice area.

Fill out the form below to read our findings:

Don’t sleep through Admin Law, kids! You just might save a life.

Yesterday, Judge Randolph D. Moss of the U.S. District of DC ruled that Trump’s efforts to shoehorn immigration hardliner Ken Cuccinelli in as “Principal Deputy Director” of the US Customs and Immigration Services (USCIS) violated the Federal Vacancies Reform Act, and thus his written orders in the position aren’t worth the paper they were written on.

Trump has long wanted to give Ken Cuccinelli, AKA “The Cooch” a perch in the executive branch from which to kick immigrants, preferably as head of the Department of Homeland Security. Unfortunately, Mitch McConnell has made it very clear that this guy will never be confirmed to anything on his watch, which is a thing that tends to happen when you run an organization dedicated to primarying sitting Republicans from the right. (McConnell et al. have no objection to Cooch’s previous support for a ban on consensual oral and anal sex as a Virginia gubernatorial candidate, because Gippers are strictly missionary, we guess.)

But Trump was undeterred, and set his sights on the USCIS. On June 1, 2019, Lee Francis Cissna, the Senate-confirmed Director of USCIS, resigned, making Deputy Director Mark Koumans, acting Director by statute. Acting Homeland Security Secretary Kevin McAleenan immediately issued a directive creating a brand new temporary post as “Principal Deputy Director” of USCIS, a position “senior” to Deputy Director and thus in line to become acting head of USCIS. In effect, McAleenan’s directive created a fictional senior position that would allow Cuccinelli to serve simultaneously as both director and deputy — all the while openly acknowledging the ruse by specifying that the position would sunset whenever Trump got around to appointing a new Director for the agency.

And despite most legal observers pointing out that HELLO, NO, THAT IS NOT HOW LAW GOES!, he went right about his business as if he’d been legally appointed head of USCIS.

Cuccinelli immediately set about making it harder for refugees to claim asylum, reducing preparation time for credible fear hearings to twenty-four hours after arriving at a detention facility and doing away with preparatory orientation to acquaint asylum-seekers with the legal process and identifying those with special needs requiring accommodation at hearing.

Plaintiffs, asylum seekers who were denied time to adequately confer with counsel before a hearing to determine if they had credible fear of returning to Honduras, challenged the directive as an ultra vires order issued by the fake head of USCIS, appointed in violation of the Federal Vacancies Reform Act. And yesterday the D.C. District Court agreed.

The FVRA provides that, for a position which requires Senate confirmation,  “the President (and only the President)” may choose either another senate-confirmed appointee, OR a senior official employed at the agency for “not less than 90 days.” On which, the Trump administration is 0 for 3. McAleenan is not the president; Cooch was never confirmed by the Senate to any office at all; and he never worked at USCIS.

Which is what Judge Moss held:

Cuccinelli may have the title of Principal Deputy Director, and the Department of Homeland Security’s order of succession may designate the office of the Principal Deputy Director as the “first assistant” to the Director. But labels—without any substance—cannot satisfy the FVRA’s default rule under any plausible reading of the statute.

And while the holding has limited applicability for asylum seekers, since it applies only to the five named plaintiffs, it does mean that Cooch is out as Acting Head of USCIS. But don’t worry, because the administration has already lined up another hardliner to take his place. On February 19, DHS Secretary Chad Wolf shoved Deputy Director Koumans, a career immigration official, out of the way, replacing him with the agency’s general counsel Joseph Edlow, who was more to the White House’s liking.

As for McAleenan, who put his name on the original, illegal directive, well, he got pushed out months ago for not hating immigrants enough. Wages of sin, etc.

L.M.-M. v. KENNETH T. CUCCINELLI II, in his purported official capacity as acting Director of U.S. Citizenship and Immigration Services [Case 1:19-cv-02676-RDM ( D.D.C., March 1, 2020)]

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

Every challenge to the Affordable Care Act is dumber than the one before and while that should be reassuring for supporters of the law, the makeup of the Supreme Court manages to lurch in equal measure more shameless in its willingness to just make stuff up to reward its political benefactors. When this landmark legislation finally gets killed it will feel like Benny Blanco from the Bronx coming in Deus Ex Craphola two hours after the fact.

Today, the Supreme Court agreed to hear the Texas case against the ACA next Term, meaning we’ll have the future of health care on the ballot in November no matter what happens.

The latest challenge is that if the individual mandate was justified as a tax, and that tax is now set at zero, then it isn’t really a tax at all. Therefore, the individual mandate isn’t constitutional anymore and by extension the whole law can’t be constitutional anymore. It’s an argument Texas came up with while trying to compare the ACA to “The Puppy That Lost His Way” and ends up making just about as much sense. So, obviously, it’s already cleared the Fifth Circuit with the blessing of the FedSoc judges.

But, of course, the only reason we’re even hearing this drivel is the refusal of Chief Justice Roberts to admit that the Commerce Clause is real. Back in 2012, he bent over backward to classify the individual mandate as a tax rather than derail his plans to kill off the Commerce Clause and return America to a Lochner-era dystopia. So the ACA carried on under this screwball tax interpretation that’s now given birth to this lawsuit. It’s enough to make King v. Burwell sound smart and that case was the Supreme Court jurisprudence equivalent of this Family Guy scene:

While we brace for another challenge, this whole thing should serve as your semi-regular reminder that if a candidate doesn’t support some version of “Medicare for All” then that candidate is really supporting nothing because that’s all the Supreme Court is going to give them. Strengthen the ACA? Folks, it’s not even going to survive. A private option? Whatever staffer came up with “let the federal government to enter the market and compete directly with private business” should be viciously berated like they forgot a salad fork. Conservative legal scholars are already conceding that Medicare for All passes constitutional muster as they must because otherwise the Court is going to have to strike down Medicare because as the legal mind behind King v. Burwell points out, “Medicare for some is constitutional, Medicare for all would be as well.” It doesn’t matter if you might personally prefer something short of single-payer health care — it’s really that or nothing.

And maybe voters are just fine with nothing. But it’s time to stop pretending there’s a viable middle ground with this judiciary.

Earlier: Medicare For All Is The Only Viable Plan And The Fifth Circuit Just Proved It

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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.

The Food and Drug Administration has recorded the first drug shortage due to coronavirus.

In a statement Thursday, FDA Commissioner Stephen Hahn wrote that a manufacturer had alerted the agency to the shortage of a drug that had been added to the drug shortages list. Although the manufacturer notified the FDA that the shortage was indeed due to coronavirus, Hahn’s statement did not identify it or the drug in question.

“The shortage is due to an issue with manufacturing of an active pharmaceutical ingredient used in the drug,” Hahn wrote. “It is important to note that there are other alternatives that can be used by patients.”

Hahn added that the FDA is working with the manufacturer in question and other manufacturers to mitigate the shortage. The agency has been in contact with more than 180 drugmakers and has asked them to evaluate their supply chains, including active pharmaceutical ingredients and other components that are made in China, where the coronavirus – known as SARS-CoV-2 – was first identified. It has identified 20 other drugs that are made in China or source all their active pharmaceutical ingredients from there, though the five companies making them have not yet reported shortages of the drugs, which are all considered not to be critical.

The coronavirus outbreak has caused significant concerns among drugmakers about potential supply chain disruptions, given the large number of ingredients that are sourced in China, in particular because of the number of people on lockdown and unable to go to work. Last weekend, Axios reported that the FDA had compiled a list of about 150 drugs that could face potential supply chain disruptions.

Sanofi announced last Monday the creation of a new active pharmaceutical ingredient supplier that will be based in Europe in order to lessen the dependence on producers in Asia, though a spokesperson for the company said it was not related to the coronavirus outbreak.

As of Thursday, the number of people infected globally stood at more than 82,000, with more than 2,800 dead, according to the World Health Organization. While the vast majority most of the cases and infections have been within China, and particularly around the central Chinese city of Wuhan, significant outbreaks have also occurred in South Korea, Italy and Iran.

Several drug companies, such as Moderna and Gilead Sciences, have rushed to develop vaccines and drugs against the virus.

Photo: Andreas Solaro, Getty Images

You walk into a big firm. The partner sitting behind the desk starts to make his pitch: “You really must work for a large firm, such as Bigg & Mediocre, because only large firms have the resources to handle big matters. We can staff big cases. We handle transnational stuff. If you go to work for a small firm, you just don’t have the opportunity to work on matters that capture headlines.”

Then you walk into the big firm down the street. The partners there make exactly the same pitch. And then you walk into a firm halfway across the country. And hear the same pitch again.

Do these people really think they’re telling you something persuasive? Or creative? Or worth listening to?

You stroll into the branch office of a big firm. The partner makes her pitch: “We’re absolutely unique! We combine the collegiality of a small firm with the practice of a big firm. The 25 of us in this branch office all know and like each other, but we get to work on cases attracted by the 300 lawyers in New York.  It’s the best of both worlds!”

You walk into a small firm: “We’re a great firm, so we attract great cases. But there are really two other reasons to work here. First, our size makes us collegial; we really know and like each other. Second, our size forces us to advance the careers of junior lawyers. We don’t staff cases with five lawyers, which causes the junior lawyer to carry the bags of the senior folks. You’ll be taking depositions from day one!”

And, of course, all of the partners at all of the firms shout in unison the real reason why you should work at their firms: “Our people are unique and great.  It’s the people that make us different!”

I’m not really knocking this. (I take that back; I am really knocking this.)  Maybe this is the best pitch for your firm. You say exactly the same stuff as the guy down the street, and you expect the law student to be convinced by it. But if there were really anything unique about your firm, or if you had an ounce of creativity, couldn’t you say something that I couldn’t satirize without even knowing who you are?

So, too, when law firms pitch clients for new business: “We’re Bigg & Mediocre!  We have massive resources that we can bring to bear on your case. We permit one-stop shopping. If there are any tentacles of your case that must be explored, we’re guaranteed to have a specialist who knows that precise area of law. And we work together as a team. We assign the right lawyer to your case and, because we work together all the time, we save you time and money.”

Or a smaller firm: “We’re efficient! Unlike those other, or bigger, firms, we don’t send in the Fifth Fleet. We send in the Special Forces. By staffing leanly, we handle your cases efficiently and less expensively.”

Or everybody: “We use technology! By using cutting-edge technology, we reduce the use of lawyers and minimize the hours spent on your case.”

I don’t mind that you say this stuff. (I take that back; I really do mind.) But don’t think that you’re being creative, or thoughtful, or there’s any reason for people to listen when you spout this stuff. Understand that you’re saying exactly the same thing the listener has heard a hundred times before, and there’s a fair chance that, although you’re talking, no one’s listening.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Coronavirus has finally made its way to Manhattan. New York confirmed its first official infection on March 1 in a health care worker who had just returned from a trip to Iran. Governor Andrew Cuomo has said it is now “inevitable” that there will be “community spread” in New York City.

Thankfully, Biglaw firms are prepared.

In our previous reporting on the burgeoning threat of coronavirus, we noted that Latham — one of the world’s wealthiest law firms, with 2,720 lawyers in 29 cities across 14 countries — had canceled a client reception at the American Museum of Natural History in New York “[o]ut of an abundance of caution.” Now, the firm has decided to cancel its global partners’ meeting. The American Lawyer has the details:

“After careful consideration, and with the health and well-being of our colleagues and clients foremost in mind, we made the difficult decision to cancel our global partners meeting,” said Richard Trobman, the firm’s chair and managing partner, in a statement. “While we perceive the risks to be small, safety is our first priority, and we thought this decision was in the best interests of all concerned given the uncertainty surrounding COVID-19.” …

Latham’s global footprint includes China, where more than 78,000 people have been infected by the virus, as well as South Korea, Japan and Italy, which have respectively seen at least 600 reported coronavirus cases, according to The New York Times.

Latham isn’t the only firm that’s taking extra steps to protect its workforce in light of the coronavirus outbreak. It’s been reported that Linklaters has instituted a mandatory 14-day self-quarantine for all employees who have traveled to coronavirus hot spots for either work or entertainment.

What is your firm doing to protect its employees from potential exposure to coronavirus? Please email us or text us (646-820-8477). Stay safe, everyone.

Latham Cancels Global Partners’ Meeting in New York, Citing Virus Fears [American Lawyer]
Linklaters Sends Home Lawyers Returning from Virus Hot-Spots [Law.com International]

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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.

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Is it even worth mentioning a mere $35 million scandal at the stagecoach?

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