Should Law Schools Be In Person Or Remote this Fall?

On April 26, 2020, Christina Paxson, the President of Brown University, penned an inspiring opinion piece published by the New York Times: “College Campuses Must Reopen in the Fall,” which can be read in full here. Her points were well-minded and sensible. They spoke of the importance of higher education to the livelihood of not just 3 million employees, but the US economy as a whole. President Paxson noted that “students face financial, practical and psychological barriers as they try to learn remotely,” and that by being in person “students will still benefit from all that makes in-person education so valuable: the fierce intellectual debates that just aren’t the same on Zoom, the research opportunities in university laboratories and libraries and the personal interactions among students with different perspectives and life experiences.” It was a compelling argument for pursuing an in-person experience in the Fall 2020 semester that served, I believe, to many higher education administrators as a rallying cry and green light to pursue an in-person education this fall. I spoke to some of those administrators soon after the article was published, and they were inspired. I was too, and I was hopeful that schools would be open on campus in the fall. President Paxson’s words were also written just as it looked that things were moving in the right direction nationally. We are all now familiar with the terminology “flattening the curve,” and many of us thought that with the mitigation efforts being implemented at the federal, state, and local level, we were on our way there.

Today, a little more than three months later, this is what has actually happened in the United States. Not the flattened curved model we were all optimistically hoping for but rather one singular wave that plateaued for a while, too high, and that has only grown larger with time.

Just as saliently, the age group that increasingly appears to be taking up a larger and larger share of total COVID infections has shifted in an unexpected direction, with more and more states and counties reporting people age 20-29 as the highest source of new infections. In California, for example — incidentally one of the states where we have seen a number of law schools go fully online — the highest age cohort of those who have contracted COVID-19 is now 18-34 years old, representing 35.4% of all cases.

College and graduate school administrators were inspired by the Paxson missive, but when they were starting to make plans for the fall there was evidence, at the time, that the second wave (which most of us were also starting to learn was the much more deadly one in our last global pandemic, the Spanish Flu of 1918) might come in the late fall. But COVID-19 is novel and thus unpredictable, and these projections were wrong.

To be certain, law schools, which I will solely discuss for the rest of this article, do not function precisely as colleges and universities do. Most importantly as related to the pandemic, they do not rely on room, board, and dining fees for a large source of their revenue: They primarily do not have students in their late teens or very early twenties, where the tendency toward risky activity peaks (per Laurence Steinberg, professor of psychology at Temple University). They have smaller populations of students than the average college or university, sometimes in great measure, and thus have more ability than a university to be nimble. To test more. To trace. In theory, to physically separate. All parts of the mitigation efforts President Paxson alluded to for schools to safely open.

Does this mean they should open in person in the fall? According to an informal poll of law school students, staff and faculty, approximately 64% of a total 846 respondents believe so.

To date, at least 20 law schools have announced they will be fully online in fall. Those 20 can be found here. Another sizable percentage will be primarily remote — meaning while they will bring the students who chose to partake in on-campus classes back to their respective locations, most of their classes, but not all, will be online.

It is now my belief, which has shifted since the April 26 article I have alluded to, that law schools should switch to a primarily, if not entirely, remote format for the Fall 2020 semester. Here is why.

Quality of Education

Let’s first discuss what “in-person” learning will actually be like this fall. No law school that I am aware of plans to offer classes “as they were” so to speak. The default model seems to be “hybrid.” To be frank, the debate is not whether schools should be online or in person, but whether they should be attempting a hybrid-program with significant in-person opportunities.

Many such plans hybrid require rotating a certain percentage of students to in-person classes, while others attend online — a given student in a twice-weekly class might actually only be able to attend in-person once, for example. Any in-person experience in the hybrid model will follow strict protective requirements. Masks will be mandatory for students and faculty — making it harder for interactive learning in a room where participants are scattered as far as possible from each other, given minimum six-foot distancing. Faculty will be trying to split their attention between their in-person students and those participating remotely, as required by “synchronous” learning. There will be no breaking out into small groups for discussion, no opportunity for faculty to hand out material. After-class discussions or gatherings are absolutely out, as plans generally require all students and faculty vacate the area immediately, and they are high-risk behaviors regardless. These sorts of pedagogical techniques are the main advantage of in-person rather than remote learning, but in a hybrid setting they’re not feasible, or at best they’re usable only in the same sorts of ways they could be tried if learning is all-remote.

And of course, there are the non-class aspects of law school which will be negatively impacted. Office hours are likely to be primarily remote. Guest lectures, networking luncheons, club meetings — all have been severely curtailed at best, if not outright cancelled. On-campus interview programs are being moved to a remote format. The social and networking aspects of the fall semester have already been effectively neutered.

Is online law school ideal? For many students and faculty — probably most — it’s not. Students have expressed legitimate concerns about online classes, ranging from difficulty interacting with faculty to the challenges of at-home distractions. Faculty have worries over ensuring adequate student participation, difficulty in assessing how well students are understanding material, and the inevitable time-zone and technological glitches and challenges. There is a reason why I, and so many others, were hopeful in May and June that there could be significant in-person learning: it is the ideal.

But contrast the negatives of online school with the current alternative. What students who show up in the fall receive will be a pale shadow of a normal in-person experience. Now weigh that against the negatives of online classes. In my view, the difference between fully remote and “in-person” classes, when accounting for the truth of what these in-person classes will actually entail, is minimal. By committing to a fully online program, law schools could enhance their online offerings. Instead of trying to be the best of all things and spreading themselves too thin, faculty and staff could be fully dedicated to making the online experience the absolute best it can be. This is the exact reasoning that Harvard Law School used when making the decision to go online, stating “it was highly likely that the net impact on educational quality from hybrid learning would be negative rather than positive.” It’s also the reasoning we’ve seen numerous law school faculty use when explaining their support for all-online learning. Without even considering the potential for COVID-19 spread, there is an argument for switching to an online learning modality versus a hybrid model.

Health and Safety

Law schools have spent a great deal of time and effort creating plans to minimize the opportunity for spreading COVID-19 on their campuses. There are two critical problems I see with these plans.

First, they were created at a time when COVID-19 cases were declining nationally. A predictive model put together by Morgan Stanley showed just that, and there was some belief in the medical community the SARS-CoV-2 might behave like other coronaviruses and diminish in summer weather and come back in late fall. That model is visualized here.

Many schools enacted a plan to start early and send everyone home by Thanksgiving — getting students in and out during the lull between the first and second waves. Unfortunately, we are now seeing between sixty and seventy thousand cases daily in the United States. This is not simply due to increased testing; positivity rates hover between 8% and 9% nationally. The virus is spreading, largely uncontrolled, in many areas of the country. Just as of the writing of this article, Sunday, August 2, Dr. Deborah Birx, the Coronavirus Response Coordinator for the White House Coronavirus Task Force, declared, “What we are seeing today is different from March and April. It is extraordinarily widespread.”

Second, these plans rely on the assumption that participants will actually adhere to strict behavioral requirements. The unfortunate reality of the last several months is that we’ve seen time and again that universal adherence to mitigation efforts is a flawed assumption. Students will gather. Not all will socially distance. Some will engage in risky behaviors. And they will spread the disease on campus. In fact, this is already happening — just this past week, the entire Rutgers football team was placed into quarantine after 15 players tested positive for COVID-19 after multiple players attended an on-campus indoor party. Students will infect one another, as well as others with whom they come into contact: staff, faculty, and the wider communities in which students live are not immune to risk-taking behavior.

But, many will argue, even if many students contract the disease, it’s highly likely that the significant majority would be absolutely fine. And that is generally true. While we are still learning about the virus and its long-term effects, it is clear that the age group in which most students reside is not at major risk for serious illness or death.

However, the law of large numbers works against us. There are over 112,000 law students at ABA-accredited schools. Current estimates for the mortality rate in the age range of the typical law student are somewhere between 0.1% and 0.3%. Not every law student will contract COVID-19 if schools reopen, of course, but even so, law school reopenings will likely lead to some number of deaths. And as we’re learning, some portion of those who become ill, even with just a mild case of the disease, will be left with serious long-term health problems that we just don’t yet have a complete understanding of. We don’t have good numbers for those instances yet either, which is another argument for proceeding with extreme caution. The cavalier attitude of “young people are going to be fine” is dangerously misleading — and worse, it encourages the exact type of risk-taking behavior that leads to the spread of the disease in at-risk groups.

Even if there were a guarantee that all law students would be absolutely fine, the virus is exceptionally contagious. While it is currently impossible to ascribe an exact reproductive number to SARS-CoV-2, per epidemiologist Benjamin Ridenhour as recently as July 13, it could range from around 1.3 to 4. Any reproductive number in the community above 1 means the virus is growing in the population, and a number as high as 4 would place COVID-19 ahead of just about any outbreak we have seen in modern times, including the Spanish Flu of 1918.

Each infected student is a disease vector. Faculty and staff assume risk by virtue of their interaction with students, their transit to and from classrooms and offices, and their participation in (admittedly rare this fall) campus events. Anyone who has attended law school knows that a significant share of the faculty are in a higher risk age group. Beyond the obvious tragedy it would be if a staff member or professor became ill or died, there are logistical questions. How will schools handle replacing professors — potentially numerous professors — in the middle of a semester? The quality of learning will undoubtedly suffer if original faculty need to be replaced a third of the way into the semester. Do schools have the necessary backup faculty to handle a serious outbreak — without requiring the remaining staff to take on an undue burden, which would in turn lead to diminished learning outcomes for students?

Beyond that, a group that is unfortunately often left out of the conversation is the greater community in which the law school resides. Even if students stay in small cohorts, any law school classroom will have rotating groups of students in and out. The necessary frequent cleaning of indoor surfaces creates risk for the increased janitorial staff who will not only walk in and out of rooms with potentially infectious airborne droplets, but also wipe down surfaces touched by dozens or hundreds of students. Cleaners, many lacking paid sick leave, say they are concerned about exposure to the virus “we’re an afterthought.” There is no magical barrier blocking the spread of a campus-based outbreak to the surrounding town or city. It’s quite easy to envision a scenario wherein reopened schools — including law schools — become the epicenter of new infection hot spots. For years law schools have held themselves as part of key pillars in their communities, but with the health of these communities at risk, some have seemingly disappeared from this conversation.

The Inevitability of Online Classes

Schools should also consider the fact that, if they return to in-person education, there is a significant chance that they will end up switching to remote instruction at some point in the semester. Point of fact, I would hope that they have a very itchy trigger finger on just that. This is what compels me to form the conclusion that they should not open if even remotely on the fence. We return to the simple fact that college and university campuses are natural viral hotspots. If law schools open now, while there is still such a tremendous viral reservoir nationwide, they will almost inevitably spread the disease. We have not seen many institutional plans that put precise numbers on what threshold of infection would result in a return to online instruction. But in the face of rising student and staff case counts, law schools will absolutely make the switch. At that point, what exactly has been accomplished? A few weeks of in-person education, at the cost of potential widespread infection in the law school — and the surrounding community? Is that truly worth it?

In Summary

So much of this decision-making is understandably made by administrators who are looking at a dire financial cliff, and President Paxson alluded to these economic consequences. But we aren’t just fighting an economic war — not even remotely. To date, as many Americans have died from COVID-19 as three Vietnam Wars. One of the early law schools who announced they would be shutting their doors and moving to fully online learning in the fall, Ave Maria, published this message from their president and dean, Kevin Cieply, to the students. Per Dean Cieply:

I am aware of the downsides of online education. I am an online student myself. I am pursuing a doctorate degree from Vanderbilt, all online. I realize it can be isolating. I understand how hard it can be to fit in studying, and how disruptive it can be when you are trying to focus on class with family members around. It has its challenges, for sure.

I weighed the health risks for our students, faculty and staff.

Overall (totality of the circumstances in criminal law parlance), I believe that staying online is our best of several options.

I personally know Kevin Cieply. I visited him a few years ago at his law school, and he walked with me as he showed me their buildings and campus. Every student who walked by, without fault, he greeted by first name. He knew the name of every one of the roughly 300 students in his care. Do I think it is required, or even feasible that every law dean know the names of their entire student body on sight? Not remotely — I know the decanal life and how busy it is. But I do think the degree to which Dean Cieply personally knows his students came into play with his decision. So, while I personally am not looking at the financial outcomes of any one given school and the stewardship responsibilities that the decision-makers have in keeping their law schools financially afloat, I also think administrators should reflect on those students they do know by name. Do you want them to catch the virus in week one of class, spread it to their peers, and then interact with the local community before being sent home?

The virus isn’t going anywhere. It is a biological pathogen with no predators and nearly unlimited resources (that being us). Evolution has taught us that in these conditions the pathogen will always thrive. Until we have an effective vaccine — and to be clear, widespread vaccination — you could argue it is our civic duty to fight this war with the only means at our disposal. That means mitigation efforts such as social distancing. It means, to me, that if any law school sees there is likely potential for greater infection, they should strongly consider staying online in the fall and potentially even spring.

There are pedagogical arguments for a remote semester. There are health arguments for a remote semester. There are societal arguments for a remote semester. There are undeniably hard choices to be made about the seemingly irreplaceable aspects of a semester of in-person classes (which will not be at all the same regardless) relative to the costs we will incur to have them. I fear that if those decisions are not made now, but rather ad hoc after migrating law students across the country to put them in classes and community living arrangements to then send them back home, law schools will potentially only further exacerbate the most dire epidemic we have seen in modern times.


Mike Spivey is the founder of The Spivey Consulting Group and has been featured as an expert on law schools and law school admissions in many national media outlets, including The New York Times, The Economist, the ABA Journal, The Chronicle of Higher Education, U.S. News & World Report, CNN/Fortune, and Law. Prior to founding Spivey Consulting, Mike was a senior level administrator at Vanderbilt, Washington University, and Colorado law schools. You can follow him on Twitter and Instagram or connect with him LinkedIn

Trump Targets TikTok

(Photo by JIM WATSON/AFP/Getty Images)

If your teenager is showing a sudden interest in the separation of powers or other legal matters, this is probably why.

–Professor Bobby Chesney explaining Trump’s new vendetta against TikTok to the masses. In a new piece for Lawfare, Chesney gives you the quick rundown on presidential authority over foreign commerce and just what the White House can do with all your short videos.

12 Tips For Building Your Digital Law Library In The Age Of COVID-19 

We all knew that law libraries were shrinking. No one suspected that they would be totally “done in” by a virus. Law libraries have been “going digital” for at least 20 years, but few firms tossed out their last “pocket part” update. But as firms plan their post-pandemic re-openings, retaining a collection of shared books is frankly a biohazard. Should librarians develop systems for sanitizing and quarantining books? In today’s digital world -– is it even worth the trouble? 

Does anyone really want to take on the backlog of updating books that are nine months out of date next January when lawyers begin returning to offices?

 For the past two decades, many law librarians have been assessing products and developing in-house solutions to support virtual library resources.  

There is no universal solution. The law firms which have the foresight to invest in strategic information professionals are most likely  to have had substantial digital libraries in place last March when COVID-19 brought the world to a screeching halt. Many firms are running parallel digital and print libraries because they are supporting both the last of the “baby boomer partners” and the “born digital” generation of lawyers. COVID-19 has been an unprecedented tipping point which exposes the importance of completing or starting a digital library transition plan.  

  12 Building Blocks Of A Digital Library  

  1. Strategic Information Professionals. They are the most important prerequisite in designing a digital library strategy. Information professionals often have an MLS and/or a JD degree plus years of working with lawyers and legal materials. They need to have sufficient experience to assess the products and the lawyer workflows and to be able to reimagine new solutions which unify and seamlessly authenticate resources in a digital desktop environment. They begin the process by comparing the catalog of print resources with digital offerings available from a wide range of publishers government agencies, major legal vendors, (LexisNexis, Thomson Reuters, Wolters Kluwer, Bloomberg), small publishers (e.g. FastcaseCastext), and specialty publishers (Practicing Law Institute, Law Journal Press). 
  2. Finding tools. Traditional catalogs can be transformed into portals by adding web-enabled links which will bring the lawyer directly into the full text resource. Enterprise search also can be used to identify resources and documents.
  3. Practice portals. Information professionals can develop intranet pages and portals where links to digital practice resources such as treatises, statutes, and databases can be organized and integrated with internal resources and other workflow tools.
  4. Leveraging flat fee contracts. Today, most products provide unlimited use so there is no penalty for reading a treatise online. Even platforms that track billable use allow firms to create nonbillable zones. An information professional will determine how these contracts can be leveraged to deliver IP-authenticated access to selected content such as “treatise libraries,” cases, and statutes. All the major publishers will work with customers to create “custom user interfaces” and “one-click gadgets” such as a “find and print” tool which will retrieve and print cases identified with a citation.  
  5. EBooks. LexisNexis and Thomson Reuters offer hundreds of titles in eBook format. Wolters Kluwer’s Cheetah platform is superior to the print reporters it replaces. eBooks have the same content as print but offer additional functionality such as highlighting and linking to primary source citations. In addition they are updated more quickly than print versions. 
  6. Mobile Apps. Most of the major legal publishers have apps which deliver all or some of their content and functionality on mobile devices.
  7. Licensing. Licensing is one of the most complex and important risk-management components of a digital-library strategy. Legal information professionals will map the workflow and determine the size of the licenses which will protect the firm from copyright and licensing violations.
  8. Electronic newsletters and custom alerts.  Electronic newsletter delivery puts everyone “at the top of the routing list.” New tools enable information professionals to offer consolidated news from various sources in a single custom newsletter. Curated news services provide individually selected custom alerts targeted to a specific lawyer, practice group, or clients. Tools for curating custom newsletters include Linex, OzmosysInfoNgen, and Manzama. 
  9. Academic and bar library memberships. Information professionals work with local bar and academic libraries to provide backup resources or to acquire resources. They may also provide access to databases or retrieval of digital documents. One very innovative program from the New York Law Institute loans eBooks to member law firms.
  10. Training. Converting lawyers from print to digital requires training. Webinars offered by the firm’s information professionals or vendors can smooth the transition. Zoom, Skype, or Teams platforms allow information professionals to virtually visit a lawyer’s desktop and walk them through the use of a new resource. 
  11. Continuous Resource Assessment ROI. Digital products continue to evolve. New products need to be trialed and compared with existing resources. An information professional can implement a resources management product such as Onelog, Research Monitor, or Lookup Precision, which track usage for determining the cost/benefit of each product. This data can also be used in future contract negotiations. 
  12. Password management. IP authentication is the ideal access solution because it eliminates individual passwords and allows anyone in the organization to automatically access a resource. This is not always possible and the management of individual passwords for lawyers can be a massive headache. The monitoring products mentioned above all have the ability to save passwords.  

Cost savings and re-engineering workflow. COVID-19 created a virtual force overnight. Will have a laser focus on future real estate savings which will include reduction of library space? The reduction/elimination of print resources also reduces costs associated with the maintenance and upkeep of print (loose-leaf filing, serials check in, routing, labeling and maintenance of print).  

Climbing the value ladder. The implementation of a digital library eliminates a host of necessary but lower-value administrative activities. This transition increases the time and attention which information professionals have available to focus on higher value and transformative technologies and projects, including knowledge management, AI, and analytics. 

The digital library is a journey not a destination. Products and practice needs will continue to evolve. The role of the law librarian/information strategist will be to continually reassess the balance of resources, capture and analyze the ROI of digital products, and work with the practice groups to assure that they have the right mix of desktop resources to optimize client support. The COVID-19 pandemic is causing firms to fast forward into designing the law firm of the future. A critical piece of that mosaic will be digital library customized for the resilient law firm.


Jean O’Grady is a knowledge strategist/librarian/lawyer with over 30 years’ experience leading the transformation of research and knowledge services in Am Law 100 law firms. She is the author of the Dewey B Strategic blog, which monitors the evolving landscape of technologies and companies that are transforming the business and practice of law.

Lawmakers Want Economic Recovery Plan For Cyber ‘Day After’

Sen. Angus King

WASHINGTON: The congressionally chartered Cyberspace Solarium Commission told the House Armed Services Committee on Thursday that the nation urgently needs a “continuity of economy” plan to guide recovery from a devastating cyber attack.

“I want to make sure we… address the continuity of the economy,” said Patrick Murphy, a Solarium commissioner who has served in the Army, the Pentagon, and the House of Representatives. “The government needs a continuity plan to ensure that critical data and technology remains available after a devastating network attack.”

screenshot of Congressional video

Patrick Murphy testifies to Congress by video

“We need to direct the executive branch [to] make sure we have continuity of economy planning that’s in consultation with the private sector,” Murphy said, the former legislator lapsing into speaking of Congress in the second person plural. “Congress should codify a cyber state of distress tied to a cyber response and recovery fund to ensure that the CISA [Homeland Security’s Cybersecurity and Infrastructure Security Agency] and appropriate federal agencies have sufficient resources and capacity to respond.”

Otherwise, he warned his old colleagues, “we are going to get caught with our pants down.”

“One thing the pandemic has taught us is the unthinkable can happen,” said Sen. Angus King, co-chairman of the commission. “If you’d told us all a year ago we’d be wearing masks… it would have sounded like science fiction.”

Both King and Murphy testified via video because of the COVID-19 pandemic.

“We’ve got to be thinking about how to react if the unthinkable happens,” King said. “If everybody’s pointing at one another and there’s no plan on the shelf, it’s going to be infinitely worse and take infinitely longer to recover.”

During the Cold War, the US had detailed plans for “continuity of government” and restoration of critical services after a nuclear attack, Murphy notes, down to how to shore up the currency. (Of course, many critics then and now said these plans amounted to whistling hopefully in the face of a hurricane). There’s no such plan for the aftermath of a cyber attack, when critical infrastructure could be paralyzed by malware but physically intact.

While a continuity of government plan can be handled in-house by federal agencies, a continuity of economy plan would take a much wider team to put together, since most of the critical players are in the private sector. That’s just one more way the cyber threat requires a new kind of collaboration between government and industry, from sharing data on threats and attacks to preparing to restore critical infrastructure.

“Overallm one of the most important insights of the commission was the extent to which we have to really forge a new relationship, we have to think in a new way …about how the private sector and the government relate,” King said. “[It’s] one of the problems that our commission tried to attack head-on. [For] the continuity of the economy, the planning has to engage the private sector.”

“I think this is one of our most important recommendations,” King said. But while a continuity-of-economy planning mandate is included in the Senate’s version of the National Defense Authorization Act for 2021, the Senator told his House colleagues, it’s not in the version passed by the House.

“Hopefully, we’re going to be able to pull it through in the conference committee,” he added.

It’s unusual, if hardly unheard of, for Congress to call its own current or former members to testify – but they usually get a receptive hearing, in both senses of the word. That was certainly true today with House Armed Services, where the subcommittee chairman hosting the hearing, Rep. Jim Langevin, is a commission member himself and an outspoken public advocate for its recommendations. So when his fellow commissioners tell him his current bill is missing something, the odds are good he’ll work to get that provision into the law.

Humorous Letter Responds To Woman Challenging Trademark In State She Doesn’t Even Operate In

Obviously every case looks its worst when viewed through the lens of one side’s letter, but if half of what this letter says about this dispute is true, this is an absurd challenge.

Financial Moxie is a financial advisory catering to working moms. Or at least I think it is… the website also lists multiple fitness instructors on staff so I don’t know what that’s all about. The “moxie” term aligns with the phenomenon of “Moxie Tribes” which seem to be groups for working moms to talk about how awesome they are. It’s basically Goop with fewer vagina candles. Meanwhile “Southtown Moxie” is a law firm in Tennessee and North Carolina.

Those are… not the same. I wonder if this woman is also suing the soft drink company founded in 1876 for infringement too?

After receiving a cease and desist letter demanding that Southtown Moxie withdraw its trademark application, Kevin Christoper of Rockridge Venture Law (Southtown Moxie’s sibling firm) sat down with a beer to pen a response. You may remember Rockridge Venture from when they were fighting over poop perfumes. It’s fair to say the firm enjoys the fine art of the cease and desist exchange and probably did cartwheels upon getting a demand letter that they could clown this ferociously.

I’m not sure why the letter needed Intellectual Property Barbie visual aides, but here we are.

What is the theoretical threat of this new mark? Honestly it’s not clear:

But I wouldn’t be drinking a Purple Haze in my skivvies if I didn’t point out the irony that your client has hired you to represent her BECAUSE SHE IS NOT LICENSED TO PRACTICE LAW. Based on your letter, she claims that our mark, limited to the provision of legal services, infringes upon her financial advisory, personal coaching, and tribal businesses and causes her great harm. Basically she thinks someone looking for “Moxie Tribe” fellowship is going to get sucked up into our vortex of intellectual property services.

So she’s worried about a perhaps archaic but nonetheless fairly common word in the English language being used in an industry she’s not in — though if financial planners have fitness instructor services maybe she’s expanding? — in a state she explicitly doesn’t serve. Oh, did I not mention that part:

Your client has this interesting disclaimer on her sites:

This communication is strictly intended for individuals residing in the states of AZ, CA, CO, IL, IN, MI, NH, PA, TX. No offers may be made or accepted from any resident outside the specific states
referenced.

So… not in Tennessee or North Carolina where Southtown Moxie operates. I’m beginning to think writing this cease and desist letter in the first place required a whole lot of… you know.

Chutzpah.

(Full letter on the next page as per usual.)

Earlier: Cease & Desist Letter About Literal Poop Is The Entertainment We All Need Right Now


HeadshotJoe 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.

Oh Snap! A Bunch Of LSAT Scores Were Lost.

This stinks. Taking the LSAT is a stressful endeavor, add in a raging pandemic and it goes to really crappy. And it isn’t something you’d want to do more than once — assuming you notch a score you’re content with. Unfortunately, ~140 poor souls who recently took the at-home LSAT-Flex are going to have to do just that.

As reported by Law.com, there was a technical glitch in the July administration of the test that caused scores for ~1 percent of the 14,000 exams to be lost. The Law School Admissions Council (LSAC), the group that administers the LSAT, says they’re still working on recovering the scores:

“We have tried multiple ways to recover the answers and are continuing to investigate the issue in hopes that we can recover answers and provide scores for at least some of the affected candidates,” reads a prepared statement from the council.

And some of the impacted candidates (fortunately only about 25) needed those scores for fall admissions:

“It appears that about 25 of those affected test takers had applied for admission this fall, and so we will work with them and the schools to which they’ve applied to ensure the schools are aware of this situation and will provide as much flexibility as possible given that the circumstances are not in any way the fault of the candidate,” the council said.

So what’s going to happen for those with lost scores? The LSAC has scheduled a retake exam, and promises those scores will be available in a week or less. Plus affected individuals are getting their July exam fees refunded (which seems like a bare minimum), and they’ll get four free law school reports.

Best of luck to those having to retake the exam. And let’s hope that the “changes in [their] online testing platform” LSAC is making really means this won’t happen again.


headshotKathryn 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).

Are Good Law Firms ‘Woke’?

Shoot!

I wrote a book that was fast asleep.

The Curmudgeon’s Guide to Practicing Law argues that you should do your very best on every project (and that may not be good enough), you should be responsible, you should be diligent, you should be responsive. (I frequently defend those ideas in this column, too.) If you don’t care to do those things, then don’t expect to succeed at a good law firm. (You might succeed at a bad law firm. You might succeed in a career other than law. But you won’t succeed at a good law firm. Been there; done that. It’s not how it works.)

A few weeks ago, I took a test to measure my leadership style and assess whether I had unconscious biases.

I was startled to see questions asking whether I believed in “pursuing perfection” in my work, whether I valued “standard writing” in communications, and whether I thought “timeliness” mattered.

It turns out that if you believe in those things, you’re a less “inclusive” leader.

Indeed, I learned, articles now insist that aiming for perfection — or as close to it as mortals can come — is no longer politically correct.

If this is political incorrectness, then Biglaw is surely guilty.

I worked for a couple of decades at one of the world’s leading law firms.  Believe you me, that law firm pursued perfection. It insisted on using standard English writing in communications. And timeliness mattered.

It’s all a matter of self-protection. Partners are both expensive and busy. If partners receive top-quality work from associates, this saves partners time and clients money. Partners thus prefer to work with good associates.

Think of things from the partner’s perspective:

If you give me a draft brief that isn’t any good, then I have to rewrite the thing.

I’m not going to ask you to help with the next project. I’d rather make my life easier.

If I ask you to think through a legal project, and you miss the key issues, then either I must identify the issues myself or the client loses.

I’m not going to ask you to help with the next project. My clients prefer to win.

If you say that you’re going to get me a draft on Wednesday, and you don’t deliver it until Friday, then I’ll be crunched for time.

You lose. I’m not going to work with you again.

You might be allowed to produce poor-quality work once or twice. Partners understand that junior people are junior, and it takes time to learn. But partners will not be forgiving for very long.

Law firms are vicious, but they’re vicious in precisely the way a free market for associates dictates that they’ll be vicious.

When associates are up for partnership, the existing partners ask: “Is the associate a great lawyer?” and “Does the associate have the potential to bring in new business?”

If the answers are yes, the associate is invited into the partnership. If the answers are no, the associate is told to move on.

If this is not being woke, then every good law firm in America is asleep.

I suspect that every good management consulting firm, and investment bank, and accounting firm is asleep in this way, too.

If you want to do mediocre work, then go right ahead — but not in today’s great institutions.

If this is improper, then it is going to take many, many generations to break great law firms of that culture.

I don’t deny that large law firms have been backward in the more traditional, — and nastier — senses. Until the 1960s, the white-shoe law firms didn’t hire women or Jews or African-Americans or other “undesirables.” Everyone now agrees that this was wrong. Even today, partners prefer to hire, and mentor, and have lunch with people who resemble themselves, and that perpetuates sexism and racism. We must overcome that.

But the standards of quality for succeeding in a professional services firm apply equally to everyone — to associates who are male or female; white, black, brown, red, or yellow. Indeed, not so long ago, this was considered to be the preferred standard — the standard that eliminated racism and sexism.  Professors should read law school exams that are identified only by number; this avoids bias grounded in the sex or race of the student. Audition for an orchestra from behind a screen; this avoids bias grounded in the sex or race of the musician.

Historically, institutions tried to eliminate bias by concealing the identity of the applicant. Are we really saying that now we cannot judge the quality of the work without knowing the identity of the person who produced it?

Standards of excellence have applied equally through time.

Beethoven and Rembrandt didn’t aim for “good enough.” They aimed for perfection.

Booker T. Washington and Toni Morrison didn’t aim for “good enough.” They aimed for perfection.

Hokusai and Kenzaburō Ōe didn’t aim for “good enough.” They aimed for perfection.

If this is improper, then it’s absolutely entrenched; it permeates good law firms to the core.

It will take an awful long time to overcome it.

And you’ll have to convince many people that society will be improved for having defeated it.


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.

Parenting During COVID-19: Has Anyone Figured This One Out Yet?

“You are THE WORST mother EVER!” my frustrated 10-year-old (turned COVID-19 officemate!) told me when I limited her screen time.

”I am not the worst parent ever, right? I only compete in categories that include women and men.” I replied.

All jokes aside, as with millions of other working parents around the world, I am challenged by this work-from-home-while-parenting situation during the school year and summer break. More is being asked of me than I ever thought would and certainly more than I would ever ask for.

It is tough! But my consolation is that I’m not alone. Somehow, millions of people around the world are pulling it off, for now, and figuring out their own ways to make it work.

So, I asked my network for advice.

(It turns out, crowdsourcing good ideas is how I cope with COVID-related stress and isolation.)

Valuable Family Time: Have A Plan And Discuss It With Your Kids

“Where do I start?! Hmmm. I have a special-needs kid. It hasn’t been easy to WFH and accommodate all his different needs solo without help from his nursery (which all got shutdown post-COVID). But the good part is that I was able to still spend quality time with him more than I used to and focusing on providing him better support. I am not stronger than anyone else, I just learned by practice to take one day at a time.” Yosr Hussein Hamza, director, legal and ombudsman affairs, Middle East at Gartner, explained.

Deb Feder, a business development coach and consultant said, “We actually just had this discussion with our kids. The surprising good things from COVID: 1. Family dinner (we used to have evening activities 5 days a week that had us all running) 2. Not having to go to the ‘obligatory meetings’ that were not important 3. Getting to learn how to be bored (and fix it without just zoning out to more shows) 4. Getting to have lunch with my kids.”

Focus On The Transferable Skills You Are Developing And Learning Opportunities For Yourself

Lisa Goldkuhl, a dedicated mother and in-house supervising attorney, said, “My kid has told me he hated me and I’ve told him that I hated him during the COVID shut-in. Daily lessons on patience and working with another person who has a different style and priorities. This is why involved parents can make such great bosses!”

She explained, “We’ve been through the wringer and get training every single day on how to be a better manager. I finally screamed at my kid 2 weeks into WFH – ‘Why do I care more about your schoolwork than you do? This is YOUR stuff. Not mine. If you don’t want to do it, then you can just repeat the 4th grade next year.’ And then I made him responsible for all his schooling stuff except printing up the materials. So, I learned a valuable tool about delegating! I’ve already told him next year he’d better figure out how to get all his stuff done by himself. Because mommy is OUT!”

Similarly, Annie Little, founder of JD Nation, pointed out, “My kids challenge me in ALL the ways, but lately I’ve been listening in on their creative play sessions where they role-play as the mom and dad. Oh my, their ability to recreate my words, phrases, mannerisms and tone? Very humbling!”

Forgiving Yourself and Structure and Reminders Go a Long Way

Monica (Hyson) Winghart, principal at Voltage Law Group, said, “We have 5 at home — ages 15-10. So, there is a lot of creative “mouth.” I tell mine that if they have the energy to argue, they have the energy to run laps, do pushups, additional chores…. And I gently remind them with my “office sign” that I am the supreme leader of the passwords for internet and all devices…. muahahahahahahaha!”

“My boys use more…colorful language to express their frustration with our authoritarian regime at home. Hang in there. We’re all doing what we can to keep it together through this craziness.” Akshay Verma, head of legal operations at Facebook, reminded me.

Curb Your Inner Control-Enthusiasm

Jamie Szal, Maine state and local tax attorney at Brann & Isaacson, said, “My challenge was to resist the urge to gatekeep or micromanage my husband’s parenting style the early weeks home. He is the stay-at-home dad in our relationship, and always has been.” She continued, “It took me several weeks to learn to stay out of it and not to interfere with their routine. I am blessed to have an office, with a door, and the ability to focus on work during the workday. It was a huge challenge to recognize the boundaries I needed to put on myself.”

Maybe We Should Collectively Forgive Ourselves For The Out-of-Control Screen Time

Shari E. Belitz, CEO at Shari Belitz Communications, observed, “It is a REALLY hard time. I thought home school presented challenges, but now there are other challenges with all of this unstructured time. I’m relying on screens too much.” She continued, “When I do have blocks of time, I try to make them count. I hate crafts, but I found myself tie-dying about 10 T-shirts this weekend! Purple hands look great for Zoom meetings. The lesson to me — stop talking with your hands so much.”

If You Don’t Have Kids … Pets And Other Adventures Await

Olivia Vizachero, the owner of the Less Stressed Lawyer, said, “I don’t have kiddos but I do have two cats. And they like to meow loudly and scratch at my office door when I am on Zoom calls. They also like to wake me up in the middle of the night and run around my room in hopes that I’ll get annoyed and feed them to get them to stop. It works about half the time. Bribery and rewarding bad behavior is parenting, right?”

A common thread among responses was patience and forgiveness — to yourself and your family. This is a trying time that none of us have been through before and none of us asked to go through. We are all figuring it out as we go, including our kids, who have had their childhoods temporarily upended. Now is not the time for achieving or helicopter parenting; it’s the time to keep your children fed, as happy as they’ll let themselves be, and perhaps gratitude for our health, safety, and time spent together.

What’s most important to remember is that all of this — working your day job while teaching and feeding your kids at the same time — is temporary. The pandemic will end, and, well, if it doesn’t, your children will go grow up into self-sufficient adults soon enough!


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.

Seth Klarman Thinks Investors Are Childish Enough Without The Fed’s Milk And Cookies And Cooing

Morning Docket: 08.03.20

Do you have a thang for Dean Strang? (Photo via Netflix)

* A lawyer who was featured in the Netflix documentary series Making a Murderer has been unable to shake his conviction for violating a restraining order. Maybe he should have had “dreamy” Dean Strang defend him… [ABA Journal]

* A study has found that the number of lawyer jobs may have decreased by over 15% in the past six months. [Bloomberg Law]

* A group of voters have filed a lawsuit seeking to prevent the Trump Administration from excluding undocumented immigrants from the census. [Jurist]

* Michael Avenatti will receive a taxpayer-funded lawyer in one of his criminal cases after claiming he did not have the financial resources to pay his own counsel. [Fox News]

* The Supreme Court has denied the request of environmentalists to stop the Trump Administration from building a southern border wall. The justices didn’t rule if Mexico needs to pay for it… [ABC News]


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.