Category: News Feeds

I came across Sterling Miller’s rules for in-house counsel, courtesy of the InHouse Counsel Newsletter. They are very good rules, especially for newer practitioners and a refresher for those of us who have been in the trenches for more years than we care to count. They are the soft skills that we need.   In some ways, the rules are variants of the Golden Rule, which we learned or should have learned in kindergarten, but in our rush to success, we have lost them.

Miller sets forth more than two dozen rules. They apply to all lawyers and not just to in-house counsel. So, for example, one rule is to “say it and write it as simply as possible — get to the bottom-line ASAP.” Do I need to tell you how many times clients would call me, rather than the author of the memo to vent about what a useless memo it was?

The problem was content. The memo was a law review article (we in-house counsel were not paid by the word), rather than laying out what the law was (to the extent that it could be discerned, not always an easy task) and making suggestions about possible courses of action. Sometimes the suggestion was clear: don’t do it, but that’s a business decision for the client to make. It’s much harder to write something simply and clearer than to blither for pages. (This applies to you, outside counsel. We don’t assume that we’re paying you by the word, either.)

KISS applies here. Not the Gene Simmons band, but the acronym for “Keep it simple, stupid.” Clients appreciate brevity and the bottom line right away, especially if the issue is time sensitive.

Another Miller suggestion: “Deliver bad news and good news — fairly and honestly. Keep an even keel.” Easier said than done, isn’t it? One of the hardest things for newer practitioners to learn and get comfortable with is the idea that it’s the client’s problem, it’s not YOUR problem. Don’t take on your client’s head trips. You didn’t get the client into this mess (unless there’s malpractice lurking), and all you can do is do your best with the facts that you are given. Don’t beat around the bush with bad news. I think most people can absorb bad news if they receive it as quickly as possible and with possible suggestions as to how to overcome it. Tantrums? They will get over them. Good news? Congratulations!

One of the issues that always arose when I was trying to settle a case was the math. Plaintiff’s counsel would make a demand, and I always asked how that number was reached. In other words, show the math, show how you got to where you are. It was impossible for me to get settlement authority without explaining how the demand was reached. On more than one occasion, I was told by opposing counsel to “bring the CEO and the checkbook.” Fat chance. C-suite executives are numbers driven, and without an explanation of how the demand was reached, settlement negotiations were full stop.

Another one of Miller’s rules was to pick up the phone; don’t just email everything every time. Talking on the phone and not texting leads to less likelihood that either the text or the email can be misconstrued, leading to cliff jumping when there’s no need. It’s nice to hear a voice and schmooze for a minute or two, even if it’s just the normal pleasantries that start a conversation. Usually there’s some common ground to be found, especially in these pandemic times.

Underpromise and overdeliver. Clients love that. No further explanation needed.

We fear not knowing it all. Right? There’s no possible way that we can know it all, but we are afraid of telling the client that, worrying that the client will think  you’re a bozo because you don’t know it all. Does the client know it all? Of course not. Just don’t bulls- the client. Don’t tell her you know it when you don’t. There’s nothing wrong with having to research to provide the client with the correct information, and most clients (at least those who have a brain cell) will appreciate the care you’re taking with the matter. Nobody’s perfect.

My boss used to say to “keep the boss’s boss off the boss’s back.” As Miller says, “Don’t let the boss be surprised.” The theory is no surprises. We can handle anything, even the worst, if we’re not surprised. Sometimes outside counsel surprised us with bills that were way out of line. Did outside counsel ever call in advance to let us know that there was “incoming” on the way? Of course not. Outside counsel never liked to be the bearer of bad news.  Everything was hunky-dory … until it wasn’t. Share the bad and the ugly. There’s nothing worse than a CEO with his top blown, and we’re scrambling around searching for it.

Lastly says Miller, “Smile. Have a sense of humor.” Given the number of sourpusses who practice law, that may not be so easy but it’s worth the effort. Remember to be nice, especially in these days, but really all the time, regardless of events. Everyone has their own personal battles, and so I think we need to cut each other some slack, now more than ever. I hope that will continue when life returns to whatever normal will be and whenever that will be.

Miller’s corollary to that is “Don’t be a jerk.” Amen. I don’t know what happens in law schools that can turn decent people into jerks, but please skip that class. Your reputation is the only thing that follows you your entire career. Prize it, guard it. It’s golden.

---

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

Oh, good lord. The self-owns just keep on coming with these people, don’t they?

Proving that using technology and avoiding racial slurs is just too much to ask, The Daily Beast reports that someone on Rudy Giuliani’s team inadvertently posted footage to his YouTube channel that shows the former NYC mayor mocking Asians.

The offensive footage was in the extended YouTube version of Giuliani’s podcast, Common Sense. After his recent interview with Sean Spicer, the camera kept rolling — a fact Giuliani was apparently unaware of. In those unguarded moments, Giuliani started to use a stereotypical Chinese accent while mocking an assistant and even pantomiming a bow:

After a few moments of small talk with an assistant who appears to be Jayne Zirkle, an animated Giuliani started affecting a stereotypical Chinese accent while telling Zirkle that she’s “going to be the most famous model in China.”

“Ah, get me Jayne Zirkle,” he said while using the accent.

After asking others in the room what they wanted for dinner, Giuliani continued to say Zirkle’s name in the mocking accent. He then started pantomiming a bow while repeating her name. Then the video cuts out.

The Giuliani team has, obviously taken the footage down. But this is the internet my friends, and nothing is ever really gone from the internet.

It’s 2020, so its a challenge to say anything is really shocking, but that doesn’t mean this unguarded moment of offensive nonsense should pass without your scathing judgment.

---

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).

Shane Hvizdzak stands accused of stealing $26 million from investors in—you guessed it—his cryptocurrency hedge fund. He’s got nothing to say about that, other than that he didn’t do any of what the Securities and Exchange Commission alleges, which is that he spirited that money first into his own accounts and then abroad or into untraceable digital wallets in the ether, lying about the returns on the same the whole time. Unfortunately for Shane, his older brother stands accused of the same, and isn’t going as quietly.

* Britney Spears scored a small victory in her conservatorship battle with her father after a judge allowed her to hire her own counsel. Guess now “she is that innocent”… [Variety]

* President Trump has refused to say whether he will keep Attorney General Barr if Trump wins reelection. [CNBC]

* A medical device company will pay millions and submit to monitoring as a result of allegations that the company paid kickbacks to doctors. This would have been a boring ending to Love and Other Drugs… [Salt Lake Tribune]

* Bernard Cohen, the lawyer who argued Loving v. Virginia at the Supreme Court, and was instrumental in eliminating interracial marriage bans, has passed away at the age of 86. [U.S. News & World Report]

* A Texas attorney has been charged for allegedly using his smartphone to record a coworker in a bathroom. [New York Post]

* The Missouri lawyer couple in hot water for allegedly pointing guns at protesters is purportedly handing out autographs. Soon, we may see them on Cameo… [Yahoo 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.

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 Biglaw firm hired the most bankruptcy lateral partners over the last 12 months?

Hint: A total of 8 new bankruptcy partners were brought in over the past year at this firm.

See the answer on the next page.

Even without a historic pandemic unfolding around the world, the 2020 U.S. election was bound to be noteworthy. Issues around voting rights have been simmering at the local and national levels for years, and many attorneys are eager to sharpen their skills and expand their knowledge in order to help advocate for voters.

Ezra Rosenberg, Voting Rights Project Co-Director, Lawyers’ Committee for Civil Rights Under Law and Chair of PLI’s Voter Rights 2020 CLE program, available on-demand, commented about key issues and what attorneys can take away from the program.

Why offer a CLE about voting rights?

There are few, if any, legal topics that have so dominated the news as has voting rights in 2020. This is not only a consequence of this being a presidential election year, but the result of the perfect storm of that election and the pandemic.

On the one hand, the pandemic has created voting issues that have not been encountered before, such as how can we hold an election when people are rightly fearful of being in contact with others? On the other hand, these issues call us to draw upon the established fundamentals of voting rights law — of how we do that on a level playing field so that all eligible voters can be sure that their ballots will be counted. That’s why the voting rights program is particularly meaningful this year: it provides a needed perspective on the constitutional underpinning of voting rights law, along with a real-time, practical application of those laws, by some of the leading voting rights litigators in the country.

What can attorneys get out of PLI’s Voter Rights 2020 program?

We structured the program to provide, first, the constitutional and statutory foundation for modern voting rights litigation; and then, a soup-to-nuts demonstration of how that foundation interacts with every aspect of voting, from voter registration to voter purges to barriers to voting (in every aspect of voting, from absentee through voting in person), to how one’s vote is given weight in apportionment and redistricting decisions.

What are some of the key issues discussed in the program and why are they important?

The first thing we tried to do was to demonstrate the different ways in which the Constitution protects the right to vote. It does this either by way of specific amendment, such as the Fifteenth Amendment, or by way of application of judicial construction of the First and Fourteenth Amendments, which create different doctrines such as the right-to-vote test that balances burdens on voters with the interests of states, and the one-person/one-vote doctrine that insures that all persons’ votes are given equal weight in the drawing of legislative districts, and which led to the historic Voting Rights Act of 1965 that prohibits discrimination on account of a person’s race or ethnicity so as to deny or limit that person’s opportunity to participate equally in the political process.

We then spent two-thirds of the program giving real-life examples, many of them litigated by the panelists in areas including: voter ID, using the Texas Photo ID case that Myrna Pérez and I tried as a prime example; voter purge cases, such as the Hancock County case, where we succeeded in obtaining a consent decree that stopped a purge of Black voters in a small Georgia County; and the various COVID-19-related cases, where we and others, including panelist Sophia Lin Lakin, have sued jurisdictions to ensure that absentee ballot eligibility criteria and procedures do not unconstitutionally stop people from voting this year.

Why did you speak for PLI?

I’ve been practicing law for over 45 years, and I take real pleasure in sharing my knowledge and experience with others. I’ve been lucky, in my career, to always have had others who have done that for me — including in the past decade, when I began to work intensively in the voting rights arena. PLI provides a stellar vehicle for sharing knowledge.

Can you share some insights about what you think attorneys can do to protect voting rights, particularly when there are so many unusual challenges facing the electorate this season?

Attorneys should reach out to any of the many voting rights organizations and volunteer their services. And these services can include volunteering to work on hotlines, such as the Election Protection hotline 866-OURVOTE, which the Lawyers’ Committee helps coordinate.

To learn more and to register for the PLI CLE program Voter Rights 2020, available on-demand, visit PLI.edu.

---

About PLI

Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

As many people within the legal profession understand from first-hand experience, lawyers and courts have been conducting operations remotely since the COVID-19 pandemic began. Judges and court attorneys are usually holding hearings and conferences through Zoom or other similar mediums these days in order to reduce the risk that attorneys and court staff will be exposed to the virus. In addition, many depositions have been held remotely so that parties do not need to be together in one room during the proceedings. However, I recently had my first in-person deposition since the pandemic began, and the experience has shown me that there is much that is lost by holding depositions through remote means.

Rapport Between Attorneys

Of course, the most important part of a deposition is to receive sworn testimony from a witness. However, there are a number of other reasons why in-person depositions can be important to a case. Perhaps one of the most important aspects of in-person depositions is that is gets all of the attorneys connected to a case in one room, which can be helpful in moving a case forward. At an in-person deposition, attorneys can casually talk about discovery disputes, settlement numbers, and numerous other issues while everyone is together for the purpose of taking a deposition. Moreover, attorneys can build rapport with one another at in-person depositions in ways not possible during virtual depositions. For instance, many attorneys eat lunch together during breaks in a deposition, and this can go a long way toward building connections with other attorneys on your case and even in your practice area. I have never heard of attorneys eating their lunches together through Zoom during virtual depositions, and this rapport-building is essentially lost during virtual depositions.

Efficiency

One of the biggest benefits that I missed about in-person depositions is that taking testimony live is far more efficient than using Zoom or other remote means. When parties use Zoom or other applications, there is always the risk that internet disruptions and other technical glitches will make it difficult to take testimony. At virtual depositions, it is also sometimes hard to hear people, and individuals are far more likely to talk over each other, which can be difficult on the deponent, the attorneys, and perhaps more importantly, the court reporter.

Moreover, many of the procedural parts of a deposition are nearly impossible when depositions are conducted through virtual means. For instance, it is much more difficult (or impossible) to show a witness an exhibit during a virtual deposition, have them read from a writing, and ask questions pertaining to documents and other tangible items. Any good deposition taker will tell you that using exhibits is an important part of directing a witness, and this component of depositions is really hard with virtual proceedings. Moreover, using translators is much easier in person than during virtual depositions. Translators can already add to the time and complexity of a deposition, and this is even more of a challenge at virtual depositions. All told, my recent experiences with in-person depositions and virtual proceedings have shown me that in-person questioning can save both time and effort.

Witness Reactions And Sidebars

Anyone who has participated in a deposition conducted over the phone or even by Zoom (or a similar app) knows that it is hard to discern witness reactions during virtual depositions. Being able to observe the reactions of a witness is extremely important to determining if a witness is telling the truth, is uncomfortable about certain topics, and other insights. The reactions can help inform an attorney’s perspective, and it is extremely difficult to get this understanding from virtual depositions.

In addition, virtual depositions make it much easier for attorneys to coach their client during a deposition. Some jurisdictions restrict the applicability of the attorney-client privilege during depositions because courts understand that it is important for witnesses to provide truthful and unguided testimony during depositions. However, it is much easier for attorneys to talk with clients without other counsel knowing about it when they are in a room together and everyone else is participating in a proceeding remotely. While I do not want to impugn anyone, everyone knows that coaching and other “funny business” often occurs at depositions, and this is much easier during virtual depositions.

Of course, I am not saying that virtual depositions shouldn’t take place during the pandemic, and lawyers — just like everyone else — need to follow the advice of medical professionals. It seems like virtual depositions will be a much bigger part of the legal profession for a long time, since health guidelines require social distancing and depositions usually bring people together. However, my recent experiences with both in-person and virtual depositions have shown me that virtual depositions should not be an ubiquitous and permanent fixture of the legal profession.

---

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.

Leon Black is sorry. Sorry, we’re sure, about just how close a relationship he had with convicted and now dead pedophile Jeffrey Epstein. Sorry that he funneled his fellow “financier” as much as $75 million long after he officially became a registered sex offender. But mostly, if seems, sorry that other people keep taking notice of it, producing awkward questions on the part of clients and forcing him to do his least favorite thing: talk about Jeffery Epstein.

Wall Street tycoon and Apollo Global Management co-founder Leon Black expressed regret for his dealings with convicted sex offender Jeffrey Epstein in a letter to investors on Monday…. Black said in the letter that his relationship with Epstein spanned only professional services that included “estate planning, tax and philanthropic endeavors.” He also wrote that he occasionally met with Epstein at Epstein’s townhouse in New York to conduct business, as Epstein did not have a separate office. He also noted visiting Epstein’s private island for a “picnic lunch.” ​In the letter, Black said that members of his immediate family accompanied him.

“With the benefit of hindsight — and knowing everything that has come to light about Epstein’s despicable conduct more than fifteen years ago — I deeply regret having had any involvement with him,” Black stated in the letter.

Last week, a Ninth Circuit Court of Appeals panel issued a very short opinion in favor of the Dvash-Banks family. That’s great news! For now. The poor family has been put through the ringer by the government after a customs officer informed the new parents that only one of their infant twin boys would be recognized as a United States citizen. Since that time, the parents — along with the nonprofit firm Immigration Equality, and the very profitable firm Sullivan & Cromwell, as pro bono counsel — have been fighting for their other twin son to also be recognized as a U.S. citizen.

You may recall this case and similar ones like it. (Here is a podcast interview with the Mize-Gregg family — a married couple, both U.S. citizens, whose daughter was similarly denied citizenship.) The U.S. government has been insisting that children born of married U.S. citizens must also be biologically related to *both* parents, or else the children fall within the “unwed” parents section of the immigration code. That is, even if the parents are actually, you know, wed. Of course, asking parents who are applying for citizenship for their children whether both parents are genetically related to the child is discretionary, and the question tends to be asked of same-sex couples by default, and much less often or never, of heterosexual couples who may have conceived with the help of egg, sperm, or embryo donation.

The government has argued that inherent in the language “born of … parents” found in the immigration code is an implication that the child is biologically related to both parents. Since the technology is not there (yet!) for two men to both be genetically related to the same child, a married same-sex male couple could never satisfy the government’s overly restrictive interpretation. Luckily for these families, the government has been losing this argument over and over again. And over again. First, in the lower court with Dvash-Banks, then a federal court in Maryland with the Kiviti family, and again less than two months ago in federal court in Georgia in the Mize-Gregg case. While the government has not filed an appeal in the Mize-Gregg case, it is still within the 60-day window where the government may file an appeal, and based on Dvash-Banks and Kiviti, that appeal is coming.

It’s A Win, But It’s Not Over

In the Ninth Circuit decision last week, the court took all of one page — well, technically three pages with the case caption and judges’ signatures — the court noted it had no choice but to follow binding precedent. Two cases — called Scales and Solis-Espinoza — are directly on point and controlling. So the opinion, which included an appointee of President George W. Bush and an appointee of President Donald Trump, noted matter-of-factly that the government “concedes that Scales and Solis-Espinoza control this case and has appealed to preserve the argument that those cases were incorrectly decided. “As a three-judge panel, we are bound by Scales and Solis-Espinoza.”

So what’s next? While most of us would like to think the government would shake hands, say “good game,” admit defeat, and change its constitutionally questionable policy, that is probably not its next move. The government has two choices. First, it can request what’s called an en banc hearing by a larger panel of the Ninth Circuit. Instead of a three-judge panel, the case would be randomly assigned 10 judges from the Ninth Circuit’s roster of appellate judges. An en banc panel, unlike the three-judge panel, would not be required to follow the earlier panel precedents.

The other alternative is to request to go straight to the Supreme Court. The government can also pursue this option and request to be heard by the Supreme Court even if it seeks but loses an en banc appeal, if it went that route first.

While Amy Coney Barrett’s outlook on embryos and IVF may be grim, it is unclear how she — if confirmed as a Supreme Court Justice — would interpret the immigration code. In any event, I wouldn’t get my hopes up that she is a champion of same-sex parents under the Constitution. So while the latest decision should be an opportunity for the Dvash-Banks family to rejoice, they, and all similar situated families, are not out of the woods yet.

---

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