Category: News Feeds

No matter how messed up you think the criminal justice system is, you probably still think that behind every conviction there is a crime. Sure, maybe it shouldn’t be a crime, or maybe the wrong person was convicted or the sentence far outstrips the societal harm but you have to imagine that a crime has been committed. Except in far too many cases, that is simply not true.

In this week’s episode, I speak with former New York City public defender and Montclair State University professor, Jessica S. Henry, about her new book — available today — Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened. We chat about the definition of no-crime convictions, what’s the prevalence and scope of no-crime convictions, and finally what can be done to stop this miscarriage of justice, particularly within the current criminal justice reform zeitgeist.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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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).

Two weeks ago, I shared with you the complete roster of Supreme Court clerks for October Term 2020, which will officially begin on the first Monday of October. That start date remains unchanged, even if the Court will probably still be doing telephonic arguments then.

As promised in my last post, here’s a deeper dive into the demographics of the OT 2020 clerk class. Let’s jump right in, starting with….

1. Gender. The class contains 38 clerks: four clerks to each of the nine active justices except for Justice Ginsburg, who’s getting five — the fifth being Thad Eagles, originally hired by the late Justice Stevens — plus one clerk to retired Justice Kennedy (I’m not sure why retired Justice Souter is no longer hiring a clerk). Of the 38 clerks, 22 are men and 16 are women, making for a class that’s 58 percent male and 42 percent female.

That’s about the same as the October Term 2019 clerk class, which was 59 percent male and 41 percent female. It’s a bit lower in the representation of women than the October Term 2018 clerk class, which was the first majority-female clerk class in SCOTUS history (thanks in part to Justice Kavanaugh’s all-female class of clerks in OT 2018, another first for the Court).

Speaking of Justice Kavanaugh and gender equality among SCOTUS clerks, look ahead to his clerk cohort for October Term 2021 (listed below) — another group of four women. Assuming no other justice has an all-female clerk class in OT 2021 — which seems quite likely, based on history — Justice Kavanaugh will have had two all-female clerk classes before any other justice has had even one. This also means that of the 16 clerks hired in his first four terms, 13 will have been women.

The unfortunately small number of women advocates who appear regularly before the Court, as well as the relatively small number of women judges and justices, is partly the result of the gender disparity among the ranks of Supreme Court clerks, who are disproportionately represented among the ranks of top appellate lawyers, federal judges, and Supreme Court justices. If we want to improve the representation of women in these groups, we need to have more women as SCOTUS clerks. So kudos to Justice Kavanaugh for being part of the solution on this issue.

2. Feeder schools. Last term, October Term 2019, the group of law schools producing Supreme Court clerks was impressively diverse, with a dozen schools minting SCOTUS clerks. This term, October Term 2020, the pendulum has swung back toward elitism, with just seven leading law schools producing all 38 clerks. Here’s the ranking, with the number of clerks noted parenthetically:

• Yale (15)
• Harvard (7)
• Chicago (5)
• NYU (4)
• Stanford (3)
• UVA (2)
• Michigan (2)

For OT 2020, the top three feeder schools remain the same as those of OT 2019, in the same order — with Yale actually improving its haul of SCOTUS clerkships to 15 (up from 11 last term), followed by Harvard with seven and Chicago with five. NYU had an unusually strong showing in OT 2020, taking fourth place with four clerks — and putting its uptown rival Columbia, which had no clerks this term, to shame.

3. Feeder judges. Like the ranks of feeder schools, the ranks of feeder judges contracted slightly this term as well. For this term, OT 2020, a total of 39 different lower-court judges sent clerks to One First Street, compared to 47 judges for OT 2019.

Here are the feeder judges with more than one clerk at the Court for OT 2020, with the number of clerks noted parenthetically:

• Katzmann (4)
• W. Pryor (4)
• Srinivasan (4)
• Sutton (3)
• Wilkinson (3)
• Boasberg (D.D.C.) (3)
• Rakoff (S.D.N.Y.) (3)
• Furman (S.D.N.Y.) (3)
• Calabresi (2)
• E. Carnes (2)
• Garland (2)
• Katsas (2)
• Kethledge (6)
• Watford (2)
• Oetken (S.D.N.Y.) (2)

A few other observations:

(a) Chief Justice Roberts disappointed conservatives with a number of his votes in OT 2019, leading one court watcher I know to complain that JGR is now basically “a moderate Democrat.” And in terms of his clerk hiring practices, he looks like a moderate Democrat too.

For OT 2020, the Chief’s four clerks served eight different lower-court judges. Of those eight judges, five were appointed by Democratic presidents, and three were appointed by Republican presidents. And looking ahead to OT 2021, his one hire so far clerked for two Democratic appointees.

(b) As I tweeted previously at @SCOTUSambitions, where I report SCOTUS clerk hires in something closer to real time, there’s actually a fair amount of “across the aisle” clerk hiring these days. For example, take Chief Judge Sri Srinivasan, appointed to the D.C. Circuit by President Barack Obama (and considered by Obama for SCOTUS). Chief Judge Srinivasan’s three most recent feeds all went to Republican appointees: Chief Justice Roberts, Justice Kavanaugh, and Justice Kennedy.

This hasn’t always been the case. Back in 2010, for example, Adam Liptak wrote a New York Times article about how heavily justices hired clerks from lower-court judges appointed by a president of the same party as the justice’s.

In an age of increased political polarization, it’s nice to see the Supreme Court transcending politics, at least to some extent — in its rulings, as Professor Akhil Reed Amar argued in a recent Times op-ed, and in its clerk hiring as well.

(c) An interesting new trend: clerking for two federal appellate judges.

The reason there are so many feeder judges, and more feeder judges than there are clerks, is because many SCOTUS clerks serve multiple clerkships before coming to the Court. The most typical path is to clerk for a district judge and a circuit judge (e.g., the tag team of Judge Rakoff and Chief Judge Katzmann). But as you can see in the list of OT 2020 clerks below, clerking for two circuit judges is now becoming “a thing,” as the kids say.

I personally think the combination of a district and circuit clerkship is professionally preferable to two circuit clerkships. Trial and appellate clerkships are different experiences, and you learn different from things from each one. But some clerks with a “SCOTUS or bust” attitude find that having two former circuit judges who can go to bat for them is helpful when it comes time to apply to clerk for the Court. Two feeders is better than one, right?

4. Ms. Irrelevant. As longtime readers of Supreme Court Clerk Hiring Watch know, each year I prepare a special profile of the last clerk whose hiring I learn about. It’s ATL’s version of the NFL’s Mr. Irrelevant.

Or in this case, Ms. Irrelevant — Amy Upshaw (Chicago 2016/Sykes), clerking for Justice Thomas. So here’s some background and a few fun facts about Amy.

Amy R. Upshaw graduated from the University of South Carolina, where she was a McNair Scholar — a recipient of the most prestigious undergraduate scholarship at USC. She then went on to the University of Chicago Law School, where she served as Comments Editor for The University of Chicago Law Review. She graduated from Chicago with honors in 2016, then clerked for Judge Diane Sykes of the Seventh Circuit — a prominent feeder judge and a SCOTUS shortlister for President Donald Trump.

(Digression: Judge Sykes is now 62, turning 63 in December, so she’s probably out of the SCOTUS running now. All eyes are now on a younger female Seventh Circuit jurist, Amy Coney Barrett (who’s not even 50). But Judge Sykes can always treasure the shoutout she received in February 2016 from then-candidate Trump, who cited her during a presidential debate after the death of Justice Scalia as exactly the type of judge he’d appoint to the Court.)

After clerking for Judge Sykes, Amy Upshaw worked as an associate in the D.C. office of King & Spalding, where she focused on appellate and constitutional law. As a graduate of a top state university (where she received a top scholarship), a graduate of a top law school (with honors), a former law clerk to a top feeder judge, and a former associate at a top Biglaw firm, Amy seems to be a typical SCOTUS clerk in many ways.

But Amy is more interesting than the sum of her resume items. Let’s turn to the more personal, shall we?

Like many SCOTUS clerks, Amy has a high-powered spouse: Margaret Upshaw, her former Chicago Law classmate. Maggie clerked for Judge William Fletcher (9th Cir.), served as a Bristow Fellow in the Office of the Solicitor General, and now works as a litigation associate in the Washington office of Latham & Watkins.

(I’m guessing that Maggie took Amy’s surname, since Amy was Amy Upshaw back in college. Also, please note that I’m not “outing” Amy; this 2016 article on the Chicago Law website notes her marriage to Maggie.)

Friends of the couple inform me that Amy and Maggie Upshaw are like the same-sex version of Mary Matalin and James Carville — i.e., a conservative/liberal couple. Maggie is liberal — not surprising, given that she’s a graduate of a top law school (even the somewhat more moderate U. Chicago still skews left), as well as a former law clerk to Judge Willy Fletcher, a leading liberal light of the Ninth Circuit. Meanwhile, Amy is conservative: she grew up (Tennessee) and went to college (South Carolina) in the South, she lists the Bible as a favorite book, she clerked for a conservative circuit judge, and she’s now clerking for a conservative justice.

(And no, Justice Thomas doesn’t do the whole “counter-clerk” thing. As he memorably quipped, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”)

Is it surprising that Justice Thomas has hired an LGBTQ clerk? Not really. Although he is Catholic and conservative, Justice Thomas never had the same problem with same-sex marriage that, say, the late Justice Scalia did. Although he joined Justice Scalia in dissenting from Lawrence v. Texas, in which the Supreme Court invalidated Texas’s sodomy law, Justice Thomas wrote a separate dissent in which he opined that Texas’s law was “uncommonly silly.” As Justice Thomas further explained, “If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

And I don’t even think that Amy Upshaw is Justice Thomas’s first LGBTQ clerk. Again relying on information that’s already public, Matthew Berry (who overlapped with me in law school) is openly gay and clerked for Justice Thomas. (I don’t know whether Matt was out at the time of his clerkship, but I wouldn’t be surprised if he was.)

(Digression: like Justice Thomas, Judge Sykes has also had gay clerks in the past. See, e.g., Josh Handell — whose August 2018 wedding to William Clayman was actually officiated by Judge Sykes.)

What else can we add about Amy? We’ve heard from a few folks who know her, and they sing her praises — describing her as a brilliant lawyer, a wonderful person, a devoted mother (she and Maggie have a young child), and a worthy clerk to Justice Thomas.

So congratulations to Amy Upshaw — and to all of her fellow law clerks for October Term 2020, listed below, along with a few hires for OT 2021 and OT 2022.

If you have any corrections to this information, or if you have any hiring news I have not yet reported, please reach out by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text, because that’s how I locate these tips in my overwhelmed inbox. Thanks!

OCTOBER TERM 2020 SUPREME COURT CLERK HIRES

Chief Justice John G. Roberts
1. Leslie Arffa (Yale 2018/Livingston/Boasberg (D.D.C.))
2. Patrick Fuster (Chicago 2018/Watford/Chhabria (N.D. Cal.))
3. Benjamin Gifford (Harvard 2017/Rakoff (S.D.N.Y.)/Katzmann)
4. Stephen Hammer (Harvard 2018/Sutton/Katsas)

Justice Clarence Thomas
1. Philip Cooper (Chicago 2017/W. Pryor/Stras)
2. Joshua Divine (Yale 2016/W. Pryor)
3. Jack Millman (NYU 2016/O’Scannlain/E. Carnes)
4. Amy Upshaw (Chicago 2016/Sykes)

Justice Ruth Bader Ginsburg
1. Jack Boeglin (Yale 2016/Srinivasan/Calabresi)
2. Thaddeus Eagles (NYU 2015/Rakoff (S.D.N.Y.)/Katzmann)
3. Eliza Lehner (Yale 2017/Watford/Furman (S.D.N.Y.))
4. David Louk (Yale 2015/Boasberg (D.D.C.)/Katzmann)
5. Brittany Jones Record (Stanford 2016/Sutton/Millett)

Justice Stephen G. Breyer
1. Emily Barnet (Yale 2015/Rakoff (S.D.N.Y.)/Katzmann)
2. Diana Li Kim (Yale 2017/Hall (D. Conn.)/Calabresi)
3. Arjun Ramamurti (Yale 2018/Garland/Pillard)
4. Daniel Richardson (UVA 2018/Wilkinson/Bristow)

Justice Samuel Alito
1. Taylor Hoogendorn (Yale 2018/Wilkinson/Katsas)
2. Mary Miller (U. Michigan 2016/Owen/Leon (D.D.C.))
3. Maria Monaghan (UVA 2017/Thapar/E. Carnes)
4. David Phillips (Harvard 2018/Colloton/Silberman)

Justice Sonia Sotomayor
1. Greg Cui (Yale 2017/Fletcher/Furman (S.D.N.Y.))
2. Kristen Loveland (NYU 2016/Furman (S.D.N.Y.)/Lohier)
3. Imelme Umana (Harvard 2018/Wilkins)
4. Sarah Weiner (Yale 2017/Tatel/Oetken (S.D.N.Y.))

Justice Elena Kagan
1. Peter Davis (Stanford 2017/Srinivasan/Boasberg (D.D.C.))
2. Madeleine Joseph (Harvard 2018/S. Lynch/Howell (D.D.C.))
3. Isaac Park (Harvard 2018/Srinivasan/Oetken (S.D.N.Y.)
4. Joshua Revesz (Yale 2017/Garland)

Justice Neil M. Gorsuch
1. James Burnham (U. Chicago 2009/Kozinski)
2. Trevor Ezell (Stanford 2017/Sutton/Oldham)
3. Krista Perry (U. Chicago 2016/W. Pryor/Kennedy)
4. John Ramer (Michigan 2017/Kethledge/Bristow)

Justice Brett M. Kavanaugh
1. Harry Graver (Harvard 2019/Wilkinson)
2. Tyler Infinger (NYU 2016/Rao)
3. Zoe Jacoby (Yale 2019/Barrett)
4. Megan McGlynn (Yale 2017/W. Pryor/Friedrich (D.D.C.))

Justice Anthony M. Kennedy (retired):
1. Ben Wallace (Yale 2016/Kethledge/Srinivasan)

OCTOBER TERM 2021 SUPREME COURT CLERK HIRES (as of August 3, 2020)

Chief Justice John G. Roberts
1. Maxwell Gottschall (Harvard 2019/Srinivasan/Boasberg (D.D.C.))
2. ?
3. ?
4. ?

Justice Clarence Thomas
1. Christopher Goodnow (Harvard 2017/Sykes/Katsas)
2. Manuel Valle (U. Chicago 2017/E. Jones/Larsen)
3. ?
4. ?

Hired by Justice Thomas for OT 2022: Bijan Aboutarabi (U. Chicago 2018/W. Pryor/Thapar).

Justice Ruth Bader Ginsburg
1. ?
2. ?
3. ?
4. ?

Justice Stephen G. Breyer
1. Elizabeth Deutsch (Yale 2016/Pillard/Oetken (S.D.N.Y.))
2. ?
3. ?
4. ?

Justice Samuel Alito
1. ?
2. ?
3. ?
4. ?

Justice Sonia Sotomayor
1. ?
2. ?
3. ?
4. ?

Justice Elena Kagan
1. Andra Lim (Stanford 2019/Friedland)
2. ?
3. ?
4. ?

Justice Neil M. Gorsuch

1. Stephanie Barclay (BYU 2011/N.R. Smith)
2. Louis Capozzi (Penn 2019/Scirica/Wilkinson)
3. Mark Storslee (Stanford 2015/O’Scannlain)
4. ?

Justice Brett M. Kavanaugh

1. Alexa Baltes (Notre Dame 2017/Gruender/Barrett)
2. Athie Livas (Yale 2019/Thapar/Friedrich (D.D.C.))
3. Jenna Pavelec (Yale 2017/Thapar/Kethledge)
4. Sarah Welch (Chicago 2019/Sutton/W. Pryor)

Hired by Justice Kavanaugh for October Term 2022: Thomas Hopson (Yale 2020/Katsas/Friedrich (D.D.C.)), Cameron Pritchett (Harvard 2018/Edwards/Gallager (D. Md.)), and David Steinbach (Stanford 2019/Boasberg (D.D.C.)/Srinivasan).

Justice Anthony M. Kennedy (retired):
1. ?

Once again, do you know about a hire not previously reported, or do you have an addition or correction to any of this info? Please share what you know by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, as the subject line of your email or the first words of your text, because that’s how I locate these tips in my inundated inbox. Thanks!

Earlier:

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

Entering time — there are few aspects of the day-to-day practice of law that are so important yet so universally despised by lawyers. That’s because keeping track of and entering time has traditionally been a tedious task that takes up precious billable hours in its own right and takes you away from your actual work.

In reality, though, time entry doesn’t have to be a dreadful, time-consuming chore. Designed by lawyers for lawyers, WiseTime is the first truly autonomous timekeeping system that accurately tracks your time without interrupting your workflows. By harnessing the power of AI, WiseTime has developed a tool that keeps track of your time as you work, with no extra effort on your part.

WiseTime is an application that runs in the background on your computer, privately capturing your activity behind the scenes. You do your normal work and WiseTime does its magic. Tracking time really can be that simple.

How Autonomous Time Capture Works

Your WiseTime experience starts with your personal timeline, where you can see all the time the system has captured while you’ve worked. 

Everything you see on your timeline is private to you. You’ll see blocks of time for emails you’ve written, documents you’ve worked on, websites or programs you’ve spent time in, and more — a to-the-minute breakdown of how you’ve spent your day on your computer.

WiseTime recognizes whatever window is open at the front of your computer and records the time you’re active in that window. If you have a document open for five hours in the background, no time will be recorded for that document until you start working in it.

When you view your timeline at the end of the day, you’ll see all activities laid out chronologically. From there, you can group items together — say, if you worked on a document for an hour in the morning and two hours in the afternoon, or if a number of different activities fall under a single entry such as trial preparation. Just select the items that go together and enter a description. 

WiseTime connects to your practice management or billing system of choice, meaning it imports matter IDs, client references, and whatever other markers you need to properly bill your time. These will appear as tags in the time blocks WiseTime generates. Because WiseTime automatically syncs across your systems, when it sees a case reference in an email subject or a matter number in a document title, it applies appropriate tags automatically, speeding up the time entry process.

In addition to these automatic tags, WiseTime has recently introduced AI and machine learning functionality into your timeline to produce suggested tagging for the tasks in your time blocks. As you accept or reject those suggestions, WiseTime learns to suggest more accurate tags in the future. The program also collects knowledge across your whole team’s tags, increasing its speed and accuracy in suggesting tags for untagged time entries. As WiseTime continues to get smarter, your time entry continues to get quicker as you spend even less time on sorting and tagging.

Once everything looks right, you post your time to the system with a single click. Only at this point does your time become visible to anyone else. Until then, the record of what you’ve done all day is private to you and you alone.

Even in today’s digital world no lawyer does all their work on the computer, so you can always add manual time to WiseTime for work you did offline. Blocks of missing time where you were inactive on your computer will show up in your timeline, allowing you to account for them and assign the proper activities to them. 

WiseTime makes adding manual time even easier by prompting you to do so whenever you’ve been inactive for a period of time (and you can specify how long that period is). When you return to your computer to work, you’ll be asked if you want to manually add the missing time.

Just say yes, choose the type of activity, whether it was a phone call, a meeting, working on paperwork, or something else, and add that time to your timeline to submit later. You’ll get a similar prompt at the beginning of every day, allowing you to account for any work you did since you last logged off. With WiseTime’s smart features, you’ll no longer lose time for phone calls or unplanned meetings — the kinds of interruptions that people routinely forget to include when they’re recreating time entries down the road. 

Once time is released, it’s now visible to whoever’s in charge on WiseTime’s separate manager dashboard. 

Here they can see their team members’ time, broken down by the matters they worked on. The managers’ dashboard gives superiors a great way to see where their team’s time is being spent, which clients are generating the most billable hours, and what activities are taking place for individual clients.

It might sound too good to be true, but AI makes it all possible. WiseTime constantly captures all your time in the background without you having to do any input. You just pick what you want to submit, manipulate it however you need to add descriptions, enter billing codes, or combine entries, then just send it to the billing system without even having to open that program.

Privacy Is Paramount

Many people are understandably wary of “bossware” or any technology that essentially allows their managers to spy on their activities. WiseTime is the opposite of that — nothing you do in WiseTime is visible to anyone other than you until you choose to release it to the billing system.

WiseTime includes preference settings that elevate privacy even more. You can specify exclusions, meaning that you can exclude any app, window title, web page, or browser from being included in your timeline. You can tell WiseTime to exclude time you spend on sites like Facebook, or even all activity in a specific browser if, for example, you do your work in Chrome and your personal business in Safari. Do you have an ongoing personal spreadsheet for house renovations? You can exclude keywords so the time you spend in that spreadsheet won’t show up in your timeline. If something you meant to include manages to creep into your timeline, you can simply not release it or even permanently delete it.

We all know that when you work as many hours as the average lawyer does, you’re bound to deal with personal matters throughout your day. The work and personal lines are blurred even more these days with everyone working from home and using personal computers for work. WiseTime’s exclusion features are an incredible way to maintain your privacy and keep your personal life separate from your work life. 

The Future of Time Entry Is Here

You’d be hard-pressed to find an easier way to keep track of and enter your time than WiseTime. No more random post-its with time jotted down on them, no more timers that you forget to start and stop — WiseTime is truly autonomous and does the heavy lifting of time tracking while you focus on doing your work.

By keeping track of everything you do, WiseTime empowers lawyers to bill more and to bill fairly. It also makes it easy to submit your time every day rather than allowing it to snowball into a dreadful task at the end of the week or month. 

They even offer a 30-day free trial so you can see for yourself what a game changer this is. Give WiseTime a try, and you’ll never dread time entry again.

They also double as eyewear retainers.

Last summer, I chronicled the rise of sunglasses chains, noting that the eyewear retainers had lost their fratty origins and solidified themselves as cool outfit accents. A year later, and these necklace-like Croakies are still trending, but instead of serving as a  practical leash for your sunnies, they’re now being used to jazz up face masks. 

Well, this is encouraging.

Magic Circle firm Linklaters has launched a new program for its U.K. employees to support those who are living in abusive situations. And the firm is backing up that commitment to its employees with cold, hard cash. As reported by Law.com, employees will have access to emergency accommodations, additional funds, and they’ll get up to 10 days paid leave, as well as access to services from U.K. charity Surviving Economic Abuse.

Linklaters will offer support to employees, and their children, who need to flee their home in an emergency, including funding three nights’ accommodation in a hotel and providing a daily living expenses allowance, the firm announced.

Additionally, Linklaters will offer affected employees access to a one-off payment of up to $6,500 to support an individual in becoming financially and physically independent from their abuser.

There will be no requirement to repay the firm and the money can be paid in a variety of means to ensure that the individual has full control of it, the firm added.

This program is launched against a backdrop of increased incidences of domestic violence. There’s reportedly been a spike in domestic violence since the onset of COVID-19 work from home policies. Linklaters global diversity and inclusion partner David Martin said of the new program:

“The future of how and where we work remains uncertain. For now, our homes are now our workplaces and it is clearer than ever that domestic abuse is a workplace issue.

“We have introduced this comprehensive package of support because we want to send a clear message to any of our people living with abuse that they are not alone, we care, and the help they need is available to them.”

Let’s hope other firms take notice and start their own programs to address domestic violence.

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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).

The 2020 Future Ready Lawyer: Performance Drivers indicated that the legal industry is experiencing a transformation, and even though most legal professionals are aware of it, few feel prepared for the future. Even before the pandemic, organizations were looking at new ways to structure themselves in the face of increasing market pressures such as dealing with increased information complexity, managing the growing demands that are put upon legal professionals, and controlling costs. In light of new challenges brought on by the crisis, we’re likely to see more scrutiny around legal professionals’ performance in the near future.

For law firms, the pandemic has thrown into relief some of the challenges that many were already experiencing in the midst of the industry’s transformation. The survey identified the following findings:

• The top changes law firms expect to make in the next three years include: Greater use of technology to improve productivity (83%); greater specialization of legal services offered (80%); and increased emphasis on innovation (75%).
• When it comes to client focus, many firms reported they struggle in their ability to keep up with changes. Just 26% are very prepared to use technology to improve client services; 26% are very prepared to offer greater specialization; and 25% are very prepared to keep pace with clients’ changing needs.
• 60% of law firm respondents plan to increase their technology budget over the next three years, but only 29% are very prepared in understanding technology solutions available, and just 27% are very prepared to use technology to be more productive.

These results indicate some significant gaps with regard to how law firms perceive technology vs. how — and whether — they understand how it can be adopted. In order to survive and grow through the crisis and beyond, it’s necessary for law firms to bridge those gaps and identify ways to leverage technology in order to capitalize on their strengths.

I recently sat down with Mark W. Brennan, lead innovation partner at Hogan Lovells, and Kathryn DeBord, CIO at Bryan Cave Leighton Paisner, to discuss how their organizations have managed their work through the crisis, and how law firms can best prepare for the future.

Supporting Your Law Firm During A Crisis

This year’s survey confirmed that technology is playing an active role in performance and profitability. Those familiar with the 2019 Future Ready Lawyer Survey may recall that technology leaders — those organizations that had already begun leveraging technology — outperformed, across the board, those organizations that were not doing so. As the pandemic took hold, law firms that already had tech solutions in place to enable remote work experienced an easier transition.

“We had many of our business continuity tools already in place, including video conferencing software, our document management systems, AI, and technology related to pricing and legal project management,” Brennan said of his team. “Clients certainly appreciated how quickly we were able to transition to the remote environment with these tools already set up.”

Having experience in tech adoption can also help a firm to jump-start the process of adopting new, necessary solutions more quickly. “We were quickly able to transition our firm to work from home globally to make sure our clients received seamless service, and we set up resources and systems of communication for our people and clients,” DeBord said. “Of note, we set up a flagship hub with tools to help client assess the potential impacts ahead across all industries and sectors and to help with crisis leadership preparedness.”

Managing Client-Firm Relationships

Conducted prior to the pandemic, the survey made clear that while legal departments are moving more work in-house, the vast majority are still relying on outside law firms for a significant portion of the work that must be done, and there are opportunities for law firms to strengthen their partnership with their legal department clients across all aspects of service delivery. As businesses across the country continue to weather the impacts of the pandemic, corporate legal departments will continue to look for ways to cut costs and evaluate the ROI of their work with outside law firms. During this period, there are ways that law firms can continually demonstrate their value — namely through communication with their clients.

“Communication throughout this pandemic is absolutely critical — and so is the strength of your culture,” Brennan said. “We are keeping a steady flow of information to our clients and our people to explain how our response is evolving. These efforts include keeping our clients informed on the latest developments affecting their business, as well as keeping our people informed about our firm and ways to stay safe.”

Brennan also noted that the pandemic could be an opportunity to identify other pathways to providing value to your clients, based on your firm’s strengths. “The current crisis has required us to think creatively to help clients solve their biggest problems, on a timescale that we have never really worked to before. Our sector focus and deep regulatory understanding has given us a unique ability to navigate issues for our clients, and we are able to bring insights from one sector to another.”

The Path To Innovation

Survey respondents named the top reasons new technology is resisted in their organizations, including organizational issues (43%); followed by lack of technology knowledge, understanding or skills (31%); and financial issues (26%). For those who see opportunities to introduce new solutions or systems into their firms, Brennan and DeBord had some advice.

“The first step is to make sure you really know what expertise already exists in the firm around identifying tech, adopting tech, and more broadly identifying and adopting new ways of working,” DeBord said. “This expertise can sit in operational groups or within practice groups. Once you have a handle on who is out there, who has successfully adopted new tech or implemented new ways of working, and who is interested in driving that effort on a firm-wide or more coordinated basis, the next step would be to identify an opportunity for a ‘quick win.’ Once you have that quick win, and can show material benefits from such an exercise, it is a lot easier to get support for more and broader tech adoption.”

“A commitment to embracing technology needs to be part of the leadership ethos and the fundamental culture of the firm,” Brennan said. “This is more than just a single evangelist. You want legal technology to become part of the strategy and culture, rather than just a band-aid.

“It’s also important to begin the process of adopting new legal tech by prioritizing the firm’s real needs instead of jumping on the latest bandwagon out of a fear of falling behind. Once you’ve identified the critical pain points, lawyers and subject matter experts in the business need to work closely together to identify the right solution — which, again, may not necessarily be the trendiest technology of the moment.”

In next month’s article, we’ll explore the survey’s findings on corporate legal departments and dive into their views on what law firms may not know about their clients, their shifting expectations, and what they’re looking for in the future.

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Ken Crutchfield is Vice President and General Manager of Legal Markets at Wolters Kluwer Legal & Regulatory U.S., a leading provider of information, business intelligence, regulatory and legal workflow solutions. Ken has more than three decades of experience as a leader in information and software solutions across industries. He can be reached at ken.crutchfield@wolterskluwer.com.

In June, Washington’s supreme court voted 7-2 to put an end to the state’s pioneering Limited Legal License Technician program. The program allowed non-lawyers to become certified to provide limited legal counseling in family law matters. In practice, LLLT offered a low-cost alternative for families grappling with divorce and child custody issues who too often go unrepresented because they cannot afford legal counsel. But the program lost money for the state bar association so it landed on the chopping block.

Because as we all know, the proper standard for evaluating public services is profitability. Just ask the Post Office right now.

Washington may not seem like a state with a critical access to justice problem but that’s because most people don’t really know much about Washington. People understand that economic inequality is universal in the country but the justice gap isn’t just about money. Most of the country can’t see much beyond Seattle whenever they think about Washington, but there’s a large, fairly rural state on the other side of the Cascade range that suffers from the exact same geographic access to justice issues that famously plague states like South Dakota. The LLLT program offered critical protection for kids whose interests often get shortchanged in family law because one (or both) parents can’t afford an attorney. And while LLLTs couldn’t aid clients in court, assistance navigating the paperwork is a godsend for these families.

The editorial board of the Seattle Times has brought media weight to the effort to restore the program, pointing the finger at attorney-driven protectionism for thwarting the program:

An empowered LLLT system should have been part of the solution. LLLTs cannot represent people in courtrooms, a well-considered restriction. But others were piled on. Regulators hobbled the program, then blamed it for limping.

LLLTs asked the Court this spring to expand into two areas — administrative hearings over public benefits including unemployment, and eviction and debt assistance — where its members could have helped with massive statewide needs. But just as it had in 2017, when LLLTs requested permission to take up elder care and health law issues, the Supreme Court said no, instead of looking toward how Utah’s broader program is working. And this year, the state Bar denied a request to help provide LLLT students family law education after a UW program ended.

Expanding the program to other areas that lower income people typically confront would seem to be the logical extension of a program designed to help lower income people with legal problems. But since the powers that be were more interested in the program as a sideshow they balked at any extension and then shrugged when few people signed up for a job with a sever cap on their opportunities.

One of the dissenters put it this way:

As Justice [Barbara] Madsen wrote in her dissent, “It is not the time for closing the doors to justice but, instead, for opening them wider.” That’s true whether or not Bar Association leaders see it as bad for profits.

Unfortunately, it can be hard to focus on legal representation policies at times like these, but that’s why keeping up the pressure is so important. Washington eliminated this program. Cuomo is gutting immigration rights defense in New York. Initiatives to defend the rights of people who can’t afford help are easy targets. Keep pushing back.

Supreme Court should reinstate low-cost legal-assistance program [Seattle Times]

I don’t expect New York and California to do the right thing. My home state and the other one across the country are deeply invested in their bar exams and the notion that those bar exams will somehow magically produce an elite group of trained lawyers able to practice law in those states. Taking and passing their test means competence, even as, for reasons lost upon me, their bar passage rates fluctuate as if some great monopolist were setting price. Sometimes in relation to one another.

But in Texas, I expect more (not from burgers — Whataburgers are terrible).  A letter, signed by all the deans of the Texas law schools, listed three options for a better bar experience. And by better bar experience, I mean one that does not put students at risk for death. The deans suggested a) an online bar exam; b) diploma privilege, or c) an apprenticeship system. The deans even offered the Texas Bar their collective school experience in terms of online test taking and apprenticeships. Imagine the safety! Imagine the data!

I think we’ve already seen what experiences await the online bar exam takers.  So I’m not a big fan of that one. At least until exam software learns a bit more about security (more on this in a bit). I have to think more about apprenticeships, but I’m concerned about the lack of uniformity of experience. Will bringing coffee to the senior partner count?

So, that leaves me with the inescapable conclusion that Texas ought to establish diploma privilege.

I’m at a loss as to the argument against diploma privilege, at least in Texas. As the deans lay out, it is quite likely that a repeat taker will pass the bar exam.  “While it is true that not every student passes the Texas Bar Exam on the first attempt, within two years, on average more than 9 out of 10 recent graduates from our ten law schools successfully pass the Texas Bar Exam. (Please see ABA Data, attached.) An even higher percentage pass the Texas Bar Exam on a later attempt.”  In other words, to the extent that the Bar creates an entry barrier, it is a temporal and impermanent one. It would be curious as to what argument suggests that more studying for a one-time test would make one more competent to practice law than the prior year. The Texas bar really doesn’t keep people out over time.

If that’s the case, what’s the benefit to the public? Actually, that might be the wrong question to ask. The right question to ask might be whether there is a less restrictive alternative that either maintains the same level of benefit to the public or increases it. In other words, there are costs to the bar exam, such as bar prep payments, that may ALSO impact the overall public. To the extent that students pass the bar and are in more dire circumstances, are they more inclined to engage in misconduct? It is possible that the bar exam itself create more costs than benefits to the public overall than alternatives like diploma privilege. To the extent we cling to the near-religious belief that the bar is a test of competence, the less likely we will be to discover the science that tells us from where incompetence comes.

We don’t have that natural experiment just yet. It’s not like Wisconsin — heart of diploma privilege — has a rash of professional misconduct. But that’s not the same as practicing in Dallas (“Texas’ California”) or Houston (“Texas’ New York”). (Sorry my friends in Austin, I couldn’t figure out anything for you here.  D.C. maybe? That’s pretty weird).

Professors Robert Anderson and Derek Muller in their article “The High Cost of Lowering the Bar” have predicted that lowering the California bar exam required passing score will lead to an increase in California malpractice, based upon examining disciplined lawyers and their alma mater’s scores. This speaks to the need for more data, and more natural experiments for states bold enough to recognize their own BLE fallibility. But, with a few exceptions such as Utah, the state bars seem reluctant to engage in such a voyage of discovery. Which is odd given that their purpose is to assure the protection of the public, right?

But Anderson and Muller also state that, at least with respect to California, “[t]here is virtually no discipline in the first ten years of practice, then the rate of discipline increases in a roughly linear fashion.”  If that’s true, what changes over the course of the later years? Shouldn’t we perhaps focus on the injury to the public that occurs then? And, given that most people pass the bar eventually in Texas, to what extent can the bar be said to have any effect other than delaying the inevitable?

Compare this potentially small benefit of the bar exam with the costs.  Students typically pay for bar exam prep courses. They are potentially unproductive or engaged in reduced productivity while studying for the bar.  To the extent they are unemployed, they may delay job searches until they take the bar. Bar loans! Those are costs regardless of whether we live in a COVID-19 world or not. And they are huge. (By the way, those bar loans are likely increasing during COVID-19 time).

But add to that some serious COVID-19 concerns, and those costs skyrocket.  The July bar exam was canceled, leaving applicants to spend more time with the costs I’ve just mentioned. And now, in Texas, the applicants get to pick their poison.

One Texas option is to show up at a hotel (“such a lovely place”) to take the bar exam in person in September. Given the most recent Texas tampon fiasco, one would hope a great deal of thought would be put into the requirements.  But regardless of the security requirements, the expenditures seem extreme to the extent it appears that the bar exam does very little to prevent entry over time. And there is tremendous risk to the exam take no matter how well COVID-19 protections are deployed. Hint: From what we’ve seen thus far, they aren’t deployed well or consistently.

Texas bar takers also have the option of an online bar exam in October. We’ve already seen the joys the online bar exam brings, particularly to those who are not Internet secure (“AT&T users”). In a matter of a week or so, we’ve had online bar exam issues, LSAT data lost, and people hacking into Twitter.  That’s pretty serious stuff, even if we ignore some of the draconian requirements some online test takers have had to suffer. (“Don’t get up! Don’t move your head! Don’t rub your nose! Are you thinking about rubbing your nose because we told you not to? Don’t! And don’t expect your phone back, either!”)

You might remind me, dear Texas, that in 2018 your task force on the Texas bar exam thought about diploma privilege before and rejected it! True, but the record upon which you contemplated it was so thin that if it were prosciutto, I’d be salivating. And I get it. There’s not a lot of data out there.  But, the report recognizes that, and almost begs for that information. The report states that “[t]he Task Force does, however, think there might be value in experimentation with alternative approaches to licensure.” And it’s a different world now, isn’t it?

So, why are you doing this, Texas? I mean, apart from the fact that the National Conference of Bar Examiners, bar prep courses, and members of the bar who randomly shout “we’ve always done it this way!” want you to. You don’t have to do it, Texas. Thousands of students across the country have risked their lives for the false god of the bar exam. They have had to test for COVID-19 after the bar exam to reunite with loved ones. The fact that thousands have endured doesn’t mean that more have to take the risk. Just like there are way better burgers than Whataburger, there are way better means of assuring the same outcome here. And we can learn in the process using the data you help obtain.

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LawProfBlawg is an anonymous professor at a top 100 law school. He hates the Bar Exam. His thoughts are his and his alone and do not represent Above the Law or his University. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

There never was any doubt that the “hedge fund guys” Donald Trump railed against in his 2016 campaign and then stocked his administration with would do well out of his great 2017 tax heist “reform,” nor that the carried interest loophole he pretended to oppose would survive. After all, look at the two guys who wrote it.

Now look at them again, and consider the seat-of-the-pants, slapdash way in which they wrote it, and also the way it was passed before anyone actually bothered to read the thing, and it’s equally unsurprising that it’s riddled with errors—like the part where they wrote “athletics” instead of “athletes,” potentially screwing over billionaire team owners instead of the people of color who play games for a living as undoubtedly intended. It’s even less surprising that the rich people who did so well from it think they should have done even better, and even less surprising still that those rich people have teams of tax lawyers seeking the wring every potential loophole and advantage for all that it’s worth.

* A Texas lawyer is accused of smuggling meth into a county jail. Maybe this lawyer has been watching too much Breaking Bad. [Houston Chronicle]

* The lawyer for a man accused of firing shots after an argument over masks escalated claims his client is “not handling the pandemic well.” That seems like an understatement. [NBC News]

* A Chinese artificial intelligence company has filed a multi-billion-dollar lawsuit against Apple, alleging that Apple infringed on its patents. [CNBC]

* Senate Republicans are divided over whether they would move to fill a Supreme Court vacancy that occurs before the election. [Hill]

* A mysterious death has resulted in a $2 million life insurance settlement. Sounds like the plot of a John Grisham novel… [Daily Business Review]

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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.