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If you’re on the job market or have been recently, you might have received a pre-employment assessment test. One posting I found ask applicants to complete a two-parter, with both a “cognitive” and a “personality” element.

That feels strange to me, but perhaps that’s just because I’m not of the same generation as most job seekers these days. Pre-assessment tests like these are generally new, and something that job seekers in the past didn’t have to worry about.

Recently, a few people asked me what I think about them. And, well, I was puzzled!

Is this an “assessment” or a “test”? Could it be possible that you have been born with a wrong personality? Can a simple test produce answers that are even relevant to employment? Most importantly, does the prospective employer have a right to know what it is? Is the term “pre-employment” before even having a screening interview presumptuous? What message do these tests send about the companies that use them? Is it fair to ask job seekers to invest even more uncompensated time?

So, I crowdsourced the answer on LinkedIn: “What do you think about the pre-employment assessment tests?” Here is a result of my completely unscientific, unrepresentative sample:

Some Lawyers Are Open-Minded About The Pre-Employment Assessment Tests

“I don’t know but I voted great idea. First, I love new things. Second, I love personality tests. So, I’m in!” said Lisa Goldkuhl, a dedicated mother and in-house supervising attorney.

Besides being fun, these tests may be useful. “If the cognitive test identified the smartest or most intellectually flexible candidates without regard to how their name sounds or where they went to school that could be a positive. Even on personality, it can be useful if you invest time to find out what types succeed or failed your workplace and why,” said Stuart Altman, senior vice president and global chief compliance officer at Las Vegas Sands Corp.

He explained, “Maybe the environment requires risk-taking. Maybe you are hiring someone to be a strong number 2 and need to know if they can be an advisor and not a leader. We all assume we can hire people and know these answers but usually our decisions are highly biased based on what we think are the needs of the job.”

Are The Pre-Employment Assessment Tests Counterproductive?

Yet, Annie Little, founder of JD Nation, pointed out, “I majored in psychology and found personality psych to be more problematic than useful or predictive of someone’s performance. My thought is that employers are shooting themselves in the foot by repelling people who are turned off by tests/assessments and/or people who would be wonderful additions to their team despite what any assessment results indicate.”

Likewise, Christopher O’Connor, senior content strategist, said, “These personality assessments are inherently a no-win situation. I completed one last year as part of an interview process (I’ve joked with people that’s probably why I didn’t get the gig). It offered 50 or so Myers-Briggs-like questions about work attitudes and reactions and approaches to a certain situation and offered a Likert scale to supply answers.”

He continued, “But see, if someone answers all 5s, you know they’re full of it. If anyone mixes in a few too many 1s, maybe that’s an immediate flag on confidence/competence. But then if you dance with the 3s too much, then it gets subjective — some might see that as honesty and room for growth, while others see it as indecisiveness or red flags, that hey maybe this guy requires too much investment. I think these folks want 4s across the board, which while it isn’t as ridiculous as all 5s, is pretty unlikely. I don’t see how it’s really all that valuable to companies, ultimately.”

Lourdes M. Turrecha, the chief privacy tech evangelist of The Rise of Privacy Tech, and founder and CEO of PIC, said, “They’re very intrusive so I think they should be completely voluntary and not prevent an applicant from getting hired. If hiring decisions are made based on them, they should be transparent what factors are taken into account, and why.”

Is It Possible That Pre-Employment Assessment Tests Perpetuate Biases?

Shari E. Belitz, CEO at Shari Belitz Communications, observed, “From my psych experience I am familiar with various projective testing techniques. My concern is unless these tests are put through scrutiny, they may be riddled with bias.” She added, “Even if the tests themselves are not inherently biased, the scoring is. It is very subjective.”

Should We Be More Open To Diversity?

“I am definitely not a fan. I would be concerned that it would frustrate diversity and inclusion efforts and would result in the hiring of likeminded employees,” said Lisa Lang, general counsel at Kentucky State University, “I would also think you would want a variety of people with different personalities and skillsets to ensure room for innovation.”

Likewise, Ravi Rao, senior associate, solution delivery Fulcrum Global Technologies, said: “You have to accept that people will come to your org with differing sets of personality traits. And those traits are not consistent in personal vs. professional lives. If you want everyone in a role to be the same, then hire robots.”

The Relationship Between The Job Description And The Assessment Is Not Always Apparent

Jamie-Leigh Brandes, legal counsel at CMC Markets, said, “I once wrote a pre-employment assessment that completely threw me off. It was unrelated to the role and I didn’t do well in it. I started doubting my application and whether I wanted to work for the company.”

She continued, “It got me thinking, ‘Well if the test is this difficult, would I be able to do the work?’ The best thing to do, if you do insist on doing these assessments, is to make it relevant to the post. You’ll inspire the person taking the test to do their best at it, and it’ll be a true reflection of what you’re looking for in a candidate.”

Likewise, MacAllistre (Alli) Henry, corporate counsel at Contentful, explained, “I think they are a good idea if used sparingly and to truly test for skills necessary for the job.  They’re horrid if they are overly long or an exploitative way for a company to get free work/work product from a candidate.”

So, perhaps like any other element of the job application process, a pre-employment test is only effective, fair, and justified depending on how the employer uses it. It draws out sensitive information, but it’s up to the employer to determine how that information is used. After all, a cover letter and resume provide sensitive information, too, and we have to trust that the employer won’t make a decision based on our gender, last name, or age.

But, given especially the negative responses, the pre-employment assessment can also be a way for a potential employee to evaluate the employer. It’s a way for seekers to learn about the company they are interviewing for. And whether a company uses this type of screening — and what kind they choose to rely on — can reveal much about the company, their values, and their evaluative framework.

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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.

As a criminal defense attorney, there’s nothing tougher than seeing a client sentenced to a hefty jail term.

Ten years, 15 years, 20-to-life, rolls off the judge’s tongue as if it’s the most normal thing in the world. But to the attorney, who’s spent months, even years, getting to know the defendant, speaking with his family and friends, learning his history, sitting next to him at a trial (one of the scariest things any human being can experience), it can be devastating.

Compartmentalization is key — keeping all the sorrow engrained in the work separate from your daily life. For me, it’s important to end the case (and your feelings about it) when the client walks into prison. Draw a line. Say goodbye.

However, after watching the fabulous documentary “The Work,” I realized that some of the toughest issues my client has to face are after the trial’s over.  Prison begins the rest of his life (or a good chunk of it) and it’s one inhospitable place — unnatural, isolating, threatening, dehumanizing, and just plain dull.

Letting down your guard, expressing your true feelings, coming to grips with the grief of being locked away from your family, or the guilt of having hurt another (whether it be the victim in the case or a newborn son you barely got to meet), are just some of the internal struggles prisoners face.

Talk about needing therapy. Prisoners are ripe for it, hungry for a safe way to express their inner emotions without looking weak.

“The Work” covered a four-day period in Folsom State Prison, California, a maximum-security facility where many inmates serve life sentences. Twice a year, counselors lead a four-day group-therapy session inviting in selected members of the public who want to share the experience.

The sessions were raw as each man, guests included, reached down deep to bring up feelings about themselves and their histories. Imagine being a bartender or a teacher’s assistant or a museum associate thinking that going to Folsom might be a cool way to spend a weekend, then being confronted with the inmates’ probing your background, your motivation, your problems.  Although the guests have traumas that seem lightweight compared to the inmates, commonalities appear — feelings of inferiority, growing up without dads, a disconnectedness from life.

The documentary focused on one group of men and the three guests who participated in the four-day workshop with them. Having been in therapy sessions before, the inmates knew more about “going into the well and bringing something up” than their better-heeled visitors. At first the guests hung back and observed, but before the fours days finished, each guest had a floodgate-moment, when he was willing to share his vulnerability with “some of the baddest guys out there,” as one inmate described the inmates.

As emotions rise to the surface, the men, under the experienced eye of a moderator, group around the person “reaching inside,” to create a kind of cocoon where he can express his emotions physically (like many inmates do), but without hurting anyone. Guttural, primordial wails welled up and punctuated the film not only from the men we were watching but from groups all around them.

Dark Cloud, a thick-bodied, tattooed Native American in prison for having thrust a “big blade” into a guy to “hack him in half,” told the group, “I just want to be vulnerable and not scared to be vulnerable, cause every time I’ve been vulnerable in the past, I’ve been hurt.”

Another inmate, a 50-something former gang member, jailed in his early 20s said, “I don’t want to feel like I can’t feel anymore.”

One of the visitors, Chris, a young, willowy, museum assistant, was shy to bring up the banality of his struggle with his dad, who told him to go back to the house when he couldn’t find the right tool to help him in the garage. It was minor compared to the history of abuse, drug addiction, and abandonment the inmates described, but the group treated his revelation with respect, formed a barrier of raised fists in front of him and urged him to force his way through, to take a stand, be a man.

The film showed there’s less that separates us from people in prison than we think. We all have the same needs, desires, and hope. We just had different upbringings and sets of choices. But ultimately, these are people in pain just like everyone else. Only their pain is worse, and they’ve got very few places to express it.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

Getting caught between two sovereign countries is never a fun experience for a bank, even if the worst that happens is that the lesser of them relieves you of the obligation to do business there. But China is not Argentina—certainly not if you are the Hongkong and Shanghai Banking Corp.—nor is there really a lesser power in a dispute between China and the United States. Oh, and did we mention that we’re talking about HSBC, which quite frankly has enough problems without finding itself a pawn in the growing cold war between the world’s two superpowers and largest economies?

Chicago family law attorney David Pasulka has been suspended from serving as guardian ad litem and “any other Court Committee to which he has been appointed” in the domestic relations division in Cook County, Illinois, following “serious allegations” against him. A complaint filed by the Illinois Attorney Registration and Disciplinary Commission (ARDC), alleges Pasulka traded recommendations for custody, in his court-appointed role as guardian ad litem, for sex, as well as allegations of sexual assault.

As reported by CBS Local:

The complaint says Pasulka was explicit about the arrangement: sex in exchange for a favorable recommendation regarding the custody of her two children.

According to the complaint, “[Pasulka] stated to [the woman] that, in order to receive his support in recommending that she receive sole custody, she only had to ‘do a little extra something’ and that she was a ‘smart girl’ and that if she really wanted her children, he could ‘do that’ for her if she would have sex with him.”

The complaint also alleges that Pasulka used his position of authority to sexually harass three women employed at his firm, and sexually assaulted them by forcibly kissing and penetrating the women.

“As [the woman’s] employer, [Pasulka] maintained a position of power over her, in that she was financially dependent upon her job at the firm as her only source of income,” the complaint said of one of the women. “In addition, during the duration of her employment, [Pasulka] routinely told [the woman] about his connections in the family law field, including connections with judges, attorneys, and bar associations and implied his ability to affect her professional success.”

The complaint says Pasulka pressured the women, telling one “he was looking for a ‘team player’ and that she should be a ‘team player’ and that ‘you’re saying no when you should be saying yes,’” the complaint said, adding that Pasulka even told one woman “Your friend, [one of the women in the complaint], does not say no.”

The complaint further alleges “dishonesty, fraud, deceit or misrepresentations related to manipulation of an alcohol testing device” in connection with a 2017 DUI arrest.

Pasulka has denied the allegations against him:

Pasulka told CBS 2’s Charlie De Mar he denies all the allegations against him. Pasulka said he is a leader in his field and has represented thousands of children, and feels he is being “dragged through the mud,” adding that “this is the worst thing that’s ever been laid on me.”

Pasulka has not been charged with any crime in connection with the complaint. A Cook County State’s Attorney’s office spokesperson said, “[W]e have not been asked to review these matters by law enforcement who would conduct the initial investigation.”

Read the full complaint below.

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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).

I pick up the phone, and I’m like, “Hello?” And I hear, “Hello. This is Tyler Perry.” And I’m like, “Nah man, you joking?” And literally, he says, “Hey, I want to help you cover your tuition.” My whole entire heart stopped. It was just the greatest moment of my life at that point.

— Rehan Staton, a former sanitation worker who will be attending Harvard Law School this fall, commenting on a conversation he had with actor, writer, producer, comedian, and director Tyler Perry. Staton has received many offers of assistance since his inspiring story first made national attention.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Georgia Senator Kelly Loeffler has taken a break from shouting about “trained Marxists” to shout about her Republican opponent Doug Collins helping defendants exercise their constitutional right to representation by counsel.

“Before he became a politician, Doug Collins was a criminal defense lawyer,” warns her latest campaign ad. “On his website, he advertised directly to sex offenders! Drug dealers! Even murderers!”

Very subtle. As is Loeffler’s accusation that Collins “teamed up with Stacey Abrams to reduce prison time for violent criminals.” She also touts her endorsement by 12 Georgia sheriffs — which is only 16 fewer than Collins got.

Before running for congress, Congressman Collins was a criminal lawyer in private practice at a firm which had — GASP! — a website. And unlike Senator Southern Strategy, his clients weren’t accused of insider trading. In fact, all four of the cases Loeffler mentions in her ad were indigent defendants assigned to Collins’s firm by the court.

Or, as Loeffler’s press secretary Caitlin O’Dea put it, “As a criminal defense attorney, Doug Collins was putting his paycheck above the safety of Georgia families.” Later she tweeted that, “Doug Collins would be better off running for Mayor of Portland or Chicago where his record of lawlessness would be applauded by the woke mob and liberal electorate.”

Loeffler’s posturing as the real “law and order candidate” seems to rest on an imperfect understanding of the Constitution. In her telling, lawyers who provide the “Assistance of Counsel” guaranteed to criminal defendants by the Sixth Amendment are “siding with criminals instead of holding them accountable.”

Which may not endear her to the fourteen percent of Georgians who live below the federal poverty line and are unlikely to be able to afford a white shoe law firm. Not to mention the twenty-two percent of her constituents who are African American and cannot have missed that Loeffler attempted to criticize Collins by linking him to the most famous Black politician in the state.

“Accusation equals conviction if your bank balance does not have enough zeros in it,” Collins’ spokesman Dan McLagan told the Atlanta Journal Constitution, alluding to Loeffler’s enormous personal wealth. As if anyone in Georgia could forget that Governor Kemp appointed to Loeffler to fill out retiring Senator Johnny Isakson’s term after she promised to spend $20 million of her own money on the campaign.

And despite throwing a mountain of cash at this race, Loeffler has consistently trailed Collins, a longtime Georgia politician who has deep roots in the state. Because some things can’t be bought for love or money.

But for only $10.99, Loeffler could buy a copy of U.S. Constitution for Dummies on Amazon. Which would be a lot cheaper, and save her a whole lot of embarrassment.

GEORGIA SHERIFFS DENOUNCE DOUG COLLINS’ CRIMINAL DEFENSE HISTORY [KellyForSenate.com]
Loeffler’s campaign ups attacks on Collins’ legal record despite criticism [AJC]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Welcome listeners to this COVID-19 Special Report podcast presented by our friends at Wolters Kluwer and hosted by Evolve the Law Contributing Editor, Ian Connett (@QuantumJurist).

This report features Dean Sonderegger and Martin O’Malley of Wolters Kluwer to break down the results of the 2020 Wolters Kluwer Future Ready Lawyer Survey: “Performance Drivers – to assess future-readiness and resilience in the legal sector.”

Join us as Dean, Martin, and Ian examine the results of the 2020 Wolters Kluwer Future Ready Lawyer survey. The survey includes insights from 700 legal professionals across the U.S. and nine European countries, allowing us to examine ongoing trends in the legal sector and how well-prepared organizations are to drive higher performance. All of this and more on this week’s COVID-19 Special Coverage Podcast.

Nine years later and BASF and its former counsel, Cahill Gordon, have agreed to a settlement over allegations they concealed potential asbestos in industrial and commercial talc. As reported by Law360, the $73 million fund will allow up to 20,000 plaintiffs to seek between $500 and $175,000 from the fund.

Those potential 20,000 plaintiffs will include those who brought litigation against BASF or their predecessor Englehard Corp between 1984 and 2011 over Emtal Talc products, used in industrial applications. The proposed class had their claims voluntarily dismissed, settled the suit, or had it involuntarily dismissed prior to March 2011. The plaintiffs allege that BASF and Cahill falsely asserted there was no evidence to suggest the talc products had asbestos, leading to the dismissals/settlements:

“In 2009, plaintiffs’ counsel obtained evidence, which they believe contradicted the claims made by defendants in the underlying lawsuits about Emtal Talc,” the motion said.

The trial court initially dismissed the lawsuit, but it was revived on appeal to the Third Circuit. It then underwent years of discovery disputes and attempts at mediation.

“After two intense, arms-length sessions conducted in the fall and winter of 2018, the parties in January 2019 forged an accord on the elements of a settlement. With an agreement in principle to settle the case, the parties negotiated and executed a term sheet,” the motion said.

And though this case is (only) nine years old, some of the underlying claims stem from almost 40 years ago, adding to the challenges of continuing the litigation. Which is just another good reason for the proposed settlement:

“After more than nine years of contentious litigation and extensive discovery, the parties, with the assistance of mediators, have reached a proposed class action settlement that is fair, reasonable and adequate for class members,” the motion for preliminary approval of the settlement said. “The settlement recognizes that the plaintiffs and the defendants each face substantial risks and costs in proceeding further with this litigation, and that resolving the case now provides benefits to both sides.”

Cahill has not commented on the proposed settlement.

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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).

Online bar exams may not be ready for primetime this week and still pose a number of access challenges but, as we’ve noted before, they “don’t kill people” — which is worthy of praise.

But the forces committed to maintaining an in-person bar exam, up to and including the NCBE, have been quick to scold jurisdictions moving online that the decision to use an online test will rob applicants of future portability. Indeed, when Massachusetts became the first to float the idea of an online exam, the NCBE commented immediately to Law.com that “We understand that any alternative exam developed by the would allow local admission only.” To be clear, this is simply hostage-taking language: “Do the exam like we tell you to or we’ll take away your portability.”

For months now, I’ve been screaming into the void that states need to stand up for themselves when it comes to portability. After farming the job out to the NCBE for so long, states seemed to forget that reciprocity was something they used to be able to negotiate with fellow jurisdictions all by themselves. In the face of a pandemic, would a nearby jurisdiction really refuse to accept the credibility of an online exam given by another state? Surely logic would prevail.

Now Massachusetts proves that you absolutely can have portable scores with an online exam.

Bob Ambrogi reports that the Massachusetts Board of Bar Examiners announced this morning that it has entered into reciprocity agreements with seven jurisdictions for score portability:

The announcement said that Massachusetts has entered into reciprocity agreements with Connecticut, Kentucky, Maryland, New Jersey, Tennessee, Vermont and Washington D.C., and the board is working with other jurisdictions to expand that list.

Yes! See what states used to be able to do by themselves? If you reside in a jurisdiction that insists on an in-person exam citing portability, reach out and ask the bar examiners if they’ve even approached neighboring jurisdictions about emergency 2020 reciprocity. It may be too late for those taking the exam this week, but for those with Fall administrations still on the docket, now is the time to push to figure out if there’s some way to take this test that won’t put applicants in harm’s way.

Mass. Online Bar Exam Results Will Be ‘Portable’ To Other States

Earlier: With NCBE Quibbling Over Online Bar Exams, Massachusetts Says They’ll Just Write Their Own
Michigan Joins Indiana In Administering Online Bar Exam
Online Bar Exam Software Still Not Working On Friday, Test On Tuesday

The defenders of the bar exam always fall back on the same claim: it’s necessary to protect the public. Any alternative to forcing applicants to take a two-day subject-matter exam covering practice areas the applicants will never, ever practice is dismissed as tantamount to unleashing incompetent hucksters on an unsuspecting public.

It’s a bad argument and there are much better ways of regulating entry into the profession than throwing up our hands on law school or post-licensing education and banking everything on one 48-hour exam period, but is there any truth at all to the claim that the bar exam — as opposed to Law School Professionalism requirements, the MPRE, Character & Fitness Review, and CLE Ethics credits — is responsible for keeping malpractice in check? The answer is hard to nail down but… no.

A definitive answer is hard to suss out because the bar exam is so ubiquitous that it’s hard to find a control group. That jurisdictions have increasingly homogenized the exam — a laudable effort designed to provide license portability — only makes this more difficult. But this morning, I noticed this tweet:

Interesting! The report, the 2018 Survey on Lawyer Discipline Systems, covers a lot of ground when it comes to legal ethics, but using it for insights into the difference between the country’s oldest diploma privilege jurisdiction and other locales is an intriguing experiment.

Per the survey, Wisconsin had 21,000 attorneys with active licenses in 2018 while Louisiana had 22,377. Yet Wisconsin received 1,660 disciplinary complaints compared to Louisiana’s 2,528. Colorado — a state that has taken a notoriously aggressive stance against diploma privilege this cycle — had a complaint per lawyer ratio of 13 percent, so maybe that exam isn’t doing much for them!

In the interest of fairness, Tennessee boasted 22,956 attorneys and 1,360 complaints, so maybe it’s just that Louisiana is uniquely corrupt… which probably isn’t a huge stretch. But even compared to Tennessee, we’re looking at a difference in complaints/attorney of 2 percent which amounts to noise.

Because the point isn’t whether or not Wisconsin had a few more or a few fewer complaints, but that there’s nothing about this diploma privilege jurisdiction that puts it statistically out of whack with other states. The opponents of bar licensure reform hinge their entire argument on this claim and to put this much weight on a single argument they should be able to point to a massive breakdown in Wisconsin’s professional responsibility.

But they just… can’t. There’s nothing there. If the bar exam forged a unique bulwark against harm to the public, Wisconsin should be a blip rather than squarely in the 5-10 percent range of most states. One would assume they’d have numbers more like Arizona or Nevada — bar exam states — sitting at around 16 percent. At the very least you’d expect them to be Colorado.

But they aren’t. Wisconsin’s practice of diploma privilege-based licensing yields about the same number of complaints as the states with bar exams. It’s almost as if not being able to recall obscure doctrines in a test setting has less bearing on the threat to the public than a lawyer’s own avarice or long-term work ethic — two traits not tested by the bar exam.

Imagine that!

2018 Survey on Lawyer Discipline Systems (S.O.L.D.) [ABA]

Earlier: NY Moves To Online Exam… For Now

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.