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When a pro se federal prisoner’s name change motion reached the Fifth Circuit, the appellant made the additional request that the court employ feminine pronouns. At this point, the court could — without much trouble — just use feminine pronouns. Instead, Judge Stuart Kyle Duncan, a hack attorney who now sits on the Fifth Circuit because he was on the Hobby Lobby case, devoted nearly six pages to explain why adding an “s” to any pronouns in the opinion wasn’t just his bigoted trolling but rather an impossible burden threatening to grind the judicial system to a halt!

First, no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity. Federal courts sometimes choose to refer to gender-dysphoric parties by their preferred pronouns.

To Judge Duncan’s partial credit, at this point he includes a footnote explaining that “sometimes” translates to EVERY OTHER CIRCUIT EXCEPT THE ELEVENTH (the footnote also misses the 10th, but the dissent adds them). Judge Duncan even recognizes that his own FIFTH CIRCUIT has respected litigant pronouns in the past. Undeterred by the overwhelming persuasive precedent, Judge Duncan continues wasting government ink on trying to put an academic spin on just being an asshole.

Varner’s motion in this case is particularly unfounded. While conceding that “biological[ly]” he is male, Varner argues female pronouns are nonetheless required to prevent “discriminat[ion]” based on his female “gender identity.” But Varner identifies no federal statute or rule requiring courts or other parties to judicial proceedings to use pronouns according to a litigant’s gender identity. Congress knows precisely how to legislate with respect to gender identity discrimination, because it has done so in specific statutes. See Wittmer v. Phillips 66 Co., 915 F.3d 328, 338 (5th Cir. 2019) (Ho, J., concurring) (citing Hively v. Ivy Tech Comm. Coll. of Indiana, 853 F.3d 339, 363–64 (7th Cir. 2017) (Sykes, J., dissenting)) (observing that “both Congress and various state legislatures have expressly prohibited . . . gender identity discrimination by using the term[ ] . . . ‘gender identity’ discrimination”)

Except the prisoner isn’t trying to assert a cause of action here — all she wants is the court to use the proper pronouns. As 84-year-old Judge Dennis notes in dissent, basic English skills make it clear that this is just a request that “this court, in this proceeding” (emphasis in original) employ feminine pronouns.

Judge Duncan continues:

Second, if a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality

Oh?

What Judge Duncan is trying to suggest is that in the event of a case over gender identity, using someone’s preferred pronouns would convey the appearance of prejudgment. Except by that logic that’s also true of not using someone’s preferred pronouns. The fairest way to resolve this would be to respect personal preferences as a courtesy but recognize that whatever statute lies at the heart of a case may not grant the relief the litigant wants. But taking that logical step would undermine Duncan’s earlier inane argument about legislating gender discrimination so he’s just going to glide past it with all the intellectual laziness he can muster.

Third, ordering use of a litigant’s preferred pronouns may well turn out to be more complex than at first it might appear. It oversimplifies matters to say that gender dysphoric people merely prefer pronouns opposite from their birth sex—“her” instead of “his,” or “his” instead of “her.” In reality, a dysphoric person’s “[e]xperienced gender may include alternative gender identities beyond binary stereotypes.” DSM-5, at 453; see also, e.g., Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More Inclusive of Transgender People, 11 Mich. J. Gender & L. 253, 261 (2005) (positing that gender is not binary but rather a three-dimensional “galaxy”). Given that, one university has created this widely-circulated pronoun usage guide for gender-dysphoric persons:

Shorter: “We’ve all gone to law school, but the possibility of keeping nine things in our heads is far too daunting.” In Duncan’s defense, being a conservative jurist usually doesn’t require anything more complex than taking contemporary Republican talking points and saying, “my guess is James Monroe would’ve wanted it this way.” It’s not like judges would even be guessing at the proper pronouns by consulting a list like this because the litigant would tell them straight up what to use. They would only have to cut and paste.

There’s not really a difference between this and saying, “there are a lot of names out there… how can judges keep track of someone who spells ‘Gennifer’ with a ‘G’? So this court will only use ‘Jennifer’ in all documents lest the American judicial system collapse into anarchy.” Just use what the fucking litigant asks. It’s not hard.

In fact, a test of how not hard it is, realize that over half of this opinion is wasted on trying to justify Duncan’s inability to use the “s” key.

Deploying such neologisms could hinder communication among the parties and the court. And presumably the court’s order, if disobeyed, would be enforceable through its contempt power.

That’s… not how any of this works.

John Mulaney has a joke about someone telling him that the word “midget” was “as bad as the n-word” and him explaining, “If you’re comparing the badness of two words, and you won’t even say one of them? That’s the worse word.” A good judicial corollary might be that if you need 6 pages to justify not using one letter… that’s the worse position.

(Full opinion on the next page….)

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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.

* A 97 year-old trial lawyer has been allowed to stay on a murder case despite an outburst that forced a judge to release six jurors who had already been seated. [NorthJersey.com]

* New York lawmakers are mulling legislation aimed at providing lawyers to immigrants facing deportation proceedings. [New York Daily News]

* A number of colleges and universities are led by lawyers, but the jury’s out about whether this is a good thing. [Washington Post]

* Maine has posthumously pardoned a lawyer who was prosecuted for his involvement in representing a Native American tribe against the state. [Jewish Telegraphic Agency]

* A new lawsuit alleges that Jeffrey Epstein trafficked girls to the U.S. Virgin Islands up until 2018. [ABC News]

* The expression “Ok, Boomer” has finally made it to the Supreme Court. [CNN]

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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.

Not this one. Focussing on Zimbabwe, it has lessons for many countries to the north.

Fascinatingly, it reveals South Africa to be doing relatively well when it comes to more equal access to electricity – and to other more basic affordable sources of power where-ever alarming Gini-coefficients exist. According to this research, there’s no panacea for electricity scarcity in Zimbabwe – structural (driven by economic and policy) factors are responsible.

Yes, build new power sources (no shortage of hydro and solar potential), but tech doesn’t address distribution concerns. The rural Zimbabwean poor take the brunt – their electrification rate is approximately 10%. Most burn wood. Coal, charcoal and liquefied petroleum gas are so expensive (unlike SA, where subsidies exist, including for electricity), and are used by less than 1% of urban households (out of reach of rural folk).

Electricity provision is skewed towards high income groups, its price having risen 320% last year. While South Africa has alarming electricity shortages, it cushions the poor against high energy costs. We did something right.

Post published in: Business

The Zimbabwean judiciary has said it would introduce live streaming of court cases attracting public and national interest at the Constitutional Court, starting from the 2020 Legal Year.

The move is vital to the country by promoting transparency and accountability while members of the public will be able to know what is going on in court, Chief Justice Luke Malaba said in his keynote address on Monday.

According to Malaba, the innovation would inspire confidence in the functioning of the judiciary, giving it the respect deserved as a co-equal organ of the state. He revealed that the live streaming of the 2018 Presidential election petition geared the innovation, hence the idea to make this a permanent feature.

“The most-watched court case that was streamed live in recent times was the August 2018 election petition by MDC leader Nelson Chamisa against the Zimbabwe Electoral Commission (ZEC) and Zanu-PF, which was unanimously thrown out by all nine Constitutional Court judges for lack of evidence,” said Malaba.

To increase accessibility to courts and enhance the transparency of the judiciary, many countries all across the world have permitted variants of the recording of court hearings. While some countries permit live streaming, others agree on video recording which is published in a few days.

South Africa, at the discretion of the judges, allows for the live streaming and televising of proceedings of the courts. Their Supreme Court of Appeal upheld the authority of a court to grant access to media inside the courtrooms for the purpose of recording and televising the proceedings after the presiding judge’s permission.

Also in India, the Supreme Court in 2018 pushed for transparency in the court sittings by allowing live-streaming of the court cases of constitutional importance which would serve as an instrument for greater accountability.

In the Asian nation, cases on environmental issues, air pollution, ban on liquor sales near national highways, ban on firecrackers and extrajudicial killings were not allowed to be streamed but the court has deemed it necessary and of great importance that they are now handled in courts with a live stream.

Importantly, the introduction of live streaming will encourage the principle of open court, effectuate the public’s right to know and reduce dependence on secondhand views.

Meanwhile, the recent economic situation in Zimbabwe calls for a new approach to solve the current economic crisis in the country. And following the move by the judiciary, there have been calls on the government to attend to more urgent matters rather than introducing a seemingly unnecessary live streaming process of court cases.

Post published in: Featured

Continuing our series of questions on fictional lawyers, what fictional attorney graduated top of the class from Georgetown Law in 1992 before taking almost a decade off from the law before rejoining the workforce as an associate in a law school friend’s firm?

Hint: Over the course of the character’s story, there are other firms and a brief foray into government.

See the answer on the next page.

The legal services industry has significantly evolved over the past decade and, as we enter 2020, corporations are well-positioned to accelerate the transformation of law departments. We recently sat down with Joy Saphla, President and Co-Founder of Morae Global, a full-service, tech-enabled service provider that works with major corporations and law firms globally to transform how legal services are being delivered in a sustainable manner, including through a smaller financial footprint, more efficient service delivery, improved performance, and all without compromising risk management. Joy gave us her thoughts on what’s driving the transformation of law departments and the relevant trends we can expect to see this year.

Why are we seeing law department transformation heat up going into 2020?

Transformation is heating up, in part, organically as a function of the business climate we are in. Leaders in the legal industry are seeing unprecedented global uncertainty right now, stemming from an ever-changing regulatory landscape and the pace at which new regulations are coming online. There is equal concern around the economy, notably the anticipation of a possible recession, coupled with geopolitical volatility and an ever-present risk of cybersecurity breaches.

Law departments are having to balance a need to make decisions on investments in technology against a dizzying array of global regulations being developed and passed. This requires spending budget on the right solutions while at the same time addressing increasing pressure to reduce or retain their spend levels. The apparent conflict creates an internal motivation to look at operations and think about what types of transformations are needed most. The objective is for businesses to continue to be able operate in risk-prone areas of the world and simultaneously better manage law department spend, track metrics on how effectively and efficiently legal work is being done, and establish greater predictability into where departments will need to invest to stay ahead of the curve on risk and cost management.

How will we see spend management change in the coming year?

Corporations are asking for more proactive spend management and reporting. The priority on metrics reporting and tools like dashboards will be higher than it’s ever been. There’s a growing need to know where you’re heading in order to avoid budget surprises and yet drive the best transformation possible for how legal work is being done. Many companies are anticipating a possible economic recession, so spend management is naturally a focus. At the same time, general counsel and COOs are actively looking for the funds to support technology enhancements that are most crucial for addressing requirements for regulatory compliance.

In addition, companies will be thinking about outside counsel management somewhat differently than they have in the past. Alternative legal service providers (ALSPs) are taking on a growing role in the legal services supply chain and therefore a larger portion of law department legal spend. The ongoing shift to ALSPs saw a rise in 2019 and I believe this will continue in 2020, so much so that we should drop the A and simply call them LSPs. Legal services have become a three-way ecosystem of legal departments, law firms, and LSPs. Companies ought to think about how their infrastructure is set up in order to accommodate all three participants in the overall value chain.

You mentioned the changing regulatory landscape. What major regulatory changes are driving transformation in 2020?

A good example of this is LIBOR, a benchmark interest rate used by many global banks which is retiring at the end of 2021. We’re at a point now in 2020 when the evaluation of how to address LIBOR should have already been done so that companies can now gear up for change implementation. Of course, such is not always quite the case. Morae Global has been working with a number of our clients on putting fast-tracked solutions into place. We have both the legal pedigree and technological capabilities that many corporations are beginning to discover that they need in order to get over the LIBOR hurdle.

Another key regulatory challenge is the California Consumer Privacy Act (CCPA), which went into effect January 1, 2020. It is essentially a U.S. equivalent to the GDPR. Companies need to be sure their data collection, retention, and security practices are in compliance. Both LIBOR and CCPA are taking higher priorities for many organizations because, despite knowing that these changes were coming, they may not be as far along with preparations as they would like to be. The issues are complex to solve.

For example, law departments are finding they must conduct data security audits of their law firms. Under the specter of news headlines about data breaches, companies are rightfully concerned about ensuring their firms have the proper security and infrastructure in place to manage corporate data on their behalf. Morae does help our clients with these kinds of audits. I believe the legal market will see an increase in this type of cybersecurity activity in 2020.

The impact of Brexit is another important consideration. With the UK withdrawing as a member of the European Union on January 31, 2020, businesses with UK operations should have updated data policies and procedures ready to go with regard to GDPR requirements. Ideally they do not want to suddenly find themselves effectively exporting data outside of the EU without the appropriate measures being in place. The GDPR doesn’t prevent the export of the data, but there are conditions for how data should be treated in these circumstances. In the US, we have the Safe Harbor program to help guide these efforts. Organizations will want to ensure they utilize the appropriate data handling mechanisms in the UK too. 

What role will technology play in transformation?

Technology, and more importantly how it’s used, represents a major underpinning of the transformations we’ll see. Cloud-enabled technology will play a significant role as the economy continues to globalize and move toward ever more collaborative teams. Morae Global embraces this trend and we’ve successfully helped our clients around the world with the transition of over a billion documents to the cloud. We’re not simply a tech company that sells software, but rather almost every solution we deliver has technology woven in. 

Cloud is not simply an endgame either. It can enable more effective use of technology across dispersed teams. So it is a crucial part of achieving meaningful transformation, especially in the areas of self-service and cost containment. AI in particular is seeing a steady rise in adoption, with one example being the growing popularity of law department dashboards and metrics reporting. These capabilities facilitate more informed decision-making. Moreover, by using technology to perform tasks that humans were previously doing manually, legal teams can shift their focus to higher value tasks, work more efficiently, and free up more time to engage and partner with the rest of their business. The role of legal will move to emphasizing a combination of business and legal advice to help their organizations navigate risk, not just to avoid it, and ultimately help facilitate reaching difficult business goals. 

Automation is another important technology trend, which is not just about improvements in cost savings and efficiency. It can enable self-service functions that will help companies to manage risk in highly specific ways. When you’re no longer solely relying on individuals to make the right judgement calls, you’re able to drive greater process consistency and you can gain enhanced peripheral vision of the issues with a wider array of metrics data at your fingertips. The trend for self-service is quite significant. Often these functions will have legal service requests feeding directly into workflow automation, which is a powerful enabler of efficiency. But I’d like to see more law firms proactively partnering with legal service providers to offer these capabilities to law departments. It goes right to the heart of improving the legal supply chain and helping to drive better performance management of all the constituent parts.

Are there any other transformation trends you expect to see in 2020?

We’ve now been through the era of internalizing resources. In 2020, the trends we’ll see are an increase in self-service and a shift of work into managed services. The type of work performed within law departments will evolve too, most notably including the reallocation of resources to perform higher-value, more meaningful legal work. I expect this will take the form of law departments increasingly partnering with providers and moving internal resources into proactive risk management and business growth roles. 

It is clear law departments are under a lot of pressure, not unlike other business functions, and so they must demonstrate the value they bring to their organizations. While we no longer talk about them as cost centers, they don’t generate any revenue. So having the right information at their fingertips will be crucial to showing that they are using their resources wisely and generating measurable value to the business. This will help the department leadership to justify the need for further investments in technology and resources in order to deliver the best value possible while still managing risk within acceptable thresholds. AI, dashboards, automation, data insights, all of these capabilities will be instrumental to continued law department transformation in 2020.

Satterlee Stephens has served financial industry clients in New York for over 100 years without ever feeling the need to get too big. But the firm’s expertise may finally lead the 65-attorney stalwart into a new arrangement on a much bigger stage.

Duane Morris, the 800+ attorney Philadelphia-based global firm is in tie-up talks with Satterlee in a bid that could bolster the Am Law 100 firm’s New York presence by bringing Satterlee’s small but highly profitable business under the Duane Morris umbrella.

This is the point where we remind everyone that regardless of how “advanced” merger talks are, nothing is over until it’s over. Still, given the geographic overlap of the two firms — Duane Morris already has 100 lawyers in the city — the mere fact that the firms are pushing ahead with talks suggests they’ve already decided the client overlap is minimal at most.

We’ll keep an eye on this one.

Duane Morris, Satterlee Stephens in Advanced Tie-Up Talks [New York Law Journal]

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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.

Upgrading your practice’s financial software can feel like trying to change a flat tire while driving on the highway: at best, it will slow down your forward movement and it might even lead to a disastrous crash. In today’s technology driven landscape,staying up-to-date on the most current solutions – particularly those that help streamline your financial platforms – is the key to maintaining your competitive edge as a law firm. But transitioning your firm isn’t without its challenges. What tech should you use? What are the first steps you should take? How do you integrate new software without halting your firm to a standstill? How do you maintain your revenue, clients, and sanity during the process?

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