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Pirates have been known to pillage and plunder others’ treasures, but these are not actions normally attributed to states of the United States. On its face, pirates and states don’t seems to have anything in common, but given a recent ruling by the Supreme Court of the United States, one may be inclined to think otherwise. In Allen v. Cooper, SCOTUS recently upheld a Fourth Circuit ruling that the Copyright Remedy Clarification Act of 1990 (CRCA) does not validly abrogate state sovereign immunity under the 11th Amendment. In essence, SCOTUS held that since Congress unconstitutionally attempted to take away state sovereign immunity under the CRCA, states could continue to assert sovereign immunity from damages resulting from their infringement of valid copyrights. Although many practitioners are viewing this ruling as a huge win for the states and an equally huge problem for copyright holders, I think there is more buried here than meets the eye.

The background of this case is worth a look. In 1996, Intersal Inc. (a marine salvage company) discovered a shipwreck off the North Carolina coast that was determined to be the Queen Anne’s Revenge, the flagship of notorious pirate Edmund Teach (more commonly known as Blackbeard). Since the ship was located within the state territorial waters of North Carolina, the state of North Carolina contracted with Intersal to conduct recovery operations.

To document the recovery efforts, Intersal hired videographer Frederick Allen, who thereafter recorded videos and took photos of the recovery for more than a decade, registering copyrights in all of his works in the process. When North Carolina published some of Allen’s works on the state’s website, Allen objected, and the parties reached a settlement.

Unfortunately, North Carolina later posted some of his copyrighted videos online as well as some of his photos in a state newsletter without Allen’s permission. When North Carolina refused to admit wrongdoing, Allen filed suit in federal court for copyright infringement.

To make a long story short, North Carolina moved to dismiss the case based on sovereign immunity — “the general rule that federal courts cannot hear suits brought by individuals against non-consenting States.”  Allen responded that under the CRCA, Congress revoked the states’ sovereign immunity from lawsuits such as his copyright infringement case.  The CRCA  provides that a state “shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. Although the district court agreed with Allen, the Fourth Circuit disagreed and reversed, holding the CRCA invalid.

In a 9-0 unanimous decision authored by Justice Kagan (with concurring opinions by both Justice Thomas and Justice Breyer joined by Justice Ginsburg), the court stated that:

“[this] court has permitted a federal court to entertain a suit against a non-consenting State on two conditions. First, Congress must have enacted “unequivocal statutory language” abrogating the States’ immunity from the suit….[S]econd, some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty. Not even the most crystalline abrogation can take effect unless it is ‘a valid exercise of constitutional authority.’

Although SCOTUS found that Congress clearly intended that a state (such as North Carolina) could be sued for copyright infringement in the same manner as a private individual, the Court held that that the second prong could not be met and that Congress exceeded its authority under Section 5 of the 14th Amendment because “the statute aims to ‘provide a uniform remedy’ for statutory infringement, rather than to redress or prevent unconstitutional conduct.” As a result, the court affirmed the 4th Circuit’s holding.

As a result of this ruling, many practitioners have expressed concern about states running roughshod over copyright owners’ rights to their works. Here are three takeaways from Allen v. Cooper that should help put such thoughts into perspective:

States Can Be Still Be (Kind Of) Sued For Copyright Infringement. Although the CRCA has been held unconstitutional, states can still be sued for declaratory judgment and injunctive relief (just not for monetary damages).  Further, a state may have waived its sovereign immunity under certain circumstances (such as an express contractual waiver or other “clear indication” of submitting to Federal court jurisdiction). Granted, this is not perfect, but it’s something.

States Are Not Flagrantly “Pirating” Copyrighted Works. Believe it or not, states have not been in the habit of flagrantly disregarding third-party intellectual property rights. Although states have been known to interpret the fair use doctrine regarding unlicensed use of copyrighted works, overt, intentional infringement of such works is not the norm. Don’t believe me — before passing the CRCA, Congress asked the then-Register of Copyrights, Ralph Oman, to submit a report on the impact of the 11th Amendment on copyright enforcement. Although the Oman Report cited concern over immediate and irreparable harm based on comments it received, the SCOTUS review of the Oman Report in the present case found very few examples of state infringement. In fact, “Oman acknowledged that state infringement is ‘not widespread’ and ‘the States are not going to get involved in wholesale violation of the copyright laws.’” Again, this is not a guarantee against abuse, but if history is any indication, the present case is not likely going to open the floodgates to willful state copyright infringement.

Third Parties Working With States Can Be Held Liable. Although a state may enjoy sovereign immunity in a specific case, third-party facilitators to such infringement enjoy no such protection. For example, a state may contract with a marketing firm to reproduce specific works for a state tourism flyer — absent contractual considerations to the contrary, the marketing company may be held liable for copyright infringement. Further, this simple fact may induce third-parties to ask for contractual assurances (or even waivers) when dealing with copyrighted works and state entities. Simply put: don’t miss the jungle for the palm trees.

Although Allen v Cooper is not a win for copyright owners by any stretch of the imagination, it is not the end of the world either. We can all agree with SCOTUS that Congress needs to readdress this issue by “linking the scope of its abrogation to the redress or prevention of unconstitutional injuries — and [create] a legislative record to backup that connection” (although I wouldn’t hold my breath on that possibility for very long). Notwithstanding the foregoing, this decision should operate as a wake-up call to copyright owners to be cognizant of potential unlicensed state use of copyrighted works and think creatively when addressing potential copyright infringement. It may take a little more digging, but something tells me it may uncover some gems and be worth the effort in the long run.

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Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

Over the past couple of weeks, I’ve joined a video lunch to talk about how legal services professionals around the world are continuing to work and continuing to find ways to communicate effectively during the global pandemic.

Early in discussions, it was clear there was an attorney/staff division at law firms. That’s wrong, but not so surprising. What I found galling is what little regard some firms had for support staff early on in the crisis and how the divide grew in the days that followed.

While many attorneys were allowed to work from home almost immediately, support staff were required to come into the office to retrieve, print, and ship documents to the lawyers working remotely. It’s also clear that while many firms worked hard to find ways to create flexible work environments for attorneys, those same firms haven’t done the same for their support staff.

Treating support staff as second-class citizens is a mistake. And how firms communicate with and treat their workers — all workers — will define them and reverberate for months and years to come.

Billionaire Mark Cuban made the observation this week in terms of larger corporate brands, cautioning that putting business over safety will define a company for decades. “Not only is it smart to take care of your employees, but it’s also good business and that’s the way I’m looking at it,” Cuban told MSNBC.

We’ve already seen backlash and backstepping by firms too quick to try to go back to business as usual. In fairness, many firms have been doing right by their employees from the very start. They were quick to cut nonessential activities and make accommodations and adjustments for their support staff. And, importantly, when some employees were treated differently than others, they explained why and worked quickly to address the disparities.

But many others have employees who’ve been grumbling and outright angry about how they are being marginalized. This comment continues to stick with me: “My life is not as valuable as our attorneys.”

This is a good time to think through how you’re communicating and how you want your firm and its management decisions remembered during this crisis. Some ideas to think through follow:

• Put safety and people first.
• Be quick with the latest news and updates. Silence feeds paranoia, guessing, and rumors.
• Let employees at all levels know you care by communicating that management is working to find ways to adapt and address the needs of all employees.
• Be sure that managers at every level are doing regular check-ins with all employees.
• Be direct and transparent about your firm’s state of affairs. You never know where a good idea is going to come from. An employee invested in the firm’s future will be more willing to jump in with creative ideas to support business continuity.
• Model safe behavior. If you are only rewarding employees who take safety risks to continue operations, then the message is clear: the firm values business and profits over people.
• Finally, continue to monitor how and whether you’re reaching employees in the most effective way. And don’t forget to invite feedback, hear out and address concerns with respect and empathy.

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Molly McDonough is a longtime legal affairs writer and editor. Before launching McDonough Media, she was editor and publisher of the ABA’s flagship magazine, the ABA Journal. She writes about access to justice at A Just Society.

It was a noise that could not be unhear. As the Zoom meeting moderator continued on gamely and politely last week, one attendee repeatedly issued a hog-like nasal snort, so loud and frequent that it distracted from the topic at hand.

Many of us are taught that only the person who has not sinned should cast the first stone, and when it comes to making inappropriate breathing noises, I surely have sinned, having suffered respiratory blockages since a young age. So, in raising this, I do not mean to cast aspersions on someone for whom snorting may have been beyond control.

But there is one critical difference that separates me from the snorter, and that is my facility with the mute button. Fifteen years of podcasting has taught me an essential skill that translates well to our new reality of daily Zoom meetings — knowing when to mute myself and, equally as important, knowing when to unmute myself.

So as Zoom becomes our new conference room, water cooler, and happy-hour gathering place, allow me to share ten video conferencing blunders you can easily avoid.

1. Don’t snort. On Zoom, the mute button is your friend. Whatever noises you might make, it is there to keep you from sharing them. It is in the lower-left corner of your screen and looks like a microphone. Let’s be blunt. Some of us snort. Some of us are heavy breathers. Some of us talk to ourselves out loud. Thankfully, through the miracle of the mute button, we need not share any of that with our fellow conferees. But there is an important proviso attached to the mute button, and that is that you must not forget to unmute yourself when the time comes to convey your brilliant contribution to the meeting.

2. Don’t look bored. When videoconferencing with the senior partner or a key client, try your best to look interested and engaged. The trick here is all in the eyes. If, rather than looking at your computer screen, you are reading texts on your iPhone, they will see your inattentiveness. Keep your eyes focused in the general direction of your webcam, and no one will ever have to know how bored you actually were.

3. Don’t forget you’re on camera. There is a lesson for all of us in the heart-wrenching tale of #PoorJennifer. On a Zoom conference last week, while all the participants were arrayed in gallery view, she apparently forgot she was on camera as she carried her laptop to the bathroom, placed it on the floor, and proceeded to use the toilet, for all to see. Video of the mishap made its way to Twitter, where it had 7 million views before being removed. The lesson here is remain mindful of the fact that you are on camera. And if the call of nature cannot last until the meeting ends, remember that you can easily turn off your camera –- right there next to the aforementioned mute button.

4. Don’t play Solitaire. The meeting moderator is sharing her screen, showing a PowerPoint on your practice group’s business development plans. But your eyes are focused on your second screen, where you’re amusing yourself with a game of Solitaire. Suddenly, the moderator asks you, “Why aren’t you paying attention?” How did she know? Turns out, Zoom has a sneaky feature called Attention Tracking. It allows the meeting host to see when a participant does not have Zoom in focus for more than 30 seconds. The good news: It only works during screen sharing, so you’re free to multitask the rest of the time.

5. Don’t share the wrong screen. The moderator’s presentation is over, and now it’s your turn to share your screen. On one monitor, your PowerPoint is ready to go. On the other, well, there’s still that game of Solitaire. When you select the Share Screen button in Zoom, it lets you select which screen or open window to share. I can’t tell you how many times presenters have mistakenly shown me their email inboxes or something else I shouldn’t have seen.

6. Don’t ignore your background. Makeshift home offices are the new normal. That means you may be working at a desk where you see your computer, but others see your unmade bed or kids’ dirty laundry. Before you get on a videoconference, turn on your camera and see what others will see. In Windows, click the Start button, then Camera. On Macs, use the Photo Booth app. If it ain’t pretty behind you, you might want to consider a Zoom virtual background. Palm trees beat laundry baskets any day, but you’ll need a fairly recent computer for the virtual background to work well.

7. Don’t take a call. Amazing how often this happens. We hear the participant’s phone ring, see the iPhone to the ear, hear the quick explanation that they’re on a conference and can’t talk, and then hear and see the extended conversation regardless. If you were in a face-to-face meeting, you would not take the call. Why take it on Zoom? If you must, remember the points above about muting your mic and video.

8. Don’t forget about lighting. On a Zoom video conference last week, a principle speaker was a faceless silhouette against a floor-to-ceiling window. The view was spectacular, but not of the speaker. Check your lighting in the same way that you check your background. Avoid bright backlighting if you can. If you can’t, put a light on your desk and shine it at your face.

9. Don’t forget to alert your housemates. Sure, it’s cute when the little kids come in and want parent time. But it’s not so cute when your significant other yells from the other room about your failure to pick up your dirty clothes. Before you join a conference, make sure those you live with know. And if the room you’re in has a door that locks, then lock it.

10. Don’t forget to moderate. For all the potential blunders I’ve described above, the worst videoconferences, like the worst face-to-face meetings, are those where the moderator fails to moderate. Set an agenda for the meeting in advance. Cut people off who go on too long. Keep things moving. And if you can end it early, by all means do.

Just don’t forget to click “End Meeting.”

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Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

All around us, our friends and neighbors are stepping up in ways big and small to meet the challenges of these times, if only we have the courage to open up our eyes and see them. But let’s not just see them, let’s appreciate them. Shoot, let’s not just appreciate them, let’s be them. Because ultimately, each one of us – young or old, trained or untrained, and yes, healthy or sick – has a role to play in both halting the spread of the virus and furthering the spread of compassion. …

I don’t know when I’ll be better, when we’ll be better, or when all of this will just be a crazy, mixed-up memory. But until then, I know that we already have everything it takes within our society and within ourselves to day by day, moment by moment, do right by our community. So let’s get better together.

— Zack Kaplan, a second-year student at Duke Law School, in comments made on the Progressive Pulse blog of North Carolina Policy Watch, after he tested positive for COVID-19. Kaplan stresses that everyone must “fulfill a noteworthy civic duty” to contain the spread of coronavirus and flatten the curve.

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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.

Lawyers are not virologists. Lawyers are not epidemiologists. Lawyers are not evolutionary biologists. And we shouldn’t LARP them on TV.

Today’s lesson in Stay in Your Own Lane comes courtesy of esteemed NYU Law professor Richard Epstein, who published an article on March 23 entitled “Coronavirus Perspective” with the Hoover Institution, where he is a Senior Fellow. In the piece, Epstein used “Darwinian economics” to prove that actually the doctors and epidemiologists are all wrong, and this whole coronavirus thing is NBD.

Epstein’s “Perspective” includes some extremely strange assumptions about the evolution of viruses, which he postulates must always weaken over time.

At some tipping point, the most virulent viruses will be more likely to kill their hosts before the virus can spread. In contrast, the milder versions of the virus will wreak less damage to their host and thus will survive over the longer time span needed to spread from one person to another. Hence the rate of transmission will trend downward, as will the severity of the virus. It is a form of natural selection.

The entire essay reads like a generation skipping trust drafted by a dermatologist — no visible pores, but it’s full of holes. And yet, according to the Washington Post, it’s been passed around approvingly in Trumpland to support the assumption that this whole annoying pandemic thing is getting blown way out of proportion. Because the people running our government read this passage, and thought, Yeah, this guy really get it!

By way of comparison, the virulent AIDS virus that killed wantonly in the 1980s crested and declined in the 1990s when it gave way to a milder form of virus years later once the condition was recognized and the bath houses were closed down. Part of the decline was no doubt due to better medicines, but part of it was due to this standard effect for diseases. Given that the coronavirus can spread through droplets and contact, the consequences of selection should manifest themselves more quickly than they did for AIDS.

Literally everything in this paper is nonsense, even granting Epstein the mulligan of “correcting” his U.S. mortality estimate up from 500 to 5,000. (As of this writing, it’s 2,571.) And yet, Epstein decided it would be a smart idea to give an interview to The New Yorker’s Isaac Chotiner to explain why he, a law professor, was uniquely qualified to tell those Chicken Little epidemiologists what’s what.

It was NOT a smart idea.

“You start off with this virus, and there’s a range, some of which are very serious and some of which are less, so it’s a theory of natural selection with a normal distribution set,” Epstein told Chotiner, continuing with his bizarre assumption of strong and weak strains of the virus. In this entirely theoretical universe, someone with the “strong version” infected everybody at the nursing home in Kirkland, Washington, and the high fatalities there can be traced to “either people who are in the facility or people who have family members who hugged and kissed people in the facility. So they got large doses of intense viruses.”

Chotiner spliced the interview with fact checks from IRL doctors going WTF????, including Daniel Kuritzkes, the chief of the infectious-diseases division at Brigham and Women’s Hospital, who said, “There’s no evidence that there are strong and weak variations of the coronavirus circulating. There may be minor variations person to person or location to location in the actual genetic sequence, but there is no evidence that they have different virulence or that a less virulent version is overtaking a more virulent version.”

As Chotiner continued to press him on his underlying assumption that COVID-19 would “weaken” over time as he (mis)remembers AIDS, SARS, syphilis, and Ebola doing, Epstein got increasingly flustered and confrontational, insisting that his “skill of cross examination” as a lawyer qualified him to interrogate the evidence and substitute his own judgment for that of experts in the field.

CHOTINER:  You keep talking about your “sense.” I think that’s the word you’re using. But you’re stating as a fact that the virus is going to weaken over time. It seems like we do not know that. We can turn to other viruses and how they’ve—

EPSTEIN:  No, that is not what I said. I said there’s a long-term tendency in these ways. Over time, yes. And is this a hundred-per-cent tendency? No. Is there any known exception to it? No.

And then, when Chotiner politely suggested that it might be irresponsible to publish theories postulating about scientific fact in an age of misinformation where the stakes are life and death, things went totally off the rails.

EPSTEIN :  Admit to it. You’re saying I’m a crackpot.

CHOTINER:  I’m not saying anything of the—

EPSTEIN:  Well, what am I then? I’m an amateur? You’re the great scholar on this?

CHOTINER:  No, no. I’m not a great scholar on this.

EPSTEIN:  Tell me what you think about the quality of the work!

CHOTINER:  O.K. I’m going to tell you. I think the fact that I am not a great scholar on this and I’m able to find these flaws or these holes in what you wrote is a sign that maybe you should’ve thought harder before writing it.

EPSTEIN:  What it shows is that you are a complete intellectual amateur. Period.

CHOTINER:  O.K. Can I ask you one more question?

EPSTEIN:  You just don’t know anything about anything. You’re a journalist. Would you like to compare your résumé to mine?

CHOTINER:  No, actually, I would not.

EPSTEIN:  Then good. Then maybe what you want to do is to say, “Gee, I’m not quite sure that this is right. I’m going to check with somebody else.” But, you want to come at me hard, I am going to come back harder at you. And then if I can’t jam my fingers down your throat, then I am not worth it. But you have basically gone over the line. If you want to ask questions, ask questions. I put forward a model. But a little bit of respect.

Uhhhh … maybe don’t do that? Maybe stick to the practice of law and leave the science to the scientists? But, hey, it’s just a theory.

Coronavirus Perspective [Hoover Institution]
The Contrarian Coronavirus Theory That Informed the Trump Administration [New Yorker]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

The New York State Bar Association Task Force on the New York Bar Exam released a statement today, in light of the decision to pull the plug on the July administration date, calling for any postponed exam to be set “for a date as soon as possible around Labor Day and prior to the Jewish holidays at the end of September.”

The state can’t necessarily dictate that the NCBE offer a September date, but notes “because of the large number of test takers who take the test in New York, New York can –and should – exert its prominent role in the American legal community to influence the NCBE to offer the UBE in early September.” 

There you go, New York! You’re the legal capital of the country… are you gonna take orders from Madison, Wisconsin? Be the big dog.

As we discussed earlier today, a Fall exam sounds fine in theory, but it may prove difficult to get off the ground if conditions don’t improve considerably by the summer studying season. If the new date proves impossible, the NYSBA Task Force calls for an expansion of the state’s practice waiver system.

Special practice orders allow law school graduates to engage in law practice activities under the supervision of attorneys. New York law presently permits governmental agencies such as district attorney offices, corporation counsels, and legal aid organizations to apply to the Appellate Division for an order permitting law school graduates and law students who meet certain criteria to engage in specified law practice activities.

Because the duration of the coronavirus public health emergency is unknown, the task force recommends seeking the required legislation now that would allow the Appellate Division to extend the special practice orders to private sector attorneys and law firms. The task force report notes that taking such action would expand law school graduates’ opportunities for gainful employment and notes that “The public is protected since the activities of the law graduate are subject to the supervision of a licensed attorney.”

That’s the sort of creative thinking this crisis calls for. Apprenticeship was a viable attorney vetting model for decades in this country — we can give it a little, limited resurgence.

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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.

The economic uncertainty caused by COVID-19 continues to leave its mark on Biglaw. Earlier today we reported on a Biglaw firm, Womble Bond Dickinson, laying off associates and cutting salaries, and more firms holding back on lateral hiring as the economy goes into free fall. And it seems partners will also be feeling the pinch.

Reed Smith has announced that they’ll be slowing partner cash distributions in response to the financial downturn. The firm emphasized business is good right now, but they are making the move as a “precaution” and “bracing for the short-term and potential long-term economic impacts of COVID-19.”

From a firm spokesperson:

Reed Smith is performing on plan through the first three months of 2020. Many of our practices are exceptionally busy right now. At the same time, we know businesses around the world are bracing for the short-term and potential long-term economic impacts of COVID-19, and we are taking a fiscally conservative yet responsible approach. Our leadership is taking a cautious approach and has made the decision to slow partner cash distributions in the near term as a precaution. We think this is a prudent choice as we look ahead to uncertainty in global events.

Let’s hope that this proactive approach saves jobs, and the firm won’t be forced to join the layoffs 2020 club.

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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 batted .500 on my big predictions for 2020.

Three months ago, before the pandemic, I predicted that (1) because Bloomberg was essentially entering the race on Super Tuesday, the Democrats would have a brokered convention this year and (2) a global pandemic would hit in March, instantly crushing the global economy.

I was wrong on the first half, but I was the only person in the world who nailed the second half.

Here’s the link.

Wait!  Those damn editors at Above the Law! I just reread my post, and the editors must have replaced the paragraph about the global pandemic with some nonsense about the economy remaining strong through the election. I can’t believe it!

Anyway, now you know the value of my predictions. So here are a few more, about how COVID-19 will affect law firms in 2020.

(I write these columns a few days before they get posted on Monday mornings. And the pandemic is moving quickly, with events daily outrunning predictions. But I’ll give it a try anyway, recognizing that predictions that I make on Wednesday many have already been proven true or false by the following Monday.)

First:  Litigation is sunk for 2020.

Hearings are off. Depositions are off. Trials are off. Litigators are sitting on their thumbs.

Many clients, trying to conserve cash, are telling lawyers to slow the pace of litigation.

But that’s not the half of it.

The pandemic is going to last longer than folks believe (here on March 25, when I’m typing). I know that President Donald Trump says he’s going to reopen the economy by Easter. He’s smoking something.

The healthcare crisis in New York City will get worse for another couple of weeks. Other cities will quickly suffer the same fate. We’ll be watching Italy and China to guess when a second wave of disease will begin if we release people from their homes, but no politician will run the risk of being at fault for people’s deaths. When our 15 days of staying home expire (here in Illinois, on April 7), the governor will decide that we must stay home for another 15 days, and perhaps another 15 days beyond that. When Chicagoans are finally freed from captivity, folks who haven’t been restricted in their movements will come back into town and start the plague all over again.

If we’re not successful in “flattening the curve,” many people will die in the next couple of months. But if we are successful in “flattening the curve,” then the pandemic will linger for much longer — people will become ill over time.

I’m going to be an optimist here: The pandemic will linger, but litigation will be in the doldrums all along. The year will not be good for litigators.

So, too, for the deal lawyers. Companies are conserving cash. Public markets are cratering. Private equity is in distress. Portfolio companies are seeing supply lines disrupted. PE firms can’t raise money to do acquisitions or find money to do intelligent exits. This will last for a while.

The global economy is getting hammered, and law firms will follow the fortunes of the economy as a whole.

The only practice area in demand will once again be bankruptcy, as we go through the 2008-09 cycle all over again.

Overall, 2020 will be a very, very, bad year for law firms.

That’s it for predictions. Here are stray thoughts.

First: When people are out of work and can’t feed their families, but own guns, that’s a bad combination.

Second: Two years from now, when this is over, someone will do a study of whether this pandemic disproportionately affected the political parties. I’m not sure how this will cut: Democrats tend to live in big cities, where “social distancing” is hardest. But Republicans tend to listen to Fox News, which told people for months that the pandemic was a hoax, and people should continue on with their lives. A good scientist could probably control for those factors and tell you which party suffered the most from this plague.

Third: Clever plaintiffs’ lawyers are probably already thinking about how to sue Fox News for the deaths of elderly Republicans. “Grandma watched Fox News, was told the virus was a hoax, went out to the movies, caught the virus, and died. Who’s fault is that?” Discovery may easily unearth evidence that Fox knew (or should have known) that its statements were false when made.  Causation will be tricky to prove, but I bet the trial lawyers (who skew Democratic and would love to put a Republican-leaning network under siege) will take a chance on this.

Lastly, suppose I woke you up in the middle of the night and asked you this question: “Quick! A person owns a company. Things outside the company’s control cause the company to make a huge profit. Does the owner of the company get to keep the profit?”

Go back to sleep.  A half hour later, I wake you up again: “Quick! A person owns a company. Things outside the company’s control cause the company to suffer a huge loss. Does the owner of the company have to suffer the loss?”

I’m not sure how you’d answer those questions, but don’t you have to give the same answer to both questions? (Yeah, yeah: Maybe you’d have to adjust for tax payments when you think about earning money. And maybe some companies are truly essential to national defense, so you don’t want to bankrupt them in a time of losses. But, as a general matter, don’t you have to find one principal here and stick with it?)

Or maybe I’ve already got cabin fever. It’s gonna be a long 30 days.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

First came the Biglaw layoffs, and now come the Biglaw recruitment problems.

Just a few weeks ago, people were pretty confident that the lateral recruitment process would go on as usual, but thanks to the COVID-19 pandemic, it’s come to a grinding halt at some Biglaw firms. Law.com International has the details:

A spokesperson at Slaughters said in a statement to Law.com International’s Legal Week: “Given current circumstances, we have paused recruitment processes while ensuring we have the right resources in place to help our clients through the current challenges.”

Meanwhile fellow Magic Circle firm Linklaters is “pausing all bar the most essential recruitment” as a result of the uncertainty caused by the pandemic, a spokesperson confirmed to Legal Week. …

Meanwhile a person with knowledge of the situation said CMS has also halted its associate recruitment program. A person at the firm said the firm is currently progressing “some key hires” but has stopped recruitment that was in the early stages. The person added that there will be a “higher bar” for new approval of hires.

Meanwhile, firms like White & Case and Bird & Bird are both reevaluating their associate hiring amid the uncertainty that’s been caused by the coronavirus outbreak.

Perhaps Biglaw will circle back to associate recruiting in a few months, but for the time being, if you were hoping to leave your firm, you may be waiting for a while.

Slaughters, Linklaters Halt Associate Recruitment Amid Pandemic Disruption [Law.com International]

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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.

Lateral Link can quickly help law firms during this COVID-19 crisis by supplying short term interim attorneys who are Top 25 grads with major Am Law 200 experience who work remotely on an hourly basis on the most sophisticated litigations and transactions. These interim attorneys used to work at law firms such as Kirkland & Ellis, Gibson Dunn, Skadden Arps, and other top-tier firms. These are the same attorneys who were once billed out at $800 per hour as Biglaw firm associates and partners, and as these elite lawyers have been increasingly working as contract attorneys given their preference for flexible schedules, legal departments can access their skills and expertise at a relatively low cost. And because of their pedigree, you can still bill their clients at firm rate. 

There are many good reasons for law firms to embrace this shift especially given the current climate of the legal market. 

1) Fill Needs Quickly. On average, the permanent lateral process takes months from the identification of a need, to the onboarding of the associate. As the market conditions quickly fluctuate, using experienced interim attorneys allows firms to scale to meet their immediate demand in any practice, without the comparative lag and permanence of a traditional lateral search. In a volatile market, flexibility and swiftness are key.  

2) Lower Costs For The Same Experience. Interim attorneys require a significantly reduced commitment of overhead than their permanent counterparts. When engaged through a high-end and trusted staffing company, law firms are not responsible for the attorneys’ healthcare costs, payroll taxes, or equipment, and most firm malpractice policies cover “contractors” at no additional cost. Because interim attorneys are paid by the billable hour – no down time, no hours written off – they are guaranteed to generate a significant ROI with no downside risk.

3) Satisfy Client Needs. Senior attorneys with partner or counsel experience are widely represented among the interim attorney ranks. This means that rather than referring work away (and even when pitching for work), firms can temporarily add high-level expertise in practice areas or industries they otherwise could not service. As we are seeing so much market instability, interim attorneys allow firms to quickly scale up their offerings in countercyclical practices to hedge against losses in other practices and avoid a layoff crisis like we saw in 2009. 

4) Increase Profits Even In A Downturn. New revenues are generated not just from the interim attorney’s time, but also from the hours the firm’s permanent lawyers spend on the engagement. This income is amortized over the firm’s fixed costs (i.e., its permanent lawyers), making the firm more profitable as a whole. The same analysis applies to blending rates. Should we enter a fully-fledged economic downturn, it is in the firm’s interest to continue service to a cost-sensitive client even when it doesn’t fit within the firm’s billing structure (for example, when failure to do so could cost the firm larger engagements with this client). Adding interim attorneys allows for a lower blended rate while still providing the level of experience needed for the matter, and generating work for other members of the firm. The pedigree of our high caliber interim attorneys also allows the firm to bill at an equal rate to their permanent associates as the client is getting commiserate experience and value. 

Permanent lateral attorneys will always have an important place in the market. Savvy firms, however, can engage interim attorneys now to add flexibility in these uncertain times. As workflow remains somewhat unpredictable, firms will do well to hedge their bets on practice growth by strategically utilizing the talent pool of first-tier interim attorneys now at their disposal. As a premier provider of interim talent, we are happy to discuss your hiring needs to help you weather whatever storm comes your way. Please reach out to Jaclyn Genchi if you are interested in utilizing our flexible staffing offerings.