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Ed. Note: As the decade comes to a close, Above the Law presents you a special Trivia Question of the Day series in remembrance of the Biglaw firms we lost in the 2010s.

What now defunct Biglaw firm was founded in 1891 in Boston and grew to have nine offices around the U.S. as well as five international offices?

Hint: Though the firm survived the 2009 recession, tensions from mergers (and major litigation drying up) are largely credited with leading to the firm’s 2014 dissolution. The immediate preceding event? When 750 attorneys (226 of which were partners) left the firm for Morgan Lewis & Bockius.

See the answer on the next page.

Although we can never eliminate stress or worry entirely, we can aspire to reduce the stigma associated with mental health challenges, to help students better care for themselves and their peers, and to provide the robust continuum of wellness and mental health resources that students need to thrive at [Harvard Law School].

— from a report based upon a mental health survey at Harvard Law School, the results of the 2017 survey were published late this month. The study revealed high rates of mental health issues at the elite law school, namely that ~60 percent of respondents reported signs of depressions. Additionally, over 50 percent of respondent reported signs of anxiety. In an email to law students, dean John Manning revealed a path forward based on the data, “The report provides us with a good sense of where we stand in the broader context of the profession, legal education, and graduate education more generally… Through a series of thoughtful recommendations, the Working Group also lays out an initial framework for addressing the mental health and well-being challenges on our campus. They further identify some things we can do right away to improve student well-being.”

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).

This past summer I wrote about the case of Michelle Carter, a minor who was convicted of involuntary manslaughter for verbally encouraging her boyfriend, Conrad Roy, to commit suicide. Carter’s case established a rather unique legal precedent in the state of Massachusetts. As I explained at the time:

“Although states can and do criminalize assisted suicide, Massachusetts had no such statute at the time Carter was convicted. Moreover, although assisted suicide was/is a common law crime in Massachusetts, as with many state statutes, the common law was explicitly tailored around doctor-prescribed suicide. Accordingly, Carter’s case is inapplicable to all Massachusetts’s law relating to assisted suicide because unlike doctor-prescribed suicide, Carter neither provided the means nor physically participated in the act. In fact, it was the older Roy alone who would research the method of suicide, obtain the means to do so, and in the end, physically carry out an act he had attempted multiple times before. In other words, it was Carter’s speech alone that formed the basis of her conviction, but not for the crime of assisted suicide as many might think. Rather, Carter’s conviction was based on a common law standard of behavior categorized as wanton and reckless “verbal conduct” constituting involuntary manslaughter.

Creating a category of “verbal conduct” within common law involuntary manslaughter allowed the Massachusetts courts to argue Carter’s speech belongs within the supposedly but not really at all well-defined and narrowly limited “speech integral to criminal conduct” federal exception to free speech protection.”

In Carter’s petition to the U.S. Supreme Court to overturn her Massachusetts involuntary manslaughter conviction, her attorneys focus on the argument that the common law’s “verbal conduct” standard lacks any “clear, meaningful, and constitutional way to determine” the line between criminal and permissible encouragement of suicide. In fact, the Massachusetts Supreme Court acknowledged in its decision of the Carter case that not all instances of encouraging suicide are the same. Accordingly, Carter’s federal petition argues any family member who encourages a sick loved one to die with dignity, or to avoid what they view as unnecessary suffering, exists at the mercy of a Massachusetts prosecutor of being charged with involuntary manslaughter.

The obvious danger with laws that offer no clear indication as to whether citizens have broken them or not is that prosecutors/government can apply them with bias, using them as a pretext to target dissent for example. More important to consider, however, is the fact that vague laws have recently been overturned by a bipartisan majority of the U.S. Supreme Court. The Massachusetts legislature is at least now attempting to define the parameters of its newly established involuntary manslaughter “verbal conduct” standard to include instances where “the will of 1 person is substituted for the wishes of another.”

The common law standard established by the Carter case is currently being played out in another Massachusetts court room with the case of Alexander Urtula and Inyoung You. Similar to the Michelle Carter case, the defendant, Inyoung You, is being portrayed by the prosecution as some kind of “monster” who verbally established complete control over Urtula’s suicide. Further complicating the issues of personal responsibility is the substantial evidence that both the suicide victim and the defendant in both the Carter and You cases suffer(ed) from some form of psychological disorder. In the You case, Mr. Urtula’s friends had at one point tried to intervene in the relationship by observing that You, not Urtula, needed “professional help.”

When it is discovered that a criminal defendant suffers from some form of neurological disorder, not only do our moral intuitions often change, the law can strive to change as well. Objective, scientific reasons have been put forth for why our morals and laws should shift in such circumstances. As neurological scientist Sam Harris has explained, brain disorders appear to be “just a special case of physical events giving rise to thoughts and actions,” and that above all “luck,” or lack thereof, is the ultimate factor in every human decision. Therefore, according to Harris, even when it comes to the most disturbing or repulsive examples of human behavior:

“We should admit that a person is unlucky to inherit the genes and life experience that will doom him to psychopathy. That doesn’t mean we can’t lock him up, or kill him in self-defense, but hating him is not rational, given a complete understanding of how he came to be who he is. Natural, yes; rational, no. Feeling compassion for him would be rational, however — or so I have argued.

“We can acknowledge the difference between voluntary and involuntary action, the responsibilities of an adult and those of a child, sanity and insanity, a troubled conscience and a clear one, without indulging the illusion of free will. We can also admit that in certain contexts, punishment might be the best way to motivate people to behave themselves. The utility of punishment is an empirical question that is well worth answering.”

I would question the legal and moral utility of the criminal punishment in both the Carter and the You cases, not discounting any opinion as to the abhorrent nature of the behavior by each. That is not to say nothing should be done, just that having law enforcement and the criminal justice system tackle this particular harm with incarceration by utilizing difficult to define “verbal conduct” standards seems inapt.

Unfortunately, there is ample evidence law enforcement and the criminal justice system is substantially burdened by being one of the primary regulators of mental health patients in this country. Of course, to alleviate the current burden on law enforcement would first require exercising the moral will to defer even repulsive behavioral cases from criminal mechanisms, to ones more tailored to alleviating harms due to mental health. As preposterous as state funding for metal health infrastructure might sound to some, given how much we currently spend on locking mentally ill patients up, and if trillion dollar a year budgets and historic tax (tariff) increases are now things conservatives budget hawks in Congress support, we eventually might get around to funding a mental health system capable of addressing the harm.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

A New York-based cardiologist sued Apple, saying the tech company violated his patent when it added a new Apple Watch feature to detect atrial fibrillation. Dr. Joseph Wiesel, a clinical assistant professor at NYU Langone Health, filed the lawsuit on Friday.

Apple first received clearance from the Food and Drug Administration to include the atrial fibrillation feature in its devices in September 2018. Using an optical heart-rate monitor, the feature notifies the wearer if an irregular rhythm is detected, though it’s not meant to be used by wearers who have already been diagnosed with atrial fibrillation. Apple first introduced the feature with the Apple Watch 4, though it is now available in older devices.

The feature could alert adults to potential instances of atrial fibrillation, though it still couldn’t replace a medical diagnosis. It’s also worth noting that past studies have questioned the accuracy of wrist-based monitors; a 2017 Cleveland Clinic study testing four wearables showed none were as accurate as a chest strap.

Starting in 1999, Wiesel has filed numerous patent applications related to atrial fibrillation detection, according to the complaint.

“Early on in his career, Wiesel noticed a lack of available and useful technology to screen for atrial fibrillation. For over twenty years, Plaintiff has been inventing, researching and experimenting with innovative approaches for monitoring and detecting atrial fibrillation,” the lawsuit stated.

Wiesel claimed Apple violated a patent he was issued in 2006, describing a method for detecting atrial fibrillation. In the patent, Wiesel explained the device could use either an inflatable blood pressure cuff or a light source that monitors the intervals between pulse beats.

The complaint emphasized the validity of Wiesel’s patent, adding that “The claimed inventions were not well known, routine, or conventional at the time of the invention, nearly twenty years ago, and represent specific improvements over the prior art and prior existing systems and methods…”

Wiesel is seeking past damages in the form of at least a “reasonable royalty,” treble damages for willful infringement, and for Apple to pay royalties on a going-forward basis. The complaint estimates that Apple has sold between 50 million and 100 million watches with the feature included or available as a downloadable upgrade.

Apple did not comment at the time of publication.

Photo credit: Apple Inc. 

Technically the decade doesn’t end until December 31, 2020. That said, no one is looking to Above the Law to be the sort of obnoxious gunner who points out something so wildly pedantic. Let’s just lean back and celebrate the common parlance end out the 2010s with a look back the top stories we’ve put out over the first full decade of Above the Law coverage.

Why is this a “sort of” list? Above the Law changed how we track traffic in 2015 so while we can see stories from the whole decade, we can only identify the traffic those stories have generated since the summer of 2015. So when you look at this list you may wonder if there are some early decade blockbusters that should be in here. For instance, Dewey think the death of a law firm might have cracked the list? Probably. I happen to know from memory that this particular post about a former Michigan judge had traffic higher than all but three of the articles listed below. But we have to work with what we have and this list is a good thumbnail sketch of the years.

Of course, if you’re looking to hear a quick recap of the just top stories of 2019 — the feature we usually drop at this point — there’s always the Thinking Like A Lawyer recap.

Without further ado, behold a decade in the life of Above the Law:

10. Which Bar Exam Prep Course Is The Best?: Back in 2013, we endeavored to provide 3Ls with a comprehensive guide to the best bar prep courses available to them by simply laying out all the costs, discounts, and policies of the big players in bar prep so graduates could make an informed decision. The success of this post over the last decade is a reminder that while timely announcements that lawyers are demanding opposing counsel “eat a bowl of dicks” (while that story was only published in December, it is currently the 12th most read story of the decade), ATL also delivers serious, practical information and often that stuff delivers as many eyeballs as the more scandalous stories. And given that this article pre-dates the traffic black hole, it deserves to be much, much higher on this list.

9. The Brett Kavanaugh Chickens Have Come Home To Roost: The top story of 2019 is also the 9th entry in the decade’s hit list. “The Brett Kavanaugh Chickens” in this case represent Maine Senator Susan Collins realizing that she had torched the “I’m a moderate, pro-woman Republican” image that she’d mostly fictionalized to sustain her career in Maine politics. Kavanaugh was certainly a bigger deal this year, but let’s not undersell when she backed Neil Gorsuch as a defender of “precedent” because he’d written a book on it right before gutting the 40-year-old Abood decision. The moral of the story is that Susan Collins is a talentless hack who’s successfully hoodwinked Maine into thinking she’s Olympia Snowe for too long.

8. Apparent Suicide In Front Of D.C. Law Office Building: One of the biggest struggles internally at Above the Law is how to cover death, and in particular death by suicide. On the one hand, interrupting the light tone of the publication to pass along tragic news. On the other hand, this is the brother/sisterhood of the profession and we owe it to the legal industry at large to acknowledge that this happens and to encourage everyone who might be going through the same stuff that help is out there. Frankly, in a roundup of the themes that touched the ATL audience the most over the last decade, it’s important that a story about losing one of the fellowship is in here.

7. Salary Wars Scorecard: Which Firms Have Announced Raises And Bonuses? (2018): Last year, Milbank and Simpson and Cravath combined to give associates a cost of living adjustment to the 2016 raises. Sure, it was only 2 years after the last salary bump so it wasn’t as big of a splash, but it’s a testament to ATL’s audience growth that coverage of the 2018 adjustment actually outpaced the 2016 coverage. In fact, this post was split into two (reflecting the pre- and post- Cravath match and raise) and would actually be 4th if combined. The coverage of individual firm moves generally outpaced 2016 too with one pretty obvious exception that we’ll talk about in a minute.

6. City Attorney Spraying Anti-Trump Graffiti While Drinking Wine Is All We Have Left: Duncan Lloyd, an assistant city solicitor in Philadelphia, spray painted “Fuck Trump” on a wall in 2016 and his story became the first of many springboards for Elie Mystal to elucidate his frustration over the 2016 election.

5. The Lawyer Holiday Gift Guide: The Best Gifts For The Attorney In Your Life: The gifting holidays are behind us for another year, but the gift guide we maintain for those out there looking to bring cheer to attorneys remains an audience favorite.

4. You Realize Arming Teachers Is Going To Lead To Black Students Getting Murdered By Their Teacher, Right?: I remember everything about the genesis of this post. In the immediate aftermath of Parkland shooting, Republicans began discussing a comprehensive plan to solve mass shootings by giving high-powered weaponry to public school teachers in what’s arguably the least sensical idea they’ve had since supply-side tax cuts. Elie had begun work on a post about how the idea just won’t work when Kathryn Rubino and I mentioned that someone we know had pointed out that his biggest concern as a black man was that this will only spiral into teachers killing black students. Within about 20 seconds the original draft was junked and Elie started drafting this full explanation of exactly where this insane policy would end up.

3. The Absurdity Of Current Law School Scholarship Offerings: The rise in law school tuition defines one of Above the Law’s longest-running crusades. The profession doesn’t offer the same golden ticket it once did, but law schools are still treating third-tier students like they’ll be Latham’s next rainmaker. This straightforward piece looks at the trend of law schools driving up scholarship opportunities to cover for their increasingly unrealistic tuition demands.

2. Breaking: NY To $180K!!! Cravath Raises Associate Base Salaries!!! : After almost a decade of stagnation in associate salaries, the 2016 announcement that Cravath would bump salaries to the $180K scale became a huge story for Above the Law. And a good portion of its traffic didn’t even come in 2016. Almost a third of the pageviews for this post came in 2018 right after Milbank made the first move in that round of salary hikes, as people looked back to see how the 2016 round shaped up.

1. A Pictorial Walkthrough On How To Use Excel For Law Firm Billing: Some of Above the Law’s most popular content doesn’t move the needle when it’s first written. This technology piece for small law attorneys is the perfect marriage of two of ATL’s most important — but niche — audiences. We provide a great deal of legal technology coverage that may not generate a click from law students out there, but when attorneys are looking for product reviews and just a frank, maybe even irreverent look at emerging trends in the space, we provide a lot of content. For small law attorneys who needed to get the bills out the door and didn’t have a lot of capital to invest in billing software, this guide was a godsend and it continued to generate a small but steady stream of clicks for years. Today, billing software is more cost effective, so the guide’s traffic has slowed a bit, but it had a tremendous run as the most popular post of the decade.

Startup founders have a lot to deal with. From raising money, to finding the right advisors, to hiring the right employees, to actually executing on their business ideas — the demands placed on founders are extreme. For many of them, it may seem like there is an endless checklist of tasks to complete and decisions to take. Among those decisions are IP-related issues, such as what trademarks to pursue or whether patent protection is available to protect at least one of the startup’s product offerings. Fortunate are the founders who has access to competent IP counsel to help guide them through those critical decisions. Even more fortunate are the founders with the budgetary wherewithal to follow through on procuring a robust intellectual property portfolio early in the startup’s lifespan. But how many founders enjoy such good fortune?

It is not hard to imagine that there are a whole host of founders who do not enjoy access to competent IP counsel right away. Likewise, even fewer founders are able to allocate precious resources toward IP procurement without reservation, which can make decisions about IP fraught ones for founders, who are asked to balance their immediate need to preserve resources with the potential future need to stop infringers. Making things more complicated is when a founder is under pressure to procure IP as quickly as possible to attract or satisfy existing or prospective investors, many of whom subscribe to the prevailing wisdom that IP is important to a startup’s prospects.

Let’s explore some of the reasons why that prevailing wisdom has taken hold and remains a potent consideration for investors considering an investment in a startup. For one, investors like to see some external proof that the founder or company they are investing in is innovative, rather than just a copycat market entrant. Likewise, investors know that prospective customers — whether large retailers or individual consumers — are drawn to innovative products and services and look to whether a startup can say that its core products are patent pending or patented as proof. Additionally, investors are drawn to founders that are IP savvy, often interpreting that savviness as proof that the founder is truly committed to the startup’s market goals and is a true believer in the startup’s mission. Lastly, investors realize that most startups are likely to fail in some way, whether that be an outright failure or a need to reposition away from the founding idea to one that actually shows commercial promise. In those common circumstances — especially when the startup goes belly up — the startup’s IP may be the only actionable asset available to the investor to recoup some or all of the investment.

For those reasons, it makes sense that investors like to see a startup invest in IP early on, even when resources are at their scarcest. But as with much prevailing wisdom, there is often a disconnect between the actual belief — such as that IP offers value even for a bankrupt startup — and concrete examples that provide support for that belief. That is why I was pleased to see recent reporting on at least one high-profile example of a startup company that failed, but also saw its patents sold in bankruptcy to the prospective benefit of at least some of its investors.

The company in question, uBiome, had sported a valuation of over $600 million at its peak, based on the expected market uptake of its microbiome testing products, which included self-administered and doctor-directed products designed to offer individualized wellness checks for consumers. Underlying the testing kits were what the company referred to as “a patented combination of full metagenomic and marker-based sequencing.”  At one point, uBiome was reported to have had at least a half-dozen issued U.S. patents, along with over 100 pending applications. As with many startups, uBiome touted its patent portfolio when it announced a successful fundraise, thereby directly linking its innovation with its commercial prospects and investor interest.

But things quickly went sour earlier this year for uBiome, with news in April of an FBI investigation into the company’s billing processes. That investigation eventually led to the removal of the company’s founders. By October, uBiome had been liquidated, with the company’s patents put up for sale at auction. A few weeks ago, it was reported that a Korean company’s U.S. subsidiary had purchased uBiome’s patent estate, pending bankruptcy court approval. The price? A little under $8 million, representing around 1% of uBiome’s peak enterprise value.

Ultimately, it may (or may not) be surprising that a failed startup’s patents could only command 1% of the company’s former value at auction. Either way, however, it is important to remember that the very same patent portfolio had ostensibly paid a key role in helping the company reach its previously high valuation. The story of uBiome can therefore serve as a guidepost for other startup founders, especially those struggling to justify investment in IP. That said, investors will continue to insist startup founders take precisely that step in many situations, guided as they are by a concern about recouping their investment in risky ventures. While it may be too late for many of uBiome’s investors, the company’s investment in IP paid off for somebody, just as it may for the IP’s new owners. At minimum, the patent portfolio’s sale probably redounded to the benefit of at least some of uBiome’s creditors. For them, at least, recouping one percent is better than zero.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Back in the Mad Men (and Dolly Parton) era of office culture, most professionals were expected to arrive at the office no later than 9 a.m. every day. In the past, many people could not work from home, and it was important that everyone be in the office at the same time each day to start completing assignments. Because employees were less accessible after hours years ago, employees also needed to show up to work at a set time so managers could keep track of their workers.

However, people are accessible pretty much all the time in the present day, and most attorneys can complete almost all of their work in the comfort of their homes. As a result, it rarely makes sense for associates to be in the office at 9 a.m. each day, especially when attorneys can finish work later if they arrive at the office later in the day. Nevertheless, some partners insist on establishing artificial expectations for when associates must be in the office, and those requirements can create unnecessary hardships.

Most of the partners I worked for at various firms did not really care when associates arrived at the office every morning, so long as an associate billed enough hours. Indeed, at most firms at which I worked, attorneys usually arrived at the office around 9:30 a.m., and some associates did not arrive at the office until 11 a.m. most days. Of course, attorneys who came to the office later in the day usually stayed later, and there were few downsides to those associates showing up for work after the traditional 9 a.m. start to the workday.

However, I once worked at a firm that decided to crack down on people arriving late to the office. The managing partner of this firm sent out a stern email to everyone at the office requiring that all attorneys and other employees be in the office at 9 a.m. each day. The partner said that having all employees arrive at the office around 9 a.m. would help us provide good service to our clients. It was also mentioned once that it would be easier for attorneys to collaborate on assignments if everyone was around the office at the same time each morning.

However, requiring everyone to be at the office at 9 a.m. every day was completely unnecessary and created burdens for associates and other employees. Clients knew they could email us whenever they wanted and receive a response around the clock. I think I only had a handful of conversations with clients on the landline at my office while working at that firm, and being accessible to clients is a poor excuse to require associates to be at the office at 9 a.m. In addition, since many firms require associates to be accessible around the clock through email, it is extremely unfair to also require these attorneys to be in the office at 9 a.m. each day.

Furthermore, requiring attorneys to be in the office at 9 a.m. is regressive and can create hardships that may make it more difficult for associates to fulfill other responsibilities in their lives. For instance, many parents have difficulty getting to the office that early due to childcare needs, and being more flexible with when associates must be in the office can make it easier for parents to contend with childcare issues. In addition, being flexible about when associates need to start their day can make it easier for employees to attend doctor’s appointments, deal with car troubles, or fulfill any number of other responsibilities people have in their lives. Such flexibility can boost morale and show associates that their employer cares about them and is not establishing artificial expectations that can get in the way of employees fulfilling important obligations in their lives.

In addition, requiring associates to be in the office at 9 a.m. each day so attorneys can collaborate and communicate face to face is also a poor reason to create a hassle in the lives of associates. Most associates today collaborate through text, email, gchat, and a variety of other tools. Indeed, at many of the firms at which I worked, associates had robust group text message chains where all of the attorneys spitballed ideas and supported each other as we completed assignments. Since attorneys use various means to collaborate, it is unfair to use collaboration or face-to-face interactions to justify a 9 a.m. start to the workday.

All told, requiring associates to be in the office at 9 a.m. each day is so twentieth century! Most partners who have such expectations need to get with the times and afford associates greater flexibility. Of course, sometimes there are powerful incentives to get to the office early. One time, I worked at a firm where an important partner was in the office at 8 a.m. each day, and I wanted to be in the office early in order to receive assignments from him. If there is an important enough reason to be in the office early, associates will use their discretion and arrive at the office at an appropriate time.

However, a 9 a.m. start to the workday is usually an artificial hassle that can get in the way of associates completing necessary life responsibilities. Since associates are accessible pretty much all the time through email and other means, partners should be more flexible about when they expect associates to arrive at the office each morning.

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.

* Joe Biden stated that he may nominate Barack Obama to the Supreme Court if the former president was interested. Obama should brush up on his con law just in case… [The Hill]

* A retired law professor is suing commentors who discussed him online. [Reason]

* We lost some amazing lawyers in 2019, check out the list. [Bloomberg Law]

* A judge has dismissed an impeachment witness’ lawsuit after the House rescinded its subpoena. [CNN]

* An attorney has been hospitalized after a client punched him. This happens far too often. [Star Tribune]

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.