Category: News Feeds

The new normal of coronavirus is slowly seeping in across the legal world. Biglaw is reacting to the pandemic, with work from home policies becoming increasingly popular. And law schools have almost uniformly responded with physical class closures, some 190 law schools — representing 95 percent of law schools — have moved to online classes.

The global health crisis has managed to produce anxiety in even the most even-keeled individuals, so in high pressure environments — like law school — it’s just bananas. And law school deans are aware the panic settling over their students is more intense than the usual spring finals anxiety. So, it really is a good thing that University of Michigan Law School Associate Dean Gil Seinfeld reached out to students with a detailed email addressing some of their most pressing concerns.

There are attendance policies, time zone complications, grading standards and a shortened finals study period to deal with. And really, kudos to Seinfeld for addressing those concerns before they reach a fevered pitch (too soon?). But in the long email Seinfeld also noted the surprising upside to the COVID-19 safety restrictions — more study time!

“You all know well how vibrant our community is.  And that vibrancy flows, in significant part, from the dazzling array of extracurricular activities in which our students are involved.  Many of you, no doubt, have been lamenting (among many other things these days) the loss of opportunities for connection, public service, and learning that the cessation of those activities entails.  You can make up for some of those lost opportunities for learning by squeezing everything you can out of your coursework.  And you can do that, in part, by devoting some (but only some) of the hours that would otherwise have gone to extracurricular pursuits to careful study of the material you’ll be covering in class.”

As an Above the Law tipster quipped, “UMICH Law School Dean praises Covid-19 epidemic as a new study tool.” Burn.

In fairness to Seinfeld, he’s quick to point out you should not spend all your free time studying. There’s a clear message of compassion and understanding throughout the email. But noting it is also a gunner’s dream to have a sudden boon of study hours is also pretty damn funny.

You can read Dean Seinfeld’s full email below.

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).

Yesterday, the President started the day off with a call for the nation to heal itself with a “NATIONAL DAY OF PRAYER.”

Well, that’s not entirely correct. He started off the day hyping Judicial Watch’s lawsuit to depose Hillary Clinton about Benghazi. But after that, he got down to praying in earnest.

The president prayed for just vengeance on Senator Chuck Schumer for disrespecting the holy Supreme Court. He prayed that the good Lord would open the hearts of America’s governors, so that they might emulate the federal government’s perfect, perfect pandemic response. He prayerfully rebuked the “Fake and Corrupt News” for reporting that he shamelessly mischaracterized Google’s coronavirus test plans. And he praised Jesus for giving him the wisdom to save Social Security and Medicare, unlike Joe Biden, who displeased the Lord with his “VERY boring debate.” Truly, it was a day of sacred inspiration.

During his public and private spiritual meditations, Donald Trump could not but consider the least among us. The poor, the downtrodden, the unjustly accused.

That’s right, he’s worried about Michael Flynn.

The former National Security Advisor pleaded guilty in writing to lying to the FBI about his contacts with Russian Ambassador Sergei Kislyak. He allocuted to it twice in open court. And yet, after having replaced his highly competent counsel from Covington & Burling with Sidney Powell, an, uh, outside the box thinker, he’s now decided that none of the stuff he admitted to under oath ever actually happened.

It’s an unorthodox strategy, to say the least.

Trump appears to be referring to allegations by Flynn’s lawyer that there is a missing draft of the FBI agents’ notes (AKA FBI form 302) on their infamous January 24, 2017 interview with Flynn at the White House. That’s the interview where he assured the agents that he had absolutely not discussed sanctions with the Russian ambassador before the inauguration, while joking that the agents probably knew exactly what he’d discussed because they were likely tapping the call, HEH HEH. Which… they were, and that’s how they knew he was lying.

This is a lie Flynn has admitted to under oath, both verbally and in writing. He discussed it multiple times in his proffer agreement and subsequent interviews with the FBI, all of which will undoubtedly be used against him if he actually succeeds in withdrawing his plea. Nevertheless, he would now like to insist he was just confused all those times, because the mean FBI tricked him. Also, his old lawyers were incompetent. And if the court could just overlook that part of his plea agreement where he agreed not to ask for any further Brady materials, that would be awesome, too!

Or, maybe, if he can just make enough noise, he can get a presidential pardon and none of it will even matter. And if that’s the plan, it appears to be going swimmingly, especially after he got Hannity fixture and “National Security/War Correspondent” Sarah Carter on the case.

During his prayer service yesterday, Trump retweeted this entire thread.

And HOSANNA, the nation was healed!

U.S. v. Flynn [Reply in Support, No. 1:17-cr-00232-1 (D.D.C. Nov 4, 2019)]

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

“I absolutely love working from home,” one of my team members told me, now that we’re working remotely to limit the spread of COVID-19, the disease caused by the coronavirus. “I now have three extra hours each day that I was spending commuting before. I can finally get enough sleep and go to the gym and be more productive.”

“Not commuting is nice, I guess,” said another employee unenthusiastically. Visibly disappointed, he explained, “I miss interacting with my co-workers. That really kept me focused. Plus, I just miss whiteboarding with my colleagues. I find that I think much better with a Sharpie, whiteboard, and knowledgeable colleague. In fact, I worked in the office yesterday because I work better at my desk where everything is set up.”

So, on balance, is working from home in this COVID-19 world a positive experience or a negative one? Without being too much of a lawyer, which I proudly am, it looks like the answer to this question, at least on my team, is “it depends.”

Here are the three actions that can help make it a much more positive and productive experience as your team works remotely.

Foster Simultaneous Collaboration With Modern Technology Tools

Simultaneous collaboration brings the right people together at one time to get more work done faster and smarter. For example, videoconferencing, eDiscovery, and contract management platforms unify work efforts across locations, departments, internal and external legal teams, and third parties.

In contrast, during sequential work, we may work on the same project or document, but our activities occur in individual steps, often over time (e.g., You draft a contract. You email it to counsel. They redline their edits and email it back. You respond to their edits. Hours or days pass between each step). Sound familiar?

To this end, consider leveraging cloud-based tools and platforms that allow you to share resources and documents and work with others in real time. Increase understanding with tools that record the decision-making process in one, easily accessible location. Among many other benefits, simultaneous collaboration tears down information silos. Bringing together knowledge and data from multiple disciplines and sources encourages a global perspective of challenges and a more holistic awareness of their solutions.

Check-In Regularly And Encourage Real-World Relationships

Checking in with your team members more regularly and in a variety of settings and circumstances is helpful. Some people thrive in large-group interactions. Others seek smaller and more intimate gatherings. Consider mixing it up to make sure you have something for everyone.

Also, consider getting on call or video with your co-workers and people outside of your job for a virtual coffee, lunch, breakfast, or dinner just to catch up or discuss items not related to work.

Not all interactions must be related to work. Many people connect around commonalities and interests that have nothing to do with their jobs. Discussing kids, pets, and hobbies has long been a classic way to make friends and build relationships in and outside the office.

Respect The Right To Disconnect

Our 24/7 access to technology and each other is a double-edged sword. The legal industry is slowly learning to appreciate a healthier work/life balance, but I, along with many others, want us to embrace the concept much more quickly.

Consider giving employees the ability to disconnect, and respect their need to do so. With the easy ability to reach anyone anywhere, at any time, also comes the great responsibility not to. If you can’t trust that your team will contribute at the appropriate times, it’s probably time to evaluate its structure.

It’s a scary time that we’re living in, trying to prevent the spread of COVID-19. But there are lessons to be learned, to improve our lives during this crisis but also well beyond. The circumstances that we are being forced to live under are making us reconsider and re-examine the ways we have worked, lived, and socialized in so-called normal times.

Why not take this opportunity to grow?

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology.  Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.  

Whether you are a legal operations professional or a chief legal officer at your company, contracts undoubtedly play a role in your corporate counsel responsibilities.

Maybe you’ve been tasked with figuring out how to reduce the time it takes for your department to turn redlines on sales contracts that come in from the field. Or maybe you’ve been asked to conduct a risk and legal liability audit of contractual relationships across the enterprise.

Whatever your role, it’s likely to become more complex in recent years. The regulatory landscape in which contracts are at play is constantly changing; a globalized marketplace connected by digital communication has accelerated the pace of business; supply chains have become more globalized and sales contracts more intricate.

To address these challenges, corporate legal departments are taking a lead in adopting a new approach that helps them manage contracts holistically. That approach is enterprise contract management.

Enterprise contract management transforms both how a legal department operates internally and with outside stakeholders. And, ultimately, it changes how an entire enterprise looks at its contractual foundation.

As an introduction, here are five views of enterprise contract management from a corporate counsel point of-view.

1. Enterprise Contract Management as Provider of Risk Management and Strategic Data

We’ve all heard the wisecrack: Legal is “the department of no” (or, at best, the “department of slow”). Sales and procurement look at the legal team as a hurdle to their success, rather than a guardian of the business.

Traditionally, this reputation for legal has grown out of a difference in posture toward risk. Sales might be more comfortable with a high-risk, high-reward deal, while legal defaults to a protective stance. The problem in this common scenario was that neither side was operating with much data.

Contracts can serve as a barometer of corporate risk, telling company leaders where it is doing business, with whom and on what terms. Yet gaining a holistic view of these contractual terms is impossible without a centralized digital contract platform.

With an enterprise contract management platform, legal can pull data on how different indemnity clauses have performed to choose the best language, identify suppliers or customers with reputational issues using data from third parties, and assign precise risk ratings to contracts or classes of contracts as a whole.

In this way, the enterprise contract management platform can allow legal teams to bring actionable data to the table when advising on risk and strategy.

2. Enterprise Contract Management as an Operations Streamliner

According to the International Association of Contract and Commercial Managers (IACCM), poor contracting processes can cost companies 9.2% of their revenue.

When you consider how many business users handle contracts, this isn’t surprising. When emails are sent back and forth between stakeholders with contracts and redlines attached, there is no sure way to know which represents the master and no way to measure where contracts are getting hung up in the process. Even those firms that have migrated to a content management system that addresses version control still have no insights into contract turn-around time, where delays are occurring, which redlines violate regulatory and commercial rules, and so on.

Conversely, with an enterprise contract management platform, all contracts are managed centrally. Legal departments can cut down on the number of templates used, reducing risk and speeding up approvals. And the platform can deliver key performance metrics on how many contracts a company is handling and how long they are taking at each stage of the approval process. With this data, legal departments can identify and address bottlenecks, streamlining the process.

3. Enterprise Contract Management as a Negotiation Playbook

Contract negotiations offer legal counsel an opportunity to showcase their deep experience and knowledge to create better outcomes for the organization. Many lawyers still lug around three-ring binders filled with accumulated templates and clauses to respond to negotiation scenarios, while others have evolved to using a folder on their PC desktop.

By contrast, an enterprise contract management platform captures every redline and contextual conversation around those changes (such as messages between the contract parties) for full visibility into the negotiation process. The platform then tracks contract performance by pulling data from other systems like ERP and CRM. When it comes time to negotiate a renewal, counsel has a 360 view of past negotiation tactics and performance to better plan out how to handle the negotiations. With the help of artificial intelligence, companies can take these capabilities even further, analyzing contract language and outcomes at scale to drive better decision making when parties come to the table.

4. Enterprise Contract Management as a Business Unifier

For a long time, legal departments stayed in their lane until the business came to them with contracting needs.

That is changing, though, as legal heads use their position as advisors and protectors of the business to drive strategic change across the company. One way they are doing this is by using contract management software to unify the entire enterprise’s operations.

Consider the journey of Colin Flannery, worldwide General Counsel at Vertiv. Following its divestiture from Emerson Electric, the then-new CEO of Vertiv announced an objective to unify the company’s culture: “One Vertiv.” Accordingly, each department leader was charged with manifesting this mission in a demonstrable way.

The Vertiv legal department recognized that contracts were the glue that held together the global and matrixed enterprise.  Accordingly, they responded by spearheading an enterprise contract management initiative to unify disparate legal teams scattered across the globe and even more disparate contracting processes supporting the Vertiv business.

Using enterprise contract management, the legal department was able to re-engineer their contracting process with the aim of creating a single source of truth for their worldwide agreements.

5. Enterprise Contract Management as an Institutional Knowledge Repository

Lastly, an enterprise contract management platform can act as a valuable repository for institutional knowledge captured across an organization.

Take for example a major airline that is an Icertis customer. This company relies heavily on agreements with partner airlines to drive revenue. Its executive team realized that much of its partner operations relied on the memory of individual members of its legal team—a situation that leadership knew was not sustainable.

To build an organization that could stand the test of time, the company sought a software solution it could “build memory” into. Since contracts form the foundation of these partner agreements, an enterprise contract management platform was the obvious fit.

With an enterprise-wide contract management system, the airline has a single source of truth for all of its partner operations and does not have to rely on the memory of people who show up for work each day. In this way the system is creating a more sustainable, future-proof system and will allow the company to optimize these crucial operations, regardless of the team members leading the charge.

Learn More

So, what is enterprise contract management? For corporate counsel, it eludes a narrow definition.  The outcome, though, is a contracting process that turns static documents into strategic corporate assets that can accelerate, protect and optimize business.

The above examples only scratch the surface of how this new approach to contracts is helping business. If you’d like to learn more, please don’t hesitate to reach out to us.

Bowl of Dicks guy is the hero the legal profession deserves, not the hero we need right now. With disease running rampant, the stock markets in freefall, law schools shuttering for who knows how long, courthouses closing, prisons at risk, and law firms… allowing everyday casual, we probably need someone to reclaim the profession’s mantle as the quiet defender of calm and order. But instead, whether it’s justified or not, it’s a profession defined by rage.

The 2019 Lawyer of the Year contest is over and the champion was Christopher Hook, the man who felt his clients suffering at the hands of an insurance company and promptly let the company know by telling its lawyers to feel free to “eat a bowl of dicks” among a LOT of other colorful suggestions. Was Allstate mistreating Hook’s clients? Maybe. Maybe not. Insurance companies screw over people with such frequency it’s hard to tell in any given situation.

In a sense, this year’s contest as a whole was about the perception of the lawyer in society. Giuliani? Dershowitz? Avenatti? Did their contributions this year not just highlight how performative rage has taken over the public image of a lawyer? They defined us all this year through a noxious alchemy of bombast and intimidation. Even in the case of Professor Pam Karlan, the only nominee who conducted herself with professional aplomb, her defining moment was sitting on the receiving end of sanctimonious jackasses — many of them lawyers though that’s probably redundant — who pretended she committed some grave personal attack on Trump’s kid by explaining basic constitutional principles. This was truly the year that lawyers were defined by insults and misdirected rage.

And while the other nominees generated more national headlines, Bowl of Dicks guy is our champion likely because in the pages of Above the Law he became a synecdoche for where we are today.

Because he’s not our hero. He’s a silent guardian. A watchful protector. A guy willing “to let the long dick of the law fuck Allstate.”

Earlier: Small-Firm Lawyer Tells Biglaw Team To ‘Eat Bowl Of Dicks’ During Settlement Negotiations
Michael Avenatti’s Lawyer Sought Delay Because He’s Scared To Visit Jail Over Coronavirus
T14 Law School Cancels Classes Due To Coronavirus Outbreak

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.

Last week, while the world at large was growing rightfully concerned about the burgeoning threat of the coronavirus, one judge found himself even more concerned about the state of the nation’s highest court.

Meet James Dannenberg. He’s a retired Hawaii judge who served for 27 years on the state’s 1st Circuit District Court. Prior to sitting on the bench, Dannenberg worked as the state’s deputy attorney general, teaching federal jurisdiction as an adjunct professor at the University of Hawaii Richardson School of Law, for more than a decade. The retired judge had also been a member of the prestigious Supreme Court Bar for almost 50 years — until he quit.

On Wednesday, he submitted a resignation letter to Chief Justice John Roberts, going so far as to refer to the Roberts Court as the Trump administration’s “errand boy.” Here’s an excerpt from Dannenberg’s letter, which is printed in full on the next page:

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society.

Oh snap. We wonder how many of Chief Justice Roberts’s colleagues would concur with Dannenberg’s assessment of the politicized nature of the Supreme Court.

The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

Would this be considered a benchslap? With jaw-dropping insults like these, it may as well be. This is the judicial equivalent of saying “fight me, bro,” except here, it’s more like a respectful “cite me, bro.”

Dannenberg may have lost his faith in the Supreme Court, but he certainly hasn’t lost his will to fight for what’s right.

(Flip to the next page to see James Dannenberg’s letter in full.)

Former Judge Resigns From the Supreme Court Bar [Slate]

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.

As a law firm associate, you have to do your job.

Or get fired.

If a partner asks you to draft a brief, you generally must draft a brief. You can’t punt.

If, say, a sixth-year associate asked to draft a brief turns to, say, a second-year associate to do the work, the partner probably won’t approve. The second-year associate has to be assigned to the case team, and many cases don’t merit thick staffing. Even if there’s a junior person available, the partner knows that he asked you to write the brief. The partner reviews the bills that show that you didn’t do this. The brief was written by two people instead of one. The partner is not happy.

In-house is a little different.

What’s the status of your case?
“I’ll set up a call with outside counsel.”

What damages are the plaintiffs seeking in that class action?
“I’ll set up a call with outside counsel.”

What’s our strategy for defending this thing?
“I’ll set up a call with outside counsel.”

Can you send me a summary of the case and the important issues?
“I’ll ask outside counsel to prepare something.”

This a type of freeloading that’s easier to do, and conceal, in-house than at a firm.

The in-house freeloader may have authority to approve bills, without review, up to a certain level. Suppose the freeloader asks outside counsel to do $20,000 worth of the freeloader’s work, and the freeloader is authorized to approve bills of less than $25,000. The freeloader’s unrestrained approval of the bill conceals the evidence of freeloading. It’s the perfect sloth!

Or you may have an alternative fee deal, where the law firm does all work on cases for a specified annual fee. It’s thus costless to the corporation for the freeloader to avoid doing his work. (The only cost to the corporation is the freeloader’s salary.  But that’s sort of my point.)

Within the corporation, of course, it’s obvious to everyone who works with the freeloader that the freeloader is not a real lawyer.  A real lawyer knows a little bit about his cases; a freeloader does not. A lawyer knows who the witnesses are; the freeloader does not. A lawyer can write up a short summary of one of his matters in a half hour; a freeloader requires a day or more for the task, as the freeloader assigns the task to outside counsel and then awaits a response.

Eventually, corporate freeloaders are likely to be exposed. But that may take far longer at a corporation than it does at a law firm.

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.

* Creditors of Toys ‘R Us claim that employees bilked the company of assets during the bankruptcy process. That must’ve been where all the video games went… [Law 360]

* A lawyer involved in the Trump impeachment process has tested positive for coronavirus. [CNN]

* The prosecution of Jussie Smollett has become an important issue in the upcoming Cook County State’s Attorney election. [Chicago Tribune]

* Perhaps one of the first coronavirus lawsuits filed over an event that was cancelled due to the pandemic has been settled. [Salt Lake Tribune]

* A New York woman has filed a lawsuit claiming that she was shackled to a hospital gurney by the NYPD while giving birth to her child. [Guardian]

* Former Alabama Supreme Court Justice Roy Moore filed a brief before the Supreme Court of the United States seeking to overturn marriage equality. Maybe he’ll ride his horse to oral arguments… [Newsweek]

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.