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Alan Dershowitz’s long-running legal battle may seem complex but that’s mostly because he’s styled it that way. At its root, this is a case about him calling Jeffrey Epstein’s victims “liars” and one of those women, Virginia Giuffre, suing him for defamation. That it’s become a case where he’s disqualified David Boies on the grounds that the woman’s attorney was a fact witness to Dershowitz’s claim that Boies is orchestrating an extortion plot against the Harvard Law professor, resulting in Boies counterclaiming against Dershowitz is all getting further and further from the point: did Dershowitz defame this woman or not?

One side issue Dershowitz has invited to the case is a bid to secure documents and testimony from billionaire Les Wexner, who used to let Epstein handle his finances, hoping to show that Wexner was the victim of an extortion plot orchestrated by Boies and Giuffre supposedly to quell accusations against Wexner which all goes to prove, Dershowitz hopes, that he’s just a victim like countless other men accused of statutory rape just because they happened to be close friends and associates with a pedophile for years. It’s certainly attenuated from the central claim, but it’s a narrative that plays well theatrically. A “conspiracy of silence” amongst rich people who just refuse to go on record? Sure, why not?

But Judge Preska just nixed the seal on correspondence from Wexner’s attorney John Zeiger and there’s a definitive “we don’t know what the hell you’re talking about, please get off our lawn” coming from their side:

While many of these are discovery subjects that should be, in the first instance, explored with Ms. Giuffre and Mr. Boies, Mr. Zeiger did have communications with Mr. Boies and can readily confirm that: no extortion demand was ever made, no settlement was entered into, and not a penny (or other consideration) was ever paid. Just the opposite is true for Mr. Wexner, however. He had no involvement, and thus lacks any personal knowledge relating to, Defendant’s so-called “Extortion Claim.” Mr. Boies, who is in the midst of litigation with Defendant, can readily confirm Mr. Wexner’s lack of involvement without burdening a non-party.

Attorneys can find a way to weasel out of a lot of stuff, but this isn’t equivocal language. These are some very definitive truth claims. It’s hard to imagine any lawyer making these statements if there’s any chance it could come out to be a lie. Wexner also, apparently, offered to provide written testimony confirming this, which Dershowitz rejects in favor of a video deposition.

People can lie, of course, and credibility can be challenged over the course of questioning, but when the Wexner subplot thrived upon the idea that “what does this guy have to hide?” having it come out that his camp was already offering to testify under oath about this stuff as long as it didn’t burden them with hours of videotaped questioning, it looks less like a guy trying to hide something and more like an old man who doesn’t want something interrupting his retirement.

Who knows at this point, but it might well be that Dershowitz had a better story going before we got our first peek into Wexner’s side of things. On the other hand, some outlets are already spinning these documents as “[Wexner] May Finally Have to Explain His Epstein Ties” so it may be too much to hope that people will accept that third-parties have zero appetite for depositions no matter what the circumstances.

Judge Preska plans to hear argument on whether or not Wexner needs to testify next week.

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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.

For two long years, hedge fund Marble Ridge Capital has railed against Neiman Marcus’ spinoff of its e-commerce business, MyTheresa. That 2018 deal was certainly very good for Neiman’s owners, Ares Management and the Canadian Pension Plan Investment Board, but less so for Neiman’s creditors, including Marble Ridge, removing as it did one of the troubled luxury’s retailers only lucrative assets and leaving Neiman essentially worthless, a fact acknowledged by Ares and the CPPIB when they put the company into bankruptcy protection back in May.

Well, this could have been way worse. That perspective is how I recommend getting through this story with an apoplectic fit.

Anyway, as everyone knows — or at least should know — the reality of in-person education (from kindergarten right on up through law school) is in a precarious position. Trying to balance the benefits of in-person education with the socially distant demands of COVID-19 is difficult and even when everything is going perfectly the whole situation is just an outbreak away from blowing the f up. And rather than acknowledge this reality, far too many people are acting like nothing abnormal is going on, prioritizing their own creature comforts over the health and safety of others.

So, yeah, let’s get to the story of Party Pal 1L (in keeping with Above the Law’s longstanding tradition of not naming law students so their name is not forever linked in infamy to the ATL pages). Party Pal is in her first year of law school at Notre Dame, and rather than worry about her grades or the pandemic, she’s worried about making friends. And I get it, I do. Maintaining a social life during law school is absolutely vital to a balanced existence during a stressful chapter in your life. But, you know, there’s a pandemic raging.

Anyway, Party Pal decided she wanted to host a party (no, the novel coronavirus has not magically skipped over Indiana). As the South Bend Tribune reports on her efforts to make new friends… and potentially host a superspreader event:

[Party Pal], in an attempt to meet other first-year law students, last week invited them to a bring-your-own-beer “game night” at her off-campus apartment Saturday.

“We don’t have any expectations for precautions so please just do what you are most comfortable with,” Webb posted in the class’ private Facebook group, adding “(we will not be wearing masks).

“Looking forward to getting to know more of you!”

Yeah. That doesn’t seem like a smart move. And it turns out the law school dean, G. Marcus Cole, also thought it was a piss poor idea. When he heard about the planned party, Cole wrote an email to the student body, strongly discouraging the event:

The university’s president, the Rev. John Jenkins, “cited the ability to engage in interpersonal connections and participation in a ‘community of care’ as the principal reasons for bringing us all back to campus for in-person instruction,” Cole wrote. “Nevertheless, the world is not the same as it was when the campus was closed on March 13. It is much worse. The failure of our fellow citizens to take this virus seriously has resulted in catastrophic explosions of infection across the country.”

Cole also warned that the law students’ behavior now will begin to establish their professional reputations.

“That reputation will not be enhanced if contact tracing after a COVID-19 outbreak identifies a gathering orchestrated or attended by you as the reason why this school had to shut down. Accordingly, I hope that you will conduct your off campus activities with the same level of responsibility to your classmates and our community that we are trying to encourage on campus.”

And I mean, where’s the lie?

Now for the good news portion of the story, properly chastised, Party Pal canceled the party. Perhaps belying a future in corporate work, Party Pal attempts to blow the whole thing off as a “miscommunication”:

“Ultimately it was mainly a miscommunication,” [Party Pal] said. “I was trying to express that if we were drinking, our masks would be off. I just didn’t have the means to make it in a bigger place.”

[Party Pal] provided The Tribune with a copy of another invitation she sent to classmates via the GroupMe app, and said that she had failed to update the Facebook post.

“We are definitely going to be taking precautions on our side by having hand sanitizer stations, the windows open, and not having communal snack bowls,” [Party Pal] appears to write in the GroupMe post. “I’m also happy to set up a virtual house party if people want to participate and socialize but don’t feel comfortable attending in person.”

Party Pal says that with her soiree canceled, she’s now working with the administration to “brainstorm some new ideas for how to get to know each other in a safe environment in a safe, socially distanced way.” Which is way better than the open invite, BYOB 1L mixer that was originally planned.

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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).

California put out its final order regarding the new bar exam regime and it’s mostly what we expected. An online examination on October 5-6 and a permanently lowered passing score from 1440 to 1390. Given how the online exams around the country are going, maybe we’re jumping the gun to call this the “final order.” Let’s just say this is what they expect to be the final order before the September 30 emergency order asking applicants to just submit dioramas of the fact pattern in Palsgraf for evaluation.

One thing that’s not in the order is a commitment to apply the new 1390 score retroactively as multiple law school deans and applicants requested. In a separate letter from Executive Officer of the Court Jorge Navarrete to the state bar, the supreme court explained that it was not honoring the request because “With one exception, the court is unaware of any jurisdiction in the past decade that has lowered the exam passing score and applied that decision retroactively.”

True… but it’s the only relevant change in the last decade. Montana lowered its cut score a few years ago and made it retroactive to three years. The only other cut score changes that are dancing about are COVID-specific temporary changes — like North Carolina dropping the score by two for the July administration — that reflect the expectation of lower scores during a pandemic rather than a new philosophy on grading. However, California isn’t making a temporary change, it’s doing what Montana did and executing a go-forward declaration. To escape this wrinkle, Navarrete’s article claims the Montana move was designed to offset an earlier cut score increase, while California hasn’t changed its cut score in years.

Yet, the fact of the matter is that looking to other states was the weakest argument raised in favor of retroactivity and the powers-that-be have taken this flimsy shield and turned it into a sword. None of these experiences in other states are controlling and these circumstances arise so rarely that precedent is about as a useful as haruspicy. The Montana analogy was so tangential that I didn’t even mention it my earlier review of the motions seeking retroactivity.

I guess the lesson here is not to give courts shaky arguments they can hang a decision on.

Because the court’s letter only offers a quick aside distinguishing the Montana situation while ignoring the better arguments: (1) that people who took the test in February have a recent enough score to dispel any question of competency and (2) that California accepts scores for FIVE YEARS in the status quo so if a 1450 grade in 2016 is considered a 1450 in 2020 why wouldn’t a 1390 in 2016 be counted as a 1390 in 2020? California could take the position that scores are only fresh until the next administration of the exam, but they don’t. That respect for the durability of a score’s measure of an applicant should cut both ways.

Honestly, I was opposed to the idea of retroactivity before reading these petitions. I was sympathetic to the cause but thought, for better or worse, lines have to be drawn somewhere and the burden would be high to convince me that a score achieved under a different regime should count without opening the administrative hassle floodgates. But when I forced myself to come up with responses to the arguments raised I realized there weren’t good responses to be had. They already explicitly accept stale scores — I just couldn’t explain away why it wouldn’t apply universally. Not only do I suspect the state supreme court never bothered to grapple with this argument, the fact that they went out of their way to avoid mentioning the issue all but confirms it.

Questioning a supreme court’s licensing policy is apparently like asking a robot to define love because smoke just starts coming out of their ears while they wildly repeat “Montana is different!”

That the court mentions NEITHER of these better arguments raised in the petitions should trouble everyone, especially as it’s indicative of the adjudicative laziness that’s impacted several state supreme courts around the country. Sound reasoning doesn’t take a holiday just because the question is within the control of the judicial branch. All anyone’s asking is for the court to have the basic sense of work ethic to address the actual arguments on the page instead of sending the Clerk of the Court out to write a glib dismissal in a letter to the state bar.

But assuming the bar exam is different is better than considering the alternative — that these supreme courts routinely lack a disciplined approach to adjudicating the matters before them.

California Supreme Court Issues Order Finalizing Lower Passing Score for Future Bar Exam Takers [California Courts]

Earlier: Deans And Bar Applicants Ask California To Apply New Lower Cut Score Retroactively

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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.

If you thought the legal intrigue over the presidential candidacy of Kanye West reached its apex when it was revealed a Biglaw attorney worked for both his campaign and the Trump reelection campaign, you were mistaken. Though Husch Blackwell attorney Lane Ruhland did her best to get West on the ballot in Wisconsin, there are now legal challenges the campaign must hurdle.

The most ticky-tack (which is how lawyers say “petty”) argument against the West campaign is that they turned in the paperwork in late — at 5:00:14, when the state law says that the filing needs to be made “not later” than 5 p.m. So, yes, the electoral college battle for Wisconsin may well hinge on 14 seconds.

As reported by the Milwaukee Journal Sentinel, the campaign’s response, filed by Michael Curran, argues it depends on what your definition of 5 p.m. is:

“For the average observer, arriving before 5:01 p.m. is arriving ‘not later’ than 5 p.m. The phrase ‘not later’ is particularly instructive in that it indicates the presumption that the seconds from 5:00:00 to 5:00:59 are inclusive to 5 p.m. As the statute states ‘5 p.m.,’ for something to be filed later than ‘5 p.m.’ it would have to be filed at 5:01 p.m.”

At least they didn’t argue that it’s 5 p.m. somewhere, so YOLO.

Curran further argues, that even if the filing was late, it isn’t the fault of the campaign:

“Even assuming filing was not timely to begin with, the Commission should find that the nomination paperwork was timely filed here due to the locking of the Commission’s doors as well as the interference of the media and a rival campaign,” Curran wrote.

Oh wait, there’s more:

“People of color have long been marginalized in this country,” Curran wrote. “In seeking to remove Kanye West from the ballot and silence the voices of those who signed to place him, the Complainants are continuing this marginalization simply because Mr. West’s views and perspectives on issues do not conform with theirs and those of the Party they represent.”

In Wisconsin, Curran wrote, Democratic operatives have made “shameful threats against his supporters and an organized effort of harassment and intimidation.”

That sound you hear is good-faith complaints about racial injustice being set back.

The West campaign also faces a challenge that the signatures submitted were fraudulent:

The challenges also suggest there are numerous problems with West’s nomination papers, including incorrect addresses for circulators and bogus signatures, such as “Mickey Mouse” and “Bernie Sanders.” The Democratic Party’s complaint included affidavits from six individuals who said they were duped into putting their names on West’s paperwork.

Curran’s response also addresses to those challenges, saying there is “little or no supporting evidence [of fraudulent signature, and] should be dismissed.”

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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).

A pandemic doesn’t seem like the best time for a merger, but that’s not going to keep the largest law firm in the world from expanding its enormous footprint. This is the biggest “merger” that’s been announced since the coronavirus crisis began, but for Dentons, that’s par for the course.

When we last checked in with the Biglaw behemoth, it had closed two offices thanks to COVID, but now the firm is back on board with Project Golden Spike, where it’s combining with other successful entities to bring the Dentons name across the country. When all is said and done, Dentons aims to have 1,100 attorneys in the U.S., and today’s announcement will add another ~100 attorneys to the firm’s gigantic roster.

Dentons will be joining forces with Salt Lake City-based Durham Jones & Pinegar, one of the largest firms in Utah, to become the first global firm in the Beehive State. What else is so special about this combination? As noted in the American Lawyer, Durham Jones & Pinegar — or we should say Dentons Durham Jones Pinegar — will be able to work under the Dentons platform, but maintain control of its own governance, compensation, and hiring. Here are some details from the firm’s press release:

“We are excited to be combining with Dentons, a widely respected law firm that, like us, clearly prioritizes innovation and adaptability, especially during these extraordinary times,” said Todd Leishman, Chairman and President of Durham Jones & Pinegar. “Our combination with Dentons will allow our clients to continue to be served by lawyers they know and trust, who can now connect them to colleagues across the country and around the world.”

Building on Dentons’ global polycentric model, Project Golden Spike increases the quality and breadth of service to clients on a national and global scale, while also enabling US member firms like Durham Jones & Pinegar to retain their defining characteristics and provide in and of the community insight wherever clients need it.

“In times of accelerated change, the model of law firm combinations needs to continue to transform,” said Toby McClamroch, Managing Partner of Dentons United States Region. “Through the Golden Spike model and this combination with Durham Jones & Pinegar, Dentons is able to foster true collaboration between member firms and continue its trajectory to better serve clients across our focus on the 100 largest legal markets in the US.”

Upon the completion of this tie-up, Dentons will have a home in 188 locations — with 37 in the U.S. Which firm will be the next to get on board with the new business model presented by Dentons? We’ll soon see, because global chairman Joe Andrew says a few more U.S. firms will become part of the Dentons family by late 2020 or early 2021.

Dentons to Combine With Durham Jones & Pinegar in Utah [Business Wire]
Dentons Makes Salt Lake City the Next Stop in US Expansion [American Lawyer]

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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.

After two years supporting law firms with accounting solutions, the PwC InsightsOfficer team has been excited to see the challenges that law firm accounting teams actually face day-to-day.
When we embarked on this journey we, and the law firms we worked with, believed
their biggest need was deeper insights and KPIs.

However, we were intrigued to find out that law firms actually face accounting challenges that are far more foundational, rooted in process and deliverables.

Panel:

• T.C. Whittaker, PwC InsightsOfficer Leader
• Steven Chung, Tax Attorney, Above the Law Columnist

Join our webinar on August 19th at 1 p.m. ET /10 a.m. PT to learn how law firms can overcome common accounting challenges.  Sign up below:

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Imagine you’re accused of committing a crime. You believe with every fiber of your being that you are innocent, but you understand why some people think what you did was wrong. You even recognize that some of your misdeeds are so legally gray that a jury might find you guilty.

What would you do? You’d fight, right? Hoping that the truth would set you free, you’d choose to exercise your right to a trial before a jury of your peers.

But what if the stakes were higher? What if you felt forced to consider a plea offer?

Imagine the prosecutor says he wants to make the “right decision” even easier for you, your nervous spouse, and your young children. Plead guilty and cooperate against others, he says, and he will all but guarantee you never go to prison. On the other hand, if you insist on going to trial, he will add five times as many charges and seek a prison sentence of more than 20 years. The choice is yours.

Actually, the choice was mine.

In 2008, I was accused of public corruption for my work as a lobbyist. After I had cooperated for two years with the government’s investigation, the prosecutors gave me the choice described above.

I would have loved to have pleaded guilty to ensure I would never spend a day away from my daughters. I knew going to trial was risky and that the costs would be greater than the million-plus in attorney fees. But I believed I was innocent (I still do) and my plea offer required me to testify — falsely, in my view — against others. I couldn’t do it.

I went to trial — twice, since the first jury couldn’t reach a verdict. Ultimately, I was convicted of half the counts at the second trial. As promised, the government recommended that the judge sentence me to 20 years in prison.

The judge gave me 20 months.

I was lucky, relatively speaking. My offenses did not carry mandatory minimum prison terms. My judge had discretion, but in the vast majority of cases, prosecutors get their way.

“The Vanishing Trial,” a new short documentary produced by FAMM and National Association of Criminal Defense Lawyers, reveals how prosecutors use the threat of lengthy prison terms to coerce defendants to forfeit their right to trial.

Their coercion works. Today, just three percent of criminal cases today go to trial. Many people accept plea offers because they are guilty. Admitting their wrongdoing and avoiding a costly trial is in their best interest. But in many other cases, the threat of a “trial penalty” — the term used to describe the substantial difference in the prison sentence that is offered as part of a plea deal and the sentence a person receives if they lose at trial — produces massive injustices.

First, we know the trial penalty forces some innocent people every year to plead guilty. According to the Innocence Project, 18 percent of people who were exonerated by DNA evidence or other means pleaded guilty to crimes they did not commit. When asked why they did, they said that they feared an even longer prison sentence if they were found guilty.

Second, the trial penalty results in sentences that are manifestly unjust. In “The Vanishing Trial,” for example, viewers learn about Chris Young, who was offered a plea deal of 14 years for a drug crime. The 22-year-old simply could not imagine spending that long in prison for his crime and believed he could do better with a judge. But when he was convicted at trial, Chris learned that the judge was forced to hand down a mandatory minimum sentence of life without parole.

I was lucky I was not facing a mandatory minimum sentence, but even now, I do not understand how my prosecutor believed that the appropriate punishment for my misconduct was either no time in prison or 20 years in prison, depending on whether I exercised my right to trial. Justice should not be a game of “Let’s Make a Deal.”

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Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.

The impact of COVID-19 on patent litigation has been interesting to say the least. There is no doubt that (as of this writing at least) things are nowhere close to normal, either in terms of schedules or procedures in district courts around the country. For every judge that has tried to adhere to existing schedules — with some even going so far as to experiment with Zoom trials and the like — there are others that have thought it best to push deadlines out because of the pandemic. By and large, everyone — from jurists to court staff to lawyers and their clients — is trying their best in terms of dealing with the unprecedented challenges of the day. Yet in spite of the challenges to existing patent cases staying on schedule in district court, new patent case filings have apparently gone up over the past few months. Which may be an earlier harbinger of both NPEs and operating companies doing everything they can to generate revenue with their patents, including by filing cases against unwilling licensees earlier in the licensing lifecycle. We will see.

While the increased number of patent case filings in the midst of a pandemic might be a surprise to some, it should be less of a surprise that IPR activity has kept pace. How do we know? Thanks to a timely report by legal analytics firm Lex Machina, released as part of the firm’s “ongoing work to track the impact of COVID-19 on litigation.” In their new report “PTAB Activity During COVID-19,” Lex Machina “reviewed recent PTAB trial activity to examine how the COVID-19 pandemic shutdown has impacted this administrative law body.” Their findings are obviously of interest to anyone impacted by patent litigation — so for purposes of this column I wanted to focus on the three (idiosyncratic, as is my wont) takeaways I found most interesting from their findings. (If anyone is interested, I also put some investor-focused thoughts on the report on our Markman Advisors blog.)

First, IPR petition filings continue to act as a trailing indicator of the general level of patent litigation activity. Since new patent case filings have gone up during the pandemic, there is no surprise that IPR filings have kept pace to a certain extent. Sophisticated patent defendants continue to turn to IPR filings as a first-line defense to allegations of infringement against them. Moreover, the tumult in district court schedules due to COVID-19 appears to have put even more of a premium on defendants getting their IPRs filed early. Doing so allows defendants to make robust arguments early in the scheduling process that a stay is warranted; arguments that most likely would be well-received by a district court trying to triage its caseload as best as it can under the circumstances.

Second, the unique nature of IPR practice, both for lawyers and the PTAB, lends itself to minimal disruption due to the physical displacement engendered by the pandemic, at least in terms of lawyers needing to work remotely and the shuttering of courthouse facilities. For one, IPRs are heavily front-loaded and “paper heavy,” requiring at least one experienced patent lawyer to take the laboring oar on drafting of necessary filings. To the extent it is a group effort, because so much of the work centers on drafting — at least to get IPR petitions filed — there is less of a need for team members to interact physically in order to get the job done. Likewise, the decision points during IPRs — institution, final written decisions, even conducting oral argument — are all within the ambit of the three PTAB judges assigned to a particular panel. Each of whom would have significant prior experience interacting with their colleagues remotely. And because IPR arguments don’t feature live testimony, conducting them over video conference — while not ideal — is generally an acceptable alternative to delay or choosing not to have an argument at all.

Lastly, it is hard not to read the Lex Machina report without at least a measure of respect for the PTAB’s ability to keep to the statutory deadlines for cases that were already pending when COVID-19 hit. From its quick issuance of guidance as to revised procedures at the commencement of the lockdowns, to the continued diligence of PTAB panels in issuing institution or final written decisions, there is a lot to admire in the PTAB’s handling of the crisis to date. Indeed the report lauds the “PTAB’s consistency in adhering to time frames” as it has “continued its trial flow in an effective, timely fashion.” Already a popular patent forum, in large measure because of its favorable time frames for petitioners/alleged infringers, Lex Machina’s report provides compelling evidence in support of the PTAB’s continued popularity. Pandemic or no pandemic, the PTAB’s outsized role in the patent ecosystem will continue apace.

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.

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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.