Category: News Feeds

Steve Castor is the Republican lawyer pressed into service to ask questions of witnesses during the impeachment inquiry. He’s a longtime House Oversight Committee staffer, a graduate of George Washington University Law School, and reportedly well respected internally both by Republicans and Democrats.

Castor is being dragged on social media. Mocked. His questioning, meant to be in defense of Donald Trump and the Republican theory of the case against him, has been weak and ineffectual. He continually gets witnesses to repeat the Democrats’ talking points. He commits the cardinal lawyer sin of asking questions he doesn’t know the answer to. At one point during his questioning of E.U. Ambassador Gordon Sondland, he managed to get Sondland to repeat that meetings and aid to Ukraine was being held up because Trump wanted them to start investigations into his political rivals, and after screwing that up he shuffled papers, made an audible “aaaahhhck” sound, and then yielded minutes of questioning time to nobody in particular.

To me, Castor’s entire lines of questioning throughout these hearings can be summed up in this gif:

Thing is, it’s not his fault. It’s not that Castor is doing a bad job, it’s that he has a bad job. It’s an impossible task to defend Donald Trump, because Trump has no defense. Donald Trump held up aid and meetings to the Ukraine until they agreed to publicly announce an investigation into his political rivals. Every person called to testify in the impeachment inquiry knows that. Every person called to testify has seen some portion of that illegal, corrupt scheme. Trump released a memorandum of a call where he explicitly solicited the bribe. His White House Chief of Staff, Mick Mulvaney, admitted to the scheme in the middle of a damn press conference. There is no defense.

Republicans, unfortunately, don’t care. And so here’s Steve Castor, trying to wildly cast aspersions on witness testimony with no clear defense strategy in mind.

Understand, defense attorneys represent bad clients all the time. People take “dog” cases because, well, everybody deserves a competent defense and also lawyers have bills.

When you get a dog, there are three main defense tactics: attack the credibility of the witness, reduce the prosecution’s case to one key fact, or blame somebody else. Castor is trying to run elements of all three. But the facts won’t help him. Let’s look at each of them:

* Witness Credibility

We have all seen Castor try to cast aspersions on the credibility of the witnesses. He went so far as lightly accusing Lt. Col. Alexander Vindman of having dual loyalty. It’s disgusting, but attacking the credibility of witnesses is just a thing lawyers do when witnesses are saying things that are unhelpful to their clients.

The problem Castor has with this strategy is that he’s attacking decorated military veterans and longstanding foreign service officials. This isn’t like questioning Pooky from the block who’s got warrants. Randomly attacking American foreign service professionals, many of whom are speaking based off of contemporaneous notes they took as they were witnesses to crime, simply doesn’t work.

And Castor has another problem: his client, Donald Trump, is the least credible of all possible witnesses. Usually the witness credibility game is played against the backdrop of a defendant who, except for the charges against them, can argue that they are an upstanding citizen. Here, Castor is asking us to not believe dedicated professionals because… the lying con-man in the White House says they’re “bad” people. It puts Castor in the weakest possible position, and that’s why so many of his questions seem meaningless instead of probative.

* It All Comes Down To This

Over the years, people, mainly white people, have had a lot of fun at the expense of the late Johnny Cochrane and his rhythmic defense of O.J. Simpson: “If the glove doesn’t fit, you must acquit.” It all seems like so much theater now, but make no mistake, Cochrane ran a common defense strategy in its most pure form. Crimes have “elements” and its on the prosecution to prove each element of the alleged crime. A good defense, facing seemingly insurmountable evidence, will focus on one key element, reduce that element to the crux of the entire prosecution, and then blow apart that element. Cochrane, after magically waving away the DNA evidence against Simpson back at a time when most people didn’t understand DNA evidence, reduced the prosecution’s entire case to the stupid glove. He made the glove seem like the only piece of physical evidence tying O.J. to the crime, and expertly suggested that the glove was planted there by racist cop, Mark Fuhrman. The prosecution, stupidly, played along. So at the point where the glove didn’t fit (note: the glove totally kinda fit), the prosecution’s case seemingly fell apart.

Castor, and the Republicans, are trying to do this with the “no quid pro quo” defense. Their theory is that if Trump doesn’t actually say: “I want a quid pro quo” or “I’d like a bribe, though” then Trump gets away with it.

Castor is, for what it’s worth, running that game as well as he can. Where he gets tripped up is that this isn’t a criminal trial, but a public hearing. If this was a trial, Castor would sit silently as witnesses testified to all of it, from Democrats. Then, he’d rise, and ask “Did Donald Trump ever tell you to withhold aid until Ukraine investigated the Bidens?” The witnesses would say “no” and Castor would sit down.

Unfortunately, that would take less than a minute. Castor has 45 minutes to fill. Then he has an additional 15 minutes of rebuttal. That’s an hour where Castor has to keep stammering and questioning and saying things that are irrelevant to his core defense.

And, because that defense is so thin, that’s an hour for witnesses to essentially testify that, while Trump didn’t explicitly say those precise words, he acted in every way like a quid pro quo was on the table, and ultimately withheld aid and a meeting with the Ukrainian President because of it.

The Republicans want Castor to surface all of their crazy conspiracy theories about the Bidens and the Ukraine meddling in the 2016 election. The Republicans want Castor to surface a wild theory of executive power that gives the President the right to solicit bribes. Castor is constantly being forced to do this work, which muddles what defense through line he has. That’s why he sounds less like Johnny Cochrane and more like Bob Loblaw.

* Somebody Else Did It

From a pure theater perspective, this is my favorite defense strategy to watch. This is where the defense attorney tries to pin the crime on somebody else, anybody else, who is not in the room. It’s fun to watch, as long as you are not the random person being thrown under the bus.

In the impeachment inquiry, the “man not in the room” is the President’s personal lawyer, Rudolph Giuliani. ANY competent defense attorney would be telling Trump to blame EVERYTHING on Giuliani, and save himself. Most of the witnesses, many of whom are Republicans, all of whom seemed to hate being forced to work with Giuliani, would surely gladly participate in playing “pin the crime on Rudy.”

The problem is that Giuliani seems quite prepared to bring all of them down with him. Remember, Paul Manafort is in jail because he was willing to take the fall for all of them. He never told Robert Mueller that he was acting “on behalf” of the President for all his shady dealings.

Giuliani is no Manafort. He consistently says he was working on Trump’s behalf, and at Trump’s direction. He’s been on TV, alluding to text messages and emails that he waves around like his “insurance policy” should anyone try to burn him. Castor can’t pin it all on Giuliani, because doing so leads directly to his ostensible client, Donald Trump.

And so, Castor is stuck. He can’t effectively attack the credibility of purple heart recipients and career foreign service officers, on behalf of President Bone Spurs. He can’t “Plan B” Rudy Giuliani, without exposing Trump. And he can’t make the whole thing about the magical recitation of the words “quid pro quo” because the testimony drags on into all the other ways Trump tried to execute a quid pro quo without actually saying it.

Or, to put it in Castor’s own words: “ehhaahhck.” There’s just not a lot he can do other than shuffle papers and ask questions he knows will boomerang into his own ass.

I don’t feel sorry for him, because being a Republican is a choice, not an immutable characteristic. But Castor only sounds as bad as he does because his client is even worse.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

According to the Princeton Review’s 2020 law school rankings, which law school gives students the best career prospects?

Hint: The ranking is based upon institutional outcome data and on law student ratings of their schools’ offerings for practical experience; opportunities for externships, internships, and clerkships; and how prepared students feel they will be to practice law after graduating.

See the answer on the next page.

The title may sound like an oxymoron, but some Biglaw heavy-hitters have plunged into the social media world and are actually pretty good at it. While DLA Piper may not be delivering Kim Kardashian worthy takes on Instagram, they have built a cottage following showing off firm culture with shots of attorneys receiving awards and performing volunteer work. It’s a forward-thinking marketing push that might not seem obvious for Biglaw.

Good2bSocial releases an annual scorecard for law firm social media efforts and this year DLA Piper secured the top spot, with White & Case, Norton Rose Fulbright, Baker McKenzie and Orrick, Herrington & Sutcliffe close behind.

[Good2bSocial founder and CEO Guy] Alvarez also said that although adoption rates are high, law firms often lag behind other professional service industries, particularly the Big Four, when it comes to effective usage.

“A lot of firms are still using social media as sort of a one-way content marketing tool,” he said. “The ones that struggle are just putting up promotional content. Social media is meant to engage and be social.”

No kidding.

Still, law firms simply being on social media is a development worthy of praise.

That lag in “effective usage” is why the solid Instagram presence among firms is a little surprising. To the extent firms play in the social media world, one might assume they’d just now be dipping into Facebook since that’s appropriately played out for law firms to think it’s cool. But in reality, Facebook is already on the outs with the more savvy firms:

On the flip side, “I was surprised at how much and how quickly firm usage of Facebook has declined,” Alvarez said. “Cambridge Analytica and privacy issues helped move that along. We saw some decline last year, but this year was a huge drop. Some firms have given up on Facebook completely.”

A few Am Law ranked firms are even engaging with YouTube for recruiting, which is such a natural use of the platform that it’s surprising that only 13 percent of firms are using it.

Unsurprisingly, LinkedIn boasts a strong law firm presence as it’s appropriately boring for the law firm environment, but paid LinkedIn accounts are narrowly outnumbered by Instagram with 31 percent of firms owning an Instagram account. Marketing teams in these global firms must be pretty plugged in.

A perusal of firm pages have found a woeful shortage of dank memes, but whatever they’re doing must work for them.

DLA Piper Leads Big Law in Social Media as More Firms Shun Facebook: Report [American Lawyer]

Going through a tax audit is a major inconvenience at best and a long exercise in frustration at worst. Especially for small businesses. This is because the IRS and other tax agencies require you to maintain detailed books and records. Even honest taxpayers can have difficulty in an audit if they do not keep proper records. This can result in disagreements with tax auditors which can lead to expensive and time consuming negotiations in addition to taxes, penalties and interest that you do not legally owe.

Even though the chances of being audited is relatively low, you should still take preventive measures. Below are a few issues I have encountered during an audit along with suggestions to ensure that the audit is as painless as possible.

Avoid commingling. One of the biggest problems in a tax audit is when the taxpayer commingles business and personal finances by using one bank account for everything. While it is simple, it can be confusing. First it might be difficult to remember which expenses are personal and which are business. This can be a problem because an IRS audit can happen several years after you file the tax return. The other problem is that even if you can remember everything, the auditor might not believe you and may disallow any expense they think might not be business related.

At a minimum you should set up a separate bank account and a separate credit card account for business expenses. For tax purposes, you don’t need to do anything special with your credit card, such as getting a “business” credit card that has the name of your firm on it. Some business-focused credit cards will provide a year-end expense summary although they may not be completely accurate. But any regular credit card is fine so long as it is only used for business expenses. So if you use a credit card for business purposes frequently, you may want to choose the one that gives you the most points or benefits.

Credit card statements can also help. While they are not a substitute for detailed receipts, it might be worth producing if you don’t have one.

If you have commingled your bank account, now which expenses or withdrawals were business related. Also, notate which deposits are taxable income or nontaxable loans or transfers. You should be able to explain them to the auditor and provide proper documentation to back up your claims.

If you can show that you have kept business and pleasure separate, the auditor is likely to give you the benefit of the doubt in close situations.

Save the proper documentation as soon as possible. While every tax audit is unique in some way, most auditors follow routine procedures which include obtaining certain documents. So it is best to save a copy of all business related documents as soon as possible. Here is a non-exhaustive list of documents that are commonly requested in an audit.

• A copy of the tax returns.
• Business bank statements for the year.
• Copies of canceled checks for all business-related expenses.
• Copies of receipts for all business-related expenses. The receipts should note what was purchased.
• Copies of lease agreements if there are any rent expenses.
• For meal and entertainment expenses, a log that details the person (or people) you met, the location, and the general purpose of the meeting.
• For automobile expenses, a copy of all mechanic’s bills detailing the mileage in the car, and copies of lease agreements, gas receipts, insurance bills, and registration.
• If you are claiming standard mileage, have a log that shows the date, the starting and ending location, the number of miles driven, and the purpose of the miles driven (i.e. meeting a potential client for lunch).
• If you paid independent contractors, have copies of their invoices, and any Form 1099s issued.

To ensure that you can recall all of your expenses, you should also include notes that describe the transactions in detail – particularly the business purpose.

Minimize paper storage if possible. While some people like to keep paper copies of everything, there are some disadvantages. First, the paper can take up a lot of space. Second, papers can fade after the passage of time. Third, papers can get damaged through natural disasters, food spills, or if your dog eats it.

To minimize the chances of loss, scan and save everything. For best results, invest in a high-quality scanner and use it to scan all of your documents. The scanned documents can then be stored in your computer, a cloud server, or a portable storage unit. If the documents are too small or large to fit in a scanner, an alternative is to take a photo of the document and save it, preferably in a PDF file. But make sure that the final saved file is legible, particularly when it is printed.

Some tax auditors will accept an external drive containing scanned documents files instead of paper copies.

Change your habits or hire an assistant. If all of the above sounds so cumbersome that you are tempted to procrastinate, few can blame you. But if you make it a habit to save your documents, it may not seem like work. But if you wait until the last minute to organize everything, it can be difficult because you may forget details or documents may no longer be legible.

If you are too busy to organize your paperwork, or if you consider this drudge work, you should hire a bookkeeper or an assistant to do it for you.

An audit can be a frustrating experience if you are not prepared. This frustration can get worse if it is done years later and you cannot remember the details. To succeed in an audit, keep business and pleasure separate, keep all documentation and store everything in a reliable format, whether in paper or electronically. In a future column, I will highlight some useful apps and software so please forward me any suggestions.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

Josephine Potuto is the longest continuously serving professor — regardless of gender — at the University of Nebraska-Lincoln College of Law, but according to a new lawsuit filed this week, she isn’t paid like it. The complaint alleges that Potuto’s pay is less than her male colleagues, and further alleges that when she repeatedly complained about the unequal pay she was removed from her role as UNL’s faculty athletics representative — a position she’s held since 1997 — in retaliation.

Additionally, the suit alleges that the UNL Commission on the Status of Women has repeatedly cited unequal pay as an issue at the university. Plus, the plaintiff alleges that the law school dean, Richard Moberly, has specifically referenced Potuto’s compensation as an example of gender-based pay disparity.

So what’s the disparity in numbers? The Omaha World-Herald has the details:

The NU system lists Potuto’s salary as $229,460, compared with long-serving law colleagues Robert Denicola’s $273,653 and Martin Gardner’s $256,755. [Potuto’s lawyer Kathleen Neary] said Potuto has no problem with her male colleagues’ compensation, but she wants equal pay.

Those figures include “endowed chairs” for all three (endowed chairs honor distinguished faculty members and are added to base pay) and Potuto’s $5,500 per year as faculty athletics representative.

And remember, Potuto is the longest serving prof at the law school, and she has the requisite accolades that accompany such a tenure.

The university offered the following statement on the litigation:

UNL spokeswoman Deb Fiddelke said her institution “has reviewed the claims of Professor Potuto” and found them without merit. “The university is prepared to defend itself against these claims and is confident that it will ultimately prevail.”

We’ll definitely be following along to see how the case gets resolved.

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).

The state governments that continue to tax menstrual products have created a tax that is solely directed at people who menstruate. It’s unconstitutional because it’s a government action that is solely on the basis of sex.

— Mary Kate Cunningham, a 3L at Fordham Law School who is organizing her school’s participation in a protest spearheaded by the “Tax Free. Period” project (a collaboration between the nonprofit Period Equity and menstrual product manufacturer Lola), sounds off on the inherent unfairness of taxes on menstruation products. As part of the protest, students from two dozen law schools in states where taxes are levied on menstrual products will buy the products and then claim tax refunds as both a form of protest and to increase awareness.

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 am always amazed when I read/hear stories about judges gone rogue. You think, at least, I think that after a lawyer has worked so hard to don the judicial robes he/she would be circumspect in judicial temperament and behavior, not allowing any reputational snafu to sully judicial performance. However, I would be wrong. (I know, not the first time and definitely not the last.)

I am always astonished at how judges can toss their judicial careers into the dustbins of notoriety and then obscurity. So, all of you out there, from new admittees (congratulations!) to wherever you are in your career, take heed of what can happen if you are lucky enough to be appointed to the bench and then develop a terminal case of “robe-itis.” Yes, there is such a word, which is essentially ego without limits.

Here’s one recent example: Superior Court Judge John Laettner of Contra Costa County in the Bay Area, whom the California Commission on Judicial Performance has ordered removed. Where to begin the litany of Judge Laettner’s acts justifying removal, the ultimate sanction against a sitting judge?

Let’s begin with the Commission’s conclusion: that the judge engaged in five acts of willful misconduct and eleven acts of prejudicial misconduct. I don’t have enough fingers and toes when ticking them all off. Cringeworthy does not even come close (it’s “what was he thinking?”), but the upshot is that a thirteen year judicial career has gone down the chute. You can read the Commission’s 76 page decision if curious.

Here are a few examples that the Commission used as bases for removal:

1. In open court, the judge denied a woman defendant due process by remanding her without exonerating and resetting bail. To add insult to injury, bail was subsequently increased outside the defendant’s presence.

2. The decision cites examples of ex parte conversations (and new admittees, if you don’t know you’re not supposed to do that, learn that now.) Those included one in a courtroom hallway in the presence of potential jurors. The Commission found another example of misconduct to be ex parte discussions with deputy public defenders who were filing peremptory challenges against him.

3. The court engaged in a pattern of misconduct toward a number of women, including those who appeared before him. Misconduct included conduct that was unwelcome, undignified, discourteous and offensive, e.g. gender bias and conveyed the impression that certain attorneys were in a special position to influence him. Comments like “women can drive you crazy,” and comments about female physical appearances, just some of the ones set forth in the decision, did nothing to endear the judge to the Commission.

4. The judge made comments in the presence of and/or about his long-time court reporter that were undignified and offensive, constituting gender bias and sexual harassment.

5. The judge revoked a defendant’s own recognizance release in the defendant’s absence without any opportunity to be heard and giving the appearance of retaliation for a public defender’s exercise of a peremptory challenge.

In 76 pages, there is a lot more.

The Commission acknowledged that there was “substantial evidence that Judge Laettner has had an extraordinary work ethic and has been a responsible and conscientious judge and an asset to his court.” Those attributes were not enough to prevent removal, especially given the judge’s misconduct, severely aggravated by his lack of candor during the evidentiary proceedings and “…his selective and limited acknowledgment of his misconduct.”

The Commission adopted the findings of the special masters who conducted the evidentiary hearing and who concluded that the judge “was not credible or not truthful as it relates to his testimony concerning several events making up this inquiry.”

The Commission found that the judge’s lack of candor as to several instances was “troubling,” and singled out nine specific places where it found the judge’s testimony to be not credible, either explicitly or implicitly.

While the judge asserted that just about all of the complaints emanated from the Public Defender’s office, the Commission stated that the source of the complaints is irrelevant; “…it is the judge’s conduct that matters.” In other words, no excuses.

In its decision, the Commission commented that the judge did not maintain the professional distance required by his position and seemed to let his emotions overrule compliance with judicial ethics. “Wanting people to be happy” is not within a judge’s job description. Think back: how many times has a judge’s decision made you happy? I hear derisive snorts.

Failure to take responsibility for the misconduct and to blame others (of course, no one ever does that) played a large part in the Commission’s decision to remove Judge Laettner. Given “…his failure to acknowledge the impropriety of much of his misconduct and his lack of credibility…” the Commission was not confident that he would not reoffend and so was not taking any risk.

Judges hear all kinds of excuses for bad behavior. ATL uses the term “benchslap” for misbehaving attorneys. Any suggestions for a term for misbehaving judges?

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.