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That’s what I thought as an HR lawyer and that’s what I think to this day. Why phooey? My thoughts:

It’s a perfect opportunity to sandbag employees you supervise. Rather than giving them feedback and coaching during the appraisal period, the supervisor waits until the annual review to critique an employee’s performance. Instead of helping employees improve, a disappointing annual review — or what I call a “sandbag” review — only exacerbates performance issues and creates hard feelings.

Lawyers aren’t any different than other employers. They wish problem employees would just magically disappear. However, as many employers have learned to their dismay, that usually doesn’t happen and, if it does, it’s often accompanied by a severance agreement.

Even if a performance evaluation is more frequent than annually, that doesn’t necessarily solve the problem. The employee and the employer (supervisor, manager, whatever the title) disagree about what the performance issues are and how to resolve them. Merely giving the employee a “PIP” (Performance Improvement Plan) doesn’t mean a thing. It’s the coaching and the mentoring to improve performance, rather than merely discussing the plan (if there is even any discussion), asking the employee to sign it, and returning it to the HR Department.

What are performance deficiencies? One of the biggest ones for lawyers is, of course, billable hours. How about insufficient client development? Not “up to snuff” work product, inability to get along with colleagues, and there’s always the “just doesn’t fit in”  ever popular “round peg in square hole” fallback?

Often, it’s “up or out,” bill more hours or you’re toast. Bring in more clients, or at least a client or two. Polish up that work product, and be kind and respectful of colleagues, especially support staff. You either improve forthwith or you’re gone, and in today’s “eat what you kill” environment, those seem to be the choices.

Not a very pleasant “either/or” but one that many lawyers face, whether as newbies or as whatever career stage they are in. It’s never too late to show a colleague the door, and the psychic, reputational, financial devastation may never be completely alleviated.

Spending time writing and then administering performance evaluations is never fun. There are more than half a million samples (who knew?) of language to use in writing them and in responding to them. One need never be at a loss for words, not that we ever are.

Even if it’s a good evaluation, but not quite as good as previous ones, there’s still pushback. The supervisor is different from the prior one and decides to evaluate on “a curve.” Employees who previously received stellar evaluations now receive ones that are merely “meh.” Affected employees are knocked back on their heels. “The goal posts have moved,” which is often the refrain as the explanation for the downgrade, the unstated goal of that supervisor to manage that employee out.

Since in most, if not all, cases, writing and discussing performance evaluations are not considered billable time, they often go to the bottom of the to-do pile unless human resources gets on the case. Even then, the task falls by the wayside.

Whatever supervisors may think about their direct reports, they owe them the courtesy and candor of performance evaluations provided on a timely basis. Some supervisors may disagree. Disagree to your heart’s content, but when it’s time to terminate an employee for poor performance or other metric, and there’s nothing in the file to support the termination request, it’s not a pretty picture.

When an employee protests the evaluation and writes a response, too often the response is just made part of the employee record, without any evaluation as to whether the employee’s complaints may be justified or meritless.

Humans are pains in the butts. How many times have we thought or said to each other that the practice of law would be fun without the clients? Too many times to count.

There are people who make good, if not great, managers, and there are others that should be only individual contributors and have no management responsibility. Managing your staff, having frequent conversations about what is working and what is not, and encouraging your subordinates to improve are definite time sucks.

Almost twenty-five years ago, Mr. I.’s supervisor wrote his evaluation, saying that “He is not an enlightened or brilliantly creative man, but with a strong board, he could absolutely do the job.” Fifteen years ago, an associate dean at the Yale School of Management said that Mr. I. was “a loyal drone” and that expectations for him were low. How cutting and what a lack of insight.

Now, in 2020, that “loyal drone,” that “not enlightened or brilliantly creative man” also known as Robert Iger, the CEO who expanded the Mouse House (aka Disney) and transformed the entire entertainment industry, has stepped down as CEO. Why do I mention him?

He is Exhibit A for why performance evaluations do not necessarily mean that one is doomed to permanent professional failure. An evaluation that is thoughtful, carefully crafted, and encouraging (let’s agree that the employee always does at least one thing well) can go a long way.

However, if the evaluation is harsh and unforgiving, then all we have to do is look at the rates of depression, addiction, and death by suicide among us to know the toll that such an evaluation can take. So, for the employee: keep going. For the employer: recognize that ability and talent can take many forms and can take time to flourish. Very few of us are overnight successes.

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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.

As more companies use artificial intelligence and machine learning in the process of drug discovery and development, that raises a big question: Who owns the intellectual property?

That emerged as a significant topic of discussion in a panel Thursday afternoon at the Hot Topics in Life Sciences Law symposium, sponsored by the law firm Mayer Brown. The symposium took place at the Seton Hall Law School in Newark, New Jersey. Mayer Brown partner Brian Nolan moderated the panel, which included fellow Mayer Brown partner Richard Assmus; Lori Bennett, general counsel of Aetion; and David Opderbeck, a professor of law at Seton Hall.

“It’s almost like there’s something new going on here that current IP law is not well-suited to protect,” said panelist Richard Assmus, a partner at Mayer Brown’s Chicago office.

Use of AI/ML in drug discovery and development has fed the growth of a number companies and drawn interest from large pharmaceutical and biotech firms as well. One such firm is Salt Lake City-based Recursion Pharmaceuticals, which already has a drug discovered through machine learning, REC-994, in Phase I development. Another company, Oxford, U.K.-based Exscientia, has formed partnerships with multiple drugmakers like GlaxoSmithKline, Bayer, Sanofi and Sumitomo Dainippon Pharma, to discover drugs using AI. On Jan. 30, Exscientia and Sumitomo Dainippon announced that their first drug candidate created using AI, DSP-1181 for obsessive-compulsive disorder, had entered the clinic.

Significant advancements have also taken place in academia. Nolan brought up the Feb. 20 announcement by the Massachusetts Institute of Technology that its researchers had used a machine learning algorithm to identify halicin, a new antibiotic compound with in vitro and in vivo efficacy against antibiotic-resistant bacteria. Halicin, previously investigated as a potential treatment for diabetes, was identified using an algorithm capable of combing through 100 million chemical compounds in days to pick out potential antibiotics using mechanisms of action different from those of existing drugs. The name halicin came from HAL-9000, the malevolent AI in “2001: A Space Odyssey.”

But Assmus said MIT’s work is an example of where legal language has not kept up with technological development. “Was that a derivative work of that data? Was it an improvement of those compounds?” he asked.

In other words, if an AI discovers that an existing diabetes drug works as an antibiotic, the question is who discovered it, whether that’s the human programmers who built the algorithm or someone else.

“I feel like we need new language to talk about what’s going on here,” Assmus said.

Photo: Alaric DeArment, MedCity News

The Supreme Court finally has the dyed-in-the-wool conservative majority that right-wingers have dreamt about since they finally saw Earl Warren put in the ground. There would be no more David Souters. The Federalist Society’s lifetime vetting machine has seen to that. Anthony Kennedy and his squishy “conservatism but not for more friends” judicial philosophy was put out to pasture in exchange for getting jobs for his old clerks. Now was the time to take a good solid run at Roe v. Wade.

It was never going to be taken out in one swoop. Chief Justice Roberts is all about the death of a thousand cuts. But that’s good enough for most anti-reproductive freedom activists. With Kavanaugh installed and a nice, quiet period where he didn’t have to offer his thoughts on what he wants to do with women’s bodies in the rearview mirror, this was the conservative moment.

Louisiana rolled up with a law requiring abortion providers to have admitting privileges in an explicit assault on Whole Women’s Health and… wow, Louisiana might actually lose.

Ian Millhiser’s assessment of the SG’s argument was more blunt:

Obviously, pointed questions asked at oral argument don’t always guarantee an outcome. When the justices retire to their conference in the Highest Locker Room In The Land, rookie Brett Kavanaugh is going to try and sell the Chief hard on his interpretation, clear from the the questioning, that there’s some contrived way to distinguish Louisiana’s case from WWH.

John Roberts doesn’t like WWH. He dissented in that case and generally thinks about as highly of reproductive freedom as he does of voting rights for minorities. But a man has to live by a code and for Roberts, that code is not to make the Court look like a collection of partisan hacks that overturns decisions year to year based on the composition of the Court as opposed to any “laws” or “facts.”

Roberts wanted that answer from Louisiana SG Elizabeth Murrill (or alternatively the Trump administration’s representative Jeffrey Wall). He’s just out here begging these states to give him the hook to claim that the Court isn’t wildly shifting from precedent to precedent based on political whim. How hard is it to give the guy what he wants? Is it possible the true hacks are just so wrapped up in their own ideology that they can’t bring themselves to step away from their righteousness and give Roberts the mealy-mouthed, lawyerball response he craves? Or maybe there’s just no good way for Roberts to deliver on the conservative promise without compromising the integrity of his vision for the Court.

Make no mistake, the Chief still wants to uphold this law and if he can come up with a solution to his conundrum, he’ll take it. But for now, what appeared to be a surefire win for conservatives is looking like a toss-up and that’s a stunning turn of events.

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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.

I had an idyllic childhood, in a small-town America sort of way. Before I was old enough to work, I rode my bike down to the Long Prairie River to cast for northern pike in the summers. I defended our backyard fort from neighborhood invaders with my brother. I got a good public-school education. Other than a rough six months when my old man was healing from two busted knees (he had to thereafter transition from carpet layer to public-school custodian), we always had our basic needs met. My mom was a dental hygienist at the same small-town dental office for 30-some years. That kept the household bills paid.

But, household bills aside, one thing a small-town dental hygienist and a public-school custodian were not going to be able to do was contribute tens of thousands of dollars to pay for their sons’ higher education. So, I worked hard in high school. When I finished, I accepted a full academic scholarship at an undergraduate institution. After that, I applied to eight law schools. Four of them offered me full scholarships. I accepted one of the full scholarships, graduated from law school without debt, and never looked back.

In addition to my private practice experience, I’ve now been teaching legal writing as an adjunct law professor for as long as I was in law school myself. Obviously, I’ve been writing for Above the Law as well, often about financial issues impacting law students and new lawyers. And in all the time since I went to law school, with all my diverse experience, it has been reinforced more and more to me that my approach to law school scholarships wasn’t a fluke. It wasn’t just chance. Yes, I worked hard and got good grades, but I was also strategic. I followed a defined process, with a specific goal in mind, and achieved it. This could be replicated.

Your Debt-Free JD: How to Graduate from Law School Without Incurring Student Loan Debt is a guide on how to strategically apply for and get through law school with maximum opportunities but at minimal cost. I set out to write Your Debt-Free JD to share my expertise with any prospective law students who don’t want to graduate handcuffed to six figures of student loan debt. I particularly have a place in my heart for those potential law students who, like me, have no family members in the legal profession to help in navigating the dizzying world of law school applications.

Most potential law students base their school selection on only one factor: perceived prestige. This means, basically, that most law students just go to the school they get into with the highest U.S. News rank. Your Debt-Free JD argues that law school rankings and claimed prestige have little to do with the quality of the legal education actually provided, and that school rankings and prestige have even less to do with real-world outcomes for most law students and new lawyers (career outcomes ultimately have a lot more to do with you than with what school you go to). Law students who understand how to play the U.S. News rankings to their advantage can finagle their way into tens, and probably hundreds, of thousands of dollars in scholarship money while giving up virtually nothing in terms of educational quality or career outcomes.

The biggest part of getting your JD without getting buried in debt is properly understanding what is important about the U.S. News rankings — how you can use them to your financial advantage, at the expense of the prestige-obsessed. But the last two sections of the book are dedicated to what you can do while you’re actually in law school to ensure you remain at least relatively debt-free. There is material for current law students as well as prospective ones. I wanted to empower more people to be able to pursue meaningful work with nonprofits, in government offices, or even out of the legal field entirely, rather than everyone being stuck with high-paying private sector work after law school to pay off debts they never should have incurred.

Having been a relatively active player in the literary community for a few years now, I initially sent out some query letters to literary agents and book proposals to small publishers. The response I got (if I got one) was either sorry, we don’t work with this kind of book topic, or we don’t think there is a big enough market of potential law students who both don’t want to incur debt and are openminded about the U.S. News rankings maybe being meaningless garbage. I figured the publishing industry insiders might be wrong, and I also figured that my manuscript was neither helping anyone nor earning me a bit of scratch on the side sitting unused on my jump drive.

I just self-published a draft of Your Debt-Free JD on Amazon for download to your Kindle or other device, which you can find by following the link in this sentence. It’ll only set you back $9.99, and I guarantee you’ll get at least that much value out of it. The manuscript is a little over 70,000 words, making it roughly equivalent to Scott Turow’s One L in length. If you like the book or find it helpful, please tell your friends and leave a five-star Amazon review. If you don’t like the book or have any nonformatting criticisms, feel free to let me know (but leave a five-star review anyway). And if you really want a paper copy, email me at the address below and we’ll work something out.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

Ross Garon is living the dream, retiring at the age of 48 after what has been by this account a very successful 10-year-run at the helm of Cubist Systematic Strategies, Point72 Asset Management’s quantitative arm. Of course, one man’s desire for rest and relaxation and not getting yelled at all the time is not the same thing as Steve Cohen abandoning the nerd game in which he’s invested so much time and energy in recent years. Far from it! For Cohen is not only dedicated to keeping Cubist going—and why wouldn’t he be, given how successful it apparently is—but in building upon it, in a Robocop kind of way.

We immediately initiated all necessary steps to protect employees, clients, courts, and business partners on the basis of an action plan. … [T]he virus test started within 24 hours after our partner’s illness became known. We conducted it on our own initiative and at our own expense in order to obtain certainty. Last Friday, in a first wave of testing, over 200 employees were tested, and this Monday an additional 80 employees were tested.

— a statement from Austrian firm Wolf Theiss, commenting on its ailing partner’s coronavirus diagnosis. The 72-year-old lawyer fell ill in February and since then, the firm has been trying to protect the rest of its employees. Thus far, three other employees have tested positive for coronavirus and have been placed in quarantine. “[D]ue to the immediate continuous testing of our employees,” the firm noted, “it is ensured that client, court, and employee contacts are only made by employees who have tested negative.”

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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.

Things got a little, erm, testy during Supreme Court oral arguments on Tuesday. The case is Seila Law v. Consumer Financial Protection Bureau and sparks were flying during an exchange between Supreme Court Justice Neil Gorsuch and Kirkland & Ellis’s Paul Clement. Clement was making his impressive 101st argument in front of the Court, but that doesn’t mean Gorsuch is about to go easy on him.

Gorsuch began the exchange by inquiring how, in terms of presidential removal powers, to distinguish between single-director agencies and cabinet officials and multi-member agencies. When Clement responded, as reported by Law.com, with the best of intentions:

“So I want to be responsive,” but added that he wanted first to point out that “you don’t avoid drawing a line by adopting the solicitor general’s position.”

But that wasn’t really answering the justice’s question. And when given the second chance to answer the question, Clement again drew a comparison between his position and the solicitor general’s. That — which Gorsuch interpreted as “disparaging” — was no bueno:

Gorsuch said he understood, “now if you could answer my question.” Clement gave an answer, but not to Gorsuch’s satisfaction. The justice rephrased the question and Clement answered: “I offer you two limiting principles, which I think is two more than the solicitor general’s offered you. But here’s the first: The first is—”

Gorsuch cut off Clement. “If we could avoid disparaging our colleagues and just answer my question, I would be grateful,” Gorsuch said. Clement then offered two limiting principles and added, “And I didn’t mean to disparage my colleague. I was just saying the 
same limiting principle ultimately has to be in 
place for multi-member commissions.”

Gorsuch regularly deploys the passive-aggressive zinger of being “grateful” for an answer. That usually means he’s fed up and advocates in front of the Court better hurry up and answer. A sampling of instances of Gorsuch using such a polite sounding word to express his displeasure includes one from an early moment in Gorsuch’s tenure on the bench:

In 2016, while answering one of Gorsuch’s very first questions as a justice, [Jones Day partner Shay Dvoretzky] was interrupted by the justice saying, “I’m sorry for interrupting, counselor. If you would just answer my question, I’d be grateful.”

And it’s a rhetorical crutch he’s kept coming back to:

Last October, in the argument over Puerto Rico’s bankruptcy, Gorsuch engaged with Gibson, Dunn & Crutcher’s Ted Olson during one exchange.

“Mr. Olson, I’m confused. I honestly don’t understand what the difference between your test and the government’s test is in this case. If you could articulate that in a few sentences, I’d be grateful,” Gorsuch said.

Sometimes, Gorsuch helps out a colleague. In the November argument in Maui v. Hawaii Wildlife Fund, Gorsuch asked David Henkin, counsel to the wildlife fund, “But counsel, could you just answer Justice [Samuel] Alito’s question? I’d be grateful if you would.”

So, if you ever find yourself arguing in front of the Supreme Court, watch out for insults disguised in “grateful” clothing.

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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).

Two years ago today, on March 4, 2018, embryo storage disasters resulted in the catastrophic loss of thousands of human ova (eggs) and embryos. Bizarrely occurring on the same day — but thousands of miles away from each other — storage tanks in San Francisco, California, and Cleveland, Ohio, experienced failures, critically impairing the reproductive options for over a thousand patients. That’s because for many patients, the destroyed embryos were stored before age or serious medical conditions reduced their chance of traditional conception to essentially zero. The lost genetic material, in other words, was for many patients, their only hope of ever becoming a parent with a genetic connection to their hoped-for future children.

Understandably, numerous lawsuits resulted, as well as some movement to provide greater oversight and regulation of embryo storage facilities. The lawsuits continue. On the legislative front, many efforts have fizzled out over the past two years. However, New Jersey recently succeeded at becoming the first state to pass a law requiring the state to oversee and regulate facilities storing embryos. Is the law going to make a difference?

So What Does This New Law Do?

The new law was enacted on December 4, 2019, and requires that 14 months after the effective date — which means approximately early 2021 — any facility storing human embryos in New Jersey must be licensed to do so by the New Jersey Department of Health. In the meantime, an advisory panel is figuring out the actual substantive details. These details include the nitty gritty of what standards, exactly, a storage facility must comply with, and what hoops it has to jump through in order to hold and maintain the now-mandated license.

What Will The Regulations Say?

To learn more about what we can expect from the advisory panel, I spoke with Debra Guston, a New Jersey attorney who specializes in adoption and assisted reproductive technology law. Guston is also in a uniquely good position to tell us what we can expect from the advisory panel, since she is an appointed member of the newly formed panel! I’m glad to hear that they have qualified people on board!

Guston, along with fellow well-credentialed panel members, are already working to promulgate thoughtful rules for embryo storage that safeguard hopeful parents’ family building dreams. It is a public process, with draft regulations expected to be published this summer for public comment. Importantly, Guston explained that the panel was also being very cognizant and careful not to over-regulate the storage process. While the panel is prioritizing protecting embryos with standardized safeguards, it is also aiming not to significantly increase costs to patients, or cause storage of embryos to be moved out of state to avoid regulation. It’s a fair concern that whatever the cost of compliance will be, storage clinics may simply pass those along to hopeful parents, who are already paying substantial sums to grow their families.

To regulate without significantly increasing costs? That’s a fine line to walk! But if anyone can help make it happen, it’s Guston. After all, she was one of the driving forces behind reversing New Jersey surrogacy law, which outlawed the practice for 30 years before now specifically permitting and protecting surrogacy arrangements in the state. In short, Guston is deeply familiar with the issues surrounding assisted reproduction in the Garden State.

How Serious Is New Jersey About This? Very.

While the panel works on what the standards will be, it’s obvious that failing to meet those standards will have severe consequences. For instance, once the licensing requirement goes into effect, any “person who operates or assists in the operation of an embryo storage facility which does not have a license …, who offers, advertises, or provides any service not authorized by a valid license… shall be guilty of a crime of the third degree.” That sounds bad. So I looked it up. Apparently the potential penalties for a third degree crime in New Jersey include a term of incarceration ranging from 3 to 5 years, a fine of up to $15,000, and a felony conviction on your criminal record. So get those licenses, folks, and don’t go to jail!

Of course, the worst part about the 2018 mass loss of embryos was that those losses were, for the most part, entirely preventable. Both locations had experienced numerous false alarms prior to the incident. Then, when the real incidents started, no one was alerted, or able to recognize a real alarm from a false alarm. Given the utter devastation caused by the loss of human embryos, it’s quite understandable that state government would want to get involved and try to stop such preventable heartbreak from happening to anyone else. Frankly, it’s surprising that other states have not already put statutory safeguards in place. I suspect others will be following in New Jersey’s footsteps.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com. 

The on-campus recruiting game has always carried a bit of capriciousness to it. There are lotteries and scheduling conflicts and just the bad luck of hitting a distracted interviewer who just got a bad email about a deal. Law students can’t guarantee they’ll manage to get in front of the firm that really suits them and firms can’t guarantee they’re seeing the complete pool of ideal candidates.

The on-campus recruiting team from White & Case is introducing a new video interview platform this year called Launchpad with an eye toward casting a wider net in recruitment efforts by untethering the process from scheduled on-campus interviews from specific schools. And, of course, this frees up the student’s scheduling options too. This isn’t a replacement for the traditional in-person interview — if students are lucky enough to score one they can go for it — but it allows those who might not be able to meet in-person to get themselves in front of White & Case.

The way Launchpad works, a student records the interview at any time, from any device, which is then uploaded to the White & Case recruiting site. It mirrors a successful process the firm has employed in the UK for awhile now.

This doesn’t replace the full hiring process. Obviously there will still be callback interviews at the office and everything. But it’s a good way of getting a look at a broader pool of interviewees. And, importantly, it provides a measure of consistency that in-person interviews can’t always match because every candidate is responding to the same questions asked in the same way allowing reviewers to make apple to apple comparisons when deciding upon callbacks.

This isn’t the first technological fix White & Case has offered law students. Last year, we wrote about a tool the firm unveiled allowing students to get a handle on Biglaw work assignments with InsideSherpa. That platform offered students a virtual access to the day-to-day work of a young attorney.

Once again, White & Case is thinking outside the box when it comes to getting an advantage over its peer firms when it comes to winning the talent war.

Earlier: Technology Allows Law School Students To Work On A Deal Before Joining Biglaw

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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.