Category: News Feeds

Adam Wirtz is undoubtedly less risk-averse than the typical attorney. While most of us are toying with what mutual fund strategy maximizes our retirement security, Wirtz is climbing the new courthouse and leaping off.

Wirtz base jumped off the Will County courthouse a few months ago and landed safely in the parking lot of the Joliet police station, which wasn’t the ideal landing spot since jumping off of government buildings is totally illegal.

In a return performance at the courthouse, Wirtz was a bit more subdued, receiving a $600 fine and 100 hours of community service work, with 50 hours that will be performed at an animal shelter. All told, hanging out with puppies for the next few months isn’t the worst punishment in the world. If all you’ve got to do to draw that gig is jump off a building, then sign me…

Actually, no, I’m not jumping off of any building. I’m too cautious for that.

Lawyer Who Jumped From New Courthouse Gets Sentenced [Patch]

The State Bar of California’s recent inadvertent disclosure of the bar exam topics just days prior to the July test was a serious setback for an agency that has appeared headed in a positive direction on other fronts.

The exam blunder harkened back to prior years in which there was a new bar scandal popping up nearly every month, ranging from ignored unauthorized practice of law complaints to questionable spending decisions.

The California Supreme Court and the bar have vowed to investigate the premature release of the essay and performance test topics, though the snafu has already generated plenty of unflattering headlines and critiques of the agency’s competence.

A particularly unfortunate part of the timing for the bar is that the slip-up comes as the agency appears poised to secure legislative approval for its first annual fee hike in roughly two decades. The bill funding the bar next year will boost the overall fee for active lawyers to $544, a 27 percent increase from the $430 in place now.

Though the bar exam scandal is unlikely to derail the fee increase legislation, it certainly won’t boost lawmakers’ confidence in the oft-criticized agency.

Another more sanguine development the screw-up has overshadowed is the work of a bar task force crafting rules changes designed to spur innovation and bolster access to justice. Proposals under consideration include allowing non-lawyers to own legal services companies and undertake some legal tasks without committing the unauthorized practice of law.

The Task Force on Access Through Innovation of Legal Services will hold its next meeting on August 9 in San Francisco and host a public hearing the next day at the bar’s San Francisco office from 2 p.m. to 5 p.m.

Even the state auditor’s report on the State Bar this year was less critical than prior reports and noted some improvements being made, such as the development of performance measures.

State Bar Trustee Joanna Mendoza, who also serves on access the task force, said the bar has made great strides since she joined its board six years ago. One of the major changes Mendoza was a strong proponent of was the splitting off the bar’s specialty practice groups, known as sections, to become the California Lawyers Association.

She said the early release of the bar exam topics to some law school deans, which prompted the bar to disclose the topics to all test takers, should not minimize the agency’s improvements.

“After working so hard on these reforms, it is incredibly frustrating that all these improvements can be so easily ignored as the result of human error by a single employee,” Mendoza said. “While it was unfortunate that this occurred, some of the attacks against the State Bar as an entire agency based upon a premature email is completely unjustified.

“The investigation will confirm how it happened and help the agency determine how it can therefore be prevented in the future,” Mendoza continued.

The results from the investigation and the performance on the July bar exam will also likely go a long way toward determining the type of impact the State Bar’s major blunder will have on the agency’s reputation moving forward.

Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at lmoransun@gmail.com and found on Twitter @lylemoran.

If we want to improve the shared mental health of our profession, we must change our incentives. We must change how we practice law at law firms today.

I am tired of seeing our best and brightest suffer from the pressures we create by our own incentives. I am tired of watching friends suffer. I am tired of seeing good partners, talented associates, and top-notch staff fight each other and fight their own worst impulses—because that is, most fundamentally, what our industry is motivating them to do.

I know we can change and thrive. Let’s transform our profession into one that encourages and fosters mental and physical well-being and that views both as utterly compatible with productivity, performance, and profit.

— Jana Cohen Barbe, a senior partner at Dentons, in an open letter published by American Lawyer, where she argues that Biglaw firms must change not only the structure of the billable hour, but also the way performance metrics are evaluated, in order to make a difference in the mental health crisis that the legal profession is currently facing.

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.

Lawyers, from all walks of life, have been the true backbone of the “resistance” to President Donald Trump and the atrocities he commits in America’s name. It’s lawyers who are filing the injunctions that arrest or retard some of Donald Trump’s proposed human rights violations. It’s lawyers who are deployed to the concentration camps and try to help victims advocate for what rights they still may have. It’s lawyers who flood the airports, investigate corruption, and represent and try to elevate the claims of women who say the President of the United States sexually assaulted them. The people have not taken to the streets, the media continues to play a game of normalizing the president, but lawyers have kept their eyes on the ball.

And it’s not just public interest lawyers. Yes, lawyers who work for nonprofits like the ACLU have done a lot of the heavy lifting, but it was a Biglaw firm which defeated the Trump administration’s illegal attempt to revoke Temporary Protected Status to black and brown immigrants. Plaintiffs lawyers have exposed some of the crimes Trump has committed, and are the closest to forcing Trump to sit in a chair and speak under penalty of perjury. And individual attorneys who work at firms both big and small have donated their most valuable asset — their time — to Trump’s victims, even though “immigration law” or “family law” or “international human rights law” are not their fields of expertise.

For every lawyer who is directly involved in pushing back against the Trump administration, there is another who wants to get involved, but doesn’t quite know how. The question I get most often from lawyers I meet is… well, check that, the question I get most often is “AHHH! This is so bad and we’re all gonna die, right?” But the question I hear next is “What can I do, how can I help?”

For the rest of the summer, Above the Law is going to run a series of profiles about lawyers who have been in the fight. Hopefully these stories will help illustrate how others can join, and give people a taste of what they can expect if they devote even a small portion of their time towards being a part of the solution.

Our first interview is with Maxim Thorne. Thorne is the founder of JusticeInvestor, a crowdfunded litigation finance startup. He’s the managing director of the The Andrew Goodman Foundation, a 501(c)3 nonprofit organization that is non-partisan and focuses on registering and activating young voters. He’s taught philanthropy at Yale University, and has been involved in the lawsuit against Tennessee’s voter suppression law.

Our email interview has been edited for space. Questions are in bold.

How did you become involved in the Tennessee case?

In my role as the Managing Director of The Andrew Goodman Foundation, I have seen firsthand how this oppressive law directly impacts the work that AGF has been doing on the ground in Tennessee and the risks it poses to our student leaders (Ambassadors). The Foundation and our co-plaintiffs decided to sue Tennessee because it is clear that this law is a transparent and shameful attempt to restrict the right of students, people of color (POC), and marginalized Americans to vote. From our Foundation’s “boots-on-the-ground” in 25 states and Washington, D.C. vantage point we are certain that this is a Jim Crow-like, larger disenfranchisement effort underway in Tennessee and across the country.

This Tennessee law is a repeated and intensified attempt to suppress African American and youth voting in Tennessee. I first heard this from our program managers who work directly with the student Ambassadors on their college campuses and from our Tennessee coalition partners.

In Tennessee last year, our co-plaintiff in the lawsuit, the Equity Alliance (in partnership with the Black Voters Project) successfully engaged in a voter registration drive that registered over 90,000 new African American voters. As a result of this and many other efforts, Tennessee saw an unprecedented increase in youth and youth of color voting in November 2018. This record breaking turnout of young people and African Americans motivated these legislators to pass this unconstitutional law. Historically, Tennessee’s voter turnout rate and voter registration rates have been abysmal, ranked 45th and 49th in the country respectively. As a result of the efforts of the Equity Alliance, Black Voters Project, and our student Ambassadors in Tennessee, the voting turnout of 18- to 24-year-olds went from 11.9% in 2014 to 31.1% in 2018, which is a 261.3% increase, as reported by the Census in 2019.

This new law subjects third-party voter registration groups, like The Andrew Goodman Foundation and Equity Alliance, to a whole host of restrictions. It requires compliance with pre-registration, training, and affirmation requirements, which, if not followed, result in severe criminal and civil penalties ranging from imprisonment to fines of tens of thousands of dollars. This law would impose both civil and criminal punishment on voter registration workers and organizations for things like submitting registrations that the state determines are not “complete,” which can be interpreted as forgetting to check a box for “Ms.” or “Mr.” or inaccuracies like writing “Jim” instead of “James.”

Thinking about voter suppression specifically, what can lawyers do to help that fight? I’ve known some people who have signed up to be election monitors, you know, just answer phones and trying to help out on election day. Is there more we could be doing?

Yes, a lot of work still needs to be done. You can definitely sign up for election monitoring — Tennessee now wants to prevent anyone who does not live in the state from doing so as a means to suppress voting even further. These kinds of laws are spreading like a virus across our country.

Lawyers can find opportunities if they reach out and are willing to give their time, talent, and resources to stop voter suppression. Victims of voter suppression are hungry for help.

The three prongs of our work at The Andrew Goodman Foundation are organizing, advocacy, and litigation to raise the voting rate of young people, to increase their civic power by combating voter suppression, and to empower young leaders. Lawyers can always partner with us on at least these fronts. We also need assistance with regulatory compliance of all kinds, from IRS regulations to state charity laws.

In terms of advocacy, our goal is to empower student voices and help them advocate for the issues they care about like climate change, mass incarceration, reproductive justice, gun regulation, gender and LGBTQ+ equality, and more. The Foundation also helps with voter friendly legislation that students can use to educate their peers and elected officials and build awareness about impediments to voting. Lawyers can help students litigate and advocate for polling sites on their campuses, which is a sure fire way to increase student and youth of color voting.

We need lawyers to represent students in attempts to block unlawful residency restrictions and limits on using student IDs as voter IDs. This is done by filing for declaratory and injunctive relief as early as possible so that enough runway is secured before the next election to have these issues resolved. Illegal voter purging, particularly of African Americans and other POC is another issue that needs litigation support. These cases can be brought by students, organizations with standing in the jurisdictions, and more. There is never a shortage of clients or issues to address.

How do lawyers help with this fight given that front lines are generally far away from NYC or Chicago or K-street where a lot of these Biglaw types end up? Like, there aren’t a lot of Yale and Harvard Law School grads who want to *move* to Tennessee or Georgia or Indiana. How can they carpetbag in for extra legal muscle?

First, I want to demystify where some of the work is needed. In the South definitely, but right here in New Jersey and New York we’re dealing with myriad issues. You don’t have to travel far to make an impact. For example, Montclair State University in North Jersey is ridiculously gerrymandered — it is divided into three congressional districts, similar to how Louisiana State University is divided into four, and North Carolina A&T State University into two — in order to dilute the youth vote.

Take Bard College, a private liberal arts school located alongside the Hudson River and the Catskill Mountains, 100 miles north of New York City. In this Dutchess County voting district, 68% of the eligible voters reside on campus, yet its polling site is deliberately set miles from campus on an unlit street with no sidewalk or public transportation route, which is in clear violation of New York Election Law regulating polling place accessibility. The Dutchess County election commissioners have continually imposed unlawful rules like prohibiting students who’ve changed dormitory residences from voting by machine or rejecting registrations because students used their dorms’ street addresses rather than their dorms’ names, and more. Dutchess County’s actions display a clear pattern of youth voter suppression. Since 2000, Bard students have been forced to resort to litigation or the threat of litigation three times to protect their voting rights. They could use legal support again. The list goes on and on.

BigLaw lawyers interested in fighting youth voter suppression across the country, whether you are in NYC, DC, Chicago, LA, SF, Seattle, etc. should reach out to us.

Do you think it’s better for young lawyers who want to be involved in this kind of work to go through the pro bono coordinators and support at their firms, or do you suggest a more direct approach of networking and finding clients on their own?

If you’re already in a firm, both the pro-bono coordinator route and direct networking can lead you to fulfilling engagement in social justice movement work. Firms that have pro-bono coordinators may already have strong connections, especially with the more prestigious nonprofits, and that can lead to good opportunities. Direct networking does have the potential to be more rewarding because it can be client intensive, and you’d get greater flexibility in tailoring the work to exactly what you’re seeking to do.

How much time, in a kind of billable hours way, does it take out of your day to do that kind of work? A lot of people are kind of consumed with how many hours they can “bill for free” on issues like this.

We have a team of paid and pro bono lawyers who do most of the legal research, writing and filing, and they commit varying hours, depending on the work they’re doing. The kinds of legal help that our organization needs runs the gamut from high profile cases like Tennessee’s, to assisting us with reviewing grant agreement terms, leases, IRS regulations, fundraising rules, and more.

If lawyers care about safeguarding and expanding voting rights, there are a wide range of opportunities to take advantage of, that can take very little time or can take many days, depending on how involved one wants to be. Our movement needs as much legal advice on organizational infrastructure as it does on voting rights litigation.

To put it another way, last year in Florida, we successfully sued to blocked the state from prohibiting any early voting sites on college and university campuses that would deny over 850,000 students their right to vote early . That suit may generate an award in the upper hundreds of thousands in legal fees and costs, particularly since we amended it to include a new egregious voter suppression law that was recently signed by the Governor. On the other hand, legal assistance to help us register to fundraise in California may be only a few hundred dollars in attorney time. The hours needed vary on a case by case basis.

What is your feeling on “offsets”? By that I mean, a lot of people with high salaries earned from representing corporate clients “give back” by making donations to the ACLU or some other organization. Do you find these offsets effective? Is more direct action required? If you’re a fifth-year corporate associate, with no actual litigation training, is your checkbook more valuable than your legal skills to these efforts?

I believe we each give in our own way and on a different schedule. As a nonprofit executive over the last two decades, I can say without qualification that monetary donations are our lifeblood as much as in-kind assistance such as voluntary legal work. I am forever grateful to my friends who chose a different path and at the same time take the opportunity to financially support my work and other equality and social justice causes.

Direct legal action is, of course, still required. And some of the best legal work in the social justice space can be done by corporate law firms that have the resources and talent to take on complex, long-term, and broad geographic cases. In this era of threats and attacks on our democracy, from every level of the government including the very policing of our communities, we need as many resources as we can get.

Okay, let’s assume people who have read this far are sold, how can they reach you?

They can contact me at The Andrew Goodman Foundation www.AndrewGoodman.org, @AndrewGoodmanF, @maximthorne, maxim.thorne@AndrewGoodman.org. Stacey Abrams’s organization Fair Fight Action is another great avenue. Biglaw can also reach out to organizations like ours fighting various kinds of voter suppression and offer to partner with local counsel or represent students pro hac vice throughout the year. Don’t wait until three months before the 2020 Presidential Election. We all need help now — and it’s doable from wherever you are.

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.

Summer vacation season is here! So we took the time to ask our fabulous Lawline faculty the following question: Where is your favorite place to vacation in the summer? Trust us – you won’t want to miss these exciting destinations. Explore these top faculty vacation spots below!

Last October, I reported here on the launch of an innovative project, Learned Hands, that uses a game to train a machine-learning algorithm to better identify the legal issues in the words that ordinary people use to describe their problems. The goal was to use artificial intelligence to help legal services providers better match a consumer to the appropriate attorney or legal resource.

Now, The Pew Charitable Trusts has awarded a grant to one of the sponsors of that project, Suffolk Law School’s Legal Innovation and Technology Lab, to move the project from proof of concept to production.

The grant runs through December 2020 and will be used to create issue spotters, in the forms of both an application programming interface (API) and a Python programming library, that will be free to use for public-interest groups, the LIT Lab’s director, David Colarusso, told me. It is also expected that the Legal Services Corporation will use the issue spotters in its project to develop state legal portals.

David Colarusso

The idea behind Learned Hands was to create a game to incentivize players to crowdsource the task of spotting legal issues in real people’s stories about their legal problems. Players earn points and rankings based on how many questions they mark and the extent to which their marks are deemed correct.

The goal is to train a machine-learning algorithm to spot legal issues issues. That required both people-power to do the tagging and a collection of actual questions against which to train. For that, the project obtain a collection of some 75,000 questions posted in the Reddit forum r/legaladvice.

That project went well, Colarusso said, drawing participation by nearly 600 people who created 54,000 labels resulting in the finalization of about 2,000 of the questions. The labeling is being used to create a taxonomy of legal issues that better matches the words and phrases that regular people use, based on the National Subject Matter Index developed by the Legal Services National Technology Assistance Project.

Building An Infrastructure

Through this new grant, LIT Lab students will build out the engineering infrastructure to deliver the API and documentation, with the goal of having it available for use by the end of 2020. The API will be free to use for non-profits and legal services organizations.

How could legal services organizations use this issue spotter? Colarusso outlined four potential use cases:

• In portals and court service centers, where a consumer could come to the site, ask a question in plain English, and be directed to the appropriate resource.
• For ask-a-lawyer or limited-scope representation projects, to ensure that consumer inquiries and messages get routed to the right lawyer.
• As what Colarusso calls a “cognitive exoskeleton” to help in situations where a consumer is connected to a live person or paraprofessional. The issue spotter can help triage the issues so the person taking the call does not start from scratch.
• To look at incoming inquiries in the aggregate, so that an organization can better understand on a broad level the types of queries that are coming in and where to allocate its resources.

Other Project Goals

In addition to building the API, Colarusso has other goals for the project. One is to continue to train the algorithm against new data. While the Reddit corpus has proved useful, Colarusso said, the source suggests that it is likely skewed towards a demographic that is younger, male, and better off than the general population. So more representative data is needed.

In addition, the algorithm needs to adapt to semantic shifts over time, changes in the language people use to talk about their problems.

“At the end of the day, you can have a fancy algorithm, but the thing that is the real killer is the data,” Colarusso said. “So the more data we have, the better.”

One way to address this need for further and continual training would be through some sort of feedback loop incorporated within the API, so that the system could learn from people’s actual behavior in using it. But a feedback loop could be problematic as some organizations or consumers may not want their data feeding back to the LIT Lab, Colarusso said. There may also be legal restraints, such as under California’s new privacy law.

Recognizing this, another of Colarusso’s goals is to develop a set of standards and best practices around the responsible use of the algorithm and API. Such standards might address issues such as consumer opt-in or disclosures around the use of the API. Colarusso said that if people have ideas about formulating these standards, he welcomes their input.

One final goal for the project is to come up with a plan to make it sustainable beyond the period of the grant. Perhaps students in the LIT Lab will be able to shoulder some of the ongoing work, Colarusso said, but he also does not rule out the possibility of licensing the API to for-profit entities or seeking other forms of outside support.

The one point on which he is certain is that access to the technology will always be free for non-profits. “We don’t want non-profits ever to have to pay for it,” he said.

As for the original Learned Hands project, although the Pew grant that funded it has now run out, the site will continue to operate under the auspices of both the LIT Lab and the project’s other partner, Stanford Law School’s Legal Design Lab.

Suing Biglaw firms over gender discrimination has become a veritable trend with firms like Morrison & Foerster, Jones Day, Steptoe & Johnson LLP, Chadbourne & Parke (now part of Norton Rose), Proskauer Rose, LeClairRyan (RIP), Sedgwick, CKR Law, Ogletree Deakins, and Winston & Strawn all on the receiving end of lawsuits. But, while the lawsuits all make headlines when the complaint is served, often times mandatory arbitration clauses as part of partnership arrest the litigation process and transfer it to confidential arbitration.

One plaintiff who’s had success in challenging her former firm’s arbitration gambit is Constance Ramos, who sued Winston & Strawn alleging the firm treated her as “an appendage of a male superior” and that the firm tried to get rid of her once the male equity partner she worked with departed the firm. In November, a three-judge panel of the California Court of Appeal found that the arbitration clause was unconscionable and therefore unenforceable. Winston & Strawn is seeking to have that decision overturned.

As reported by Law.com, Winston & Strawn’s lawyer, Joshua Rosenkranz of Orrick, Herrington & Sutcliffe, is arguing the Federal Arbitration Act should control and that the lower courts need a “reminder” about how preemption should work:

“In the wake of [AT&T Mobility v. Concepcion], no other jurisdiction has held that arbitration-specific rules like these survive FAA preemption,” Rosenkranz told the justices in May. He argued that “California courts need another reminder” to follow the Supreme Court’s precedence on enforcement of arbitration agreements. “It is time,” Rosenkranz wrote.

But Ramos’s attorney, Karla Gilbride of Public Justice, argued that it was the unusual terms of Winston’s arbitration agreement that forced the lower court’s decision:

The law firm’s “overly harsh” terms in its partnership agreement drove the lower court opinion, Gilbride told the justices Wednesday. Chief among those terms that the lower court found unconscionable, Gilbride said, was the “firm always wins” clause. That provision, with one exception, barred the arbitration panel from substituting its judgment for the decisions of the partnership, its executive committee or officers.

That clause, Gilbride said, “would make it impossible for the arbitrators to award Ramos back pay, front pay, reinstatement or punitive damages—essentially every form of relief she sought in her complaint for employment discrimination and retaliation.”

But Winston & Strawn isn’t the only Biglaw firm hoping the California Supreme Court will take a stand on the side of arbitration. Ropes & Gray has filed an amicus brief in the case:

Ropes & Gray filed an amicus brief supporting Winston & Strawn. “Today, it is common for law firms to experience regular fluctuations in their partnership ranks,” Douglas Hallward-Driemeier, head of the firm’s appellate and Supreme Court practice, said in the brief. “As a result, it has become increasingly important for law firms to be able to quickly and efficiently resolve internal disputes in a way that protects confidential information and minimizes disruptions to client service.”

Whatever the outcome, it’s clear it will have a big impact on Biglaw.

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).

Litigation funding has become an important part of the legal profession — so important, in fact, that the sector has attracted the attention of Chambers and Partners, a U.K.-based organization that ranks corporate lawyers and litigators worldwide. It was just last year that Chambers rolled out its first-ever ranking of litigation funders, and not long ago, its second annual ranking of litigation funders was announced. Click here to see the latest ranking.

I recently had the pleasure of speaking to Boaz Weinstein, one of the cofounders of Lake Whillans, a firm that’s been ranked by Chambers since the inception of its new litigation finance listing. Here is a (lightly edited and condensed) write-up of our lively conversation about litigation funding and starting and building a career from the ground up in this constantly developing industry.

Staci Zaretsky (SZ): Congratulations on Lake Whillans being included in the Chambers and Partners ranking of litigation funders for two years in a row. It’s quite the achievement for you and your firm.

Boaz Weinstein (BW): Yes, so it’s a big honor for us. Obviously, we’re very enthused and pleased with the recognition. And I was individually ranked both years as well. I think the Chambers ranking overall is kind of an important development for the litigation finance market. It just goes to show how mainstream the litigation finance community has become. I think we’ve seen increasing consensus among law firms and now that we’re at the point where Chambers has started to weigh in on the category, it just gives another stamp of approval — it’s kind of an endorsement, a recognition that this is a significant part of the industry and one that’s here to stay.

SZ: Exactly. The concept of litigation finance went from being somewhat of a novelty to being ranked by Chambers — it’s a big deal. It shows how much litigation finance has become an established part of the legal world.

BW: It shows that there’s now increased acceptance and increased traction for people who are interested in litigation funding, and being included in the Chambers ranking shows that not only is Lake Whillans a reputable organization, but it’s one of the most reputable organizations. That’s something very special, and we’re certainly humbled and honored by the recognition.

I think it’s very helpful for people to know who the reputable players in the industry are, what their various strengths are, and how they differentiate from one another. It’s an important resource for the practitioner who’s thinking about using litigation finance.

Some people in the past have had some bad experiences dealing with less reputable funders, so I think having an organization like Chambers say that these are these are the major players is a helpful starting point for practitioners to make sure that they’re that they’re working with the right people so they’ll have the best experience.

SZ: What kind of practices and trends are you seeing in the industry?

BW: One of the trends that’s become apparent is the growth in the types of users that we’re seeing. It used to be that litigation finance was more predominantly used by smaller to medium-sized companies for whom either it would not be possible to fund a litigation or if it was possible, it would come at significant cost to the company’s business because litigation is quite expensive, and these companies often weren’t well resourced to do it. And while that continues to make up a significant portion of the user base, the place where we’ve seen a lot of growth over the last two years or so has been in larger companies coming to recognize the utility of litigation finance as a financial tool.

This has increasingly become part of the user base and I think it’s a trend that is strong and is helping to broaden the demand for litigation finance quite significantly, so it is in some sense a frontier that has been opened. I would say it’s not all the way there, but I think that’s maybe the biggest development as we move forward in the litigation finance market.

I think a second trend in this sector is portfolio financing. There has been a sizable uptick in in recent years in the number of law firms that are looking for portfolio financing, although it’s been tempered somewhat by the recent opinion of the New York City Bar Association about nonrecourse financing. [Ed. note: Please click here to read an excellent piece about the Bar Association’s decision.] It’s an opinion that has generated a lot of heat and a lot of ethics professionals and other litigation funders have decried the logic of the opinion, which rests on a formality that even the opinion itself recognizes. I should note that NYCBA opinion doesn’t have the force of law, and there’s actually significant case law in New York and elsewhere around the country enforcing these types of arrangements. It’s an opinion that itself suggested that a legislative fix might be in order, and I know that the Bar Association is itself looking at that issue afresh even as we speak.

The other bigger trend is the diversification of litigation funders. We like to think of ourselves as providers of financial solutions, and so that can take a lot of forms at law firms. I think there is a broadening scope of products that are on the market and this is going to continue to change as people think about ways that they can be useful and deploy capital in prudent investments.

Boaz Weinstein (Photo via Lake Whillans)

SZ: On a more personal note, how did you get into litigation finance? Please tell me more about your career journey.

BW: In late 2010, I believe I heard of litigation finance for the first time. My wife is a partner at an Am Law 200 firm, and she had had a client who needed litigation funding at the time. And so from afar, I thought to myself, “Oh, litigation finance, what an interesting concept.” It really piqued my interest, and as I delved into my own cases at work, I wondered if it would catch on in the United States.

Fast forward approximately six-to-eight months, and one of my colleagues at the firm where I was decided to open up a litigation funding company in New York. I decided to jump in headfirst and give it a go. It was at that firm that I met my current business partner, Lee Drucker, and both Lee and I were largely tasked with figuring out how to run a litigation finance business, which is to say that the partners at the firm spent a lot of their time trying to raise capital for the company and largely delegated to us, to a significant degree, everything else — dealing with the claim holders, negotiating terms, underwriting cases, doing transactions — basically all the nuts and bolts of running a litigation finance company.

In late 2012, Lee and I looked at each other, and we were big believers in the business. We’d seen over the course of time that we’d been in the business a kind of increasing traction. We’d worked side by side for 18 months, thinking about what we were doing right, what we were doing wrong, what we could be doing better — and so we took a leap into the unknown in some sense, and in 2013, we started Lake Whillans.

From there, we’ve always sought to build a company that could be defined as human; a company that is professional, a company that is smart, but also is one that’s fair, that’s transparent, that’s responsive. People come to us for all sorts of reasons, so we’ve always felt it’s important to know you’re dealing with people’s lives to a certain extent, and make sure we’re taking the appropriate care and helping them through the process as best we can. And it’s on the back of that ethos that we have built the Lake Whillans brand.

For Lee and I, it’s been a journey. I have three children of my own, but this company is also like my baby, and I make sure I take great care of this baby in every way possible.

SZ: Is there anything else you think people need to know about the litigation finance world, or how to become a part of it if they’re interested?

BW: I think there are predominantly two skill sets that funders are looking for right now. One is judgment and one is business development. From my perspective, the two keys here are number one, you need to have good deal flow to make sure that you’re getting a good pipeline of opportunity and having a selection to choose from, and number two, you have to be picking the right cases.

On the business development side, people who have relationships or just have the ability to go out and attract or find new claim holders or find claims, that is a significant skill.

As far as judgment is concerned, how do you show a funder in advance that you have that skill? As you can imagine, the reality of this industry is that there aren’t a ton of companies and the companies aren’t enormous, so there are only a few really good positions available. Each of the top companies probably gets a lot of résumés coming in relative to the number of positions they have, each saying, “I went to XYZ top law school and I come from XYZ brand name law firm. You should hire me.” But if those are the only things you’re promoting yourself with, how do we know if your judgment is good? It’s a hard thing to pick up from a résumé.

You need to think about ways that you can demonstrate that judgment. Think about things that you’ve done; think about specific instances. If you think you have relationships that could help you find cases, show that to a funder. How would you handle due diligence? We’d like to see your way of thinking on display. Have you interacted with litigation funders in the past? Tell us about that. To the extent people can go from saying litigation funding seems like a great idea to being able to show they have experience with funders, it’s a worthwhile investment of your time or at least something to think about doing.

Lastly, you should definitely let a funder know if you have any ideas about innovations — we’re always looking for creativity and entrepreneurialism. We’re looking at all of these things when making a hiring decision.

*****

On behalf of everyone here at Above the Law, we’d like to congratulate Lake Whillans on its inclusion in the Chambers and Partners litigation funding ranking. It’s clear that litigation finance is here to stay, and this is an accomplishment worth celebrating.

(Disclosure: Lake Whillans is an Above the Law advertiser.)

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.