Category: News Feeds

Back in 2012, we wrote a story about Jennifer Kash, a Quinn Emanuel partner who sent around an email asking her associates to let her know their availability for more work. That’s not an uncommon ask in the Biglaw universe, but the takeaway from Kash’s email was that any associate billing under 2400 hours/year was still open to more work in the firm’s estimation:

In case you forgot: 5 is crazy busy, 4 is could do something but it would hurt and would have to be very small, 3 is you have some bandwidth and might be able to take on some more work, 2 is I could take on a bunch more work, my plate is not full, 1 is you need lots of work.

One further note, based on how busy everyone is if billing under 200 hours a month you are a 3.

At the time, we described Kash’s email as emblematic of the way firms see associates as consistently underutilized — a mindset that can level undue stress and potential burnout.

Today, Jennifer Kash would likely agree with that assessment. While associates working 2400+ and still getting assigned more work may sound miserable, Kash was billing 3500 hours at the time and only making due with healthy doses of Adderall. It’s easy to think of law firms as pyramid schemes because, in a sense, they are. But just because the associates grinding out hours at the base are whittled down to the partnership tier doesn’t mean the partners have stopped billing themselves. Many partners are juggling as much or more.

The former Quinn Emanuel San Francisco office chief is now living in the Caribbean running a non-profit called Virgin Independence, which helps transitional youth in finding jobs and training and working on a new program that invites attorneys to join her in St. Vincent and the Grenadines to get the support that lawyers rarely get while trying to manage their schedules.

The Lawyer’s Escape Pod is an excellent podcast hosted by Megan Smiley that peeks outside the legal industry to show lawyers that there is, in fact, an escape route. Smiley posted an interview with Kash where she opened up about her worldview as a partner and how she went from Biglaw big wig to living in the islands.

On the show, she describes the isolation that can form around partners in the Biglaw system:

Law firm system not set up to support people at the top. Because we so assume once they get there and they have money and they’ve made it through the ranks of associates that there’s no longer going to be problems they need to address and there is. And the problem is there’s no place to go and no resources available to them because they don’t have any confidentiality and they need support in a way that’s embarrassing and that they’re not willing to maybe sometimes let their egos be set aside to address.

It’s a great way to close the loop on the article we posted seven years ago — time has a way of changing perspectives. Jennifer Kash wants lawyers to understand that taking care of themselves isn’t something they can just put off because the money’s good.

Earlier: How Many Billable Hours Do You Have to Work Before You Are ‘Busy’?

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

For better or worse, Biglaw is more of a business than it ever has been. It’s no longer the case that you join a firm after law school, work hard and make partner, and remain at the firm until you retire or die. Instead, partners regularly part ways with their longtime firms, in search of better platforms — and bigger paychecks.

In this environment, it’s more important than ever for lawyers — and not just partners, but counsel and associates as well — to understand and excel at business development and marketing. If you want a long and successful career at a law firm, you need to be not just an excellent attorney, but also a talented marketer.

How can you become a Biglaw business-development whiz? It’s not easy; many major rainmakers will tell you that it took them years to master the art. But you can definitely give yourself a head start through reading and research.

My recommendation: Start with Best Practices in Law Firm Business Development and Marketing by Deborah Farone, published earlier this year by the Practising Law Institute (PLI). Farone, the founder of the Farone Advisors consultancy and former chief marketing officer at two of the nation’s finest firms, Cravath and Debevoise, interviewed numerous Biglaw business generators, as well as other industry experts, to learn the secrets of their success.

I recently spoke with Deborah Farone about her book and about Biglaw business development more generally. Here’s a (lightly edited and condensed) write-up of our conversation.

DL: What inspired you to write the book?

DF: I felt that there was a real need in the marketplace to study the best practices in business development. I knew there was keen interest in two related subjects: One was in learning what it was that certain law firms were doing to consistently drive profitability and foster a positive culture, and the other was the curiosity about the habits of great rainmakers.

Around this same time, as I was thinking about starting a consulting practice, I was approached by PLI to write a book on legal marketing. Although I knew a lot about the world of large law firms and their operations, I always wanted to learn about best practices and innovation in other sectors of the legal profession, including midsize firms and boutiques. Conducting the research with academics, technologists, and other thought leaders and writing a book was an ideal opportunity to do this.

DL: As I know from my own experience, writing a book is a challenging and demanding endeavor. What did you think of the process?

DF: I gave myself a year to write it and I finished within that year. I mapped out a series of deadlines and devoted every morning from 6 to 11 to work on the book, assuming I wasn’t traveling to a client’s office. I interviewed more than 60 people for the book, so it involved a lot of juggling of schedules. I had to attack it in a very organized and disciplined way to complete the project.

DL: Your book isn’t just a primer on business development, but it’s also a portrait of Biglaw over time. I love the opening, where you paint a vivid picture of what Debevoise was like back in 1989. What would you identify as the single biggest change in this world over the past three decades?

DF: One big change that reverberates throughout many parts of the profession is that general counsel are in the driver’s seat more than ever before. Compared to their predecessors, today’s GCs are very sophisticated consumers of legal services, command larger departments, and have more tools at their disposal. In the past, if the GC had a new legal problem, they’d immediately look to their outside law firm. Today, they might turn to hiring additional lawyers in-house at a lower cost or using an alternative legal services provider. They’ve also acquired technology to address reoccuring issues and, as we’ve seen by the rise in influence of CLOC, brainy experts in legal operations are also there to help protect the company and manage legal costs.

DL: What ramifications does this have for legal marketing?

DF: When marketing their services, firms need to ask themselves: are we doing something that adds value? Are we providing a service that a GC can’t simply do in-house? This thinking requires law firms to be more strategic in their offerings and in their branding. It is why many more firms are developing strategic plans for key practices or for entire firms. They are working to identify the areas where they can provide exceptional value and differentiate themselves from the firm down the street.

DL: Have law firms risen to the challenge? Have they gotten better at business development and marketing?

DF: Some have. In the book, I focus on innovative firms — firms like Orrick and Gunderson Dettmer, to name a few — and what they’re doing to succeed in business development. Marketing has to be involved, of course, but so does management. The focus needs to be all hands on deck, focusing on the client.

Deborah Brightman Farone (courtesy of the author)

DL: Based on your research, can you offer some advice on how Biglaw partners can work most effectively with their Chief Marketing Officers and marketing teams?

DF: Marketing can’t be a back-office department that works somewhere in the Ozarks. Marketing folks need to be involved in the strategic direction of the firm. For example, when a firm hires a lateral partner, the marketing department should have a hand in everything from helping to think about how the lateral will fit into the business, what services they will bring to clients, and what the firm can do to ensure there is support for the lateral to succeed in their practice. The CMOs I’ve met are incredibly talented, but at times they’re under-utilized by their firms when it comes to their strategic capability.

Firm leadership needs to be in regular communication with their marketing group to let them know not only the state of the firm and what is transpiring, but to communicate that their work is central to the operations of the firm. At Cravath, both Evan Chesler and Allen Parker met with my department regularly to let us know about new opportunities and their goals for the firm. This conveyed to the marketing department that they were an integral part of the firm and on the same team as the lawyers.

DL: You mentioned integrating lateral partners, a subject of great interest to me these days. Have firms gotten better about this process?

DF: Again, some have, and some haven’t. Today, many have a well-run integration program set up well before the partner even accepts the offer. They are thinking: Which clients will potentially use this partner? To which clients should the new partner be introduced, and by whom? Firms shouldn’t just count on lateral partners spinning gold from their own contacts when they arrive. If firms truly collaborate with new partners, the new partners are much more likely to stick. Close to 50 percent of lateral partners end up leaving the firm after five years. It’s expensive to bring on a lateral, so it behooves the firms to think seriously about how the partner will fit into the firm culture and business.

DL: Speaking of law firm culture, how does it affect marketing and business development?

DF: Firm leaders are so busy that they don’t always have time to stop and think about culture as a vital factor in the firm’s success, but if you think about it, culture is often the reason that firms maintain clients and talent, and grow revenue. If you have a culture where partners genuinely like each other, collaborate on bringing in new matters and serving their clients, you’ll have a much more robust business.

Dr. Heidi Gardner of Harvard has demonstrated this in her research. She found that if a client is served by more than one practice, there’s more of a chance of what she calls “stickiness,” and the firm is much more likely to retain the client. This requires a culture where partners like working with each other and have a compensation system that rewards this type of behavior. If you don’t pay attention to culture and just “let things happen,” you lose an opportunity to develop a stronger firm.

DL: Turning to associates, I personally think it’s good for them to start thinking about and understanding, early in their careers, how the business of Biglaw works (and Above the Law aims to help on this front). Do you have any recommendations for associates on what they can do in terms of BD?

DF: I agree. It’s never too early to start thinking about how you’re going to develop a practice, whether you’re planning to stay at your current firm or head someplace else. And that means building relationships. Associates need to work within the paradigm and rules of their own firms, but there are steps most can take.

Foremost, associates should develop relationships amongst themselves — their officemate might be a GC someday — and outside of the firm as well. This might involve using LinkedIn to stay in touch with business contacts, getting involved in leadership roles within bar associations, or serving on the board of a nonprofit in which you have an interest. I was on the board of the Girl Scouts of Greater New York for many years and from that experience, I met a host of people in various areas of business and industries, including banking and pharmaceuticals, who I would not have necessarily met in my marketing role.

DL: And what can firms do to encourage and support their associates in these efforts?

DF: Many firms provide forums for their associates to get to know colleagues at their level at the client, whether through substantive legal work or social activities. Some give associates a budget to take the client to lunch or an event. This helps create a “zippering effect,” where the firm has contact with the client at all different levels, and it also allows the associate to develop their business development skill.

Firms often tell associates, “Your job is to learn to be a great lawyer.” I agree, but I don’t think this is mutually exclusive with teaching them client and business development skills. If you don’t give associates training and exposure in business development and client service, you end up with a class of partners that has never done it before. Then you are in a position of having to train folks to acquire new habits and break old ones. The new partners have also missed out on years of making valuable connections.

I have been to a number of firms to speak with partners and senior associates. They want to learn how to develop business and they are interested in knowing how others in the profession do this. Lawyers tend to look for precedent, and I think by providing examples of behavior that has worked elsewhere, they are able to think about and incorporate what will work for them,

DL: What about business development and diversity? How do these concerns relate to each other?

DF: Of course, business development isn’t just an issue for diverse lawyers, it’s an issue for everyone. Firms should give everyone they tools they need for business development. We need to be sure that we are reaching everyone and spend extra time with those who need it most, regardless of their background.

Marketers can play a role in the conversation in terms of making sure firms recruit diverse candidates and retain and develop diverse lawyers. Firms are starting to track to see that diverse lawyers are being given the same assignments as everyone else. Firms need to ensure that diverse lawyers have the skills and exposure they need to develop their practices.

DL: Looking to the future, how will technology and innovation affect marketing and business development?

DF: Today’s legal technology is amazing, and there are wonderful tools that streamline processes that used to take lawyers a lot of time. Firms can provide equal if not better service in a more cost-effective way. Marketers can spend less time putting together reports and regression analyses and more time involved in strategic projects.

But the relationship aspect of doing business is still so vital. People want to work with people they like and trust. If the client doesn’t trust you, the innovative George Jetson environment you’ve created doesn’t matter. Skills, reputation and relationships are really everything in business.

DL: So very true. Congratulations again on the book, Deborah, and thanks for taking the time to share your insights and advice!

Best Practices in Law Firm Business Development and Marketing [Amazon (affiliate link)]

Earlier:

David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

It does not take much these days to be labeled by evangelicals — or the nation’s highest court and legal figures — as being hostile to religion. In a U.S. Supreme Court opinion, Justice Anthony Kennedy found government hostility towards religion based on a single commissioner’s statements that the refusal of a baker to bake any custom wedding cake for a gay couple simply because they were gay, was an improper or “despicable” form of religious discrimination used by others “throughout history.” Whatever your thoughts are on a finding of hostility in that case (I personally agree with the Court that government hostility existed, but based solely on its second finding of animus), it is just a simple fact that religion has indeed been used to justify every form of discrimination. James Madison, the Founder most credited with establishing free conscience liberty, knew this fact well and in his infamous Memorial and Remonstrance Against Religious Assessments, Madison spoke about the nature of religion’s past when it was supported by the state:

Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.

The solution to this history of religious bigotry, according to Madison and other Founders, was to propose a restoration of religion’s “primitive state” where dependence on the state did not exist and funding was dependent on “the voluntary rewards of their flocks.” To Madison, however, returning religion to this primitive state would cause many to predict religion’s downfall. Which brings me to William Barr, our current attorney general.

Recently, Barr gave a speech where, among other claims, he asserted that secularism, or a separation of church and state, was targeting religion for destruction. Barr would also claim that non-religious Americans, or those who reject the religious teachings of Judaism and Christianity in particular, were directly responsible for every societal ill including “depression and mental illness,” “suicide,” “senseless violence,” and furthering “a deadly drug epidemic.” Although Barr’s claims that non-believers are responsible for all societal moral failings are provably false, the response to Barr’s speech by evangelicals was, to my knowledge, universally positive. Even the evangelicals who claim to dislike this president nevertheless proclaimed gratitude that “a man of William Barr’s convictions is heading up the Department of Justice,” and used Barr’s speech as justification for supporting the current president.

I ask my fellow citizens of all beliefs to think about this reality for one second: The Attorney General of the United States blamed citizens who do not subscribe to his religious beliefs/convictions as being directly responsible for the worst elements in society (including violence), and evangelicals universally cheered. Moreover, think about how if you were to replace the word “secularists” in Barr’s speech with say, “Catholics” or “Christianity in general,” how different the reaction would have been. In other words, if any AG had said the teachings of Catholics or Christianity was directly responsible for the country’s violence, drug abuse, and mental illness, can there be any doubt evangelicals would have no problem denouncing that person as a bigot?

Yet, evangelicals see no hypocrisy in celebrating Barr’s speech demonizing those who do not share their beliefs. In many ways, evangelical bigotry is nothing new, as evangelicals today regularly burn secular books, discriminate against secular Americans from giving invocations, force non-believers and those of other faiths to be taxed for the maintenance of Christian monuments, force states to fund property enhancements for churches, force all objecting non-religious people to use currency that conveys upon them a belief and trust in some God they do not have in order to participate in commerce, and force the ever growing non-religious population to subsidize church functions and religious clergy in the billions. Yet, evangelicals with no shame are resolute that they are the greatest victims of society and bias application of the law.

For any student of history, this tactic of the powerful playing the victim while demonizing and discriminating against those who do not share their beliefs is also nothing new. The cause of this latest version is due, in part, to religion’s (particularly Christianity) rapidly declining membership in American society. Like others, however, I expect this decline to stabilize so that in all likelihood by 2030, “[t]he size of most religious groups in America are predicted to be almost exactly the same as they are now.” But for evangelicals who are used to Christian dominance in American politics, law, and social society, this leveling process is a terror. I’ll let Maajid Nawaz, an individual who knows a bit about religious extremism, explain:

When the powerful are being leveled, they become scared. Petrified of losing the deference they believe they are entitled to, they cast themselves anew as the oppressed. Used to receiving preferential treatment, they suddenly feel discriminated against.

And so it has come to pass that every time a powerful group is equalized during times of great social upheaval, they cast themselves as victims.

Combining this kind of fear and bigotry continues to be a central tenet of this administration. The attorney general prior to William Barr (Jeff Sessions), was an equally clear religious bigot who regularly described those who did not believe in his religion as a threat to the country that must be stopped. The current vice president demands that his view — that homosexuality belongs in the same immoral category of unacceptable sexual behavior as pedophilia — should be accepted without criticism, but that “criticism of Christian education in America should stop.” In other words, it is clear from this administration that the concern over religion has nothing to do with “liberty” for all Americans, but rather on maintaining Christian ideological dominance over non-believers.

The combination of fear and bigotry also explains why the same evangelicals who lamented for literal years that Amy Barrett was asked a question once about her religious views, say nothing about Barr’s and Sessions’s more overtly bigoted statements about non-believers. As long as evangelicals continue to install and celebrate religious bigotry in power out of fear, portraying all non-believers as threats coming to get them, things are going to get much, much, worse. However, the only and best recourse we have to such bigotry is an appeal to the Constitution and Madison’s principles of free conscience liberty for all.

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

Big patent cases take many forms. Sometimes cases earn the moniker “big case” because of the parties (e.g., Qualcomm v. Apple, to take a recent example) involved, or the high-profile nature of the technology (e.g., the CRISPR wars) at issue. Other cases are deemed important because they lead to important changes in the law (e.g., Alice,) or because they end up generating large damages awards. One of the leading contenders in the latter category is the long-running dispute that Bloomberg Law recently referred to as “Merck & Co.’s failed patent infringement case against Gilead Sciences Inc.” over high-priced treatments for Hepatitis C.  (I commend the Bloomberg article to those interested in the potential impact of the latest decision in that saga on life science patents, as well as for the astute comments provided by my partner Zach on the Federal Circuit’s decision to invalidate Merck’s patents.) While the legal ramifications of the decision on the potential validity of many biotech patents are interesting, I think what the case has to teach us about how difficult patent valuation can be is even more important.

For those unfamiliar with the case, the story behind it is an interesting one. In 2011, Gilead purchased a biotech company called Pharmasset for $11B, in the hopes of commercializing Pharmasset’s Hepatitis C treatment. The acquisition was a big success for Gilead, with FDA approval for the Hep C drug Solvadi issued in late 2013. That FDA approval was followed by Solvadi becoming a true blockbuster, with sales in the billions filling Gilead’s coffers almost immediately after approval. With a treatment population of hundreds of millions of people worldwide needing a cure, Gilead’s acquisition of the rights to Solvadi looked like a big win.

With the success, however, came some negatives. For one, Gilead’s pricing for Solvadi, at over $80,000 per course of treatment, came under fire — including from high-profile politicians like Brooklyn’s favorite Bolsheveik and current presidential candidate, Bernie Sanders. (Though because Solvadi is a true cure for Hep C, Gilead’s recent financial performance has suffered for lack of repeat customers.) Second, Gilead’s financial success with Solvadi attracted patent lawsuits, filed by companies hoping for some royalties on Solvadi sales. One company, Idenix, was perhaps the most aggressive with its patent assertion, filing suit against Gilead almost immediately after Solvadi’s FDA approval was announced in December 2013. With billions at stake, the case immediately became one to watch — for both life sciences IP lawyers and investors in both Gilead and Idenix.

While the case has taken years to unfold, Idenix enjoyed an immediate benefit from its tangle with Gilead, with Merck acquiring the company at a hefty premium in 2014. How much the Gilead case played into Merck’s valuation at the time is an open question. (Since then, Merck has taken a heavy write-off on its Idenix acquisition, fueled by the commercial failure of Idenix’s Solvadi competitor.) Either way, the case proceeded on a fairly typical track, albeit with a transfer to Delaware from Massachusetts where it had been filed, culminating in a two-week jury trial at the end of 2016. The headline from that trial was the absolutely massive $2.5B verdict rendered by the jury after less than two hours of deliberation. 

But as with most good news for patentees over the past half-decade (at least), the good times did not last long for Merck. In fact, not only was the damages verdict wiped out on post-trial motions, but the patent asserted by Merck was invalidated by the district court for lack of enablement. That decision was affirmed recently by the Federal Circuit. In a split decision, the patent worth billions was confirmed as worthless. Interestingly, the majority decision never even mentioned that the jury’s verdict had been such an unprecedented and large one. Instead, the court focused on whether or not the patent was enabled based on the claim construction used by the district court. The majority concluded that it was not, since the patent didn’t teach one of skill in the art how to make the accused compound without undue experimentation. Going further, the majority also found the patent invalid for lack of written description — an ignoble “double death” thereby dealt to what a jury had recently considered one of the most valuable patents of all time. Taken together with the majority’s failure to mention the billion-dollar verdict in its opinion, it is not hard to imagine that finding the patent invalid on multiple grounds was a way of insulating the panel’s decision from criticism around rendering worthless a patent that was subject to one of the biggest verdicts of all time.

As is her wont, however, the Federal Circuit’s Judge Pauline Newman was unafraid to criticize her colleagues in a passionate dissent. Criticizing the majority’s approach to conducting the appeal, Judge Newman argued that the threshold question in any patent case is how the patent should be construed. Concluding that the construction advanced by the district court and carried through by the majority was wrong, Judge Newman’s dissent argued that the “claims, correctly construed, are valid and not infringed.” In short, in Judge Newman’s view the patent is valid, but Merck would take nothing from Gilead since there was no infringement under the proper construction.

Ultimately, it is telling that under either approach advanced by the Federal Circuit panel, Merck’s patent would be worthless. So did Merck get it wrong to the extent the value of Idenix’s patent portfolio influenced its decision to acquire the company? Or did Merck do the right thing in persisting with the Gilead lawsuit until now? The answers are not clear, especially since one can argue that the Idenix patent asserted at least had a potential value of over $2B, even though that valuation couldn’t withstand the pressure exerted by the crucible of intensive litigation through trial and appeal. Not every patent will go from billions to zero, of course. But it behooves all patent owners to remember that no patent is immune from potentially going to zero. And that choosing to enforce a patent is the quickest path to determining what its true value is. 

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome. 

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

It’s not easy being a criminal defense attorney. If you work for a public-defender organization, the case load is high, the pay not great, and frustrations abound.  It’s difficult to win; often you’re not favored by the judge or the law, and sometimes your client thinks you’re less than a “real” lawyer simply because he’s not paying for you.

You’re not only unappreciated but you might also be the target of physical attacks, anything from being spit on to being punched in the nose (as happened to a colleague) after a jury verdict.

With all that stress, no wonder there’s burnout caused by the direct stress of the job — what the attorney has to put up with on a day-to-day basis.  But then there’s also the indirect stress of dealing with traumatized clients.  Compassion fatigue, secondary traumatic stress (STS), and vicarious traumatization (VT) are all terms referring to the stress that occurs from working with traumatized people in terrible straits.

Being exposed to histories of abuse, neglect, poverty, and violence can affect attorneys.  According to studies on burnout (referred to in one study with the unfortunate acronym “BO”), dealing with trauma-exposed clients causes  “an accumulation of stress and the erosion of idealism characterized by fatigue, poor sleep, headaches, anxiety, irritability, depression, hopelessness, aggression, cynicism and substance abuse.”

A survey done in the early 2000s by Pace University found that in comparing criminal defense attorneys with mental health providers and social service workers (who also work with traumatized populations), the criminal defense attorneys experienced more symptoms of STS than the others.  This may be because their case loads are higher and they’re expected to come up with a very specific outcome — a win for the client.

I recently spoke to a public-defender organization in New York where new attorney hires were feeling the initial burn of BO and decided to address their administrators about it.

Instead of just telling the new attorneys to “man up,” office managers brought in an expert on post-traumatic stress.  Senior attorneys poo-pooed the idea as a sop for coddled millennials.  But after attending, even senior attorneys noted that that they, too, suffered symptoms of STS — clipped emotional bandwidth, short-temperedness with family, disturbed sleep, withdrawal, exhaustion, anxiety, and helplessness.  In spite of their initial skepticism, they found the session helpful.

It’s clear that, given the nature of the job, direct and indirect stress go with the territory.  What can be done about it?

Step one is recognizing secondary traumatic stress is real, and should be addressed rather than repressed.  Providing forums for the “regular ventilation” (as the Pace study put it) of such feelings is a start.

Whether it’s training sessions with experts or simply grabbing a beer with colleagues to discuss the week’s high and lows, encouraging people to talk is a good idea.

Next, putting a ceiling on the number of cases any attorney can handle will do wonders.  Fewer cases equals less stress and less burnout.

There’s a certain machoness that goes along with criminal defense.  “Give me the toughest case and I’ll represent the guy,” is the general attitude.  But this if-you-can’t-stand-the-heat-get-out-of-the-kitchen perspective leads to a speedier onset of BO, a no-win for everyone.

I find the attorneys who stick with the job of criminal defense the longest are those who know how to compartmentalize.  Leave the job at the office, go home, develop a fully separate life and set of passions that permit a respite from the day to day.

I don’t know any defense attorney who hasn’t cried (whether on the inside or the outside) at some point of his or her career.  But unless you come up with a way to deal with the pain of others, it’s time to explore other areas of law.  There’s always mergers and acquisitions.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

A new lawsuit filed against the white-shoe firm of Davis Polk alleges the firm participated in racial discrimination and then retaliated against the associate who complained.

The plaintiff is former associate Kaloma Caldwell, who began at the firm in 2012 as a summer associate and then was a lawyer at the firm from 2014 to 2018 and worked in various corporate groups during his time there. According to the complaint, as an African-American, Caldwell was concerned about the firm’s lack of diversity before he began at Davis Polk, but new initiatives at the firm and assurances from leadership that black associates would have opportunities to excel at the firm convinced him to accept the job. However, Caldwell alleges a firm culture that allowed implicit biases to flourish, and minimized opportunities for black associates to advance at Davis Polk. Caldwell alleges that as an associate at the firm, he was regularly left off of team emails for deals he was assigned to and was not invited to participate in conference calls. He also says that more experienced attorneys at the firm would ignore diverse associates, even avoiding eye contact with them.

Caldwell says he complained about the discrimination and implicit bias at the firm on numerous occasions, but rather than fix the problem, it made it worse. Caldwell alleges that the firm actually doctored performance reviews — in the words of the complaint, they were “retroactively created after Plaintiff engaged litigation” — to manufacture a reason to fire him after he complained about the alleged discrimination. Caldwell says that in addition to these negative performance reviews that were inconsistent with the feedback he received in real time, he was increasingly isolated, and not given any work, which the complaint describes as a “barrage of direct and indirect forms of harassment and humiliation.”

Davis Polk has not yet issued a comment about the litigation.

Read the full complaint below.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

On Sunday, an eagle-eyed observer, pun intended, managed to snap near simultaneous shots of not one but two birds inside the Harvard Law School library.

For those of you just catching up with this story, there’s been — we thought — a solitary bird loose inside the library and defying all efforts to get it kicked out by munching on student food and keeping its energy up. The library asked students to stop letting the bird get access to their food, which prompted the bird to take to social media to lodge its objections.

We have received one disturbing report that a severed wing was spotted in the library. Hopefully this was just a lost feather and not an injury occasioned by a botched humane capture effort. Still, even if one bird was taken out of commission, two more may rise in its place!

This picture suggests Langdell Bird may already have an accomplice — another soldier in the ever-growing Avian Army.

Processed with MOLDIV

If cinema has taught us anything, it’s that Harvard is about to get massacred by a bird uprising. Sorry Harvard, we don’t make the rules.

Congratulations to Stanford on your USNWR ranking bump.

Earlier: There’s A Bird Loose Inside Harvard Law School… Time To Call Cat Lawyer!
The Harvard Law School Bird Has A Twitter Account And He’s NOT Happy About The Food Situation

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.

Law Jobs for Humans 2.0, our second first-of-its-kind legal professional development conference, is coming up next week (November 15 in New York City) and tickets are almost sold out! Almost is the operative word though – because there just happen to be 15 left, and we are sure they are going to get snatched up quick.

The event will be bringing together legal innovators, law school educators, law school students, and non-traditional legal professionals for discussions about the changing legal employment landscape and on how to create a career path for the 21st century;  if you’re someone who is interested in fresh and unique jobs in the new frontier of legal careers, this event is for you.

So you’d better act fast! If you haven’t purchased your tickets yet, you can buy them here – you won’t want to miss this!

One of the conversations I became engrossed in during Relativity Fest a few weeks back is the idea of corporations taking a more aggressive approach to moving their data — specifically, their electronic discovery data — to the cloud. It’s conversation I’ve been having for years and one that I’ve had several times since I left Chicago.

The question is what are corporations doing in this area?

And let’s set this up with some context. I’ve always been sort of old-school when it comes to the cloud. I think it stems from my many years working at law firms. Lawyers, we all know, are some of the more risk averse professionals in the world. I think some of that rubbed off on me.

But like any good, progressive-thinking person working in legal technology, I like to think that I’m able to evolve. And when I really think about it, law firms have been saying no to the cloud for many years, not because they enjoy investing millions of dollars every year in infrastructure, but because their clients were objecting.

Now, I think we are seeing a seismic shift and the corporations — and legal operations professionals in particular — are taking control. The cloud is not so scary anymore. With the rise of cloud-based Office 365 and a host of other applications, it seems to me that in five years most of our data will be in the cloud.

But is your organization ready to make the move?

I spoke recently with Chris O’Connor, William Belt, and Sue Tang at Complete Discovery Source, a New York-based company providing the full spectrum of eDiscovery services across the legal industry to corporations, law firms, and the government. Among the services CDS provides is assisting corporations to migrate their data to cloud and SaaS-based systems.

O’Connor, CDS’s Director of eDiscovery Strategy, agrees that corporations are retaking control of their data. “Corporations fear risk and cost,” he says. “Clients, even in the financial services space, are coming around and developing a go-to-cloud strategy.”

Security has always been a concern, of course, and CDS has made the strategic choice to take advantage of the Relativity’s new SaaS-based offering RelativityOne. For them it came down to not only having the geographic reach and ubiquity of a leading product, “but also the baked in maintenance and the security,” says Bill Belt, CDS’s Director of Consulting. “Do you want your data at 10 different law firms, or would you prefer that would-be hackers face the prospect of going up against Microsoft’s security?” asked Belt rhetorically.

O’Connor recommends that organizations exploring a move to the cloud, particularly to RelativityOne, “have a clear and thorough understanding of the organization’s current platforms, data sizes, technical and business requirements.” He says that among the first things any company needs to do is prepare a clear and detailed project scope, including a project overview, assumptions, timelines and deliverables. Roles should be defined, and milestones should be set “so everyone has a clear understanding of what to expect,” he says.

For those considering a move to RelativityOne, it’s important to walk through the platform to identify areas where your organization needs to make design decisions for workflow and template creation, including field mapping and other areas where users must make decisions. Another recommendation from O’Connor is to prepare user acceptance training scripts that mirror the workflow and design decisions for the various roles within an organization. Finally, it is necessary to properly track the migration process, report on current status, and conduct quality control checks.

“Detailed planning, documentation and management is key to a successful implementation,” says O’Connor.

Over the course of the past decade we have seen tremendous growth in cloud-based applications. Gartner predicted just a few years ago that half of all enterprises would adopt an all-in cloud strategy by 2021. My guess is that in the next five years, that number will only trend upward. If your organization does not have a roadmap for a move to the cloud, it may be time to start developing one.

Mike Quartararo

Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.