Category: News Feeds

Let’s talk about the Supreme Court. No, not the juicy merits opinions that are finally starting to hit, but the juicy law clerk hiring news we have not yet covered in these pages. There are several reasons why now is an opportune time.

First, it has been forever since our last comprehensive SCOTUS clerk hiring roundup, published back in October 2018. And the new crop of clerks, for October Term 2019, will start at One First Street next month — so let’s get their names out there before their official start at the Court.

Second, it’s a good time to talk about SCOTUS clerk hiring — and SCOTUS feeder judges — because law clerk hiring in the lower courts, pursuant to the new (or resurrected) Law Clerk Hiring Plan, is now in full swing. If you’re a law student in the privileged position of choosing between two or more federal clerkships, which judge is the bigger feeder — i.e., which judge has a stronger ability to send you into a SCOTUS clerkship — could be a relevant factor for your decision.

Third, Supreme Court clerk hiring has been in the news — specifically, Justice Brett Kavanaugh’s hiring of Sophia Chua-Rubenfeld, daughter of Yale Law School professors Amy “Tiger Mother” Chua and Jed Rubenfeld, as a law clerk for October Term 2019. After I tweeted this news, controversy erupted, with many angry or critical tweets, blog posts, and op-eds appearing in response. (The acrimonious state of our discourse, reflected in these reactions, is something I don’t miss in my new life as a legal recruiter.)

Here’s an abridged version of the brouhaha. His critics attacked Justice Kavanaugh’s hiring of Chua-Rubenfeld as “rewarding” Professor Chua for her high-profile endorsement of his SCOTUS candidacy — especially her describing, in a widely discussed Wall Street Journal op-ed, then-Judge Kavanaugh’s longtime mentorship and support of women.^[1]

To get the flavor of the criticism of both Justice Kavanaugh and Professor Chua, here’s an excerpt from a CNN op-ed by Kate Maltby:

For many in the establishment — and not just Trump loyalists — the corruption is the point. The nepotism is the point. Appointing the daughter of the powerful woman who may have helped your nomination — it’s the latest way to “own the libs.” Kavanaugh wants us to know he simply doesn’t care what we think of him. He’s won.

See also, e.g., Jeremy Stahl in Slate — who pointed out how, at the time of Chua’s original op-ed, Elie Mystal in these pages (correctly) predicted that Sophia Chua-Rubenfeld would someday clerk for Justice Kavanaugh, giving rise to the appearance that Chua successfully curried favor with the justice in order to secure a SCOTUS clerkship for her daughter.

Now, I don’t want to get too embroiled in this dispute — remember, I have a new career now, which thankfully does not involve getting into political debates — but allow me to make a few brief observations.

1. In spring 2016, at the end of her 1L year at Yale Law School, Sophia Chua-Rubenfeld was hired to clerk for then-Judge Kavanaugh on the D.C. Circuit, for the 2018-2019 clerkship year. This was more than two years before Kavanaugh was nominated to serve on the Court. Chua-Rubenfeld had excellent credentials: Harvard for college, ROTC, and Yale for law school, where she had a perfect transcript. (Yes, Yale has grades, the same basic system as Harvard and Stanford — Honors, Pass, Low Pass, Fail — and it’s quite difficult to graduate without at least one or two “P” grades.)

2. Chua-Rubenfeld’s parents were not involved in her hiring; she had three other professors as her recommenders. (But sure, her parents having dealt with Kavanaugh in their capacity as clerkship advisors and recommenders for other YLS students undoubtedly helped her application get noticed; the power of connections to open doors in the legal profession is nothing new.)

3. After Judge Kavanaugh became Justice Kavanaugh, Chua-Rubenfeld became an “orphaned” clerk — i.e., a clerk without an appellate clerkship. She applied to the newly confirmed Judge Britt Grant (11th Cir.) — a former Kavanaugh clerk herself, by the way — and got the job. Chua-Rubenfeld is currently clerking for Judge Grant in Atlanta.

4. Folks who follow SCOTUS clerk hiring know that it’s quite common for elevated judges to eventually “bring up” their orphaned clerks to join them at SCOTUS (sometimes after helping them find lower-court clerkships where they can get some training in the interim).

From Professor Dan Epps (read the whole thread, noting that others, such as Justice Sotomayor, have done the same):

5. Justice Kavanaugh followed this standard practice with at least three other “orphaned” D.C. Circuit clerks of his. In the lists of October Term 2019 and October Term 2020 clerks below, you’ll notice at least three other clerks who were originally hired to clerk for Judge Kavanaugh on the D.C. Circuit: Trenton Van Oss (Harvard 2017 / Friedrich (D.D.C.) / Grant), Tyler Infinger (NYU 2016 / Rao), and Zoe Jacoby (Yale 2019 / Barrett).

So I’m not as inclined as others to see Justice Kavanaugh’s hiring of Sophia Chua-Rubenfeld as some nefarious form of “payback” for Amy Chua having his back during his bruising confirmation battle. And he certainly didn’t lower his standards and hire an unqualified candidate for such a purpose. Even Kate Maltby, who criticizes both Kavanaugh and Chua harshly in her CNN piece, reports that Chua-Rubenfeld’s “[c]ontemporaries at Yale Law School have told me she’s genuinely brilliant.”

But yes, I will freely concede that Kavanaugh’s hiring of Chua-Rubenfeld is… not a good look. If “hindsight is 20/20,” here’s what I’d say post-Lasik (echoing some of the points made by Maltby and also by Vivia Chen):

1. In hindsight, perhaps Sophia Chua-Rubenfeld should have gone to a different law school — like her younger sister, Lulu Chua-Rubenfeld, who is headed to Harvard Law School (the alma mater of her parents, but not where they teach).

2. In hindsight, as both Maltby and Chen suggest, maybe Sophia should have tried to land a clerkship with a different justice — which she would have had a good shot at, to the extent that anyone has a good shot at a SCOTUS clerkship, given her excellent credentials. (Maybe she could have kept the Kavanaugh clerkship as a “safety,” in the event that she did not obtain a different SCOTUS clerkship.)

3. In hindsight, since Justice Kavanaugh seems to be spreading out his orphaned clerks over at least two Terms, perhaps he should have saved Sophia for OT 2020, when there might have been less of an angry reaction — because the passage of time helps with such things. Had this happened a year from now, there would have been less outrage.^[2]

But again, this is all hindsight. And on item #3, it’s not clear that Justice Kavanaugh could have deferred Sophia to OT 2020, even if he had wanted to.

As some readers might recall, Sophia Chua-Rubenfeld, a First Lieutenant in the U.S. Army (she did ROTC in college), was originally scheduled to have started her three-year, active-duty service commitment this year. (This is why, at the time, she responded to Elie’s post by pointing out that she was scheduled to join active-duty JAG after her circuit clerkship.)

It would now appear, based on Chua-Rubenfeld’s imminent clerking at the Court, that the military powers-that-be ultimately agreed to defer her service by a year and have it start in 2020, after her SCOTUS clerkship. It’s not clear that the powers-that-be would have permitted her to finish her circuit clerkship in 2019, serve a year in the Army, go back to clerk for SCOTUS for a year, and then serve two more years — a very disrupted and disjointed schedule, not very conducive to training.

So, to make a long story short, several aspects of the Sophia Chua-Rubenfeld SCOTUS hiring are unfortunate, especially from an optics standpoint. But I’m not as troubled or offended by the situation as many others, especially when the situation is viewed in proper context and in light of historical practice.

Now, on to the lists of Supreme Court law clerks for October Term 2019 and October Term 2020. For true devotees of SCOTUS clerk hiring, many of these hires are old news, since they were tweeted previously over at @SCOTUSambitions (originally the Twitter feed for my novel, now converted to a clearinghouse for SCOTUS clerk hiring news). You can follow that feed for real-time SCOTUS clerk hiring news.

As you can see below, we have the entire roster of OT 2019 clerks except for two clerks to Justice Alito and one clerk to Justice Gorsuch. So there’s a good chance that, for a second year in a row, an Alito clerk will be the subject of a special profile in these pages as ATL’s “Mr. Irrelevant.” (Last year the honor went to David Casazza (Harvard 2015 / Elrod).)

If you have any corrections to this information, or if you have any hiring news I have not yet reported, please reach out by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, perhaps as the subject line of your email or the first words of your text, because that’s how I locate these tips in my overwhelmed inbox Thanks!

[1] Chua’s WSJ op-ed appeared before Dr. Christine Blasey Ford alleged that Brett Kavanaugh had sexually assaulted her when they were teens (accusations that Kavanaugh vehemently and repeatedly denied). But Chua never disavowed the op-ed — and letting her daughter clerk for Kavanaugh suggests to me that Chua stands by her words.

[2] It seems that his colleagues at the Court aren’t holding Justice Kavanaugh’s rocky confirmation against him. Justice Ruth Bader Ginsburg, the liberal icon also known as the #NotoriousRBG, recently gave him props in her speech at the Second Circuit conference for his clerk hiring practices: “Justice Kavanaugh made history by bringing on board an all-female law clerk crew. Thanks to his selections, the Court has this Term, for the first time ever, more women than men serving as law clerks.”

OCTOBER TERM 2019 SUPREME COURT CLERK HIRES (as of June 18, 2019)

Chief Justice John G. Roberts
1. Zaki Anwar (Harvard 2017 / Sutton / Srinivasan)
2. David Beylik (Harvard 2018 / Kavanaugh / Friedrich (D.D.C.))
3. Megan Braun (Yale 2016 / Brinkema (E.D. Va.) / Katzmann / Bristow Fellow)
4. Joseph Falvey (Yale 2017 / D. Friedrich (D.D.C.)/ Griffith)

Justice Clarence Thomas
1. Caroline Cook (Chicago 2016 / Sykes / Katsas)
2. Brian Lipshutz (Yale 2015 / W. Pryor / Katsas)
3. Matt Rice (Berkeley 2016 / Ikuta)
4. Laura Wolk (Notre Dame 2016 / J.R. Brown / Hardiman)

Justice Ruth Bader Ginsburg
1. Alyssa Barnard (Columbia 2015 / Nathan (S.D.N.Y.) / Katzmann)
2. Marco Basile (Harvard 2015 / Watford / Barron)
3. Susan Pelletier (Harvard 2016 / Garland)
4. Michael Qian (Stanford 2016 / Garland / Bristow Fellow)

Justice Stephen G. Breyer
1. Celia Choy (Yale 2012 / Rakoff (S.D.N.Y.) / Katzmann)
2. Dahlia Mignouna (Yale 2016 / Srinivasan)
3. Nicholas Rosellini (Stanford 2016 / C. Breyer (N.D. Cal.) / Friedland / Cuellar (Cal.))
4. Eugene Sokoloff (Yale 2012 / Sack)

Justice Samuel Alito
1. Richard Cleary (Columbia 2015 / Livingston / Leon (D.D.C.))
2. Jessica Wagner (UVA 2014 / O’Scannlain / J. Smith)
3. ?
4. ?

Justice Sonia Sotomayor
1. Siobhan Atkins (NYU 2014 / Furman (S.D.N.Y.) / Lohier)
2. Nick Crown (Yale 2016 / Ellis (E.D. Va.) / Higginson)
3. Jodie Liu (Harvard 2015 / Livingston / Millett)
4. Anuradha Sivaram (Berkeley 2014 / Thapar (then-E.D. Ky.) / Kozinski)

Justice Elena Kagan
1. Jordan Bock (Berkeley 2017 / Friedland / Chhabria (N.D. Cal.))
2. Alex Miller (Harvard 2017 / Moss (D.D.C.) / Griffith)
3. Mica Moore (Chicago 2017 / W. Fletcher / Chhabria (N.D. Cal.))
4. Zayn Siddique (Yale 2016 / D. Pregerson (C.D. Cal.) / Tatel)

Justice Neil M. Gorsuch
1. Michael Francisco (Cornell 2007 / Tymkovich)
2. Kelly Holt (Chicago 2017 / Wilkinson)
3. Stephen Yelderman (Chicago 2010 / Gorsuch)
4. ?

Justice Brett M. Kavanaugh
1. Audrey Beck (Notre Dame 2017 / Larsen / Sutton)
2. Sophia Chua-Rubenfeld (Yale 2018 / Grant)
3. Trenton Van Oss (Harvard 2017 / Friedrich (D.D.C.) / Grant)
4. James Xi (Stanford 2017 / Sutton)

Justice John Paul Stevens (retired)
1. Michael Knapp (Harvard 2016 / Gleason (D. Alaska) / Garland)

Justice Anthony M. Kennedy (retired):
1. Clayton Kozinski (Yale 2017 / Kavanaugh)

Justice David H. Souter (retired):
1. Mark Jia (Harvard 2016 / W. Fletcher)

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OCTOBER TERM 2020 SUPREME COURT CLERK HIRES (as of June 18, 2019)

Chief Justice John G. Roberts
1. Patrick Fuster (Chicago 2018 / Watford / Chhabria (N.D. Cal.))
2. Benjamin Gifford (Harvard 2017 / Rakoff (S.D.N.Y.) / Katzmann)
3. Stephen Hammer (Harvard 2018 / Sutton / Katsas)
4. ?

Justice Clarence Thomas
1. Phil Cooper (Chicago 2017/ W. Pryor/ Stras)
2. Jack Millman (NYU 2016 / O’Scannlain / E. Carnes)
3. ?
4. ?

Justice Ruth Bader Ginsburg
1. Jack Boeglin (Yale 2016 / Srinivasan / Calabresi)
2. Eliza Lehner (Yale 2017 / Watford / Furman (S.D.N.Y.))
3. David Louk (Yale 2015 / Boasberg (D.D.C.) / Katzmann)
4. ?

Justice Stephen G. Breyer
1. ?
2. ?
3. ?
4. ?

Justice Samuel Alito
1. ?
2. ?
3. ?
4. ?

Justice Sonia Sotomayor
1. ?
2. ?
3. ?
4. ?

Justice Elena Kagan
1. Peter Davis (Stanford 2017 / Srinivasan / Boasberg (D.D.C.))
2. Isaac Park (Harvard 2018 / Srinivasan / Oetken)
3. ?
4. ?

Justice Neil M. Gorsuch
1. Trevor Ezell (Stanford 2017 / Sutton / Oldham).
2. ?
3. ?
4. ?

Hired by Justice Gorsuch for OT 2021: Louis Capozzi (Penn 2019 / Scirica / Wilkinson).

Justice Brett M. Kavanaugh
1. Harry Graver (Harvard 2019 / Wilkinson)
2. Tyler Infinger (NYU 2016 / Rao)
3. Zoe Jacoby (Yale 2019 / Barrett)
4. Megan McGlynn (Yale 2017 / W. Pryor / Friedrich (D.D.C.))

Hired by Justice Kavanaugh for OT 2021: Athie Livas (Yale 2019 / Thapar / Friedrich (D.D.C.)).

Justice John Paul Stevens (retired)
1. ?

Justice Anthony M. Kennedy (retired):
1. ?

Justice David H. Souter (retired):
1. ?

Once again, do you know about a hire not previously reported, or do you have an addition or correction to any of this info? Please share what you know by email or text (917-397-2751). Please include the words “SCOTUS Clerk Hiring” in your email or text message, as the subject line of your email or the first words of your text, because that’s how I locate these tips in my inundated inbox. Thanks!

Earlier:

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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 took awhile, but Professor Alan Dershowitz has finally gotten some good news, however tentative, in the looming defamation case brought against him by a sex trafficking victim of Dershowitz’s buddy and former client Jeffrey Epstein.

To recap, a few of Epstein’s underaged victims claim that Epstein directed them to have sex with Dershowitz. Dershowitz strenuously denies the claim and goes on television demanding that his accusers take him to court if they really believe these claims. So one of his accusers has taken him to court.

Dershowitz kicked off the proceedings by immediately moving to have Boies Schiller, the pro bono attorneys for the now-adult woman, disqualified. This move took her attorneys aback since the filing violated all manner of Judge Preska’s individual rules and was promptly struck from the docket.

But Dershowitz’s attorneys wrote a letter in an effort to cure the situation, asking for a pre-motion conference to get the motion heard. Upon hearing from Boies Schiller, Judge Preska has determined that a pre-motion conference would be a waste of her time given the clearly unresolvable conflict and asked the parties to set up a briefing schedule.

So, the good news is that Dershowitz will have his disqualification motion heard. The bad news is that there’s no guarantee how Judge Preska will take it. The original motion was 28 pages long — exceeding Judge Preska’s page limit, naturally — but BSF’s initial response (not even a full brief) clocked in at 3 pages and seemed fairly compelling in that short span. You can check out the original motion here and BSF’s response here for comparison.

We’ll see how this turns out.

In the meantime, the Second Circuit also got in on the act yesterday, filing a curt:

Appellant Alan M. Dershowitz’s submission of a letter does not comply with the Court’s prescribed filing requirements. Despite due notice, the defect has not been cured.

IT IS HEREBY ORDERED that the said letter is stricken from the docket.

When it rains, it pours a never-ending stream of misfilings apparently.

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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.

Earlier: Dershowitz’s Motion To Disqualify Boies Schiller Immediately Dumped For Hilarious Reason
Harvard Law School’s Dershowitz Moves To Disqualify Boies Schiller In Sex Trafficking Case
Dershowitz Wanted A Trial Over Sex Trafficking Accusations — He’s Getting One

What if we told you that three big-time bankers are on the move, some of them toting around client relationships with whales like SoftBank and Apollo Global, while others have experience running a European equities desk?

Joe and Kathryn have a freewheeling chat about legal news, which is a more professional way of saying they improvised for 30 minutes after Elie Mystal overslept and failed to show up for the scheduled recording. Above the Law is basically a late-stage rock band.

But the pair carry on and discuss Alan Dershowitz bumbling through the early stages of the defamation case he’s asked for, Brett Kavanaugh’s Supreme Court clerk hiring, Alabama Law School throwing away millions, and many more of the week’s screw-ups.

Who was the first Supreme Court justice to graduate from law school with a degree (he graduated from Harvard Law School in 1832)? Justices appointed to the Court prior either became lawyers via apprenticeships (as Kim Kardashian is currently attempting) or attended law school without graduating.

Hint: This justice is also notable for being one of two dissenters in the Dred Scott case. Acrimony over that decision led, in part, to the justice’s decision to resign from the Court.

See the answer on the next page.

In the past few years, we’ve seen a great deal of merger and acquisition activity among legal service providers. And we’ve seen it not just on the services side, but also in software. This can be great for business if you’re inclined to use vendors to supplement or manage your eDiscovery or litigation support services. Sometimes mergers result in the availability of additional services. But it can also wreak havoc on organizations that use a single vendor and who could wind up working with a vendor they have not previously worked with, or worse, one they specifically decided not to work with.

The bottom line is that most people who work on the vendor side, from the executive running to the company, to the salesperson who originates work, to the project manager who actually executes — are well-intentioned, hard-working people looking to deliver valuable services in exchange for a fair fee.

People make mistakes. Heck, companies make mistakes. If there is one thing I’ve learned about eDiscovery and litigation support, it is that mistakes are going to be made. You’re dealing with data and systems and people that are not perfect. Anyone who expects the delivery of legal support services or eDiscovery to be perfect is clearly working in the wrong business.

One way to stay on top of the latest developments in the legal software and support services industry is to attend trade shows and conferences. Given that the Summer is here, and the conference “season” is fast approaching, I thought it would make sense to highlight a few things to look for when faced with challenges in continuity among legal service providers.

First of all, consider whether the law firms your organization is working with are either able to handle your software and support needs, or whether they are able to leverage their relationships with third-party providers to ensure you receive the most value. Law firms offering software and services can provide a hedge against merger activity.

If your organization is among those that have already contracted with software or service providers, continue to assess whether you are getting the value and quality of service you need on a matter by matter basis.

Keep your finger on the pulse of the industry. We’ve seen a lot of price compression, particularly around processes involving eDiscovery. Make sure you are getting current pricing on project proposals.

And understand the legal services market in general. Look beyond project proposals and costs and make sure you are getting quality services, that the management and ownership team at the software or service provider are attentive to your particular needs.

Demand things like solid project reporting, workflow metrics, and post-project reviews. It’s one thing to complete a project successfully; it’s another to have the comfort and knowledge that it was completed in the most efficient and cost-effective manner.

And lastly, have contingency plans. Given the merger and acquisition activity in the industry, make sure you have a plan should the vendor or software company you are using be acquired. Don’t put all your eggs in one basket, or at least have a backup plan if your favorite vendor suddenly no longer exists.

Many software and services providers are owned by investors, and investors are interested in securing a return on their investment. These interests may not be aligned with the objectives of your operations team. A firm understanding of the legal services market, greater emphasis on process and workflow metrics, and the development of contingency plans should help your organization weather any merger and acquisition storms.

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Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

Value-based pricing (“VBP”) is beginning to revolutionize the legal services industry by transitioning legal engagements from the traditional hourly fees model to a new value-based approach. VBP, when structured correctly, significantly reduces total legal spend, increases budget predictability, promotes law firm risk-sharing and improves the productivity of corporate legal departments. VBP is not simply an alternative type of fee arrangement, but is actually a completely different methodology for the pricing of legal services.    On the law firm side, it drives better efficiency through matter management and can provide significant economic upside for successful outcomes, often a win-win scenario. Although VBP has been around for over 50 years, it is fairly new to the legal industry. In fact, most other large professional services industries moved to VBP decades ago (e.g. management consulting and accounting).

With the traditional hourly model, the client has minimal fee predictability and carries all of the risk of a bad outcome and the cost of the matter.  In VBP, the goal is to pay less for the effort and more for the results, and to encourage the law firm to share in the risk of the matter. This requires a fee structure such as VBP that aligns the goals and incentives between the law firm and the client.

As most would agree, the hourly billing process incentivizes law firms to be inefficient.  Value-based fee arrangements require law firms to become more efficient. As a result, firms pay more attention to matter management, process mapping and making sure that work is performed at the correct value-price point.  This increase in law firm efficiency translates to cost savings for the client, typically in the range of 20% – 40%. For corporations with a large outside legal spend, this savings can be significant.

VBP also increases in-house productivity.  In most legal departments, in-house attorneys are required to review every outside counsel invoice for which they are responsible. These are lengthy documents that itemize fees and expenses down to the tenth of an hour.  For some companies, the process of in-house attorneys reviewing these bills can often take 10–20% of their time. However, when a legal department moves to value-based fee arrangements, that invoice review (and accrual) process is eliminated, providing an increase in productivity (and essentially a virtual increase in attorney headcount).

VBP is applicable to all practice areas. It works just as well for corporate, M&A, IP, privacy and employment as it does for litigation and investigations.

How do you determine the value-based fee?

Actual pricing under the VBP model is derived from five components: matter type, matter value, jurisdiction, type of firm and risk-sharing.  

Firm and Matter Type – A definition of matter type and firm type begins with an understanding of value-price points (“VPP”). This can be thought of on a relative scale as there are types of matters and certain types of tasks that have a lower VPP than others.  These VPP (or market) differentials can be due to many factors including complexity of the work, commonality of the work, the number of skilled practitioners available and the “perceived” value of the work. An understanding of VPPs for different matter types and tasks is helpful in setting pricing and assigning the proper resources to do the work (partner, associate, paralegal, etc.).  

This concept of VPP also applies to firm types.  Different firms have different VPP’s based on size, brand, reputation, matter breadth, client list, geography, overhead structure, etc.  It is important to match the VPP of the matter with the VPP of the firm that will do the work.

Matter Value – One of the key components to creating a value-based price is to perform a matter value estimation (“MVE”).  There are three types of value: economic, perceived and strategic. An MVE begins with an economic value estimation.  This is typically the actual economic value of the matter.

Perceived value is the economic value of the matter adjusted to the perceived value of the client.  Typically, in litigation it is significantly less than the economic value. For a transaction, it may or may not be same as the economic value.  

The final step in an MVE is the determination of the strategic value.  In litigation, this is the financial impact on the corporation of losing the case together with the financial impact of potential future litigation.  For a transaction, this includes the financial impact to the corporation if the deal does not go through.

Jurisdiction – This factor takes into account the court and the geography in which the matter is adjudicated.

Risk-Sharing – Pricing structures can incentivize risk-sharing by law firms and drive toward the goal of the client paying more for results and less for effort.  This alignment of incentives between the client and firm provides not only better value for the client, but also allows a law firm to earn a premium for outstanding results.

What types of fee structures and price metrics are used in VBP?

In the application of value-based fee arrangements, there are numerous structures and metrics used to create the actual fees.  Below are a few basic structures. More complex arrangements are hybrids of multiple structures.

Task-based ─ This structure is usually a fixed fee for a specific task and is often seen in patent prosecution or immigration law.  An example is a fixed fee for completing and filing a utility patent or H1B visa.

Tier or category-based ─ Some legal work can be divided into value tiers and often a fixed fee is assigned to each tier or category.

Scope-based – For legal work that is project based with specific deliverables or has a defined scope of work delivered consistently over a period of time, a fixed fee would be defined.  

Unit-price metrics – Different price metrics should be considered in each engagement.  Under the traditional hourly rate model, the unit-price metric is dollars per hour.  Since hours worked is not synonymous with value delivered, consider other value centric metrics such as dollars per document, dollars per deposition, or dollars per motion. There are an unlimited number of ways to modify the metric based on different types of matters, goals and outcomes.

Since there is so much variability in litigation, how does VBP work?  

Litigation is handled using a fixed fee by phase approach.  Each phase is based on a specific set of assumptions and in specific phases, a success fee is sometimes considered.  This methodology allows for significant flexibility to the changing dynamics of a litigation matter while providing budget predictability and requiring law firms to be more efficient and use better matter management techniques.  

Summary – Benefits of Value-based pricing

Many corporate legal departments are beginning to realize that the current hourly billing model is not sustainable.  With billing rates for some firms topping $2000 per hour, the question becomes “Where does this end”? In-house attorneys want to move off of the billable hour model but don’t know how to accomplish it or how to evaluate if an alternative fee is right for them.  VBP is fast becoming the new standard for clients to focus on the value received in legal services, and not on the effort expended. Fortunately, this methodology is applicable across all types of legal matters and practice areas. It gives legal departments the budget predictability they need while significantly reducing total legal spend and increasing in-house productivity.  It can also be used to build new partnerships between firms and clients that are based on value delivered and client success.

Just like the other top-tier professional services industries that converted to this methodology over 20 years ago, VBP is the future of legal services.  The change will most likely not come from the law firms, but from the clients that are beginning to demand results-based compensation models.

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Ken Callander is Managing Principal of Value Strategies LLC, a consulting firm that specifically works with corporate legal departments helping them get more value and predictability from their outside counsel relationships.  His specialty is helping clients transition their engagements with law firms from the hourly fee pricing model to value-based fee arrangements.  For corporations this process not only provides better legal budget predictability while eliminating legal invoice review, but it also reduces total legal spend by an average of 20% – 40%.  His current clients include the largest companies in ride-sharing, money transfer, social media and internet search along with multi-national conglomerates and the largest university system in the United States.

As the founder of Value Strategies LLC, Ken was Head of Legal Operations and Chief of Staff to the General Counsel at Uber Technologies.  Prior to Uber, Ken was the Chief Marketing Officer and Director of Business Development at Davis Wright Tremaine LLP, a 500-attorney international law firm and before that was an executive at Hewlett Packard in operations and marketing where he was considered an expert in the pricing of professional services.  Ken graduated with a degree in Physics/Physical Sciences from Stanford University, is a Certified Pricing Professional (CPP) and lives in San Francisco.

Just a reminder to white students, lawyers, judges, and professors:  You should not use the N-word.  Ever.  There may be exceptions when someone who is not black can use the N-word, but they are small exceptions that will never apply to you.

I posted a tweet that suggested that as a rule it is never okay for a white person to use the N-word.  That included a 16-year-old who, as it turns out, does not get to go to Harvard because of his use of such a word.  Others have faced wrath for the use of the word.  A judge.  A juror.  A law professor.  But apparently it is still a thing for white people to desperately search for an exception that allows them to use it.

So, Twitter came alive with the sound of privilege.  What kind of privilege?  The privilege that insists that white people can say whatever they want, whenever they want, and to whomever they want.  You know, the kind of privilege no one else has.

Let’s try this again…

Me on Twitter:

Q: When should a white person use the N-word?
A: Never. FAQS: What if…. Singing along to hip hop? No. Quoting from a text? No. Posting on social media when you’re 16 and wanting to get into an Ivy League School? Still no.

Q:  Can I use it while reading Mark Twain?  Can I use it if I’m acting in a movie or play and I’m portraying a racist?
A:  There’s a plethora of people reading Mark Twain aloud and/or acting in a movie portraying a racist?  News to me.  Wait, are we doing “Green Eggs and Ham?”  Not in a house, not with a mouse, not in a boat, not in a moat……

Q:  What if I have a pass from someone who is black?
A:  Still no.  Most people claiming to have such a pass lie about it, and others try to use it around people who did not give them “a pass.”

Q:  Can I say it if my girlfriend is black and asks me to say it during sex?
A:  Wow, we’re stretching the hypotheticals, aren’t we?

Q: Can I say the word “niggardly”?
A:  No, because you know you’re doing it to provoke when you could use a word like stingy instead.  You know you have a thesaurus.  Also, do a search for the word on Twitter and see how many times it comes up APART FROM PEOPLE COMPLAINING ABOUT HOW THEY AREN’T SUPPOSED TO SAY THE N-WORD!

Q:  Can I use it when I sing along to the music of hip-hop?
A:  No.  Here’s a helpful video about it from nearly two decades ago.

Q:  How come Eminem gets to use it?
A:  Without consequences?  Hardly.  Oh, by the way, so that we’re clear: you aren’t Eminem.

Q:  What about Django Unchained?  White people had to say the N-word then.
A: Yes, for historical accuracy.  Not to aggrandize slavery or do anything but highlight the horrors of it.

Q:  You are oppressing my free speech rights, you fascist pinko!
A:  That’s not a question.  Also, I said you shouldn’t say it.  But you clearly have a deep pressing need to say it for some reason.  I wonder why.

Q:  Why can black people say it and I can’t?
A:   Because it wasn’t a tool of oppression against you, white guy.

Q:  Well, forbidding us from using the N-word won’t get rid of racism!
A:  Don’t I know it!  If white people refuse to avoid saying a single word, imagine how difficult it is to eliminate other institutionalized racism.

Q:  You suggesting segregation of speech?  This is black privilege!  You’re the word police!
A:  Why are you so freaking upset about not saying a terrible word?

Q:  What if I desperately need to quote the Boondocks?
A:  Sigh.

Q:  What if my 3-year-old misspeaks when talking about the country Niger?
A:  Correct the child, and explain to the kid how they should never use the word again. Explain the history of the word.  Use resources, because if you’re asking questions like this I think it means you might need the help yourself.

Q:  I know a professor who likes to use the N-word just because.
A:  Never take a class from that professor ever.

Q:  Kids will be kids.  Why punish a 16-year-old for saying the N-word?
A:  I’m sure you say the same thing when a 16-year-old minority kid does or says something, right?  Like walk in their own damn neighborhoods?  Or is this really about white privilege again?

Q:  But I really just want to say it!!!  It’s killing me not to!
A:  Some words don’t belong to everyone.  Watch this.

Q: Why are you so uptight about this?
A:  I’m horrified that you WANT to use a word that is so destructive, so harmful, so hyper-contextualized and intertwined with oppression and enslavement.  Why are you trying so hard to say it?  My concern is that you want to say it to feel superior.  That’s the very thinking that the word’s history teaches us is very dangerous.

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LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. He is way funnier on social media, he claims. Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.

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