Author: TSA Press

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

What law school fell the most spots in the 2022 U.S. News and World Report Ranking?

Hint: This law school took a 23-place hit to their ranking after rising 21 spots the year before.

See the answer on the next page.

I have been thinking (I know, assuming facts not in evidence) about Occam’s Razor, the principle that says, essentially, that the simplest answer is usually the right one. Who was Occam and why we should care? William of Ockham was a late Middle Ages (late 13th to mid-14th century) philosopher and theologian.

We lawyers tend to perseverate, to twist ourselves into knots trying to explain sophisticated legal concepts to clients, often needlessly complicating things. We are not pretzels, and so we shouldn’t tie ourselves up like them.

Unless those clients are also lawyers, the clients’ eyes will glaze over in a futile attempt to understand what we are trying to say. The principle of Occam’s Razor is, I think, a predecessor to the KISS concept (and I don’t mean Gene Simmons or Paul Stanley.) KISS means “keep it simple, stupid.” That applies to just about everyone in every field, but I think it holds a special place in lawyering.

Why do we make things more obtuse, more complicated than they need to be when explaining to a client what is going on, why what’s happening is happening, and the best way to solve the problem? Clients want answers, not law review treatises on what the law was, is, could be, may be, and the like. They want to receive risk assessments based on the lawyer’s best advice.

Remember that we don’t make the business decisions; that’s the client’s job, but it’s our job to provide the clearest advice in the simplest terms, considering the upsides and downsides and laying them all out for decision.

Perhaps our complicated and often-convoluted talk arises from our fear of not being sure about what the best advice is. We don’t necessarily know what the best advice is for several reasons, but first and foremost, at least in my mind, is whether the client has truly told you absolutely everything you need to know to form an opinion. Even the slightest change in the fact pattern can change the advice given. We dinosaurs have all learned that lesson the hard way.

I always used to tell a client to barf up everything he knew, not being selective about what he thought was important, and that I would make the judgment call about what was relevant and what was not. That was my job, not his, but his job was to tell the truth. If he told the truth the first time, then he wouldn’t need to remember any other versions.

Alas, that didn’t always work out. On more than one occasion, the client omitted a material fact — whether consciously or not — one that changed the dynamic of the case and its strategy. I hated when that happened, and it happened more than once.

Trying to explain complicated and complex legal concepts to a client was always challenging. It was even more challenging to try to explain it to a trier of fact, an opposing counsel (naturally suspicious of everything I said), or even a mediator. So, putting the concept into the simplest possible way was always the best, and sometimes the business person was the best one to explain those concepts, person to person (gasp), without lawyer jargon in between.

One case of mine involved documentary collections, e.g., letters of credit, documentary drafts, and the like. Unless you work in the area, it can be hard to understand. So, to try to persuade a plaintiff’s counsel that the bank had done everything right (always a challenge), the business person, our letter of credit guru with me by his side, explained the whole procedure in simple layperson’s terms, and plaintiff’s lawyer dismissed the case.

As newbie lawyers, it’s no surprise when a more senior lawyer (and that can be almost anyone when you’re a newbie) is intimidating, dismissing whatever you say as insignificant or having nothing to do with the matter at hand. You don’t know that she’s any more competent or knowledgeable than you are, but because she exudes confidence, you feel inadequate to the task at hand. Been there. I think all lawyers have been there whether in a courtroom or a conference room.

Ever wonder why people who “fail up” are promoted into positions while you scratch your head trying to figure out how that person got that gig? Huh? Why couldn’t I have had it? “What’s wrong with me?” is the normal reaction when things like that happen and they happen all the time.

Exuding “overconfidence” is one reason why people are dazzled by the superficial, when, in reality, there is either no there there or very little. This overconfidence is called the Dunning-Kruger effect; it’s illusory superiority and the failure to recognize one’s inability, one’s limitations. You can call it bluster, bluff, whatever, but it’s real. Know anyone like that?

I think lawyers in Los Angeles do. In the newest installment of Tom Girardi’s career (think plaintiff tort lawyer and the Housewives of Beverly Hills), the State Bar of California has finally awakened from its slumber and charged Girardi with misappropriation of millions of dollars from his clients. Trust fund violations are the bar discipline equivalent of the death penalty.

Girardi is under a temporary conservatorship, he is in bankruptcy, his firm is kaput, and the bar has already placed him on inactive status. Is this discipline action akin to simply closing the barn door after the horse has scampered off? Is this TLTL — Too Little, Too Late? Is this just another example of the bar’s failure to do what it is supposed to do, protect the public? If so, it may be just as well for the bar to go back to sleep. Nighty-night.

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

The judge in the copyright lawsuit brought by Thomson Reuters against ROSS Intelligence has denied ROSS’s motion to dismiss the case, finding that TR’s allegations are sufficient to allow the case to proceed to discovery.

In a memorandum opinion issued yesterday, Delaware U.S. District Chief Judge Leonard P. Stark ruled that TR had sufficiently alleged the four elements of a copyright claim: the original works that are the subject of the claim, ownership of the copyrights in those works, registration with the U.S. Copyright Office, and the acts by which ROSS is alleged to have infringed the copyright.

Read the full memorandum opinion.

Although ROSS argued in its motion to dismiss that Westlaw content is not copyrightable as containing government information, Judge Stark said that, under federal copyright law, a valid certificate of copyright registration is prima facie evidence of the copyright’s validity.

See all stories about this lawsuit.

TR’s complaint alleges that it registers its copyright in the Westlaw database every three months, attaching more than 300 pages of prior registration certificates spanning 1981 to 2020.

As to ROSS’s argument that these materials are not subject to copyright, Judge Stark wrote, “These are important and interesting questions that will, almost certainly, be confronted at some state of this case.”

But, he said, they do not provide a basis to dismiss the lawsuit at this pre-discovery stage.

Judge Stark further ruled that TR has sufficiently alleged acts that, if proved, could show that ROSS infringed the copyright. He cited TR’s allegations that the legal research company LegalEase, after being hired by ROSS, showed a 40-fold increase in its Westlaw usage and downloaded significant quantities of information, which TR says ROSS used to develop its platform.

ROSS’s motion had argued that TR should have engaged in more extensive fact-finding before filing its complaint, including reverse-engineering the ROSS platform to see how it was created and if materials were copied. But Judge Stark also disagreed with that argument.

“Considering the totality of the allegations made against Defendant, accepting them as true, and drawing all reasonable inferences in favor of Plaintiffs, the complaint plausibly alleges acts of infringement – namely that Defendants have engaged in mass, illicit downloading of copyrighted Westlaw material through LegalEase, which material was then used to develop the ROSS platform,” Judge Stark wrote.

Judge Stark also denied ROSS’s request that he dismiss another count of TR’s complaint, alleging tortious interference with contract, which ROSS alleged was not filed the statute of limitations.

He ruled that factual disputes between the parties make it unclear where the alleged injury occurred, and therefore which state’s limitations period should apply.

Additionally, he declined to dismiss the complaint for failing to adequately allege the elements of a tortious interference claim.

Asked to comment on the ruling, ROSS cofounder Andrew Arruda said, “The court’s decision changes nothing. The court recognized that ROSS raised ‘important and interesting questions’ over the copyrightability of Westlaw content. We look forward to proving our case.”

Last week, TR filed its own motion to dismiss, seeking to dismiss ROSS’s counterclaim alleging that TR violated federal antitrust law by maintaining a monopoly over the legal research market.

Last night, the New York Times broke the news that Manhattan District Attorney Cyrus Vance, Jr. has subpoenaed personal financials from Allen H. Weisselberg, the Trump Organization’s longtime accountant, in an attempt to convince him to testify against his boss.

Vance is also putting the squeeze on Weisselberg’s sons, getting the skinny on the family finances from the accountant’s former daughter-in-law Jennifer Weisselberg, who is in the middle of an ugly divorce from his son Barry, who manages the Trump Wollman Rink in Central Park.

Prosecutors: They’re just like everyone else. Only meaner.

Weisselberg, who has kept the Trump family’s books for close to 50 years, has long been the white whale for Trump watchers. If there are bodies buried in the books, he knows where they are. And according to former Trumpland fixer Michael Cohen, it’s a whole graveyard.

Cohen says that the former president routinely submitted false valuations on his properties, depending on whether he was seeking a mortgage or a lower tax bill. And indeed Vance’s office appears to be focused on these, with a new round of subpoenas to Trump’s lenders and for internal Trump Organization valuations of various properties.

Which is not to say that Vance has abandoned his original quest to discover how the company accounted for the $130,000 Michael Cohen paid Stormy Daniels to keep her mouth shut about an alleged sexual relationship with then-candidate Trump. Cohen pled guilty to making an illegal campaign contribution and not disclosing it, since the money was clearly intended to benefit Trump’s 2016 presidential campaign. World’s Greatest Lawyer Rudy Giuliani explicitly admitted it on national television, when he was explaining to Sean Hannity how the Trump Organization grossed the $130,000 up to $420,000 to cover taxes and overhead, relabeled it a “retainer,” and “funneled it through a law firm” to Cohen in monthly checks of $35,000.

This would be appear to be a binary issue: Either they deducted it as a business expense on the company’s 2016 return, or they didn’t. Curiously, Trump spent four years fighting to keep that return private, going all the way to the Supreme Court.

HUH.

Whether Weisselberg is inclined to talk, though, is another matter. As Jennifer Weisselberg told the New Yorker’s Jane Mayer, “His whole worth is ‘Does Donald like me today?’ It’s his whole life, his core being. He’s obsessed. He has more feelings and adoration for Donald than for his wife.”

That was the article which contained the memorable anecdote about Trump  passing around naked photos of women on his yacht at the shivah for Weisselberg’s mother. Stay classy!

Asked if her former father-in-law would ever turn on his boss, Jennifer Weisselberg responded “I don’t know. For Donald, it’s a business. But for Allen it’s a love affair.”

On the other hand, he’s done it before — twice. Weisselberg was granted a limited immunity agreement in 2018 to testify to the Southern District of New York about the Stormy Daniels payoff during the Mueller investigation. And Weisselberg’s testimony to the New York Attorney General about self-dealing at the Trump “charity” got the family’s foundation disbanded and resulted in a $2 million fine. And yet the Trump family refuses to fire him.

HUH, AGAIN.

So, while past performance does not guarantee future results, it’s a safe bet that the accountant’s not going to go to jail to protect the Trump family. Looks like someone might be digging up that graveyard pretty soon.

N.Y. Seeks Trump Insider’s Records, in Apparent Bid to Gain Cooperation [NYT]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

Levels of mental health issues, stress, and burnout in the legal profession are arguably at an all-time high. The question is will bonuses in any way offset the challenges around mental health and burnout? That is far from clear. And I would argue that in many instances they won’t. Compensation does not create capacity.

— Patrick Krill, an attorney who works as a consultant to numerous law firms on mental health and substance abuse issues, commenting on the round of special bonus announcements that have been making their way through Biglaw, and how they could affect lawyer burnout. Click here to see which firms have offered special bonuses to associates thus far.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

How happy are you at your current firm? Are you sure you’re really happy? I ask because, WOW, the market for lateral associates — particularly corporate transactions attorneys — is absolutely absurd right now.

In an effort to capture this sought-after talent, Biglaw firms are pulling out all the stops. We’re talking big signing bonuses for associates (Above the Law has anecdotally heard they’ve hit six figures), same-day offers, and the opportunity to work remotely with no set date for return to in-person work (Goodwin Procter is even willing to hire associates on a permanent remote basis).

So where is this associate battle taking place? According to data by Decipher, a competitive intelligence firm, lateral movement in the most active 10 markets is up double digits in the first two months of 2021 compared to the four-year average. As Law.com notes:

In New York, for example, there are an average of 249 moves in the first two months of the year. This year, 313 associates lateraled—a 26% uptick. Los Angeles averages roughly 136 laterals. But in 2021, 167 associates have moved, representing an increase of 23%.

“I definitely feel like corporate associate recruiting is the busiest I’ve seen since I’ve started my business,” said legal recruiter Jason McCann, founder of Gridline Search + Consulting.

And as mentioned, corporate associates are really the ones benefitting from the boom:

“It started in the capital markets space, but now that demand has increased to M&A and finance associates and pretty much anybody that touches corporate transactions. In some ways, what we’re seeing in New York City is that demand is higher than it was pre-pandemic,” Ru Bhatt, partner in Major, Lindsey & Africa’s New York associate practice group, said.

All of a sudden, Biglaw’s spring bonus trend starts to make a lot more sense. While we’ve seen firms mix up the way the money gets handed out, many firms are backloading the payments. Keeping the lion’s share of the cash until later in the year just may be the firms’ best way to keep valuable associates in the jobs they currently have.

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

Another elite Biglaw firm bites the dust when it comes to the spring 2021 bonus wars. After waiting a week and a half to see how this would play out, Sullivan & Cromwell has arrived. Is another immediate match afoot?

Before we get to that, in case you need a little refresher on spring special bonuses, first came Willkie, which started the latest bonus game in the first place. Next came Davis Polk, which blew the Willkie scale out of the water, and other firms matched it one by one (and now more than two dozen firms have done so).

And now the news you’ve been waiting for. SullCrom’s black bonus box has been smashed open, and it looks like the firm will be matching DPW’s generous scale (full memo available on the next page):

• Class of 2020: $12,000
• Class of 2019: $16,000
• Class of 2018: $32,000
• Class of 2017: $44,000
• Class of 2016: $52,000
• Class of 2015: $59,200
• Class of 2014: $64,000

As usual at the firm, there are no hours requirements attached to these bonuses (which are backloaded, just like DPW’s), which will be paid out on April 30 and September 30. Congratulations to everyone at the firm!

(Flip to the next page to see the full memo from Sullivan & Cromwell.)

Remember everyone, we depend on your tips to stay on top of important bonus updates, so when your firm matches, please text us (646-820-8477) or email us (subject line: “[Firm Name] Matches”). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts (which is the alert list we also use for salary announcements), please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish. Thanks for all of your help!

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

COVID-19 threw law firms and librarians into the deep end of the local law pool. COVID-19 exposed the limits of traditional legal information vendors who focus on laws at the federal and state level. Long before COVID-19 emerged, Amanda Ostrowitz the SVP and founder of Fyllo’s CannaRegs, recognized the need for hyperlocal law to track the emergence of the Canna CBD Industry. Ostrowitz herself has developed a mastery of canna law and the canna law market.

Like other attorney entrepreneurs Ostrowitz sat at her desk thinking — “there’s got to be a better way.” Ostrowitz was working at the Federal Reserve and had to research financial regulations related to the emerging cannabis industry. There were no standard tools for locating the materials related to canna. As she excavated the regulations she discovered that she was in terra incognita — the unmapped and unharnessed regions of hyperlocal law related to regulation of the cannabis industry. By June 2015, CannaRegs was ready for a soft launch. The company was purchased by Fyllo in March 2021.

The Fortune 500 Drove Cannabis Law Into The ALM 100?

Cannabis law was not immediately embraced by the ALM 100 law firms. Ostrowitz tracked the progression. In 2018, only 15% of ALM law firm websites mentioned cannabis/CBD law and 5% had a specialty canna practice. By 2019, those numbers jumped to 35% of ALM 100 firms mentioning cannabis/CBD law and 10% having a special practice group. In 2020, 75% of ALM 100 law firm websites mentioned cannabis/CBD law and 30% had a specialty practice. Even firms that didn’t promote their canna practices had to respond to client canna questions.

Ostrowitz believes that the expansion of canna/CBD law practice in many firms was driven by the Fortune 500. Clients in industries as diverse as finance, pharmaceuticals, agriculture, and real estate started demanding answers that required access to the hyperlocal insights that canna law is designed to capture.

But for other organizations, tracking cannabis law is not a side hustle, it is their bread and butter. There are specialty law firms, investors, government agencies, lobbyists, consulting firms, and advocacy organizations who rely on CannaRegs to track the regulatory landscape.

What CannaRegs Offers

The cannabis regulatory environment is constantly evolving. In a single month there can be as many as 2,000 new or updated guidance documents, policy applications, ordinances, local meetings, etc. Much of this activity happens at the hyperlocal level (city, village, town, borough, county municipality, or township). None of the major legal content vendors are equipped to track laws and regulations at that level.

CannaRegs is described as an intelligent regulatory database that unifies and automates cannabis research across more than 4,300 sources in 16 states and almost 2,000 local jurisdictions.

Key features include:

• Multijurisdictional searching and comparisons driven by cannabis specific filters to focus results
• Advanced tracking, including real-time visibility into legislative updates, at a hyperlocal level
• A timeline view that gives a list of every canna-related activity happening every day
• Highlights that target the most important activities each week. Early indicia of movement
• Quickview feature provides comparative views of the same issue in over 600 jurisdictions

Mapping The Canna Law Landscape (And Then Make Finding The Law Like Buying Shoes Online)

Ostrowitz had to invent the processes and then deploy technology to track the myriad local entities and agencies that signal the emergence of canna activity in a specific locality. California provided a fertile ground for the development process. Since local governments are slow at posting even city council meeting minutes, the company developed processes for tracking every meeting. According to Ostrowitz, it takes an average of four weeks and as long as 20 weeks for a locality to post meeting minutes. CannaRegs collects everything that might be relevant to canna law and provides early insights from town hall meeting videos, city council minutes, forms, guidance materials, studies, and applications for permits. CannaRegs has to undertake a complex onboarding process to optimize the monitoring of each new jurisdiction. Ostrowitz’s goal was to create a site that was as intuitive as an online shoe store. Users should be able to filter and focus on specific issues in specific jurisdictions in a few clicks. Since CannaRegs is ingesting and digesting every local law activity in certain jurisdictions, CannaRegs may provide the only comprehensive and permanent record of all local activities in the jurisdictions that they cover.

Tracking The Green Shoots Of Canna Law Opportunity

Customers have discovered that CannaRegs provides powerful business development insights. It enables researchers to uncover potential policy changes, application windows, or identify new business opportunities before they become common knowledge. Anyone who wants to be the first into the local market needs a heads-up of which market is opening to the cannabis industry next.

What’s Next?

Small towns are really important in canna law. But they are not likely to be the last hyperlocal issue. The company is already tracking 2,000 local governments. Here is the interesting thing. Since CannaRegs is collecting all the minutes and documents from every public meeting and agency in over 2,000 localities, they have massive amounts of data that can be repurposed for new hyperlocal products. In fact, they now have software which is identifying emerging local issues which may drive the next “Fyllo regs” product. Possible issues include e-sports, scooters, and ride-sharing. Ostrowitz is interested in crowd-sourcing ideas. If you have a hyperlocal topic you would like to see covered email: amanda@hellofyllo.com.

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Jean O’Grady is a knowledge strategist/librarian/lawyer with over 30 years’ experience leading the transformation of research and knowledge services in Am Law 100 law firms. She is the author of the Dewey B Strategic blog, which monitors the evolving landscape of technologies and companies that are transforming the business and practice of law.

Yesterday, Amazon’s British food-delivery app went public, selling its shares at the bottom of an already much-reduced price range. Even this, alas, was far too much, given how little interest there was in a voiceless take in a company operating in the battered food-delivery space at a moment when more and more people no longer forced to take their restaurant meals in plastic containers from the back of a bike.