Category: News Feeds

The $64,000 question as we head into the postpandemic world is whether the increased use of remote-working technologies by lawyers will continue in the “new normal.” Or at least that’s the question that keeps me and my legaltech colleagues up at night.

If nothing else, the pandemic has shown that law firms can successfully operate remotely. In fact, not only can the work get done — law firms can even be profitable when work is conducted remotely.

The results of a recently released study confirm that fact, with nearly half of survey respondents sharing that their firms profited in 2020 despite the challenges of the pandemic. One attorney commented that the “feared drop in productivity never materialized … By June [of 2020], we realized that we had not slowed down as much as I thought, and by September or October, we realized that we were actually having a pretty good year …”

The report in question, “The Future of Litigation Workflow: Reimagining Technology and Process in the Next Decade,” was released last week by Ari Kaplan Advisors, LLC and American LegalNet, Inc. The report is based on interviews of 33 partners at large law firms conducted by Ari Kaplan from January 21 through March 7, 2021.

The report focuses on the impact of the pandemic on remote litigation processes and offers insight into how law firm leaders expect to use technology in their law firms in a postpandemic reality. The bottom line: law firm leaders acknowledge that the legal work of litigators can be efficiently and profitably conducted with a dispersed workforce, but most don’t foresee that the full-time remote working trend will be a permanent one.

Some Challenges When Transitioning To A Remote Workforce

Moving to remote work overnight was not an ideal situation, so it’s not surprising that 52% of respondents indicated that the most significant challenge that their firm faced at the start of the pandemic was transitioning litigation staff to a remote working environment. Other notable challenges faced by litigators included court closures and administrative changes (49%) and driving technological change within their firms (36%).

Litigation teams also had to undergo significant shifts in their work processes after the transition to remote work. The majority of respondents (79%) cited changes in the way that they used technology to adapt to a remote environment as the top shift. Another 48% reported that using video conferencing for court proceedings and for personal and professional meetings was the most significant change.

Notably, many respondents also believed that the use of video conferencing technologies for some types of litigation proceedings would continue postpandemic. However, as discussed below, many also welcomed the return of in-person trials and hearings since virtual proceedings are less than ideal when questioning witnesses or interacting with juries.

Investment In Cloud-based Technology Significantly Increased

Because cloud-based software enables the ability to work from anywhere, more than half of the lawyers interviewed (55%)  reported that their firms had transitioned their litigation management to the cloud. Of those, 67% explained that the effects of the pandemic were the primary driver behind that change.

Notably, 64% of law firm leaders shared that their firms were considering upgrading their law firm’s technology postpandemic based on learning gained from practicing law remotely during the pandemic. Similarly, 52% of those interviewed reported that their firms had allocated a higher budget to technology purchases in 2021. The areas of technology that firms planned to invest in included collaboration tools (33%), security (18%), and risk management (15%).

Some Changes Likely To Be Permanent

Despite their firms’ plans to invest in cloud-based legal software that would enable remote work, many of the lawyers interviewed remained unconvinced that the effects of pandemic would dramatically change the way that litigation was conducted. In fact, some shared that they were looking forward to returning to “business as usual” — at least when it came to litigation: “The fact that we are remote is preventing us from trying cases and by the time we master the remote system, we are all hoping we will be vaccinated and back to normal.” As explained by another respondent, in-person trials continue to be preferable: “The idea of virtual jury trials is doable, but fraught with challenges, including constitutional issues.”

That being said, now that attorneys realize that many aspects of litigation can be managed remotely, working remotely will no longer be taboo, and will likely increase in frequency. As one attorney explained, partial remote work will become more commonplace postpandemic: “I expect most lawyers will not go back to the office full-time; many will have a partially remote schedule because they have realized that it can work.”

So, will the pandemic have a permanent impact on litigation work? All signs point to yes. Litigation practices will never be quite the same. That being said, the specific long-term impact remains to be seen, and for now we can only predict what may happen. Certainly all signs point to the very real possibility of change, but only time will tell how significant that change will actually be.

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Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

The good, honest, hard-working, not-at-all-unusually felonious people of Florida, which is definitely not the worst state in a union full of stiff competition, have had enough, according to conservative radio bloviator Chris Ingram. Enough of these left-wing Wall Street agitators—who his governor-friend has definitely not put out the welcome mat for or crowed about them fleeing in hordes to his not-at-all alligator-infested tax haven—coming to his not-particularly-nice-or-quiet not-particularly-beach community and imposing their liberal ideas on people, like that publicly-traded companies should make money for their shareholders.

* A lawsuit between the Girl Scouts of Middle Tennessee and the national organization is reportedly imperiling cookie sales. The Samoas must flow… [Tennessee Lookout]

* A Colorado lawyer’s discipline for using an anti-gay slur has been upheld. [Colorado Politics]

* A judge has dismissed a lawsuit filed against McDonald’s by black franchisees claiming racial discrimination. [CNBC]

* The Texas State Bar is purportedly investigating whether efforts by the Attorney General of Texas to allegedly undermine the 2020 election violated ethical rules. [AP]

* Roblox, the popular videogame company, is facing a copyright infringement lawsuit filed by a group of music publishers. Seems like they aren’t playing “games”… [Fox Business]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Look At The Law Professor Making The Argument: Social media isn’t great at context or nuance, two things needed here.

Has A Judge EVER Been So Relatable? Zoom fatigue is real, y’all.

Second Round Of Partnership Announcements At Cahill: Wonder what’s behind that…

Consistency? LOL: Florida and Texas are back at it.

CWT Really Does Want You Back In The Office: They’re not requiring it… yet.

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

Judge Judith Sheindlin reportedly filmed her last episode of Judge Judy. In the final season of her CBS show, what was her yearly salary?

Hint: The impressive contract put Biglaw partner salaries to shame.

See the answer on the next page.

No aspect of life in America escaped unscathed from the COVID-19 pandemic. Millions got sick, hundreds of thousands died, and even day-to-day tasks like picking up groceries and going to work changed dramatically.

According to the U.S. Pandemic Misery index developed by the USC Dornsife Center for Economic and Social Research, 80 percent of Americans experience a coronavirus-related hardship over the course of the pandemic.

We are not quite out of the woods yet. But nearly two-thirds of Americans have received at least one COVID shot. More than a million vaccine doses are still being administered every day, on average. Given the new guidance from the CDC on fully vaccinated individuals being largely able to resume pre-pandemic life (without having to wear a mask), businesses, government offices, and all sorts of places of public accommodation are beginning to enthusiastically reopen.

There will be no recovery for the hundreds of thousands of Americans who lost their lives to the COVID-19 pandemic. But for those who suffered only economic hardships, it seems there is hope on the horizon. The economic recovery is steaming ahead.

Unlike during some previous periods of economic instability, the government met this downturn with enormous policy support, which seems to be serving its intended purposes well. Consumers amassed trillions in extra savings during the pandemic and they are now interested in spending. Businesses are looking to hire; new businesses are being started at the fastest pace on record. Worker confidence in the labor market is the highest it’s been since at least 2000. As a percentage of after-tax income, household debt-service burdens are approaching the lowest levels recorded since 1980, when records of this metric were first kept. Home prices are rising, and the stock market is hovering near record-highs. The evidence is piling up that the economic recovery is not only on track, it is progressing faster than expected.

A speedy and powerful economic recovery is surely better than the alternative. That being said, too-fast economic growth is not wholly without risk. Some economists fear market shortages spurred by an overheating economy. Shortages of goods and raw materials have sprung up in some sectors already, as consumers and businesses compete to snatch up available stock. Certain segments of the economy have seen labor shortages as well. These conditions caused a spike in inflation, although many experts expect the jump in inflation to be nothing more than a temporary aberration.

The Fed has expressed confidence that price increases will remain a temporary phenomenon. Yet, some investors are skeptical. The Fed, and the central banks of other nations as the global recovery gains momentum, could tighten monetary policy sooner than anticipated. 

The Summary of Commentary on Current Economic Conditions by Federal Reserve District (commonly known as the “Beige Book”) is a report published eight times per year in which each Federal Reserve Bank gathers anecdotal information on current economic conditions in its District. The information collected by each of the Fed’s 12 regional banks is then compiled and summarized.

The latest Beige Book was released on June 2. In it, the Fed said, “Several Districts cited the positive effects on the economy of increased vaccination rates and relaxed social distancing measures, while they also noted the adverse impacts of supply chain disruptions.” However, the U.S. central bank generally used a relaxed tone in the latest Beige Book, ending its national summary of overall economic activity by saying, “Overall, expectations changed little, with contacts optimistic that economic growth will remain solid.”

A handful of Fed officials have discussed the possibility of scaling back the central bank’s bond-buying program in the near future. This has some analysts concerned. But markets seem to have embraced the official narrative from the Fed that inflation is only going to be transitory.

For now, the economic recovery appears to be ahead of schedule. That state of affairs still carries some risk, of course. Investors are going to keep a close eye on inflation data moving forward. If the uptick we have recently seen in inflation turns out to be more than just a temporary blip, the Fed will be more likely to make a move on monetary policy.

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Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

This week’s case — Sause v. Schnitzer — involves the extent to which a donor of reproductive material (like sperm or eggs) may have parental rights under law. And it’s a factually complicated case — resulting in a number of varying and conflicting decisions. Luckily, the Oregon Court of Appeals just issued an opinion that seems to logically settle many of the issues in the case. That is, unless the Oregon Supreme Court hears a new round of appeal.

Bizarre Facts

Where to start? This case has been going on for a while — the child in question was born in December 2015 — and I admit that in order to write this week’s column I went back and read my own article on the case from 2016. In short, Jordan Schnitzer is an Oregon business tycoon and philanthropist. He had two daughters from a prior marriage, but hoped very much to have a son. He tried assisted reproductive technology techniques, including finding an anonymous egg donor and a gestational carrier, without success. At a point when he was still working to create a pregnancy using donated eggs and a gestational carrier, he entered into a romantic relationship with a woman 30 years his junior, Cory Sause. In 2014, Sause separately had her eggs retrieved to be cryopreserved. Knowing that Schnitzer wanted another child, Sause offered to donate some of her retrieved eggs to Schnitzer … under some unique conditions.

The pair agreed that Schnitzer’s sperm would be used to fertilize Sause’s eggs, and that Sause would receive all rights to any female embryos, and Schnitzer would receive all rights to any male embryos. Unluckily for Sause, the fertilization process resulted in only three embryos, all of which were male. The male embryos were transferred to Schnitzer’s control at the fertility clinic, and he entered into a contract with a gestational carrier and the gestational carrier’s husband. Sause was not a party to that contract.

After a failed first transfer attempt with the embryos, Schnitzer’s efforts working with a gestational carrier finally resulted in a healthy pregnancy and ultimately the birth of a child, known as S in the Court of Appeals opinion. By that time, Schnitzer and Sause were no longer in a relationship. Schnitzer, however, kept Sause informed of the progress of the pregnancy and the birth. He then cut off contact with her when the two had an argument shortly after the birth. Schnitzer was legally established as the child’s only legal parent shortly after the child’s birth, in accordance with Oregon law.

The Dispute

A dispute arose when Sause decided to claim she was the mother of the child. She made this claim despite having previously agreed that she explicitly gave up all rights to custody of any resulting child as well as any financial responsibility. She says she did not intend for that to equate to giving up parental rights. Schnitzer, unsurprisingly, disagreed.

A Multnomah County court initially issued a judgment, in response to a petition filed by Schnitzer, that Schnitzer was S’s sole legal parent, and neither the gestational carrier nor her spouse were parents (as the law presumed by default). A hearing was held on Sause’s objections to that judgment, and the Court ruled in Schnitzer’s favor.

When Sause brought a separate suit, after a multiday trial, a Multnomah County judge determined that Sause had an initial presumption of maternity based on her genetic connection to the child, and that she had taken actions to assert those parental rights. Sause was ruled a parent of S.

Schnitzer appealed, and on June 3, 2021, the Oregon Court of Appeals issued a split opinion, finding 2-1 in favor of Schnitzer.

The Split

Giving credence to the complexity of issues regarding assisted reproductive technology and outdated parentage laws, the three judges were unable to agree on the decision or the legal basis for the decision. Ultimately, two judges ruled against Sause having legal parentage, finding that Schnitzer was the sole legal parent of the child, although taking different paths to get there. The third judge disagreed, siding with the trial court and Sause’s finding as a legal parent of S.

One judge, Judge DeHoog, took issue with the trial court’s finding that Sause was a mother of S “by virtue of being his undisputed female genetic parent” and having taken “every legal step available to her to protect and assert her parental rights and role” in the child’s life. DeHoog explained that the court disagreed that Sause made the requisite additional showing to acquire rights. Factors relied on by DeHoog included the fact that Sause made insufficient effort before the birth to protect and assert her parental rights, the fact that genetics alone do not a parent make, the parties’ intent (e.g., Schnitzer had been trying to have a child using donor eggs and a gestational carrier for some time, with the goal of being the child’s only legal parent), and the fact that Schnitzer had not made any promises to Sause that she would have a role in the child’s life. And while the parties had entered into a written agreement prior to the egg donation, the contract Sause signed with Schnitzer specifically disavowed any custodial, financial, or other responsibility on her part to any male child born as a result of her egg donation to Schnitzer.

Another judge, Judge Mooney, concurred with the finding that Sause had not taken the necessary steps to establish a parent-child relationship. However, he viewed the situation in simpler terms. Schnitzer alone took the key steps for the conception of the child –- alone entering an agreement with the gestational carrier and her spouse. The initial court ruling determined the gestational carrier and her spouse not to be parents and Schnitzer to be the sole parent. Mooney argued that parentage by assisted reproductive technology — with its deliberate and planned parenthood — should be viewed in a distinct manner from the case analysis of parentage cases by sexual intercourse. Mooney also relied on amended ORS 109.239 (as amended by SB 512, effective January 1, 2018), as the trial court’s judgments making Sause a legal parent were not entered with the court until after SB 512’s effective date. As Mooney succinctly states, “Schnitzer and Sause were simply gamete donors. In fact, there is nothing terribly complex about that. Neither had any parental rights when S was born. Schnitzer’s status as S’s legal parent came from his agreement with the gestational carrier and her husband, not from his genetic link to S. He is a man who is also S’s legal parent. ORS 109.239 bars any claim by Sause as a gamete donor for parental rights.”

The dissenting judge, Judge Kamins, argued instead that the court should focus on some of Schnitzer’s assurances with his then-romantic partner, that she was assured a role in the child’s life, and that she took swift action in filing a lawsuit after the birth when that role was threatened. But these arguments failed to carry the day.

Contracts Matter — And Behavior Outside Contracts Matter, Too

As noted in my earlier article, it is shocking that the contract — written for a wealthy tycoon, no less, but by his business attorney — specified that Sause would have no custody or financial responsibility for the child, but was silent as to the birth certificate or parentage. If Sause wanted parental rights and to be named on the birth certificate, she should have insisted that the contract say that. Further, she should have insisted she be part of the agreement with the gestational carrier and her husband. She did none of these things. The ambiguity, paired with communications outside of the contract (despite the contract, of course, saying that it is the entirety of their agreement), and the lack of Sause’s involvement with the gestational carrier and that agreement, created the past five years of litigation.

Lessons Learned

1) Recipients to a donation beware — especially in states without updated assisted reproductive technology (ART) laws. Since the birth of S, Oregon in 2017 updated its ART laws to clearly define that an egg donor has no parental rights. Check your state’s applicable laws, and speak with an ART attorney to better understand your risk before entering into a donation arrangement.

Robin Pope, Oregon ART attorney, one of the main forces behind Oregon’s updated ART law, and co-author of an amicus brief in support of Schnitzer’s position, provided her reaction to the Court of Appeal’s ruling. “I am delighted with the outcome of this case, as it confirms that ART law is alive and well in Oregon. Intent matters.”

2) While known donation arrangements are generally positive, the legal framework for donation becomes less clear when there is a romantic relationship or other communications or promises are made involving the donor as a parent or the donor’s involvement in the child’s life. Consider avoiding donation arrangements when the relationship between the donor and recipient falls into the romantic or the “it’s complicated” category.

3) And, of course, both donor and recipient(s) should have representation by independent counsel specialized in assisted reproductive technology law in the requisite jurisdiction and a solid contract that does not leave key terms — such as whether one party may be recognized as a parent of a resulting child in the future or not — silent. Do not ask your friendly business or family law attorney to draft it for you. Attorneys, take warning: do not dabble in this area of law. It’s specialized and fraught with risk.

Here’s to hoping we aren’t back here again in a few years.

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

Many times, when I tell people that I run my own law firm, they respond by commenting about how great it must be to not have a boss. Of course, self-employed lawyers do not have supervisors like associates who work at law firms, and it is nice not to deal with annual reviews, office politics, and all of the unpleasant things that people who work for others need to endure. However, self-employed lawyers definitely still have “bosses” in the sense that there are still usually people to whom the attorney is accountable, and in many ways, this can be similar to the situations faced by associates who work for partners at larger law firms.

Clients

All kinds of lawyers are responsible to clients of course. Indeed, clients are the people who pay the bills, set the objectives of a representation, and who lawyers generally serve. However, when associates work in a law firm, they may not have too much contact with clients. Indeed, on larger accounts, a select number of senior partners may have direct contact with the clients, and associates almost never interact with the clients they serve. Of course, as mentioned in a previous article, this can lead to inefficiencies in the representation, but it also means that partners are the one who need to provide “white glove” service to clients and ensure that they are taken care of expeditiously when an issue arises.

Self-employed lawyers usually do not have any intermediaries between themselves and clients, and they usually need to handle client interactions by themselves. This can be a truly enriching experience. It is great to connect with clients on a personal level and to grow with clients as they reach their own goals. Very few things give me more satisfaction then telling a client good news after a hard-fought victory, and this is made more satisfying from the close connections I have with many of my clients.

However, clients often expect lawyers to cater to their needs at all times of the day and night and in all kinds of ways. I have had clients text me about legal questions at 11 on a Saturday night even though the matter could have provably waited until a more reasonable hour. Indeed, in order to provide concierge service, I have also personally traveled long distances (hundreds of miles in some instances) to discuss matters with clients that could have easily been handled over the phone. Of course, I am not complaining about any of this, it is a pleasure to provide top-rate service to clients, and I am happy clients feel comfortable reaching out to me at all times. However, people should not think that self-employed lawyers lose some kind of accountability when they go out on their own since they still need to be responsible to clients and other stakeholders of their representation.

Partners

Self-employed lawyers also have to deal with partners who may have an impact on the work and operations of the attorney. It is true, that solo practitioners do not need to deal with partners, and I had this freedom for the first six months of my self-employment. However, many people partner up to realize financial and administrative benefits, and I myself partnered with my brother, who is a lawyer, shortly after starting my own practice.

In any case, partners often have input in many decisions of a self-employed lawyers, both big and small. Indeed, partners decide on firm spending, cases to accept, employment decisions, and everything else that impacts a lawyer’s practice. In some ways, this can be more restrictive than working as an associate at a traditional law firm and having typical bosses. Associates can expect to earn a steady salary and have stability in their employment relationship. However, lawyers with partners may have different financial and administrative responsibilities depending on the input of partners. To be clear, I am extremely happy with my decision to partner up with my brother to run a law firm, and feel I am much better off this way. However, people should not think that self-employed lawyers do not have individuals to whom they are responsible when they work with partners.

Inflexibility

Another one of the “bosses” that self-employed lawyers often face is that they cannot be too flexible in their days off and manner of working. Some people may think that self-employed lawyers can call the shots, go on vacation when they want to, and have greater freedom in how they operate. This is often not the case. It may be difficult for self-employed attorneys to take vacations since someone may need to be minding the store back at an office and vacations can impact a firm’s cash flow. However, many associates have a set number of vacation days to which they are entitled, and they can use such days with few restrictions. In this way, associates who work for a firm might be more free than self-employed attorney since they have less administrative responsibilities.

All told, self-employment is awesome, and I highly recommend that people consider this lifestyle. However, individuals should not think that self-employed lawyers have no bosses since they actually may have more responsibilities than other kinds of lawyers.

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Lawyers operate … with a very high level of urgency. What that can mean is that they can become impulsive. They can become irritable [and] argumentative because they’re always operating at 11. … It can also cause somebody to be a very poor listener, because you’re just trying to get to the point.

We’re the ones to whom people come for answers. Asking for help becomes very difficult. Strong relationships are reciprocal by definition. If you can’t show vulnerability or ask for help, then it can make a relationship very one-dimensional.

— Stacey Dougan of Stacey Dougan Counseling & Consulting in Atlanta, Georgia, commenting on why some lawyers “suck at relationships.” Dougan is a former Greenberg Traurig shareholder who became a therapist, and she now counsels attorneys and law students.

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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.

One of the unexpected reverberations from our pandemic year+ is just how well Biglaw fared. The top of the pack made quite the pretty penny, with a booming corporate market. That means that the lateral attorney market has seen a ton of action, forcing Biglaw firms that want to hold onto their talent to roll out the red carpet. So, suddenly remote-only work is an option (at least for the truly coveted) and those generous mid-year special bonuses sweeping through Biglaw are looking like golden handcuffs meant to keep associates at their firms.

But the lateral market is savvy, countering with staggering — we’ve heard tales of 6 figures — signing bonuses for associates. So what’s a firm anxious to keep their associates to do? Perhaps an unexpected partnership election is in order.

Cahill, Gordon & Reindel is one of the smaller Biglaw firms — at least by headcount, and their partnership classes are usually no more than a handful of folks. And, like a lot of Biglaw firms, the partnership elections come in the beginning of the year — we’re talking early February or in January, generally speaking. So, imagine everyone’s surprise when the firm announced its second round of partner elections in 2021, these effective July 1, 2021.

And those elevated to partner in this unusual move are C. Anthony Wolfe and Elizabeth Yahl. Two associates that just happen to work in the super hot capital markets practice area. Hmmm, this sure feels like a bid to keep valuable attorneys at the firm rather than risk losing them to the lateral market by waiting until 2022 to elect them to the partnership.

We reached out to the firm about the… noteworthy timing but have yet to hear back.

Congratulations to those elevated.

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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).