Eighth Circuit Judges Won’t Respect Pronouns Because They Lack Writing Skills, Common Decency

Yet again, a federal appellate panel has gone out of its way to refuse to adopt a litigant’s preferred pronouns. How Appealing reported on a recent Eighth Circuit decision by Judge Steven M. Colloton (a W. Bush judge rather than a Trump judge for a change of pace, though notoriously unqualified Trump judge L. Steven Grasz as well as another W. nominee in Judge Bobby Shepherd) that takes the appeal of a stalking conviction to wax philosophic about how hard it use to use the defendant’s preferred pronouns.

As the filings in this case illustrate, clarity suffers and confusion may follow when legal writing refers to a single individual as “they,” especially when the materials advert to other actors who are naturally described as “they” or “them” in the traditional plural.

Yes, it would render the whole opinion unintelligible except for the fucking context. Moreover, if using a specific pronoun creates the occasional awkward sentence — “they” can admittedly hit the ear inelegantly when paired with “to be” — there are many alternative phrasings from “Thomason is” to “the defendant is” to “the appellant is” to “the prisoner is.” Other contexts are no less simple to resolve. The sentence “Thomason argues that his conviction…” is easily rewritten as “Thomason argues that this conviction…” or “the instant conviction…” if the court can’t handle “their conviction,” though the latter phrasing would be entirely obvious from context.

It’s bizarre to think the court would have any trouble because the singular “they” is used in common parlance all the time regardless of a person’s pronouns. Americans use “they” to describe the actions of individuals all the time. And it’s neither improper nor new. The Oxford English Dictionary traces the singular “they” back to 1375. It feels like every time someone gets on a high horse about “new-fangled” improper English it turns out that it’s been acceptable all along and merely fell out of favor due to some unwarranted 18th century pontificating.

The argument in the panel’s favor is that Thomason allegedly adopted these pronouns in the midst of the proceedings, and tried to use the fact that the record reflected he/him at earlier stages as the basis of a prosecutorial misconduct claim. But this argument could be tossed without resorting to demeaning the defendant’s new preferred pronouns. Just say, “defendant’s claim is rejected because, upon being informed of the defendant’s preferred pronouns, the prosecution made every effort to adhere to defendant’s wishes and we find that this was enough.” There’s no need to get any deeper into the issue than this.

There are just so many ways to arrange a coherent sentence. Wordsmithing is as much an art as a science and if Judge Colloton and the Eighth Circuit can’t hack it, maybe someone can set up some remedial writing exercises. Justice Gorsuch is capable of honoring pronouns, so the rest of the judiciary can catch up.

Though that’s giving the panel the benefit of the doubt that this protest is really about grammar. Unfortunately, the opinion leaves the distinct impression that this is less about clarity and more about showing the maximum level of disrespect for someone for not adhering to a specific cookie-cutter vision of the world.


HeadshotJoe 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.

Some Lawyers Are Unfairly Taking Advantage Of The Pandemic

Most lawyers have acted admirably and worked together to move matters forward despite challenges posed by COVID-19. Indeed, many attorneys have served courtesy copies of papers through email since they know people are mostly working from home, reached compromises because courts are backlogged, and cooperated to solve problems throughout the pandemic. However, some lawyers have taken advantage of the pandemic to serve their own interests. While every lawyer has a duty to zealously represent their clients, some attorneys have used current conditions to their benefit in unfair ways.

For instance, some lawyers have made it more difficult for their adversaries to conduct work from their homes during this trying time. With almost all of my cases, lawyers are agreeing to loosen typical service requirements because it is far easier to accept service of motions and discovery documents through email than by mail like under normal circumstances. However, I recently heard a story of an adversary who circulated a notice conveying that the attorney’s office would be declining electronic service of motions, discovery papers, and the like. Forcing people to go to the post office or the office unnecessarily during a pandemic is extremely discourteous, and although there may be some circumstances in which electronic service should be declined, such flexibility can be critical right now.

Moreover, some people are seemingly using the fact that people are out of their offices to be sneaky about certain parts of the litigation process. In many jurisdictions, parties can serve notices to admit (also called requests for admission) on other parties asking them to admit or deny key facts about a case or if certain documents are complete and genuine. If the receiving party does not deny any of the requests in such discovery devices by a certain time, the requests may be deemed admitted. I have anecdotally heard of some lawyers mailing such requests to law offices even though they know that people are working from home, seemingly hoping that adversaries will not see the requests for admission and they will be deemed admitted. This is not a fair tactic, and a court would likely find as much if faced with a motion for a protective order or other relief by the party aggrieved by this tactic. Individuals should not be surreptitious because most people are working from home right now and should email courtesy copies of documents n such instances.

Attorneys seem to be using the pandemic to their advantage when delaying depositions in order to drag out litigation when it makes sense to do so. At the beginning the pandemic, lawyers rightfully argued that depositions should be adjourned because it was not safe to hold in-person depositions that might be easier to hold at a later date. As the months of the pandemic ticked by, it became clear that in-person depositions would not be advisable for some time, but people continued to argue that depositions should be held off until they can occur in person.

Of course, in-person depositions are usually better because it is easier to evaluate someone’s reactions when they are in the same room, and it is difficult to introduce exhibits during virtual depositions. In addition, depositions that require translators are often much easier to conduct in person because of the additional steps involved in translating testimony. However, attorneys have been holding virtual depositions just fine throughout the pandemic. Even though some lawyers may wish to delay cases, they should not be allowed to adjourn depositions so they can be held in person.

Moreover, many parties seem to be taking advantage of the fact that cases are not being managed as closely as they were before the pandemic and it is more difficult to get judicial intervention now than it was before the pandemic. The first time I drove a long distance during the pandemic, I was amazed at how few cops I saw on the road. Maybe police were called to help with the increased number of ambulances I saw in my area when New York City was the epicenter of the COVID-19 pandemic, but suffice it to say that there were few cops around at that time to regulate traffic. This had a profound impact on drivers, and I saw people doing some unbelievable things on the road when my area was dealing with the worst of the pandemic. Maybe some motorists thought that since there were less cops on the road, and they were unlikely to receive a ticket, they could do whatever they wanted.

Some lawyers seem to be acting in a similar manner. Since they know that judges are dealing with a backlog of work, and it may take time to receive an order after a motion, some attorneys might be more zealous when denying discovery requests or reaching the types of compromises we all make during litigation. Certain legal matters have become a little like the Wild West because of the pandemic, and some lawyers are using the lack of judicial oversight to their advantage.

All told, although many lawyers have acted admirably during the pandemic, some lawyers have unfairly used present circumstances to their advantage. Hopefully, courts and colleagues have long memories for the people that it made it more difficult to handle legal matters during this challenging time.


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.

Are The Elite Supreme Court Advocates Better — Or Just Better Known?

Ed note: This article first appeared on The Juris Lab, a forum where “data analytics meets the law.”

Of 17,000 lawyers who sought certiorari over nearly a decade, Reuters found that just 66 accounted for almost half the petitions granted. Put another way, for every 200 lawyers who ask the Supreme Court to hear their cases, one of those lawyers is almost as likely to land a case on the docket as the other 199 lawyers combined.

Chief Justice John Roberts is only the most decorated member of this rarified crew. Others include former Solicitors General and appellate stars with resumes shimmering with elite schools, prestigious clerkships, and marquee law firms.

Clients clamor to have these wunderkinds represent them at the Supreme Court. But does the demand for their services reflect better advocacy? Or do their glittering reputations and easy banter with the Justices simply allow them to pick stronger cases and to mold arguments to the tastes of an equally elitist Court?

Just as important, even if these star advocates shine, aren’t others just as good?

To help answer these questions, I reviewed 1,122 merits-stage briefs from the 2019 Term. To reduce the effects of selection bias and the limitations of win-loss records, I obtained BriefCatch scores on each brief. The algorithms draw from an Artificial Intelligence analysis of thousands of first-rate legal documents and judicial opinions, all published well before the 2019 Term.  

I divided the 1,122 briefs into three groups based on the counsel of record: 

  • Elite (Ranked in Chambers & Partners, Law360, and so forth)
  • Office of the Solicitor General
  • Everyone Else

I then ranked each group by Reader Engagement Score, a weighted composite BriefCatch score developed through factor analysis:

As the results show, although both “Elite” and “Other” briefs obtained a broad range of scores, the “Elite” scores skew higher. On the one hand, only 20 percent of “Elite” briefs scored below the average for “Other.” But on the other hand, 25 percent of “Other” briefs scored above the average for “Elite” briefs, and 5 percent scored more than an entire standard deviation above that average.

Here are the “Not Elites But Just As Good or Better Than Elites?”

Briefs for the prevailing party:

Author Case Brief Short Brief (under 3500 words)?
Cendali, Dale M. Lucky Brand Dungarees Inc. v. Marcel Fashions Group Inc. https://perma.cc/DH63-KQ23 No
Citron, Eric F. Georgia v. Public.Resource.Org Inc. https://perma.cc/3CAJ-CFXG No
Cohen, G. Ben Ramos v. Louisiana https://perma.cc/5GSC-UBYU No
Crouse, Toby Kansas v. Glover https://perma.cc/2LMW-Q6RG No
Knight, John A. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission https://perma.cc/46TT-8ERX No
Komer, Richard D. Espinoza v. Montana Department of Revenue https://perma.cc/DSQ8-NB5Y No
Levy, Michael A. Kelly v. United States https://perma.cc/C8DA-5BLZ No
Lin, Elbert County of Maui, Hawaii v. Hawaii Wildlife Fund https://perma.cc/ZFR5-MV4L No
Martinez, Roman Barr v. American Association of Political Consultants Inc. https://perma.cc/C84F-XJD3 No
Rassbach, Eric C. Our Lady of Guadalupe School v. Morrissey-Berru; St. James School v. Biel https://perma.cc/8JNC-SZND No
Roth, Yaakov M. Kelly v. United States https://perma.cc/ED2B-9FMQ No
Roth, Yaakov M. Kelly v. United States https://perma.cc/3W54-TEDV No
Tu, Travis J. June Medical Services LLC v. Russo; Russo v. June Medical Services LLC https://perma.cc/3RW4-WABQ No
Zabell, Saul D. Altitude Express Inc. v. Zarda https://perma.cc/K6PQ-WRWH No

Briefs for the non-prevailing party:

Amicus briefs:

Author Case Brief Short Brief (under 3500 words)?
Barthold, Corbin K. Atlantic Richfield Co. v. Christian, et al. https://perma.cc/Amicus8X-KMTQ No
Bolinder, Eric R. Maine Community Health Options v. United States; Moda Health Plan, Inc. v. United States; Land of Lincoln Mutual Health Insurance Co. v. United States https://perma.cc/ECZ9-R6W6 Yes
Crespo, Andrew Manuel Kansas v. Glover https://perma.cc/W82Z-BRAY No
Dubinsky, Gregory. Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, et al. https://perma.cc/Y8C7-L5CT Yes
Duncan, Dwight G. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Trump v. Pennsylvania https://perma.cc/2FBS-QBBH Yes
Goodrich, Luke W. New York State Rifle & Pistol Association Inc. v. City of New York https://perma.cc/8Q8A-E6R3 Yes
Green, Tyler R. Kahler v. Kansas https://perma.cc/3VGG-NECV No
Green, Tyler R. McKinney v. Arizona https://perma.cc/MG2W-JLC7 No
Gura, Alan New York State Rifle & Pistol Association Inc. v. City of New York https://perma.cc/5225-3Q6C No
Gutman, Benjamin Ramos v. Louisiana https://perma.cc/HB22-62AF No
Harris, Sarah M. Our Lady of Guadalupe School v. Morrissey-Berru; St. James School v. Biel https://perma.cc/D6RV-SBNV No
Hawley, Josh June Medical Services LLC v. Russo; Russo v. June Medical Services LLC https://perma.cc/6VZ5-FNTK Yes
Klukowski, Kenneth A. New York State Rifle & Pistol Association Inc. v. City of New York https://perma.cc/R453-PVB6 No
Letter, Douglas N. Seila Law LLC v. Consumer Financial Protection Bureau https://perma.cc/L8GE-6QLG No
LiMandri, Charles S. Bostock v. Clayton County; Altitude Express Inc. v. Zarda https://perma.cc/5ZXE-PMAQ No
Loss-Eaton, Tobias S. Chiafalo v. Washington; Colorado Department of State v. Baca https://perma.cc/MN4X-N3BH No
Martinez, Judy Perry Romag Fasteners, Inc. v. Fossil, Inc. https://perma.cc/ED3L-MH35 Yes
Masri, Lena F. Hernandez v. Mesa https://perma.cc/D56R-L5DT Yes
Matz, Joshua Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania; Trump v. Pennsylvania https://perma.cc/ND2S-F3U7 No
Michel, C.D. New York State Rifle & Pistol Association Inc. v. City of New York https://perma.cc/AUH5-EQHY No
Mizer, Benjamin C. New York State Rifle & Pistol Association Inc. v. City of New York https://perma.cc/Z8L6-MRNU No
Ramey, E. Travis New York State Rifle & Pistol Association Inc. v. City of New York https://perma.cc/ZKC5-5BNC Yes
Robinson, David A. Bostock v. Clayton County; Altitude Express Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission https://perma.cc/8MW5-H62M No
Roth, Michael D. Barr v. American Association of Political Consultants Inc. https://perma.cc/C266-APTB No
Schauf, Zachary C. Barr v. American Association of Political Consultants Inc. https://perma.cc/DT8P-D6BA No
Sekulow, Jay Alan United States Agency for International Development v. Alliance for Open Society International, Inc. https://perma.cc/CN9D-8SCC No
Shapiro, Ilya Department of Homeland Security v. Regents of the University of California; Trump v. NAACP; McAleenan v. Vidal https://perma.cc/B2BS-RXLF No
Sherman, Paul M. Barr v. American Association of Political Consultants Inc. https://perma.cc/92MW-H6K9 Yes
Thompson, David H. New York State Rifle & Pistol Association Inc. v. City of New York https://perma.cc/67KF-HRLY No
Tseytlin, Misha Barr v. American Association of Political Consultants Inc. https://perma.cc/47AG-K6RD No
Volokh, Eugene United States v. Sineneng-Smith https://perma.cc/9RXB-BABG Yes
Wessler, Matthew W.H. Retirement Plans Committee of IBM v. Jander https://perma.cc/8D5E-4ZSS Yes

BriefCatch scores are objective and rigorous, but they are still imperfect measures of writing prowess. Not to mention that clients ultimately care about results, not advocacy skill itself. That said, this long list of names suggests that expanding the official Supreme Court Bar could not only diversify representation but encourage some of the laggards in the reigning elite to up their brief-writing game.

Read more at The Juris Lab … 

Are We Still Citing Judge Kozinski As An Expert?

Why might this be a bad idea?

Kathryn is not pleased with the mainstream press continuing to cite Judge Kozinski as an ethics authority. Joe and Kathryn talk Zoom netiquette and the recent controversy at Georgetown Law where professors were captured on video making disparaging remarks about Black students. It’s yet another incident driving home the racism — conscious and unconscious — within the law school system.

It May Be Time For Stephen Breyer To Retire — But Stop Telling Him It’s A ‘Must’ For Biden

Justice Stephen Breyer (Photo by Chip Somodevilla/Getty Images)

The more the timing of his retirement is depicted as a partisan objective, the less he will want to do it. To be seen to retire “in order” to let Biden pick his successor would betray Breyer’s own career-long objective of making decisions based on what is right for the country, not for one party. That said, Breyer’s pragmatism means he knows he must weigh the costs and benefits of retiring at any given moment.

So it is absolutely essential for liberals to stop lecturing the man about it being his time to go. Every column or television comment — the more prominent, the worse — traps Breyer into having to stay out so as not to appear to be acting as a partisan.

What Breyer needs and deserves is room to maneuver, to find the best and most rational way to satisfy the complex competing interests around his retirement. The good news is, that’s his expertise. The liberal legal commentariat should stand back and let the master operate. He knows what he’s doing. Don’t make it harder for him.

— Professor Noah Feldman of Harvard Law School, in a Bloomberg opinion piece advising members of legal academia to stop telling Justice Stephen Breyer, 82, to retire from the Supreme Court. “[Breyer] can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he ‘must’ resign,” Feldman says.


Staci ZaretskyStaci 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.

Intel Agencies Call Out Superlawyer Rudy Giuliani For Laundering Russian Propaganda

Giuliani meets with Ukrainian lawmaker Andriy Derkach in Kyiv, Ukraine, Thursday, Dec. 5, 2019. Photo provided by Derkach’s press office.

Yesterday the CIA, DHS, FBI, INR, NSA, the Treasury Department and the National Intelligence Council spoke with one voice to say that the president’s lawyer Rudy Giuliani was a prime conduit for Putin’s propaganda to make its way into the American bloodstream during the 2020 election.

Yeah, don’t faint.

That picture up there is of our man Roodles with Ukrainian lawmaker Andriy Derkach, who was sanctioned by the Treasury Department in September 2020 as “an active Russian agent for over a decade, maintaining close connections with the Russian Intelligence Services” who had “waged a covert influence campaign centered on cultivating false and unsubstantiated narratives concerning U.S. officials in the upcoming 2020 Presidential Election, spurring corruption investigations in both Ukraine and the United States designed to culminate prior to election day.”

As part of an effort to discredit then-candidate Joe Biden, Giuliani spent two years serving up Derkach’s nonsensical corruption allegations about Biden and his son as part of a campaign waged by the Russian government to get Trump re-elected.  According to the unclassified version of the Intelligence Community Assessment of Foreign Threats to the 2020 US Federal Elections, “President Putin and other senior Russian officials were aware of and probably directed Russia’s influence operations against the 2020 US presidential elections,” and “Putin had purview over the activities of Andriy Derkach.”

[Andriy] Derkach, [Konstantin] Kilimnik, and their associates sought to use prominent US persons and media conduits to launder their narratives to US officials and audiences. These Russian proxies met with and provided materials to Trump administration–linked US persons to advocate for formal investigations; hired a US firm to petition US officials; and attempted to make contact with several senior US officials. They also made contact with established US media figures and helped produce a documentary that aired on a US television network in late January 2020.

January 2020? What are the odds that they mean this “documentary” that Giuliani produced with One America News’s Chanel Rion, in which they jetted around Eastern Europe while pretending they were being pursued by George Soros, in the flesh.

Here’s a still of Rion and Giuliani interviewing Derkach.

And here’s Rion gratefully accepting “evidence pertaining to six criminal cases in Ukraine involving the Bidens, contradicting the lemming media’s claim that the Bidens are innocent of all crimes.”

Remember that time when Giuliani went to Ukraine and uncovered shocking evidence that Rep. Adam Schiff was in on a scheme to loot the Ukrainian economy by means of publicly traded Franklin Templeton mutual funds?

What’s Ukrainian for, “Haha, Oleksiy, we can tell this idiot absolutely anything and he’ll take it as the word of God?”

But if there’s one intelligence source Rudy is skeptical of, it’s the US government.

“The chance that Derkach is a Russian spy is no better than 50/50,” he told the Daily Beast in October.

“My guess is that George Soros is behind this counter-offensive… because he wants to create a socialist country,” Giuliani continued. “He’d like to see us collapse and see us taken over by the international… whatever.” Later he speculated that sanctions imposed by Trump’s own Treasury Department were “an intelligence ploy to try to create problems for Trump—because Derkach could probably bury Obama.”

All this from a member of the bar in good standing! For the time being, anyway.

Intelligence Community Assessment of Foreign Threats to the 2020 US Federal Elections


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

Why Was The SolarWinds Campaign So Difficult to Detect?

Source code

WASHINGTON: Continued investigation reveals just how technically advanced the SolarWinds hack was — and how challenging it must have been to execute. By comparison, exploiting the zero-day vulnerabilities recently disclosed in Microsoft’s Exchange software is child’s play.

Public and private sector officials continue to openly question how it’s possible the U.S. government failed to detect the SolarWinds cyberespionage campaign. Some have said that the Cybersecurity and Infrastructure Security Agency’s EINSTEIN technology should have detected the attack. Others point to failures in the security architecture, technologies, and processes at government entities, including the 12 known to have been compromised in the hack. Some of that may be true, but it also overlooks some truly remarkable aspects of this hack, at the risk of underestimating this threat actor and misjudging effective solutions.

(Notably, U.S. Cyber Command Executive Director Dave Fredrick said at a virtual event last week that there’s “no evidence” Defense Department networks were compromised by this cyberattack.)

Following the campaign’s discovery, the National Security Agency urged federal and defense entities to adopt a zero-trust security model.

Why did so many public and private entities for months fail to detect the hack? Why did only one of the tens of thousands of victims eventually find it? To answer these questions, it helps to return to the Feb. 23 Congressional testimony of FireEye CEO Keven Mandia, as well as to what threat intelligence and forensics evidence have revealed since its discovery. FireEye discovered the hack after it became a “stage two” victim.

Stage one of the hack entailed the threat actor compromising SolarWinds Inc. and its Orion software by stealthily inserting a backdoor into a software update. Stage two victims include anyone who downloaded the legitimate, yet compromised, update that was hacked during stage one. Some have characterized the hack as “discriminate,” while others have said it was “indiscriminate.” The hack was, in fact, both: highly discriminate in stage one and largely indiscriminate in stage two.

Threat actors implemented excellent operations security to avoid being detected and used many stealthy tools, tactics, and procedures (TTPs) during the hack.

Mandia told Congress the SolarWinds hack is just the latest in what has been a “multi-decade campaign” for this threat actor. Microsoft President Brad Smith, who testified in the same hearing, said his internal security team estimated the SolarWinds hack involved the work of “at least 1,000 engineers.” Given that type of time frame and resourcing, it’s perhaps possible to begin to appreciate what the threat actor achieved in this hack.

As to one factor that complicated detection, a key step in the second stage of the hack involved compromising Microsoft’s Active Directory in breached organizations. Active Directory stores an organization’s IT user accounts (i.e., names and passwords) and associated access controls, which permit or deny users privileges to and permissions for IT resources, such as applications, servers, and files.

Gaining administrative control over Active Directory enables threat actors to pose as legitimate IT users within breached organizations, to authenticate using valid credentials, to lift user access controls, and to create new accounts, among other activities. Without specific types of security monitoring, such as anomaly-based detection baselined against typical user behavioral patterns, threat actors are free to move throughout an organization’s IT systems posing as a legitimate user, with no flags ever being raised. This, of course, posed a huge challenge to detecting the threat actor once it was inside breached organizations’ networks.

While the Active Directory hacks certainly complicated detection of threat actors on compromised networks, it’s not an uncommon step taken as part of advanced persistent threats. There is, however, one aspect that stands out as truly remarkable in what was generally a remarkable hack.

One of the most common methods for hacking software is to change the source code, but that’s not what happened at SolarWinds, according to Mandia. Instead, the threat actor modified the software build process. This is important to remember and understand, because it has potentially far-reaching ramifications going forward. Modifying the software build process, based on what’s known today, is a novel threat vector.

The software build process is a step in the software development life cycle. The build process converts high-level computer code written by human programmers, in a language such as C++ or Java, into low-level machine code, which is what computers actually process and execute as instructions. This conversion — from high-level programming language to low-level machine code — is what software developers call “compiling” the code.

The software build process is usually the last step before code is deployed into “production environments,” which are where organizations’ employees actually use the software. In the case of SolarWinds, the company deployed the compromised Orion code to approximately 17,000 customers, according to Mandia. Again, any organization that downloaded the legitimate, yet compromised, software update was instantly breached via the inserted backdoor and became a stage two victim in the hack.

Importantly, based on public information to date, it appears the threat actor conducted second-stage attacks against only a small percentage of the 17,000 total organizations breached. But questions remain about how many organizations are still breached today and what exactly was stolen from the approximately 200 organizations estimated to have been actively targeted in second-stage hacks.

Not only is modifying the software build process a “unique” attack vector, as Mandia said, it’s difficult to achieve. So challenging and unique is this vector that, as a precautionary measure to ensure its success, the threat actor carried out a “dry run” of the attack using harmless code in October 2019 to make sure it worked. Only later, satisfied that its proof-of-concept had been demonstrated, did the threat actor launch the actual attack in March 2020.

One concerning aspect, given the nature of the attack vector, is this: Modifying the software build process, rather than the source code, means that “this is a more portable attack than just at SolarWinds,” Mandia said.

Even FireEye, which specializes in breach investigations and employs thousands of highly trained experts in digital forensics, was nearly bamboozled during the investigation into its own compromise. Mandia said FireEye dedicated nearly 100 employees, most with 10,000 hours of prior forensics investigation experience, to discovering how the company was breached. “After exhausting every investigative lead,” Mandia said, the company’s experts opted to take a radical approach.

The investigators had traced the earliest indication of compromise to a SolarWinds server. Mandia said the experts decided to “tear [the server] apart.” That is, they “decompiled” the code. Then they sifted through 18,000 files, 3,500 executable files, and over 1 million lines of assembly code that were installed as part of the compromised SolarWinds software update.

Assembly code is a low-level computer language that consists of symbolic equivalents to machine code. It’s one step above the lowest-level machine code in the continuum between low and high languages. Programs can be written in assembly language, but very few choose to code this way today.

Just reading assembly language is an exacting skill. Conducting a forensics investigation based on assembly code is a highly specialized sub-field within cybersecurity. Few cybersecurity professionals possess this skill, and even fewer organizations employ such experts full time. FireEye just happens to be one of them.

The task FireEye investigators undertook is perhaps not quite as difficult as searching for a specific grain of sand on the beach, but after a few hours of this work, you would likely conclude there isn’t a material difference between the two. (You can try reading assembly language samples here. Note that this code is fairly well-documented compared to what’s often encountered by forensics investigators.)

So, after nine months of investigation by 100 highly trained and experienced cybersecurity forensics experts, FireEye finally discovered the “proverbial needle in a haystack” — a malicious “implant” in SolarWinds assembly code — in December 2020.

“You wonder why people missed it,” Mandia told Congress. “This is not the first place you would look. This is the last place you’d look for an intrusion.”

And, Mandia warned, “There’s no magic wand to say where’s the next implant.”

15 Best General-Interest Nonfiction Books Read During The Worst Year Of Everyone’s Life

One year ago, I sat at a local pub and had a plate of fish and chips for lunch. It was St. Patrick’s Day, and it was the last day before all the restaurants closed in my little corner of the world.

Hospitals filled up; lots of people died. We stopped doing almost everything, and struggled to find ways to do our remaining everyday tasks in a fashion that wouldn’t kill our (or anyone else’s) parents. Somewhere in there a mob of lunatics stormed the Capitol. So, yeah, not a great year.

With everyone’s mental health shot, I think we could all use something a bit more positive right now than another week of my melodramatic political musings. One of the few upsides of the pandemic was a lot more time to read, and I ploughed through books over the past 12 months. Thus, in no particular order, here are 15 of the best nonfiction books I read during the worst year of everyone’s life, and why I would recommend each one of them to you.

Endurance: Shackleton’s Incredible Voyage, by Alfred Lansing

Not only a gripping story, but an exquisite case study in good leadership. Anyone who works within an organization of any type, nautical or otherwise, should read this book.

Wreck of the Medusa: Mutiny, Murder, and Survival on the High Seas, by Alexander McKee

Also a gripping story, but one that should be read by anyone within any organization as a counterexample. Worst leadership ever. Be forewarned, this one involves a little cannibalism (sadly this excellent book is out of print, but you can find a used copy easily enough).

In the Heart of the Sea: The Tragedy of the Whaleship Essex, by Nathaniel Philbrick

The true story of the disastrous whaling voyage that inspired Moby-Dick: enough said. Well, maybe I should also say this too has some cannibalism (I was really on a maritime kick for a while there, what can I say? It happens at sea sometimes).

Nature Obscura: A City’s Hidden Natural World, by Kelly Brenner

A little gem of a book. There’s a whole lot of stuff hiding all around you that you won’t have thought to consider interesting until reading this book. Plus Kelly Brenner gives a nice Zoom presentation.

The Story of the Dinosaurs in 25 Discoveries: Amazing Fossils and the People Who Found Them, by Donald R. Prothero

People, the T-Rex was covered with feathers. If this is the first time you’re reading that, better get caught up on your dinosaur research. It’s far from a bone-dry paleontology text, though (see what I did with the pun there?). You’ll know what I mean when you get to the Bone Wars.

Blood and Thunder: An Epic of the American West, by Hampton Sides

A nuanced portrait of the American westward expansion and one of the key figures within it. Sides does not pull punches in describing Kit Carson’s complex legacy: a man of stunning courage, loyalty, and, at times, compassion, who could still chillingly take life when provided with the thinnest of justifications from superiors. It’s almost as if there’s good and bad in everyone, and we’re all imperfect human beings just doing our best.

Billion Dollar Whale: The Man Who Fooled Wall Street, Hollywood, and the World, by Tom Wright and Bradley Hope

Except for Jho Low, a person whose redeeming qualities you really have to struggle to unearth. A sweeping tale of financial fraud that will make you think both, “Huh, how’d he get away with that?” and “If that’s all he had to do, I could probably get away with that.”

Charlatan: America’s Most Dangerous Huckster, the Man Who Pursued Him, and the Age of Flimflam, by Pope Brock

Come to think of it, there’s not a lot good to say about John R. Brinkley, either. I guess at least he spread around to the little guy some of the obscene wealth he gained from scamming people literally to death (but, like, he also used some of it to tile his pool with swastikas). It you’ve ever pondered how so many Americans can fall so easily for seemingly obvious scams, this story is for you.

An Elegant Defense: The Extraordinary New Science of the Immune System: A Tale in Four Lives, by Matt Richtel

Other than the dual subtitle, there’s not much to criticize about this presciently timed reminder that real medical science is amazing and eventually always trumps flimflam. Actually understanding the extraordinarily imposing defenses your body has at its disposal sure bolsters the spirits of a reader facing down a pandemic.

Educated: A Memoir, by Tara Westover

This is the only book on this list that is pure-form memoir. In addition, it’s easily the most popular, and therefore requires no further explanation from me. If you haven’t already read it, read it.

American Buffalo: In Search of a Lost Icon, by Steven Rinella

As a hunter myself, I loathe the trophy pop culture portrayals of hunting as a toxically masculine death romp through the woods. Rinella nails it here though, with hunting as it should be: a live-action ode to self-reliance, and a subtle form of nature worship. A great overview of the cultural significance of the bison within the American psyche.

Un-Trumping America: A Plan to Make America a Democracy Again, by Dan Pfeiffer

The only overtly political book on this list is an instruction manual on what the Democrats need to do if they want any hope of enacting some of their broadly popular policy proposals. This one holds a special place in my heart, as I acquired my copy at the last truly public event I attended before the pandemic really took a bite out of American social life. That being said, Dan, maybe skip the footnote thing with your next book.

The Dinosaur Artist: Obsession, Betrayal, and the Quest for Earth’s Ultimate Trophy, by Paige Williams

You can’t put it down and feel bad at the end of it, which I mean as a compliment. Sometimes pursuing our passions too vehemently is actually a bad thing (at least when those passions are being relied upon to pay off ballooning household debts).

A (Brief) History of Vice: How Bad Behavior Built Civilization, by Robert Evans

A splendid combination of historical tidbits, quasi-responsible experimentation, and unexpected insights make this book worthwhile for boozehounds and teetotalers alike (to the latter, this stuff is part of your heritage too, like it or not, although I don’t know if you’ll enjoy Evans’ signature brand of humor as much as I do). When you finish the book, check out Behind the Bastards, the podcast hosted by Evans that has almost nothing to do with the book, but that does somehow make it fun to learn about history’s most awful people.

The Data Detective: Ten Easy Rules to Make Sense of Statistics, by Tim Harford

Could have also been titled something like How Not To (Accidentally or Otherwise) Lie with Statistics. Learn how to effectively process all that information flying at you every day. I’ll be thinking of several of Harford’s rules when citing statistics in future columns — it’s a quick, useful read.

There you go, get reading. In an often-joyless time, you can still delight in the fact that there is a bottomless pool of good books in this world — seriously, this is only an excerpt of one year of my reading, it became a top 15 list when I couldn’t whittle it down to 10, and, even at 15, I was shaving off several worthy contenders. You don’t have to take my word on any of these titles, by the way, you might have your own mental list of preferred books (and yours almost certainly comes from a more diverse pool of authors, I will have to work on that myself in the coming year). But if any of these books spark an interest, pick up a copy. Find something that intrigues you, learn a little more about a worthy topic, and get absorbed in a good story. You’ll never regret spending time or money on a good book.


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.

Some Of The Tech Mishaps Lawyers Have Experienced During Virtual Court Are Bonkers

As we all know far too well, the coronavirus crisis has completely changed the justice system. Court hearings and trials are now done virtually, as are meetings of all kinds. The pandemic forced a once tech-averse profession to suddenly adopt and learn to how to use new technologies to function properly. But just how well have lawyers adapted to the new normal?

We polled more than 100 attorneys — with our largest cohorts of respondents hailing from Biglaw firms (31.18%), midsize firms (23.66%), and small firms (23.66%) — to find out how things haved worked out for them in their new technology-enhanced worlds.

Despite the fact that 60% of our respondents reported that they did not receive any training on their use of remote networking software, over half said that they now have a strong knowledge of that software (with almost 60% noting that they do not have support staff who oversee their use of it). The majority of respondents (77.78%) reported that Zoom is most often the software of choice for virtual depositions and courtroom hearings (Microsoft Teams came in at a far distant second place with 9.09%, with Webex in third, with 8.08%).

How often is your camera on for virtual hearings and depositions?

Almost 70% of respondents said their camera is always on for virtual hearings and depositions.

How often is your camera on for virtual meetings (not hearings)?

About 61% of respondents said that their camera is sometimes on for virtual meetings.

How often do you wear formal business attire for virtual hearings and depositions?

Almost 62% of respondents reported that they always wear formal business attire for virtual hearings and depositions.

How often do you wear pajamas or loungewear for virtual hearings and depositions?

The majority of respondents, about 80%, reported that they never wear pajamas or loungewear for virtual hearings and depositions.

Have you been involved in or witnessed a remote hearing mishap?

Responses were equally split between those who had and those who had not been involved in or witnessed a remote hearing mishap. Here are some of the best (and most outrageous) responses we received:

  • I’ve seen parties driving and parties in bed.
  • During a remote deposition, the court reporter lost audio and took 30+ minutes to get it back at a crucial point in the questioning. Also, CourtCall has been struggling for telephonic hearings and attorneys frequently lose connection or have poor audio quality.
  • A witness’s audio decisively failed in the middle of a trial… twice… also once accidentally showed notes during attempt to pull up exhibit on ShareScreen.
  • A lead attorney lost connection and couldn’t reconnect.
  • I saw a litigant who lit up a blunt.
  • I once saw a lawyer who had apparently been using his Zoom profile to troll for kinky sex with toys.

Would you be able to immediately turn off a cat filter if necessary?

There can be only one Cat Lawyer. Almost 60% of respondents reported that they would indeed be able to immediately turn off a cat filter if necessary.


Staci ZaretskyStaci 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.

Biglaw Firm Hired For Andrew Cuomo Impeachment Investigation

(Photo by Eduardo Munoz Alvarez/Getty Images)

When the New York state Assembly hired a law firm to investigate the allegations swirling around Governor Andrew Cuomo, it was always going to be an elite firm. Maybe a top-flight boutique, but probably a ginormous Biglaw firm able to wield the legal know-how and brute force necessary to handle such a high-profile investigation.

Biglaw firm Davis Polk got the nod for this assignment. Today, Speaker Carl Heastie and Judiciary Committee Chair Charles D. Lavine made the announcement:

“Since Thursday, Chairman Lavine led a vigorous search for a top-flight firm to assist with the investigation. I have the utmost faith that Assemblymember Lavine and our Judiciary Committee will conduct a full and fair investigation,” Speaker Heastie said. “Hiring Davis Polk will give the Committee the experience, independence and resources needed to handle this important investigation in a thorough and expeditious manner.”

“The addition of Davis Polk will allow my colleagues on the Judiciary Committee and me to fully and fairly investigate the allegations,” Assemblymember Lavine said. “These are serious allegations, and they will be treated with fairness, due process and discretion.”

The matter will be led by partners Angela Burgess, Greg Andres, and Martine Beamon, and “[t]hey are authorized to vigorously pursue all the evidence to determine the extent to which violations of the law have occurred.” We’re all waiting to see what they turn up.

But not everyone is optimistic about DPW’s involvement. Debra Katz, attorney for one of the former Cuomo aides alleging sexual harassment, points to Davis Polk’s connection to one of Cuomo’s political allies, New York Court of Appeals Chief Judge Janet DiFiore. DiFiore is married to Dennis Glazer, a former partner at the firm:

“Political independence is fundamental to the integrity of the investigation. We were alarmed to learn that Speaker Heastie has hired Davis Polk to assist with the investigation, given the connection between Dennis Glazer, who spent more than 30 years as a partner at Davis Polk, and the Governor. This is an unacceptable conflict of interest,” the attorney for [former aide Charlotte] Bennett said in a Wednesday morning statement. “The impeachment investigation must operate free of political influence and must be transparent, detailing for the public the steps being taken to protect the integrity of their impeachment investigation. We already know the extent to which Governor Cuomo has surrounded himself with people in the Executive Chamber who enabled his behavior and swept evidence of sexual harassment under the rug. If there is even a hint of political influence in the impeachment investigation, it will taint the entire proceedings.”

“While Ms. Bennett is committed to cooperating with all appropriate governmental inquiries, including the impeachment investigation, the involvement of Davis Polk gives her pause. I suspect it will have the same effect on other women who were sexually harassed by the governor,” Katz added.

But remember, this isn’t the only investigation Cuomo is facing. Employment lawyer Anne L. Clark of Vladeck, Raskin & Clark, P.C. and Joon Kim of Cleary Gottlieb are investigating the governor on behalf of NY Attorney General Tish James.


headshotKathryn 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).