Category: News Feeds

Channeling its inner Marie Antoinette, the New York Board of Law Examiners has decreed, “Let them hold it!”

With the February administration of the bar exam barreling down upon us, bar examiners have determined that the October run — which resulted in people peeing themselves and dropping out due to mensuration — was too soft and opted to double the length of the exam, forcing people to contend with biological imperatives for even longer. A shorter exam was sufficient to ensure minimum competency in October but it’s not in February because… these people are just making it up as they go along.

And that’s not an exaggeration as every competent review of the bar exam process reaches the conclusion that it’s an anachronistic waste of time with no discernible effect on lawyer competency. Except, of course, studies like “random people on the street have heard of bar exams” — an actual survey they tout! — commissioned by the NCBE itself. Which is kind of like asking Philip Morris to certify that tobacco is safe for toddlers.

In any event, NY Assemblywoman Jo Anne Simon has emerged as a leader in the fight to secure basic dignity for bar examinees and wrote a letter to the Board of Law Examiners asking about its draconian bathroom policy. In response, she received a dismissive shrug put into words.

Dear Ms. Simon:

Excuse me? We use “Assemblywoman” or “Assemblymember” or at worst “Member” when someone has a title. The disrespect for an elected lawmaker doesn’t even wait until after the salutation. The letter is also addressed to “Jo Anne Simon” which absolutely should be “The Honorable Jo Anne Simon” too.

Candidates were either granted the four-day schedule or instructed to announce to the camera if they have an emergency and need to use the restroom. At this late date, schedules have already been set and the Board cannot now switch any candidate from the two-day schedule to the four-day schedule.

Ah, yes. You know how you always have several weeks’ notice before your period might begin? Not that it’s clear that such a condition would meet the vague standards the BOLE outlines in the letter of “candidates who are pregnant, nursing mothers, have a condition that requires frequent use of the restroom, etc.” But the point is that it’s FAR TOO LATE to let people take the exam over four days at this point because… well, there’s not really any good reason.

Since the Board has appropriately considered the concerns of all candidates requiring accommodations and because the MPT segments are no longer than the other segments, it sees no necessity for granting blanket permission for all candidates to use the restroom during the MPT, especially because the Board is concerned that some candidates would take such permission as also applying to other sessions, thus risking invalidation of their results.

Begging the question: Why not just let it apply to other sessions? You’re the people writing these restrictions, they can really be whatever you want. But the arrogance of “appropriately considered” judged by self-serving standards that the BOLE has neither the time nor inclination to spell out for “Ms. Simon” and her pesky legislative authority. Again, these sorts of restrictions might be justified if there was any reason to believe that administering a generalist, doctrinal bar exam in a closed book setting is essential for protecting the public from bad lawyers. But instead we’re just asked to take that as a given despite mounting data to the contrary.

But we’ll forge ahead with this trial by ordeal because if we accepted the results of three years of testing on a nationally accredited legal curriculum or offered an open-book research test simulating actual practice, then what would we do with all the self-interested parties who’ve turned this into a $22 million cash cow? People need to get paid and if that takes humiliating young lawyers at the altar of an outmoded exam then it’s really a small price to pay, don’t you think?

(Full letter on the next page…)

Earlier: The Online Bar Exam Amounted To Two Days Of Cruel Vindictiveness
NCBE Touts Poll, ‘See, People Who Don’t Know What A Bar Exam Is Think We Need Bar Exams!!!’
ABA Disciplinary Study Throws Water On ‘Bar Exam Protects The Public’ Argument

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

From the way you meet clients to the way you do research, everything’s more virtual in today’s pandemic climate. Practising Law Institute (PLI), known as the industry’s established provider of continuing legal education, also provides authoritative, practical guidance in an online format that makes finding information easy – even if your “office” is in your dining room.

Alexa Robertson, PLI’s Senior Director of Legal Information Services, answers some questions about PLI’s publishing offerings, including PLI PLUS, PLI’s online legal research system.

Many lawyers will know PLI for CLE. How would you describe PLI Press and the PLUS platform to those unfamiliar with this side of your organization?

As a nonprofit learning organization, we’re dedicated to keeping attorneys and professionals at the forefront of knowledge and expertise – this includes not only CLE and other training programs, but publications as well. PLI PLUS is our legal research database. We make all our publications available, so you have the benefit of finding answers in any of our renowned treatises, journals, or program course handbooks and transcripts. Subscribers to PLI PLUS have unlimited access to all PLI publications and course materials.

What makes your offering stand out in the crowded marketplace?

It is often said in legal publishing that “content is king.” For us, that is especially true. Our authors are experienced thought leaders who provide detailed and practical materials.

For example, we’ve been told that while there are other titles on regulation of broker-dealers, only the PLI treatise Broker-Dealer Regulation by Clifford Kirsch has a chapter that walks you through the FINRA registration process. These types of elements underscore the practicality of our titles, which can be guides that help you in your day-to-day practice. You can find these standout insights across our titles, including Manning on Estate Planning, Friedman on Leases, Fragomen on Immigration Fundamentals and Trial Handbook. A PLI treatise is a comprehensive resource.

What makes PLI PLUS especially useful is that it offers the complete library of these resources, so you can easily find the answers you’re looking for. And though it is a robust database covering 25 practice areas, we’re committed to making it as easy to use as possible so our customers can focus on the content, not the platform itself. For example, we call out the legal forms and checklists in our titles and allow you to download them to Word so they are easy to use. And with the “My Preferences” feature, users can customize the database settings to suit their needs.

What changes have you seen as a result of the pandemic?

When the legal world quite abruptly moved to remote work in March, we saw the effects right away; there was no one in their offices to receive our books. We immediately provided PLI PLUS access to print subscribers as a stopgap measure because attorneys and law schools across the country were shifting to remote work and remote learning. Throughout the summer and fall, we saw a large number of our print subscribers opt for electronic access through PLI PLUS. We hear people talk about the “new normal” and an increasing preference for resources that cater to remote work – that is something we will continue to respond to as we look ahead to the post-pandemic world.

How can non-subscribers benefit from PLUS?

Even if you don’t subscribe, we make some content freely available. The PLI Chronicle is our newest publication, aimed at giving voice to the diverse array of professionals working in the legal industry. It features concise articles contributed by legal scholars, practitioners and other experts on a range of timely topics that are practice-specific (such as renewable energy, SEC policy, copyright law, and pro bono advocacy) as well as relevant to the profession (such as negotiation skills, well-being in law firms, and remote work policies).

We also offer the Journal, which is an essential resource for timely, in-depth and authoritative analysis of topics impacting the law and the legal profession. Articles in this publication are more heavily researched, with footnote citations to relevant case laws and statutes, as well as links to interesting articles for further reading.

Looking ahead, what enhancements does PLUS have planned for the coming year?

Our enhancements come directly from customer requests we receive throughout the year – we have an ongoing dialogue with our customers that we find very beneficial. Next year we are focusing on integration between our programs and publication products, in response to our customers’ desire for easy access across all formats. We also plan to modernize the PLUS interface so that it is more in line with the main PLI website. We’re looking forward to working with our customers throughout the year to ensure we’re developing an enhanced site that meets their needs.

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Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here.

It is common for law firms to ask employees to front business expenses with the promise that these costs will be reimbursed at a future date. For instance, many law firms ask that attorneys pay for travel expenses, meals on business trips, and other costs, and associates submit expense reimbursement requests so that they can get paid back for these costs at a later time. However, law firms should not force associates to front substantial expenses for a law firm and should pay for such costs directly or issue business credit cards so that associates do not need to shell out money themselves if they do not wish to do so.

I first became aware of the concept of expense reimbursements during my first month as an associate in Biglaw. A bunch of new associates and I needed to travel to a different city in order to attend an orientation for new associates, and the firm asked that we all book our own travel and pay for all of the expenses associated with the retreat ourselves. The firm promised that we would be reimbursed at a later time.

At that point, I was extremely broke, and I had high-interest student loans. I felt somewhat uncomfortable paying thousands of dollars for travel expenses with my personal credit card with the promise that I would be reimbursed for these costs at a later time. I had not even worked at the firm for a month at that time, so I didn’t even know how the firm’s systems around expense reimbursements worked. However, since I was new to the law firm, I did not want to rock the boat by requesting that the firm pay for these expenses directly, so I charged the expenses to my personal credit card and hoped for the best.

When I returned home from the orientation, I immediately got my receipts together to be reimbursed for the trip. However, since I was new to the firm, it took a while for my information to be populated into our firm’s expense reimbursement system. It eventually took several weeks for me to get reimbursed for these expenses, and carrying the cost of these expenses on my credit card and paying the balance myself while waiting to be reimbursed meant that I was unable to devote money to my student loans. Since my student loans at the time had an interest of up to eight percent, I likely lost money carrying the expenses of the firm personally until I could be reimbursed.

Firms should not presuppose that associates have the financial security needed to front firm expenses and await reimbursement. Indeed, many associates have substantial student debt, and any money that they need to use to cover firm expenses cannot be immediately devoted to student loans or other financial goals. Of course, some law firms have very efficient expense reimbursement systems, but this may not ensure that employees will get reimbursed before a student loan or other payment needs to be submitted.

Later in my career, I worked on mass torts matters, and I was required to travel extensively. At my peak, I was spending 70 nights a year in hotels, and I had to expense my travel, hotels, meals, and other expenses associated with traveling for these mass torts matters. I discovered that I could actually earn a substantial amount of credit card points by charging all of the expenses to my personal credit card and getting reimbursed by my firm as was the firm policy. However, I would routinely have a high four-figure balance on my credit card stemming from travel related to my mass torts work.

When the firm processed expense reimbursements in a timely fashion, there was no issue, since I did not need to use my own personal funds to pay off my credit card that included the work expenses. However, sometimes the firm would process expense reimbursements at a slow pace. At times, staff would seemingly go on vacation and this impacted the response time for the expense reimbursements. At other times, it seemed like there was just a high volume of expense reimbursement requests to be processed, and this added to the time it would typically take for me to be reimbursed for business expenses.

More than once, the expense reimbursements would not arrive by the time payment needed to be made on my credit cards, so I had to use my own personal funds to “float” the firm and pay off the charges so I would not be charged interest. This meant that I had less money to pay off my student loans or work toward other financial goals I was pursuing. As a result, even if there are advantages to charging business expenses to personal credit cards, there can be drawbacks, and firms have an obligation to process expense reimbursements as quickly as possible so they do not financially burden their associates.

All told, law firms should never assume that associates are financially able to front business expenses, and firms should never force associates to pay for business expenses to be reimbursed at a later time. It is easy enough for law firms to issue firm credit cards or pay for such expenses directly to ensure associates do not need to dip into their own money to float costs for the firm. In addition, firms need to be efficient in processing expense reimbursements so associates can avoid applying their own money to pay off business charges.

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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.

Biglaw’s efforts to address the need for diversity and inclusion among their ranks continue to be of great importance to firms across the country. But thus far, only one firm has partnered with Legal Innovators, an alternative legal services provider focused on innovative talent management solutions, to drive systemic change in its recruitment and training strategies. Only one firm will use Legal Innovators’ ingenious methodology to create a diversity pipeline for incoming associates.

That firm is Orrick Herrington & Sutcliffe.

The firm brought in $1,158,537,000 gross revenue in 2019, putting the firm in 31st place in the most recent Am Law 100 ranking. Under Orrick’s diversity pipeline pilot program with Legal Innovators, recent law school graduates will have the opportunity to join the firm as fellows, and may be offered full-time associate positions after two years. Legal Innovators will also offer training to other diverse attorneys who are joining the firm this year. Here are some additional details from Orrick’s press release:

“We’re focused on applying science-backed insights to the way we recruit and develop lawyers in a way that’s inclusive and attractive to top, diverse talent,” said Orrick’s Chief Talent Officer Siobhan Handley. “While we’re experimenting with a number of approaches, we’re especially impressed by Legal Innovators’ methodology and excited, not only to welcome the two Orrick Legal Innovators’ Fellows, but also to learn from their creative thinking and curriculum to ensure we improve the way we support diverse talent.”

Legal Innovators moves beyond traditional hiring metrics. Utilizing predictive analytics, they look at more than 20 factors, such as accolades and work experience in undergrad, to determine the potential success of a candidate.

The program will also help the firm expand beyond the law schools it traditionally hires from to recruit diverse candidates. “[W]e know there are extremely talented individuals that are outside of the top 25 or 30 schools and we know that there are many systemic barriers that prevent really qualified, amazingly talented individuals from ending up at a top 25 or 30 law school,” Siobhan Handley, Orrick’s chief talent officer, said in an interview with Bloomberg.

Legal Innovators currently works with more than 25 law schools, many of which are ranked outside of the schools Biglaw firms traditionally hire from — including Howard University, University of Connecticut, and New York Law School. “If you’re going to take that approach, the law firms or even corporations are always going to be fighting over the same 200 Black associates,” said Bryan Parker, a former Shearman & Sterling lawyer who co-founded Legal Innovators.

Diversity pipeline programs like the one that Orrick has set up with the help of Legal Innovators could change everything for Biglaw firms when it comes to their D&I initiatives. Orrick was brave enough to be the first to give it a try. Which firms will join Orrick in its quest to create a more equitable and inviting workplace?

Orrick and Legal Innovators Team Up to Pilot a New Approach to Developing Junior Legal Talent and Driving Gains in D&I [Orrick]
Orrick Partners with Startup to Pilot Diverse Pipeline Program [Bloomberg]

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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.

Well, Donald Trump was not convicted in his impeachment trial. Somewhat surprisingly, seven Republican senators did break ranks, and decided not to go down in history as antidemocratic shills for a disgraced wannabe dictator. Still, a bipartisan vote of 57 in favor of conviction, with 43 Republicans against, fell short of the two-thirds majority required to make sure Trump is never able to run for office again.

It’s a bittersweet result that is not completely foreign to the litigators of the world. Democratic prosecutors delivered a gripping, compelling argument, complete with dramatic and previously unseen video evidence. The case for conviction was simultaneously hard to watch and impossible to look away from. Trump’s defense team, meanwhile, alternated between blathering, incoherent nonsense, and blatantly misstating both facts and law (“One of the first people arrested [in the riot] was a leader of antifa,” lied Michael van der Veen; “There was no insurrection,” said Bruce Castor, to head scratches from everyone who has seen a screen since January 6). Trump’s lawyers couldn’t answer basic questions, even from Republicans. They hostilely dodged questions from Democratic lawmakers. The obvious difference in preparation was like a comprehensive book report delivered by Lisa Simpson versus one Bart improvised on the spot based on the title.

Yet, technically, Trump’s legal team won. Largely, this has been blamed on the runaway American partisanship that facts and logic seem powerless against — and surely that is correct. But there was another nuance to the Democrats’ defeat: good advocacy simply doesn’t work all that often.

As a lawyer, this can be a difficult reality to accept. Personally, in addition to going to law school, of course, and having spent a decade practicing at this point, I also dedicated three years of my life to teaching aspiring lawyers how to be better advocates. That’s a lot of effort to put into something that doesn’t matter. Yet, anyone who has been litigating long enough can instantly think of examples of powerful cases impressively delivered by seasoned advocates which nonetheless fell victim to a litigation strategy seemingly scrawled out on a bar napkin the night before.

And sometimes that is the right result. At the things-are-working end of this phenomenon, the facts just aren’t in your favor. I’m fond of telling clients (and potential clients, to the probable detriment of my receipts), “Judges generally are not going to punish someone who should win the case just because that person retained a bad lawyer.” Even a bad, unprepared lawyer should win against an exceptional opponent who worked her fingers to the bone preparing her arguments, when the latter’s client is actually in the wrong. On the other hand, at the oh-shit end of the spectrum, where no level of advocacy matters because minds have already (wrongly) been made up, you have the latest Trump impeachment, or, say, the presence of a clandestine racially prejudiced jury member.

The big question, for litigators at least, is how often do their efforts actually matter in terms of potentially changing the outcome? Twenty percent of the time? Thirty? Experts tend to agree that while it’s very hard to get people to change their minds on major issues, like their politics, argumentation is generally pretty effective in more mundane situations, such as influencing which restaurant your group decides on. Where an initial view of the proper outcome of a legal case falls on a juror’s scale of open-mindedness is itself an open question. Regardless, the presence in our culture of big, high-profile cases where good advocacy clearly mattered big time (O.J. Simpson) is always going to convince people with enough money that it’s worth spending a little of it just in case their case is one of those in which a good advocate might make a big difference.

As for Trump, it sure wasn’t the quality of his team’s advocacy that spared him from conviction. But conviction wasn’t ever really the point. The real audience wasn’t 100 senators, most of whom had already made up their minds before the proceedings began. The real audience was 328 million Americans, who saw exactly what happened on January 6, and in the months leading up to it. For that audience, the Democrats nailed it, and only time will tell whether their solid advocacy mattered or not.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes 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.

* Donald Trump has purportedly dumped Rudy Giuliani as his personal lawyer. Wonder if he was told “you’re fired“… [CNN]

* Lawyers for an alleged Capitol rioter are purportedly trying to use Mitch McConnell’s words about President Trump’s actions to their advantage. [Law and Crime]

* A former Florida lawyer, who’s pants literally caught on fire during a trial in 2017, has allegedly been charged with cocaine possession. [New York Post]

* A new lawsuit filed by a Democratic Congressman alleges that Donald Trump and others conspired to cause the January 6th Capitol riot. [Reuters]

* Dominion Voting Systems purportedly plans on filing a lawsuit against the CEO of MyPillow after he said “please sue me.” He’s probably still sleeping well at night… [Newsweek]

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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.