Category: News Feeds

* Reese Witherspoon is facing a class action over statements that allegedly implied she’d give teachers an unlimited amount of free dresses. Elle Woods and Tracy Flick would have talked to counsel before making any offers… [Hollywood Reporter]

* Mitch McConnell is proposing sweeping immunity from claims relating to COVID-19 in exchange for additional government relief. [CNN]

* Check out this article on the challenges facing bar candidates this summer. [Forbes]

* Alex Jones has hired a new lawyer to represent him in Sandy Hook defamation litigation. [Connecticut Law Tribune]

* The feds have shut down the website of a Kentucky man who claimed to have a vaccine for COVID-19. Real life is looking more and more like the movie Contagion with every passing day. [Courier Journal]

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.

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

According to data recently released by the U.S. government, which law schools received paycheck protection program (PPP) loans from the Small Business Administration?

Hint: The ABA-accredited, standalone schools in question received between $150,000 and $5 million loans from the government during the coronavirus crisis.

See the answer on the next page.

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.

Do you sometimes feel like you’re at the center of a technology tornado -– thing constantly changing around you? Or perhaps, for you, it’s more of a desert landscape you’re stuck in -– no sign of change in sight and no clear way out.

To get a sense of other lawyers’ relationship with technology at work, I crowdsourced the following question on LinkedIn: “Which one thing do you think needs to change most in your work environment?” This completely nonscientific poll lead to the following results:

Contracts Are At The Forefront Of Lawyers’ Minds, When We Aren’t Thinking About Cheesecake

Marny Abbott, a senior in-house lawyer, said, “The lawyer answer, of course, is ‘it depends.’ I don’t currently have a lot of contracts, and am a team of one so am flexible, but any of these could change on a dime. Most importantly, everything is better with cheesecake.”

Contracts are a massive opportunity to improve lives (for lawyers and clients alike) and have a real impact. Hayley Leviashvili, CEO and founder of gigLAW explained, “I believe automating contracts is essential in the legal industry and can increase efficiency immensely. Rather than having interns or associates go line-by-line, leaving out specific language, as you know opposing will ask for that and we consider it a ‘giveaway,’ automated contracts will eliminate much of the time that takes.”

Leviashvili explained, “Though that process is central to legal negotiations, I’ve always thought there are more efficient ways to go about drafting and negotiating contracts!”

Collaboration And Flexibility Are On Our Minds, Also, When We Aren’t Thinking About Cheesecake

Collaboration is critical and constantly evolving. Collaboration in the 1950s meant one thing; following the advent of e-mail, another; and with Slack, another. And of course — in times of COVID-19, something entirely different.

We must stay open-minded and ready to experiment. Lisa Lang, general counsel at Kentucky State University, observed, “Increasing internal collaboration is something I make a priority. With everyone socially distancing, it is important to make sure you are very intentional regarding your communication. Communication is key when you are working to create a collaborative environment.

Rachel Coll, a lawyer and certified life coach recalled, “Back when I worked full time for an employer, I couldn’t stand the traditional 9-5, be planted in your desk chair, expectation. Flexibility makes for happy employees who WANT to do the work, rather than employees who muddle through because they feel chained to their desks.”

This is something on everyone’s mind these days — which parts of the way things have always been done can we leave behind in a post-COVID world? How can we maintain flexibility and even increase efficiency?

Tech Creates Fear: Lawyers (Virtually?) Eat Their Feelings

Cheesecake, even when virtual, is a tempting choice. “It was a close call between flexibility and cheesecake. But my slowing metabolism does NOT need more cheesecake,” said Lisa Goldkuhl, a dedicated mother and in-house supervising attorney. Likewise, Annie Little, founder of JD Nation, admitted, “My brain is not yet fully caffeinated, so of course I went with cheesecake. I think that speaks to how difficult change can feel!”

Shari E. Belitz, CEO at Shari Belitz Communications, observed, “I think I collaborate pretty well with myself, I definitely give myself maximum flexibility. I’d love to know a bit more about automating contracts.” She added, “I did select cheesecake. But I know a lot about cheesecake.  Automating contracts, not so much.”

Jamie Szal, Maine state and local tax attorney at Brann & Isaacson, said, “I like to think of myself as fairly tech-adept. Product of growing up the child of a Xerox engineer. But, as I affectionately forewarn my IT guy, I come with tech gremlins. Things just stop working the way they should when I come near.” She added, “That said, I love learning new tech to make my job better.”

There’s no shortage of technology needs in the legal world. Law is a slow-moving profession and lawyers tend to be risk-averse, so inefficiencies are carried much longer than they need to be. As a lawyer in the technology world, half of my mission is to get lawyers thinking about technology and identifying efficiencies. Then, once they do so, we can get to talking about fixes.

But until then — let us eat (cheese)cake.

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

This morning Texas’s all-Republican Supreme Court rejected the Texas GOP’s last ditch bid to force the city of Houston to use its convention center for the state party convention on Thursday.

Holding that Texas’s election law giving courts jurisdiction to “issue a writ of mandamus to compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention” was not applicable to contracts with the state, the Court refused to grant relief citing lack of jurisdiction.

As Texas’s COVID numbers have surged, Texas Republicans continued to insist they would host an in-person gathering for delegates at the George R. Brown Convention Center. For their own safety, though, Governor Greg Abbott and Lt. Governor Dan Patrick planned to address the gathering via video.

Hey remember when Patrick went on television and said that “lots of grandparents out there in this country like me … want to live smart and see through this, but I don’t want the whole country to be sacrificed?”  Easy to say when you’re calling in to chat with Laura Ingraham from the comfort of your rumpus room, but less so when faced with the prospect of 6,000 of your fellow Texans exhaling in your direction as they breathe in your every word. But luckily for Patrick, Houston’s Democratic Mayor Sylvester Turner announced last week that he was invoking the force majeure clause to cancel the city’s contract with the Gippers.

“These are some very serious times,” Turner said last week, announcing his decision. “Simply put, the public health concerns outweighed anything else.” And indeed they are serious times, with Harris County reporting 45,368 confirmed cases as of this writing, the most of any county in the state. Nonetheless, the Texas GOP demanded to hold the state party convention in Houston as scheduled.

“We are prepared to take all necessary steps to proceed in the peaceable exercise of our constitutionally protected rights,”  State party Chair James Dickey said last week, citing the Black Lives Matters protests, which took place “without any of the safety precautions and measures we have taken” as proof of his party’s right to assemble indoors on city property.

Justice Jeffrey S. Boyd, speaking for a 7-1 majority of the court, did not agree.

“The Party argues it has constitutional rights to hold a convention and engage in electoral activities, and that is unquestionably true,” he wrote. “But those rights do not allow it to simply commandeer use of the Center. Houston First’s only duty to allow the Party use of the Center for its Convention is under the terms of the parties’ Agreement, not a constitution.”

Which would appear to settle the matter, although the party is currently litigating in lower court and has vowed to fight to the bitter end to secure specific performance from the city.

So, welcome to the Deep State, Texas Supreme Court! You can collect your Resistance swag bag in the AOC conference room, before heading to the Elizabeth Warren Dining Hall for a round of Bolshevik workers’ anthems.

(Opinion on the next page…)

IN RE REPUBLICAN PARTY OF TEXAS, RELATOR [Denial of Writ of Mandamus, July 13, 2020]
Houston convention center operator cancels in-person Texas GOP meeting [Texas Tribune]

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

If you saw a couple of attorneys in St. Louis emerge from their home with an AR-15 to wave at peaceful protesters and thought, “This is going to end with a comprehensive lesson in all the stuff you forgot from 1L Property class,” then you are graced with more vision than the rest of us.

Mark and Patricia McCloskey came into our hearts just two weeks ago, when they busted out an AR-15 and a handgun to confront a group of protesters who — from all available video evidence — were just walking down their street. When Mark McCloskey appeared on Tucker Carlson, he explained that “I was literally afraid that within seconds they would surmount the wall, come into the house, kill us, burn the house down,” speaking to a pronounced paranoia based on the videos. Whether he intends it or not, this certainly reads as “whenever I see Black people in my neighborhood, I assume they’re going to kill me,” which isn’t a great look.

Most of the hate mail we’ve received for covering this story revolves around the McCloskeys having the “legal right” to defend their home. Certainly I flagged the fact that they stayed on their lawn as an important defense in my original article. But now the police have seized the AR-15 used in the altercation as part of an ongoing investigation so… maybe not.

But the more exciting news from the weekend is the revelation that the McCloskeys are big fans of old school Property law, and we couldn’t be happier. And, in the end, isn’t a grasp of Property a lot more effective as a weapon than an AR-15?

The answer is no, but you get the point.

The St. Louis Post-Dispatch has a deep dive into the couple’s litigious history and it turns out they like to sue people. A LOT! Neighbors, coworkers, family… it doesn’t really matter.

They filed a lawsuit in 1988 to obtain their house, a castle built for Adolphus Busch’s daughter and her husband during St. Louis’ brief run as a world-class city in the early 20th century. At the McCloskeys’ property in Franklin County, they have sued neighbors for making changes to a gravel road and twice in just over two years evicted tenants from a modular home on their property.

Mark McCloskey sued a former employer for wrongful termination and his sister, father and his father’s caretaker for defamation.

There’s a lot to unpack there, but hats off to the St. Louis newspaper for coming right out and saying “St. Louis’ brief run as a world-class city.” Damn. When the local paper is dumping on the home town….

The McCloskeys have filed at least two “quiet title” suits asserting squatter’s rights on land they’ve occupied openly and hostilely — their terms — and claimed as their own.

Sigh. It would have been nice if the Post-Dispatch could have checked with a lawyer before publishing this who could have told them that “hostilely” isn’t something they pulled out of a hat but a necessary element of the claim they tried to bring.

Mark McCloskey’s first taste of ownership may have been on his 20th birthday, in 1976. A card from his parents, Bruce and Lois “Carol” McCloskey, would much later become an exhibit in a lawsuit against his father and his father’s trust.

‘You are now the sole & only owner of 5 acres’

The card said: “You are now the sole & only owner of 5 acres of the Phelps County Farm. Papers to follow. This is on the river — Luck! Happy Birthday! Mom + Dad.”

He also got a small box of earth from the family’s 240-acre property to make it official.

A small box of earth? Livery of seisin, baby! Didn’t expect to see that come up on the exam. McCloskey eventually got burned when the assessor told him that no valid paperwork was ever filed. In the battle over his father’s will, a judge ruled against the claim disregarding the dirt clod, which is a shame because that at least feels like a claim worth considering. It’s the sort of symbol that would clearly signal an intention to convey land, right? Maybe I’m just a sucker for the old school.

Beyond the family acreage, the McCloskey home we’re all familiar with came into their possession through some test-worthy legal moves. The couple originally bid on the house in a deal with a “right of last look” clause. When the tax lawyers tried to sell it to someone else after telling the McCloskeys it would be theirs if they could get the money together in the morning…

“I get to my office at about 4 o’clock in the morning. Pattie and I draft a lawsuit and file it when the courthouse opens, the (temporary restraining order) to prevent the sale. We set up a table at wherever Lewis and Rice was in those days and served every partner on the way in and served the president of Boatmen’s Bank when he went to work the next day.”

The move resulted in his own firm forcing him to resign and a wrongful termination suit against them. All the cases were dismissed, but the McCloskeys ended up with the house so they did manage to effectively deploy the law to get the job done.

A less savory incident in the couple’s history of using Property law came when the McCloskeys got in a tussle with the homeowners’ association over a provision in the community’s agreement limiting ownership to a “single family,” which the McCloskeys maintain was an honest, neutral dispute, but what most neighbors saw as an effort to keep a gay couple out.

But there’s so much more! Another adverse possession suit seeking to claim less than half an acre that was fenced incorrectly, an easement fight over the condition of a gravel road across McCloskey land that turned into a Bleak House litigation, an eviction claim against a single mother, a threat to file a functional trespass claim against a Jewish school project that placed beehives on its own property near to the McCloskey home.

There’s just so much here! Seriously, 10 points to whichever professor out there uses the McCloskey drama as an issue-spotter next year. It’s really got everything you could want to teach a course on this stuff. The McCloskey home may as well be Blackacre!

Or, perhaps, Whitestraightacre.

Portland Place couple who confronted protesters have a long history of not backing down [St. Louis Post-Dispatch]
Police seize gun at home of St. Louis couple who pointed weapons at protesters [CBS News]

Earlier: St. Louis Lawyers Wave AR-15 At Protesters Like Totally Normal, Totally Not Bonkers People
Opening Up The Above The Law Mailbox… Of Hate Mail!

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.

We have some unfortunate news from New York, where the founding partner of one of the largest law firms in America recently passed away.

Leonard Rivkin, 95, was the founding partner of Rivkin Radler, which recently was ranked at #209 on the 2020 edition of the NLJ 500. After serving in the Army during World War II, Rivkin returned with a Silver Star and two Purple Hearts before he graduated from UVA Law. He founded the firm by himself in 1950, and today, the firm has almost 200 attorneys. The New York Law Journal once referred to the firm as “the largest suburban law firm in the U.S.” The Long Island Business News has an inspirational snippet from Rivkin’s memoir, “May It Please the Court”:

In an excerpt from the book, Len explains how he grew the firm;

“How did I do it?”

“… With a uniquely aggressive and creative approach to business development and litigation strategy.

The essence of that approach; take the initiative.

In other words, do not sit on your hands waiting for something to happen: make it happen.

Do not react to your adversaries; make him react to you…”

Among the first to embrace legal marketing, Rivkin added, “This approach is not just a litigation tactic; it is a sure-fire way to develop and expand a law practice. Clients do not materialize in an attorney’s office out of thin air. They will not find you unless you find them first…”

William Savino, the firm’s former managing partner, said Rivkin “had a remarkable influence and impact on so many people,” and that he was a “truly a unique human being” whose “legacy is palpable in the spirit and character of the Firm he founded.” Evan H. Krinick, the firm’s current managing partner, remembers Rivkin as “charismatic and charming, as well as ambitious and driven.”

We here at Above the Law would like to extend our sincere condolences to Leonard Rivkin’s family, friends, and colleagues during this difficult time.

Leonard Rivkin, founding partner of Rivkin Radler, dies at 95 [Long Island Business News]

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.

Today marks the start of the 2020 annual conference of the American Association of Law Libraries, which runs through Friday. As the AALL’s first virtual conference, it is a much different event in a much different time for an organization that is facing a much different future.

Recent years have seen an unprecedented surge in the use of technology and artificial intelligence within the legal profession, and the betting money says the pandemic will only further accelerate that surge. With that comes both opportunities and challenges for law libraries.

New AI products purport to do the work of the legal researcher. At some firms, bots field lawyers’ help-desk questions. Legal research companies have even taken to anthropomorphizing their products with human names such as CARA (from Casetext), EVA (from ROSS Intelligence) and Vincent (from vLex).

As technology and AI push the boundaries of legal research and knowledge management, some may wonder, “Is the future of the law librarian threatened by a robot revolution?”

In fact, just the opposite is true. Technology will not diminish the role of the information professional. Rather, never has the role of the legal-information professional been more essential.

Last year, I contributed a chapter to Law Librarianship in the Age of AI, a book published by the American Library Association. In my chapter, on the future of AI in law libraries, I described what I see as four roles of law librarians that exist already and that will become more essential as technology evolves.

Librarian As Gatekeeper

Already, law librarians’ evolving roles require them to wear a variety of hats. Increasingly, one of those is legal technologist. These days, one can hardly be an information professional without also becoming a technology professional because the two disciplines overlap in almost every way. For that reason, law librarians have begun to fill the role of technology  gatekeeper within their firms and organizations.

I hear this repeatedly from the vendors who sell to firms. Law librarians get it. They understand the importance of technology in advancing the legal profession, and they are more likely than other legal professionals to understand the mechanics of technology, to be able to get under the hood and size up whether a product is what it claims to be.

We see this at law firms, where law librarians are often the screeners for new technology, helping to vet and evaluate products before their firms plunk down precious dollars. We see this at law schools, where law librarians are often at the forefront of pushing for teaching and program initiatives in technology innovation and competence. We see this in court systems and government agencies, where law librarians are often helping to lead the charge for expanding access to justice.

In this way, librarians play an indispensable role in the legal profession. They are the gatekeepers. They are, if you will, the technology police. They have the skill and the savvy to scrutinize vendors’ claims and make sure the reality comports with the marketing. In this way, librarians — maybe more so than any other role in the legal profession — are critical to keeping the industry honest.

Librarian As Guide

While law librarians already play a critical role in evaluating and selecting technologies, their role will extend well beyond selecting systems. They will also be called upon to facilitate the use of AI within their organizations through the training of lawyers and law students and by continuing the evaluation of AI systems and their use.

As librarians Mary Ann Neary and Sherry Xin Chen of Boston College Law School write in their 2017 paper, “Artificial Intelligence: Legal Research and Law Librarians,” law librarians are well suited to this role. “Librarians, aware of what results can optimally be retrieved by a particular search, can gauge the gaps or weaknesses in an AI system by evaluating search results.”

Beyond training others in the use of AI systems, law librarians could also have a direct role in training and refining the machine learning systems in use at an organization, Neary and Chen said. “Law librarians, as information professionals with a unique understanding of users’ search habits, goals, and available data, can help the institution tailor the application and maximize the benefits of the AI system.”

In their 2018 article, “Putting Artificial Intelligence to Work in Law Firms,” Ed Walters, Fastcase CEO, and Morgan Wright, product manager at Fastcase, argued that in addition to training third-party AI systems, law librarians will also have a role — perhaps the lead role — in building systems internally. “Who will be the makers in this new era of read/write artificial intelligence? It would be natural for the law firms’ experts in legal information, law librarians, to have the central role.”

If lawyers do not have the skills or understanding they need to use the ever-widening array of AI-driven services and tools available to them, they cannot practice effectively, now or a decade from now. In the future, the role of law librarian in training lawyers, associates, and law students will be as important as it ever was — maybe more so.

Librarian As Ethicist

Evolving ethical expectations around lawyers’ understanding and use of technology, including AI, pose potential pitfalls for legal professionals. Librarians in the future will serve a valuable role as members of legal teams in helping lawyers navigate new technologies and the ethical requirements surrounding those technologies.

This role is particularly critical in light of ABA Model Rule 1.1, Comment 8, the so-called duty of technology competence, which 38 states have formally adopted. This duty places on obligation on lawyers to evaluate and manage the technologies at issue in the matters they handle.

But for the lawyer who lacks competence in a specific technology, the duty creates a catch-22. One cannot manage what one does not understand. This can be particularly challenging in the case of AI technology, which can be difficult to understand even for the more tech-savvy among us.

Here is where the law librarian is and will continue to be particularly valuable. As professionals trained in both law and systems, librarians will increasingly be essential members of technology-driven legal teams, helping lawyers understand the ethical obligations implicated in certain technologies, and then helping lawyers understand best practices in selecting and deploying those technologies.

Librarians, uniquely among legal professionals, have knowledge and skills that span law, practice, and technology. Likewise, the issues raised by the duty of technology competence span law, practice, and technology. In helping lawyers understand their duties and obligations regarding technology, while also helping them understand the capabilities and limits of the technology itself, librarians increasingly will become essential members of legal teams.

Librarian As Interpreter

Something we too often forget about AI is that it is not actually intelligent. It is the application of mathematical algorithms to data. Who creates algorithms? Humans. And just as humans have flaws and biases, so do algorithms.

But because algorithms are often proprietary, consumers are not privy to the biases within them or even aware of the ways in which those biases might skew results. This is one of the great dangers of AI and the reason that AI needs an interpreter. In the legal profession, no one is better situated to serve that role than the law librarian.

Algorithmic biases can manifest themselves in various ways. In his 2016 article, “The Digital Future of the Oldest Information Profession,” Ray Worthy Campbell, professor of law at Peking University School of Transnational Law, described the potential dangers of hidden biases in products used by corporations offering legal services.

“A product relying on Big Data analysis and statistical correlation might give different advice in response to a criminal charge if race or income were a variable, embedding, unknown to the consumer, historic biases in the information given,” Campbell wrote. “With the algorithm hidden, the bias would be, as a practical matter, undetectable.”

More subtle but also significant are the algorithmic biases attached to different legal research platforms. I’ve written here before about the research in this area done by Susan Nevelow Mart, director of the law library and professor at the University of Colorado Law School.

Mart studied how hidden biases and assumptions affect the results provided by several major legal research providers. The results of her study, which she published in the paper, “The Algorithm as a Human Artifact: Implications for Legal {Re} Search,” found wide variances among in the results returned by the different services. Remarkably, she found that there is hardly any overlap in the cases that appear in the top 10 results returned by each database.

Mart’s research demonstrates why it is important for legal researchers to have at least some understanding of the biases inherent in different systems and not to limit their research to any single system. Beyond that, Mart said she believes we should all challenge legal research companies to be much more transparent about the biases in their algorithms.

Whether in legal research or in legal products more generally, wider adoption of AI will require diligence, scrutiny, and oversight by someone who has the capability to understand the underlying technology and who knows the questions that need to be asked — an interpreter, if you will, of the language of AI. No one in the legal profession is better prepared and trained for this role than the law librarian.

So, no, robots are not coming for law librarians’ jobs. Rather, to see the future of law librarians, we need only look to the essential roles they already serve today. As the pace of technology development and adoption accelerates in the legal profession, the multifaceted role of the law librarian will only accelerate along with it.

Robert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).