The Client Is Not Always Right

Everyone has probably heard the expression “the customer is always right” at one point of another.  In essence, the saying means that people selling goods or services should assume that the customer is always correct and do everything in their power to please their customers.  Although there are many attorneys who apply this expression to legal services, it is often true that the client is not always right.  Most clients are not lawyers, and they may not have enough experience to make informed decisions about legal matters.  As a result, clients can realize a number of benefits if lawyers do not assume that the client is always right and attorneys have the freedom to tell their clients that they are incorrect about an issue or strategy.

It is easy to understand why attorneys would take the position that the client is always right, and follow the wishes of their clients without protest.  The marketplace for legal services is extremely competitive, and attorneys are constantly fighting to find and retain clients.  No one likes being told that they are wrong, even if they don’t have expertise in a given field.  As a result, attorneys may not want to “rock the boat” with clients for fear that their clients will jump ship and search for another law firm.

I have seen attorneys at many of the firms at which I worked pursue misguided strategies because it fulfilled the wishes of clients.  Indeed, I have worked at firms in which attorneys focused on arguments that had almost no chance of success just because a client told them to make certain points.  In addition, I have seen attorneys file unnecessary motions or complete other unneeded tasks just because a client told them to follow a certain strategy.  Of course, if a tactic will not materially impact a client’s position, or put an attorney in ethical jeopardy, there is usually no problem with following a client’s advice.

However, most clients are not attorneys, and as such, they likely do not have much familiarity with legal issues.  In addition, even if clients are lawyers, they might not have experience with the legal issues that are at the heart of a matter.  Moreover, in-house attorneys who work for corporate clients might have bureaucratic or other reasons for recommending a certain strategy, even if it might impact a client’s likelihood of success.

Attorneys do their clients a huge disservice if they blindly acquiesce to the proposed tactics of a client without providing clients the benefit of the attorney’s experience.  Of course, ethics rules provide that a client has the exclusive right to decide on objectives of a given representation, and the goals of legal services should be decided by clients alone after consultation with a lawyer.  However, ethics rules usually leave the strategies used to pursue those objectives in the hands of the attorney, so long as lawyers consult their clients about proposed strategies.  As a result, attorneys should feel empowered to confront their clients when their clients favor strategies that the attorney thinks are flawed.

Over the course of my career, I have confronted clients on several occasions when I felt my clients were misguided about proposed strategies.  Of course, as the proprietor of a new law firm, I want to make my clients as happy as possible.  However, this is not at the expense of doing everything that I can to ensure that my clients have the best chance at achieving their objectives.

For instance, earlier in my career, I had a client who was adamant about not giving our adversary additional time to file their answer.  The client had an extremely bad relationship with our adversary, and the client did not want to do the adversary any favors.  In addition, the client did not trust our adversary, and thought that he would just delay the proceedings as long as possible in order to make it harder for us to reach a resolution.

I told my client that it would look bad if we didn’t give our adversary additional time to answer the complaint, and that if we ever needed an extension of our own, we might not be able to receive it if we pursued this strategy.  In addition, if we tried to settle the case before the case went into discovery, our adversary would be more willing to resolve the matter if they did not need to spend money on legal fees by filing an answer or a motion to dismiss.  Furthermore, I told my client that I did not want to practice law by refusing to extend courtesies, and that we would lose almost nothing by allowing our adversary a few more weeks to file an answer.  We ended up resolving the case on positive terms before an answer was filed, and even though I created some friction with my client, the client ended up benefiting from having a frank conversation about the pitfalls of the client’s strategy.

In the end, the legal industry is similar to a number of other fields. and lawyers oftentimes need to compete against each other for business.  As a result, many lawyers follow the strategies proposed by clients without discussing their own opinions.  Nevertheless, attorneys do clients a huge disservice if they do not confront their clients about flaws in how clients wish to proceed in a given legal matter.


Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. 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 jrothman@rothmanlawyer.com.

Morning Docket: 07.10.19

Attorney General William Barr (Photo by Jahi Chikwendiu/The Washington Post via Getty Images)

* Remember how AG Bill Barr announced that lawyers would be getting swapped out on the census citizenship case? This federal judge has rejected the change because the DOJ “provide[d] no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel.” [New York Law Journal]

* After two hours of oral argument, judges on the Fifth Circuit seemed unsure of whether the Affordable Care Act would live to see another day. This case is likely headed to the Supreme Court no matter what, as health insurance for 20 million people protections for pre-existing conditions are in the crossfire. [POLITICO]

* Daniel Bress of Kirkland & Ellis was confirmed to the Ninth Circuit (or the “9th Circus,” as President Trump once referred to the appellate court) in a party-line vote. He’ll replace the disgraced Alex Kozinski, who resigned in 2017 amid allegations of sexual misconduct. [Washington Post]

* Chief Justice Leo Strine of the Delaware Supreme Court will be retiring at the end of October, leaving time for Governor John Carney to select a replacement for the man who shaped the law on takeovers. [Reuters]

* Jeffrey McIntyre, a partner at Husch Blackwell, left the firm after he was reprimanded by the Wisconsin Supreme Court for punching a bar manager in the face and driving while intoxicated, both of which he was charged for and submitted guilty pleas. [Wisconsin State Journal; ABA Journal]


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.

Zim media commits to enhance coverage of climate action, human rights, gender equality issues – The Zimbabwean

The United Nations in Zimbabwe convened 45 representatives of the Ministry of Information, Publicity and Broadcasting Services; United Nations Communications Group; Embassy of Sweden including 24 representatives of various media platforms, editors and senior journalists from 7 to 10 July 2019 in Masvingo.

The objective of the three-day meeting, including visits to UN supported development and humanitarian projects, was to enhance media understanding of Government and UN engagement in Zimbabwe on development and humanitarian issues and increased media coverage of development and humanitarian issues.

The workshop participants underlined the need for Government, UN, Development Partners and the Media to work together to:

  • advance good governance and human rights by intensifying coverage of anticorruption cases and topics of transparency, accountability and quality of public services
  • climate action to enhance disaster risk reduction to address recurrent natural disasters such as drought, floods, cyclones, outbreaks
  • promote gender equality particularly by combating gender-based violence, child marriages, and teenage pregnancy.

The United Nations recognizes the critical role of the media and freedom of information in advancing development. In this regard, the three-day UN-media workshop highlighted the need for media in Zimbabwe to be capacitated to report on good governance, human rights, climate action and gender equality. It was agreed that media houses and journalists as information gatekeepers will follow up on SDGs progress in Zimbabwe, national policies and their implementation, enhancing accountability, transparency and delivery of public service.

Addressing the workshop participants, UN Resident Coordinator Mr Bishow Parajuli stressed the need to pull together to advance the inherent goodness of human values as Zimbabwe strives to turn around the socio-economic challenges, climate action, drought and achievement of the Sustainable Development Goals (SDGs). “Engaging with the media is fundamental and partnership with the media is crucial to achieve development.  The UN remains open to dialogue with the media and to feedback on the UN’s delivery and performance.”

The role of development assistance is critical, necessary but not sufficient for the achievement of the SDGs. There is a strong need and a case for the private sector and business to play a significant role, and the media has a big role in sending positive and hopeful messages outlining a positive narrative of Zimbabwe as an investment and tourism destination.

Dr Mutambudzi, Director of Media Services in the Ministry of Information, Media and Broadcasting Services speaking on behalf of the Permanent Secretary, Mr Nick Mangwana, in his opening remarks, highlighted the importance of the partnership between the UN and government of Zimbabwe towards the development of the country. He commended development partners for their work in disaster situations particularly during the national crisis caused by Cyclone Idai.

Noting Government’s efforts, Dr. Mutambudzi said, “the Access to Information and Protection of Privacy Act (AIPPA) will be replaced by three progressive Acts, which are the Freedom of Information Bill, the Zimbabwe Media Commission Bill and the Protection of Personal Information/Data Protection Bill. For the first time, Zimbabwe will also have a Media and Film Policy to guide its operations.” He also said, reviewing the country’s media laws and policies is a way to create an enabling environment for the media as it creates laws which are aligned to the Constitution that govern and help the sector to attain international best practices.

Appreciating the role of media for being at the forefront of sharing information, breaking news and being the voice of the voiceless by putting their lives in danger, Ms Angelica Broman First Secretary at the Embassy of Sweden said, “to enhance economic growth in Zimbabwe more efforts have to be put into ensuring gender equality and to eliminate gender-based violence.  The financial cost to the nation of gender-based violence is immense and should not be underestimated.” Ms Broman also emphasised the need to not confuse gender with women issues, gender alerts to equality of both men and women ensuring that they have the same rights, respect and access to resources.

To combat the effects of drought in affected communities, World Food Programme (WFP), is running a community project titled The Garden and Fishponds turning aid into sustainable solutions. Through the project the community has managed to establish a 2Ha garden, orchard, tree nurseries, indigenous poultry, pigeons, apiculture and 2 times 1000m2 fishponds, which are benefiting 93 households.

“From a small community-based initiative, with the right support, the Chebvute site has grown into an example for all of Zimbabwe. This project is proof of the humanitarian-development nexus at work: present-day assistance can help families build resilience to feed, water, educate and support their communities for years to come,” said Mr. Eddie Rowe, WFP Zimbabwe Country Representative and Director.

The Food and Agriculture Organisation (FAO) small irrigation programme in Stanmore B in Masvingo District is providing sustainable agriculture production in the area. The project has improved food security and household socio-economic status in the area. Beneficiary farmers have drilled boreholes for clean drinking water, paid off school fees for their dependents and others have bought vehicles using proceeds from the irrigation scheme.

Noting the successful rehabilitation of Stanmore irrigation scheme in Masvingo District with support from Food and Agriculture Organisation (FAO), Swiss Development Cooperation and the European Union, Dr. Alian Onibon FAO Sub-Regional Coordinator for Southern Africa and Representative to Zimbabwe said, “the irrigation scheme is testimony that communities can turn around a drought prone area into an oasis and profitable irrigation venture, harvesting cash-crops and staple crops (maize and sugar beans) throughout the year, as such there is need to scale up climate smart agriculture and irrigation schemes to address the recurrent drought and effects of climate change.”

The UN, through 2016-2020 Zimbabwe United Nations Development Assistance Framework, also supports development programmes in health, education, water and sanitation, food and nutrition, gender equality, HIV and AIDS, poverty reduction and resilience building delivering USD 400 million in various development projects towards inclusive growth and sustainable development.

Zimbabwe Gymnastics empowers teachers

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Zimbabweans’ fear of currency comeback casts doubt on changes since Mugabe – The Zimbabwean

A man counts Zimbabwean dollar notes and coins next to a ten US dollar note on the streets of Harare, Tuesday, June 25, 2019. Zimbabwe President Emmerson Mnangagwa on Tuesday praised the re-introduction of the Zimbabwe dollar as the sole legal tender in the troubled country as a “return to normalcy.” Zimbabwe had for 10 years used the U.S. dollar and other foreign currencies after the Zimbabwean currency was dogged by hyperinflation. (AP Photo/Tsvangirayi Mukwazhi)

Now, a decade after some momentous and even wrenching political and economic changes, the Zimbabwean dollar is making a comeback.

The problem is that most Zimbabweans expect the new currency to tank, and an increasing number of people are showing a distinct disinclination to have anything to do with it. The currency’s unsteady launch, international economic analysts say, is a sign that the economic dysfunction that plagued this country under longtime President Robert Mugabe hasn’t gone away with his ouster.

“I must have foreign currency to import my leather products,” said Crispen Dembedza, 51, who runs a leather clothing shop in Harare’s central business district. “Without foreign currency, I won’t be able to remain in business. I can’t find any local suppliers [of my products], and if they were any they would not be able to meet demand.”

Late last month, the government surprised the population by reviving the reviled Zimbabwean dollar and abruptly banning all transactions paid with the U.S. dollar, the euro, the pound and the South African rand, which has been in use since the collapse of the national currency.

Finance Minister Mthuli Ncube told Parliament last week that the move was meant to instill discipline on the nation’s financial services sector and help the poor, who lack access to foreign currency.

Zimbabwe Gymnastics empowers teachers
Zimbabwe public workers reject $21 million pay rise

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Zimbabwe public workers reject $21 million pay rise – The Zimbabwean

A man displays US dollar notes after withdrawing cash from a bank in Harare, Zimbabwe, July 9, 2019. REUTERS/Philimon BulawayoZimbabweans are angry as a year-on-year price jump of around 100% has eaten the value of their wages and savings, recalling the horrors of hyperinflation in 2008. Hopes that living standards would soon improve under President Emmerson Mnangagwa have not been realized.

Daily power cuts lasting up to 17 hours and severe shortages of U.S. dollars, fuel, bread, and medicines are bedevilling citizens who had hoped the end of Robert Mugabe’s rule after a 2017 coup would herald a new economic dawn.

Thomas Muzondo, deputy chairman of the Apex Council, a group of public sector unions, told Reuters the government’s offer would see each of the 309,000 civil servants receiving only an additional 97 Zimbabwe dollars ($11.28) a month.

That amount would buy less than 20 liters of petrol at a service station. The lowest paid government worker earns 430 Zimbabwe dollars a month, enough to buy a vehicle tyre.

“We totally rejected that offer so they (government negotiators) will go back to their principals for further consultations,” Muzondo told Reuters.

“It was a total waste of time.”

He said the full Apex Council would meet in the capital Harare on Wednesday to decide its next step.

Civil Service Commission chairman Vincent Hungwe was not immediately available for comment.

Finance Minister Mthuli Ncube told business leaders on Monday that Mnangagwa’s government was ready to raise civil servants’ pay for the second time in three months, citing inflation.

The Zimbabwe Congress of Trade Unions threatened “mass action” last month after the government made the RTGS dollar the sole legal tender and renamed it the Zimbabwe dollar.

Ncube has said the government is running monthly budget surpluses since January, the first time in years that state finances have not been in the red, and a sign that authorities have cut down borrowing.

Ncube previously promised to cut the budget deficit this year to 5% of GDP from 11% in 2018.

The finance minister told reporters after a cabinet meeting that the national treasury had on Tuesday carried out its first public auction of Treasury Bills since 2008 to test market appetite for the bills.

Five banks had participated in the auction and made bids totaling $20 million for 90-, 180- and 360-day Treasury Bills.

“The purpose of the auction was to test the market in terms of TB (Treasury Bill) appetite and to also enable us to work out a yield curve,” Ncube said.

Zimbabweans’ fear of currency comeback casts doubt on changes since Mugabe
Zimbabwe Independent Legislator Takes on Chinese Companies for Worker Abuse

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Ninth Circuit Throws Shade At Game Of Thrones

Final Season Promotional Image (HBO)

Don’t you just love it when two of your interests overlap? The Venn diagram of Ninth Circuit watchers and folks disappointed by the final season of the HBO hit Game of Thrones got a shout out in a recent decision.

The case was Banks v. Northern Trust Company, which is about the interpretation of the Securities Litigation Uniform Standards Act of 1998. But really the substance of the case is besides the point. Suffice it to say the defendants wanted the court to read a case without looking to a case in the same line that amended the interpretation provided in the original case.

The Ninth Circuit shut that down right quick:

Northern would like us to read Dabit [Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit] without considering its clarification in Troice [Chadbourne & Parke LLP v. Troice]. But we will not render Troice meaningless the way that Game of Thrones rendered the entire Night King storyline meaningless in its final season.

Though it seems not everyone was thrilled about slipping pop culture into opinions:

The opinion was written by Judge John Owens, because of course it was. This isn’t the first time he’s used pop culture to make a point in an opinion. Hell, he’s even gone to the Game of Thrones well before, but it’s always fun to see a cultural touchstone referenced in a case. And that it throws shade at such a highly anticipated, but ultimately disappointing final season of TV, so much the better.


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).

Is The ‘Big One’ Coming For The Legal Profession?

(Image via Getty)

Yes, California is still here, shaken, not stirred, as James Bond would say about his martinis. Whether we’re been sufficiently stirred to get ready for the Big One is unlikely. Meanwhile, Las Vegas may well someday be the future site of Pacific Ocean beachfront.

People do freak out about earthquakes and justifiably so; there is no early warning system, no chance to evacuate beforehand as in tornados and hurricanes. It’s literally a matter of rolling with the punches (pun intended). However, having grown up in tornado country, I’ll take my chances here. And as one seismologist noted dryly, “Why pack a go-to bag, where are you going to go?” Exactly.

How big a jolt you feel in any earthquake is directly related to how close you are to the epicenter, which in the case of the two quakes this past holiday weekend, was approximately 150 miles northeast of Los Angeles. So, we felt it, but not anything like at the epicenters in Ridgecrest and Trona in what we call the high desert.

To me, it was nothing like the 1994 Northridge quake, which was centered in Northridge, about 20 miles northwest of here. (Dozens of people died, massive (read billions) amounts of damage, and part of the Santa Monica freeway connecting downtown with Santa Monica came crashing down.) Hurricanes are given names, earthquakes are named by location and/or fault line.  Caltech (just down the road from me) seismologists are warning, once again, that the Big One is overdue, but as one reporter noted, we suffer from earthquake amnesia.

There are earthquakes of all different kinds, not just the geological variety. If you look at how the profession is changing, the earth is shifting underneath our feet (just like a real earthquake). Steven Chung’s ATL column last week discussed that the State Bar of California is considering substantive and substantial changes to the practice of law in this state, including allowing non-lawyers to practice law, non-lawyers to have an ownership interest in law firms, and technology-driven legal providers to provide legal advice.

What’s the definition of “earthquake” in its non-seismic sense? How about “a sense of upheaval?” That fits.

These proposals, as Steven points out, are not necessarily going to improve “access to justice.” They’re upheavals, but not necessarily in a good way. In fact, it may just be the opposite. Read the recent warning on the State Bar website about the plethora of notarios, unlicensed attorneys, who are engaging in the unauthorized practice of law, taking money from those who can least afford it while promising to avoid deportations.

Another upheaval: the American Bar Association is molting, changing how it serves a lawyer population less interested in membership by, among other things, simplifying its dues structure. Good idea, but long overdue. We, as a profession, do not seem to have any sense of urgency.

That prompts another question: are local bar associations still necessary? They are undergoing their own upheavals. Are they still desirable? Useful? Or are networking groups and bar associations centered around practice areas better for business development in these days of specialization? Way back when, local voluntary bar associations were not just seen as vehicles for business development, but for leadership opportunities, CLE, and pro bono. We all know “bar junkies,” or even might be one.

How about this for yet another upheaval for us? Dinosaurs will remember, with varying degrees of fondness, our mandate to “look it up” when we had a question or didn’t know the answer. So, off we trudged to the law library to “look it up.” Remember law libraries? Those cost-sucking, space-sucking repositories of legal knowledge?

There’s a new company called Hotshot which is setting out to change how junior lawyers learn. Instead of “look it up” in the traditional sense, it’s watch a video about the subject matter. Watching a video does make sense since the world, especially the younger members, are so screen oriented. Bill Henderson wrote about this company in his most recent blog.

Is this the best way for newbies to both learn and retain what they’re learning? It’s “just in time learning.” Dinosaurs may remember that Dell Computers, when it first produced laptops in the long-ago 1990s, touted itself as the company that would make what was needed “just in time,” so there was no need for inventory.  But inventory is different from knowledge.

So now, “just in time learning” is coming to the profession. But what happens when a court asks a question and the attorney who learned whatever she needed to learn “just in time,” can’t answer the court’s question without reference to the video? I understand that the purpose of Hotshot is to help to learn substantive law on a particular topic, but is that enough?

This earthquake in legal education, so to speak, is, as one law professor noted in Henderson’s blog, based on the failure of legal educators to do what they are paid to do: educate. The ground is shaking under their feet along with ours too. In the past, we felt that the earth underneath our professional feet was secure. Now we know better. Is the Big One for the profession yet to come?


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

Ruling on drug prices in television ads sets stage for SCOTUS clash – MedCity News

A legal case involving a Department of Health and Human Services rule adopted in May that requires television ads to include drugs’ list prices is likely to find its way to the Supreme Court after a judge ruled against the Trump administration Monday, a legal expert said. That could potentially set up a clash over how courts defer to regulatory agencies.

Judge Amit Mehta of the District Court for the District of Columbia ruled Monday that HHS lacked the authority to enact the rule under the Social Security Act. “Neither the Act’s text, structure, nor context evince an intent by Congress to empower HHS to issue a rule that compels drug manufacturers to disclose list prices,” he wrote.

The administration issued the rule requiring drugmakers to list the wholesale acquisition cost, or WAC, of drugs in television ads. The move drew opposition from the industry, which expressed concern that it would lead to consumer confusion and sticker shock. That led to a lawsuit filed last month by Amgen, Eli Lilly & Co., Merck & Co. and the Association of National Advertisers.

“The battle is on,” University of California Hastings law professor Robin Feldman said in a phone interview. “No one doubted that the pharmaceutical industry would fight the administration’s proposal to put drug costs in ads, and pharma has won the first round.”

Mehta emphasized that he was not calling into question HHS’ motives in adopting the law or expressing any view on the wisdom of requiring drug companies to disclose prices. He even acknowledged the possibility that such a rule could be effective in halting rising prescription drug costs. “But no matter how vexing the problem of spiraling drug costs may be, HHS cannot do more than what Congress has authorized,” he wrote. “The responsibility rests with Congress to act in the first instance.”

While Mehta ruled that HHS lacked authority to issue the rule, he did not rule on the plaintiffs’ other objection, that it constituted compelled speech and thus violated the First Amendment. While expecting that the courts would have to address that issue, Feldman said the industry will have a difficult time arguing that the HHS rule is about core political speech.

“First Amendment protections are far weaker outside that traditional area,” she said. “With compelled speech, we usually worry about government trying to force people to make a political statement – revealing price information is a bit far away from that.”

Feldman said the case is likely to go to the United States Court of Appeals for the District of Columbia Circuit and ultimately go before the Supreme Court.

The case, she said, involves deference to agencies, which is Justice Stephen Breyer’s area of expertise. It also involves the landmark 1984 case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which gave rise to the administrative law doctrine known as “Chevron deference.” The doctrine calls for courts to defer to regulatory agencies’ interpretation of statutes. Justice Neil Gorsuch has written opinions against Chevron deference, such as when he sat on the U.S. Court of Appeals for the Tenth Circuit.

In other words, the ruling sets up a potential clash of views on agency deference, Feldman said. “I think this case will be irresistible to the Supreme Court.”

Photo: traveler1116, Getty Images

What Recovery? During Record Economic Expansion, Bottom 90 Percent’s Share Continues To Plummet

In many ways, the last 10 years of the U.S. economy has been a story of success. Starting in June of 2009, the GDP started growing, and it hasn’t yet stopped. As of the beginning of July, 2019, the United States has enjoyed 121 months of economic expansion, a new record. The previous record for the most consecutive months of economic expansion, 120, was set from March of 1991 to March of 2001, according to figures from the National Bureau of Economic Research.

This record-setting period of growth has expressed itself in many positive ways. The S&P 500 index recently hit a new high. As of May, the national unemployment rate was just 3.6 percent, the lowest it has been since 1969. We’re now collectively spending more than $36 billion a year on video games, the most ever. Progress, right?

However, despite the overall economic successes of the past few years, anyone with eyes, who even occasionally spends time outside the confines of a private golf club, can see that the purported economic recovery of the past 10 years has affected different segments of the population very unevenly.

It’s not just those at the absolute bottom of the economic ladder who aren’t getting a fair shake. Almost all of us continue to get a smaller and smaller piece of the pie, even as new growth records are shattered. According to a Reuters analysis of data from the Federal Reserve Washington Center for Equitable Growth, the top one percent own about 38.6 percent of the total U.S. wealth. The next nine percent own about 38.5 percent of the wealth. The other 90 percent of us get to divvy up just 22.9 percent of the total wealth our supposedly roaring economy is generating.

In fact, the share of the wealth enjoyed by the bottom 90 percent of Americans fell over the course of the entire economic recovery following the Great Recession. In 2007, the top one percent, the next nine percent, and the bottom 90 percent owned 33.6 percent, 37.8 percent, and 28.6 percent of the wealth, respectively. By 2013, the wealth gap had widened further, with 35.6 percent of the nation’s wealth in the hands of the top one percent, 39.5 percent held by the next nine percent, and just a quarter of the wealth left over for everyone else. The trend continues to this day, and nothing, at least not in the immediate future, looks likely to reverse it.

Even though the bottom 90 percent’s share of the wealth keeps going down, certainly some individual circumstances have improved marginally over time. Wages have grown moderately over the course of the economic expansion, ticking up by about two percent per year over most of the past ten years. More recently, wage gains have reached closer to three percent annually (wage gains hit 3.1 percent over the past year, for instance). When the pie is getting bigger, sometimes even a smaller piece of it is an increase from what you had before. Still, historically, economic boom times have routinely posted annual wage gains for workers at a much healthier four percent.

Wage gains have not been the only tepid part of the economic expansion. While the expansion is record-setting in terms of its length, it is far from remarkable in terms of its strength. Since the current expansion began in 2009, the American GDP has grown by about 25 percent. For comparison, by the end of the shorter expansion that started in 1991, the GDP had gained 42.6 percent. A number of other 20th century economic expansions, while shorter than the current one, led to greater overall increases in GDP.

What we have is an unusually lengthy, but unusually weak, economic expansion in which the vast majority of the proceeds have gone to the top ten percent. The super-rich are doing even better than just the run-of-the-mill rich, with the wealthiest 400 Americans — the top 0.00025 percent — owning as much as the bottom 60 percent, some 150 million U.S. adults. So, when you hear the talking heads touting this great, historic economy, keep in mind who it’s been great for, and what actually makes it historic.


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.

Justice Department Botches Even The Simplest Of Tasks In Census Case

Judge Furman’s reaction to the DOJ’s motion.

After staking their entire strategy on the claim that the census question had to be expedited and that America cannot afford even a moment’s delay, the Justice Department asked the court to authorize a wholesale substitution of its legal team days before briefs are due. As one might suspect, the judge was more than a little confused:

But [Judge] Furman said that before lawyers can get off a case, court rules require them to explain why they wish to withdraw and that the DOJ request was “patently deficient.” That’s especially true, he said, given that legal briefs are due in a few days on whether the judge should issue an order preventing any action by the government to put the question on the form.

Part of the reason this motion was so patently deficient is that there’s no honest reason to swap out attorneys. What’s most likely happening is the attorneys working this case have rightly come to the conclusion that the Supreme Court has spoken and the case is all but dead. That doesn’t work for Barr and Trump so they’re looking to replace the team quick with some hatchet men and women willing to just make stuff up in a desperate bid to keep the census ball in the air. But “we’d like to withdraw because we cannot make the unprincipled arguments coming next” isn’t the rationale the DOJ wants to put on paper no matter how honest it might be.

Judge Furman gave the DOJ a second bite at this apple if they can concoct some good reasons to replace the legal team. Though if you’ve been following this case, you know that “believable pretexts” are exactly this crew’s strong suit.

Federal judge blocks Justice Department from removing lawyers in census case [NBC News]


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.