In Non-Bonus News — See Also

FIRST, LET’S START WITH A BONUS STORY: Apparently if your firm stupidly followed to $180K, there’s a chance it’ll take that out of your bonuses. Here’s the miserly quote.

THERE’S NOTHING AS NON-NEWS AS A KARDASHIAN STORY: Kim Kardashian did something. Or cares about something. Or something. Read some Kardashian news here.

I ONCE DID AN INTERVIEW WITH JOHN GIRSHAM WHERE HE EXPLAINED THAT HE THOUGHT THERE WAS A PRINCETON LAW SCHOOL: Then wrote a book where the guy went to Princeton Law School, then was informed of his error, then decided to leave it since it was fiction anyway. Point is, I agree that Princeton Law School would rank in the top-20 of any law school ranking based on “reputation,” because that’s how people think. Mark Herrmann explains.

YOU ARE ALL COMPLICIT: Well, at least you are all looking up what the word means. Complicit is the word of the year.

IN ACTUALLY IMPORTANT NEWS: This fight over the Consumer Financial Protection Board is real, and really interesting, and would be “fun” if it wasn’t fundamentally about Trump killing off an entire organization so that his business friends can more easily defraud the American people. Joe Patrice explains.

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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LinkedIn Guidelines For Lawyers

As a law firm, there are a number of avenues which can help your firm build credibility online. From starting your own blog to answering questions on lawyer help forums. A platform that many businesses don’t seem to tap into is LinkedIn and we’re going to talk about it today. Most people mistake LinkedIn as a job search platform or a social network of sorts. But, what you might not know is that there are businesses which use this platform as a recurring source of qualified leads. Studies have shown in the past that LinkedIn is a very effective lead generator. Here’s how you can generate leads for your law firm using LinkedIn:

1)      Create a LinkedIn Company Page

There are currently a few million company pages on LinkedIn. Create a business page for your company with content that showcases your expertise. Things you should include on it are:

• Company Description – including the brand, services you provide, your achievements and affiliations.
• Names of Clients, especially big ones.
• Client Testimonials that will create social proof.
• Images, infographics, videos
• Regular posts with keyword-rich content

2)      Interact with the LinkedIn community

The more content you create and share to help, intrigue and inspire, the better it is for you. LinkedIn is a repository of professionals, executives, and prospective clients. Engaging them would mean you’re nurturing your network. Focus on the value you can provide, as that’s the sole driver of great content marketing. Word about your authority spreads really quick on a platform like LinkedIn and you could find yourself getting referrals or being introduced to a prospect before you know it. Especially if you’re connected with well-networked people or influencers. You don’t need to create all content from scratch. You can share appropriate industry updates, questions that’ll engage your followers in a conversation. Community participation on relevant topics by your firm or you also helps. Links to white papers, webinars, case studies etc. leading back to your website are also appropriate for gaining following.

3)      LinkedIn Groups

Join active LinkedIn groups with a substantial following in your area of expertise. Be a useful contributor to the discussion and also make a habit of sharing ideas/news and being helpful.

Some do’s and don’ts that you should keep in mind:

• Don’t make every interaction about marketing your legal services.
• Short and timely comments are better than long but occasional ones.
• Any value that you can provide as a knowledge expert in your field or any resources you share will position you as helpful and the go-to person.

4)      Local SEO

Most legal businesses have a certain geographic area of operation and cater to the local market. This makes local search engine optimization important. On your LinkedIn profile and posts include local keywords and links – like local community events, local client testimonials. A public LinkedIn profile also ensures visibility in search engines.

5)      LinkedIn Leadgen forms

You can also share sponsored content like a research study report you funded. LinkedIn has launched Leadgen Forms on smartphones, which effortlessly pulls data from prospective leads’ LinkedIn profile. Make these forms a part of your content. With these forms and with LinkedIn’s accurate profile data you can collect quality leads that are sure to give you a higher conversion rate. LinkedIn’s networking platform is used by a variety of people from executives of Fortune 500 companies, business owners to everyday people. There are unlimited opportunities that can emerge out of LinkedIn. Using the techniques mentioned above will help you create credibility and use this platform as a source of great leads. Edward Kundahl, Ph.D., M.B.A. Ed can be reached at (or visit his websites) 855-943-8736 ed@forlawfirmsonly.com www.BusinessCreatorPlus.com www.ForLawFirmsOnly.com

https://www.forlawfirmsonly.com/?p=4670

HLS Alum Pat Miles On Mid-Size Legal Markets, Public Service, And His Candidacy For Michigan Attorney General

Patrick Miles

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“I picked up the pen like Hamilton / Street analyst, now I write words that try to channel ’em / No political power, just lyrical power.” — Nas

Earlier this year, Patrick Miles, a former U.S. Attorney for the Western District of Michigan, joined Barnes & Thornburg LLP. With the addition of Miles, Barnes & Thornburg becomes the first major law firm with three former U.S. attorneys who are African-American. Michael Battle and Roscoe Howard are the other two former U.S. attorneys at the firm.

Miles is a third-generation Grand Rapids, Michigan, resident. After graduating from Harvard Law School in 1991, he returned to Grand Rapids to begin his legal career in the private sector.

In 2010, Miles ran for Congress, losing to the Republican nominee Justin Amash. In 2012, he was nominated and confirmed for the U.S. Attorney for the Western District of Michigan based in Grand Rapids. He tendered his resignation on January 30, the day Trump was sworn into office. This May, Miles joined Barnes & Thornburg. On September 28, he announced his candidacy for Michigan Attorney General.

This week, Pat Miles was generous enough to share his time and advice with our ATL audience. Having clerked in Grand Rapids for a couple of summers, I really enjoyed our shared passion and pride for the city. As a young attorney, I found his career and civic advice to be invaluable.

Without further ado, here is a (lightly edited and condensed) write-up of our conversation:

Renwei Chung (RC): You mentioned that most of your HLS classmates chose larger legal markets. Why did you choose to launch your professional career in a smaller legal market like Grand Rapids?

Pat Miles (PM): First, in law firm practice one needs an expertise and/or a client base to be a successful partner. Being from Grand Rapids was an advantage to do the latter. Second, I like the culture and life style of a medium size city and bar association. Third, I wanted to help Grand Rapids law firms become more diverse and inclusive.

RC: After 21 years in private practice, and almost five years as the U.S. Attorney General for the Western District of Michigan, what career advice do you have for current law students and young attorneys?

PM: Learn as much as you can from more senior attorneys, particularly the ones who are good writers. Also, follow your instincts and do the type of work you enjoy, where you enjoy doing it, rather than chasing a large paycheck.

RC: What drew you to public service?

PM: My parents instilled in me a sense of community service and giving back. I’m also drawn by the opportunity to help others and solve problems on a wide scale.

RC: On September 28, you announced your campaign for Michigan Attorney General. What motivated you to throw your hat in the ring?

PM: No job is better preparation for state attorney general than serving as a presidentially appointed U.S. Attorney. I thoroughly enjoyed being U.S. Attorney for the Western District of Michigan, particularly serving justice, protecting the public, defending taxpayers, and bringing law enforcement and communities together.

RC: Why should young people get involved in our civil service or political system?

PM: Every citizen should be involved in the political system through voting. Beyond that, working in the public sector is very rewarding. Working for the common good is very satisfying professionally.

RC: It was great chatting with you. Is there anything else you would like to share with our audience?

PM: As attorneys, we chose to serve justice and serve others. That is a calling we can be proud of regardless of one’s practice or where one practices law.

On behalf of everyone here at Above the Law, I would like to thank Pat Miles for taking the time to share his story with our audience. We wish him continued success in his career.

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Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

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From The Career Files: Strategies For Succeeding As A Solo

Ari Kaplan interviews Nancy Mertzel, the former chair of Herrick Feinstein’s Intellectual Property Group, who recently founded Mertzel Law PLLC, a boutique IP law firm.

Ari Kaplan: Tell us about you background and the genesis of Mertzel Law.

Nancy Mertzel: I protect brand names and content. I help clients who have new products and new businesses register their trademarks, as well as enforce them once they’re established. I also perform copyright work and draft related agreements. I wanted to have a more direct relationship with my clients where there is no firm administration, reduced overhead, and I could just take care of people. That’s why I started Mertzel Law.

Ari Kaplan: What are the unique challenges that former large firm attorneys face in launching solo practices?

Nancy Mertzel: You are the marketing department, the tech department, and the HR department if you hire someone. When you’re in a large firm, there are people to do all of those things for you. If something isn’t working, whether it’s your printer, your telephone, or your computer, you are the one that has to get it fixed. Doing without those helpers in your work is definitely a challenge.

I thought other people might have concerns that I don’t have the resources that I would have at a large firm, but what I’m finding is that I’ve done so much of the work and I carefully review and supervise any work that anyone else does, so that clients want me. When they hired me at a large firm, they did so because they knew me or they were referred to me and they wanted to work with me. Now they can hire me without the firm and get the same thing without the overhead.

Ari Kaplan: How have your past experiences from an entrepreneurial perspective helped with your current endeavours, especially addressing some of the challenges that you mentioned?

Nancy Mertzel: I like technology. When I was in law school, I had a lot of fun with technology. I even did computer programming in college. I used to sell computers. I used to do consulting for people and help them with their computers whether it was a PC or a Mac. I bring my full self to my law practice. I’ve actually had to shut down the technophile in me over the past few years because it wasn’t helpful when I was in a larger firm setting as they already had solutions that we had to use, and they didn’t like the things that I came up with. Now, I can let that side of me flourish and pick and choose the tools that are going to enable me to be most efficient and take the best care of my clients. Today, it’s all cloud- and subscription based. My law firm fits in my backpack. And I can be anywhere and do the work that I need to do as long as I have a little bit of quiet and some electricity.

Ari Kaplan: How have you leveraged your knowledge in coding and IT consulting to create efficiencies in your new firm?

Nancy Mertzel: I think I’ve made good choices of tools to use in my practice. I’ve tested out a bunch of different programs and products, including practice management software and technology to keep track of my clients’ trademarks. When I sit down in front of a new program, whether it’s local or cloud-based, I can usually figure it out and I have the determination to find solutions if they are not apparent to me. I also like dealing with computer code and I have been fortunate to work on some really interesting lawsuits over the years involving software and source code.

Ari Kaplan: What are the key qualities for success in today’s market?

Nancy Mertzel: Being nimble, flexible, and authentic. Bring your true self to every encounter and every engagement. Relationships are so critical. The people you know will be your clients. So, it’s really important to nurture those relationships and develop new ones. You give, you receive, it all comes through if you do that and work hard at it.

Ari Kaplan: Do you have advice for new lawyers entering the profession seeking to achieve some type of work life balance?

Nancy Mertzel: New lawyers really need to get their training and they have to find a place where they’re going to develop those skills. It’s important that people navigate that individually. Have a recipe for it. There are times where you can say, “Look, I have to be at this. My work will get done at another time.” There are others where you’ll say, “I can’t go do that.  I need to be in my office or at my computer and be working.”

Each person has to struggle through those challenges. But over time, it gets easier. As you develop the confidence, skills, clients, and relationships, then you’ll be in charge of managing your own time. If you need to pick up the kids at 3:30 and get them fed and then work later at night, that’s what you do. That’s a solution that many working moms have come up with. Fortunately, we don’t have to go back to the office anymore to do that.

Ari Kaplan regularly interviews leaders in the legal industry and in the broader professional services community to share perspective, highlights transformative change, and introduce new technology and on iTunes.

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You’re Invited!! Come To The Above The Law Holiday Party

The holiday season is nearly upon us, and it’s never too early to start making plans. We hope Above the Law will be the first ones on your list when you schedule your party destination plans! This year’s fête is at Axiom’s loft in SoHo.

Here are all of the details:

When: Thursday, December 7, 2017

Where: Axiom, 295 Lafayette St, New York, NY 10012

Time: 6 p.m. – 9 p.m.

Space is limited, so make sure you RSVP. The whole Above the Law gang will be there… probably drunk before the thing even starts! You may also spy some of our finest columnists if you’re lucky. It’s a grand time every year, and we look forward to partying with you.

You know you want to come. Again, you can RSVP here to join in all the fun. We look forward to seeing you there!

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Justice Is Investigating Harvard For Affirmative Action? Bruh, Bring It On!

Black people are ready for you, Attorney General.

I can’t speak for every African-American Harvard student or alum. But speaking just for myself (and, pretty much, every Ivy League black person I know), I’m unconcerned that Department of Justice is investigating Harvard University over its affirmative-action policies. If Attorney General Jeff Sessions is looking for some black people to kick around, PLEASE bring that mess to me and all my friends. We are smart. We are strong. We can defend ourselves from state-sponsored racism. I WELCOME the opportunity to deal with this Confederate chieftain posing as law enforcement, within the walls of our well-defended ivory tower.

African-American Harvard students are fully ready to stand on our “merits.” In fact, we’ve yearned and strived to be judged on our merits our whole lives. We’re not necessarily thrilled to be judged on merits according to the white man, as strained through the racially biased lens of his standardized testing. But if that’s the unrealistic standard, we’re ready for that battle too. Harvard blacks standardize test pretty well.

Seriously. Bring it the F on. Here’s every affirmative-action conversation I’ve had with a mediocre white man:

White guy: “You know, I probably could have gotten into Harvard too. But I guess I just wasn’t diverse enough.”
Me: “Yeah, well, uhh, there are lots of good schools. Where did you end up going?”
White guy: “SUNY Albany.”
Me: “Bruh, you need to get the F**K out of my face with that, before I apply the Second Law of Thermodynamics to your organic chemistry.”

Understand, nothing pisses off elite African-Americans more than this LUDICROUS argument from these intellectually weak white people that their lives would be better if they had just been born black. The constant, inane, prattle of mediocre whites screws some black people up for life.

Look, you can’t UNDERSTAND Clarence Thomas without understanding that he’s been told he’s only where he is because of his race for his whole life. That… damaged Negro has been so turned around by constant racial prejudice that at this point he’d rather make all black people fight in a cage so that the ONE who survived would be judged “worthy” by White America. Clarence Thomas is the tragedy of thinking that there is some way to earn the respect of the white man. He’ll die begging for something he should have been given at birth.

But most black people have made their peace with the fact that whites will always denigrate their credentials. Jeff Sessions can’t hurt me. I went to freaking HARVARD. Twice. I am UNASSAILABLE by the petty racism of a Klan sympathizer. Any cop can cut me right back down to a condition of a fugitive slave, but Jeff Session can’t do s**t to me.

And if I hadn’t gotten into Harvard, I’d still be here. Like most African-Americans who go to elite institutions, my parents sacrificed too goddamn much for me to be anything less than what I am. At the point where I had the educational background and training to even be competitive at a school like Harvard, my parents had done all the work necessary to put me in a position to succeed in life.

Black Harvard students are ready to compete on the global educational stage. Are white guys? Because if you really want to break elite college admissions down to test scores and GPAs, the people who are about to get crowded out aren’t people like me, it’s white people, particularly white women, who are about to lose. First Harvard will have to admit ALL the high-achieving Asians. Then all the high-achieving Jews (who tend to get screwed when schools look at geographic diversity). THEN Harvard will start admitting more international students: kids from Hong Kong and South Africa and India. Affirmative-action or no, Harvard is going to get its “diversity.”

I think sometimes white Americans forget that American high school education IS A JOKE on the international stage. Honestly, you think being the valedictorian from your public high school in Tennessee prepares you for Harvard? ARE YOU NUTS? Let me tell you something, out-competing QB1 in English Lit isn’t as impressive as you think.

There is a black girl right now in Johannesburg studying her way out of the slums, while your parents worry if you’re being given “too much homework.” YOU’VE GOT NOTHING ON HER, if we really want to make this all about the “merits.”

Yeah, African-Americans get the worst of what our bad educational system has to offer, so some of us will also lose out. If the Obama era proved one thing, it’s that white people would rather not have something than share it with minorities.

But let’s say Sessions boots out half of the African-Americans who would have gotten into Harvard. It’s not like those smart and high achieving black people will just recede in the ghetto. “I didn’t get into Harvard so now I sell crack” — said no one. If Jeff Sessions makes it harder for the bottom of Harvard University’s African-American class to get in… WE’LL JUST GO TO COLUMBIA.

Fools. You can’t STOP US.

I don’t care about affirmative-action for me. Clearly, I’d have been alright. And I don’t care about it for my kids. You’ll note that the Sessions Justice Department is apparently NOT investigating Harvard’s legacy admissions. What’s really going to bake the white man’s noodle later is when he realizes that Harvard has been admitting enough black people for long enough that second and even third generation “black Harvard” kids are starting to apply. MY black-ass kids are going to get in anyway. YOUR blonde-haired, blue-eyed dauphin will still be wondering “why does Hamlet have so many clichés?”

No, I care about affirmative-action because of this girl I knew from around the way. We grew up in the same town, she was smart and charismatic and a hard worker. But I had the blessing of a relatively stable two-working-parent household, while she grew up in foster care. I had any hint of my “lawn GUY-land” accent beaten out of me, she talked like Rosie Perez. I got a mediocre score on a practice standardized test when I was a sophomore in high school, and my parents reacted like I had been stricken with Morgellons Disease and sent me to the best “specialists” they could afford. She got the same mediocre score on the test years later, and her people reacted like she won the lotto. She went to community college (it was free!), I went to Harvard College (it was not). I went onto Harvard Law School, she went onto Touro Law School.

Last I heard, she was struggling it out, trying to pay off debts while working as a contract attorney. And I wonder, if she had gotten a little bit of affirmative-action help, if she had gotten into… Albany Law School instead of Touro, would her life be different? Would she be my key source at the ACLU right now, as opposed to somebody I’ve lost touch with?

Affirmative-action isn’t FOR me. It isn’t for Malia Obama. It’s for that minority who just needs a little bit of help, a little bit of a break, to help them overcome structural hurdles arrayed in front of her long before she was born. That is why affirmative-action has been the most effective social policy we’ve probably ever implemented.

Jeff Sessions wants to tear that all down, because helping black people is not his thing. I get that. But I’m happy that if he’s going to bring this fight, he’s bringing it to people like me and not people like my old friend. I’m ready for his ass. Black Harvard students are ready for his ass.

Keep your focus on us, Attorney General, and we’ll gladly shield who we can for as long as we can.

The Justice Department Is Investigating Harvard’s Admissions Practices

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Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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Student Debt Defines A Generation Of Lawyers — See Also

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4 Ways to Maximize the Value of Reviewing Documents

I spent last week in my former hometown of Milwaukee, Wisconsin at the Wisconsin Law & Technology Conference. An attendee at one of my panel discussions asked me how we conducted reviews. She is a government attorney and their resources to review documents provided by opposing parties is limited. That’s a problem that everyone faces, not just government attorneys.

In response to her question, I mapped out the process that we follow — one that allows clients to get the most value out of the review dollars they spend, but is very different than the standard first and second pass review. For those of you looking to shake it up, here are my four tips to maximize the value of your review:

1.  Organize the review by issue instead of by batch. Traditionally, reviews are batched out sequentially as in 1-500, 501-1000, etc. Instead, gain a firm understanding of the issues in the case, create a tagging structure for the various issues with sub-items under each issue, and then bulk tag by issue using search terms, doc types, and other variables that allow you to sort. It won’t be perfect — meaning that you won’t get all of the docs batched by issue, but you’ll allow your teams to help educate you on the search terms and types of docs that define the issue. And then your review team can provide you a summary of the issue in addition to you having documents tagged for relevance, privilege and issues. Yes, it takes longer, and yes, you need reviewers with subject matter expertise. Both are doable.
2. Hire great reviewers and train, train, train them in the substantive matters of the case. If you want to batch and review by issue, your review team has to understand the issues in depth. Talk to your review provider and get the best reviewers with knowledge of the subject matter. Pro tip — the best reviewers are not the one with the fastest per doc review rate. If that’s what you want, stick with the standard first pass review. Once you have a team, provide a written document of custodians with a general description of those custodians, then outline issues and the tagging structure with definitions so that it provides real guidance for them to tag. Hold a more in-depth training than the standard 1 hour “get started” meeting. Have a few hours, do it by video or in-person and really talk to them and answer questions. Then be available to answer questions for the first day or two, and meet with your QC folks to see where the problems are coming up so you can clarify with the team. As the attorney, you know what the strategy for the case is — get the most out of your review by keeping them focused on what you want to know.
3. Have the review team communicate during the review, and be a part of it. Your reviewers are lawyers and they are there to help you. Let them ask questions, clarify tags and issues and tell you what they are seeing. We use instant messaging and both our QC and Project Manager are on it. Use software that allows for tagging people (so the team can direct a question to the PM or QC Manager). We find that the IM tool can refocus our review very quickly by identifying additional bulk tags for issues and then we can re-run sets for review on the fly. It also speeds up the process.
4. Have your Issue Teams draft memos on what they are seeing as they review to give you a complete picture of an issue. There’s no sense in letting all the knowledge gained from reviewing documents go down the drain, but that’s what we do with a lot of first pass review. Instead, have those lawyers be lawyers and help you put together an overview of the issue. The memo should be shared among the team (you can use Office 365, Google Docs, or some other doc sharing service) and everyone should add to the same document. Have them do it stream of conscious — some use bullet points as they go, some write paragraphs at the end of a day. I ask our teams to stop one hour before ending for the day. They take the 45 minutes and summarize what they are seeing. It will end up being issue specific, but it will also give you insights into the data and how you can better refine the review for the next day. Then we spend the last 15 minutes on a group call reviewing stats for the day and answering any questions. The team feels like a team, and we get great information and much more in the results column for our clients.

Review isn’t going away, even with the advent of Computer Assisted Review or Technology Assisted Review. Judgment is made by lawyers and clients want that judgment at a price they can afford. These steps can help you achieve both.

To close, I want to wish each of you a fabulous and relaxing holiday this week. May you be surrounded by people you love and end the week renewed to come out and finish 2017 strong.  Happy Thanksgiving to all!

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Kelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant— an online research and eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger.

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Cali Bar Exam Results Aren’t As Rosy As They Seem — See Also

Sure, It’s Better Than Last Year: If you use interesting math, the California bar passage rate is up, but that’s still not great.

When You Absolutely, Positively Must Respond To A Dumb Letter: Let this be your inspiration.

You Must Read This Judge’s Awful, TMI Facebook Post: Be warned — it’ll make you angry.

The Trump Bump Is Real: And law schools are pretty happy about that.

Does It Matter If A Trump Judicial Nominee Lied To The Senate? Probably not.

Come Hang Out With Us: Time for the annual Above the Law holiday party!

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Non-Sequiturs: 11.17.17

* The Federalist Society is proposing a court-packing scheme because that’s what the Founders would have, you know, never wanted.

* A deep dive into Justice Kennedy’s likely role in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

* New York may not be having a constitutional convention, but that’s not going to stop the state’s chief judge from reforming its “byzantine” court system.

* Frugal or a failure to launch? You be the judge.

* One of the finest sentences of the week: “a free-speech advisory group at Ohio University ‘discussed the critical importance of transparency’ — and then unanimously voted to close its meetings to the public.”

* There really is nothing like Above the Law out there.

* Savoring the small moments that bring joy to a lawyer. We all need to find what keeps us happy and grounded. For me, it’s Trent Garmon’s writing.

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Predicting Biglaw Bonuses — See Also

It’s Nearly Bonus Season: What kind of a payday do you think Biglaw will leave in the stockings of high-billing associates this year? Cast your vote now!

Everything You Need To Know About 401(k)s At Small Law Firms: Joe Patrice breaks down the numbers so you don’t have to.

Texas Plaintiffs’ Lawyer Dies: His family confirmed he committed suicide on Wednesday.

Holiday Parties Aren’t All Fun And Games: You actually do have to behave appropriately.

Forecasting Lateral Partner Moves: What will 2018 hold?

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No, We Can’t Stop Using ‘Allegedly’ Just Because It Undermines Victims

Why would anyone still use ‘alleged’ after this?

In this morning’s Morning Docket, I linked to a Washington Post article that highlighted the awkwardness of characterizing Al Franken’s behavior as “alleged” when we’re staring at a photograph. Isn’t that image enough? What about his immediate admission (to his role in the photo at least — he claims to have a different recollection of other aspects of the account)?

What makes the piece thought-provoking is its focus on the impact words like “allegedly” can have on the perception of the women coming forward. The coverage doesn’t say they were harassed, it says they were allegedly harassed, and for many that qualifier is enough to erode confidence in the charges.

Many voices are calling on the media to change how it covers stories like Franken’s or Harvey Weinstein’s. They want qualifier terms like “allegedly” removed or at least changed. Still others claim the media only uses these qualifiers for victimized women, which isn’t true but that selective memory reflects the outrage over the stigmatization the term brings.

More than once I’ve personally heard the phrase, “those are just allegations,” as if allegations are lesser claims rather than potentially valid claims awaiting adjudication.

In the Washington Post piece, Professor Camille Hébert of Ohio State Law sums up the frustration:

“I’m a lawyer, and I understand why lawyers advise this sort of qualification, to try to avoid libel claims,” said Camille Hébert, a professor at Ohio State University’s Moritz College of Law who specializes in sexual harassment.

But, Moritz added, “these sort of qualifiers are incredibly frustrating for people like me and others, who advocate against sexual harassment and assault. . . . In this situation, at least, it seems to me that the media might be going beyond cautious and instead leaving the impression that we can’t even believe women’s claims of harassment and assault when our eyes and pictures provide proof that it happened. This leads to the impression that women’s claims certainly shouldn’t be trusted when there is no such documentary evidence.”

Diana Moskovitz at The Concourse is more direct:

To hear the keepers of the craft tell it, alleged is important because it signifies that the writer doesn’t know the exact, final truth. This is often true. They’ll argue that it’s important to show that what is said in cases is an allegation or an accusation and not a fact. They’ll assert that a source could be wrong, and that this hedge may prove important when, days later, reporters have to come back with different information and explain discrepancies. This is, they’ll say, America—the land of reasonable doubt, a very good legal concept we all can agree with. Report what you know, the saying goes. How can journalists be certain of anything if they weren’t witnesses to what happened? It is a sign, they’ll say, of scrupulousness, practically a sign of journalistic virtue.

Which is a load of shit.

This might be a good time to note that The Concourse’s former parent company was sued into oblivion. And while the immediate cause of Gawker’s demise had nothing to do with careless attention to the word “allegedly,” the fact that Peter Thiel felt defamed when Valleywag outed him was the real culprit. Thiel couldn’t win his case, but he could scour Gawker’s pages for actionable claims. He struck gold with Hulk Hogan’s privacy claim — he could have just as easily found some defamatory fact asserted without an “allegedly.” The challenges facing the media are real and can’t be cast aside with ease.

But Moskovitz does offer a solution to the “allegedly” conundrum that everyone should consider: use “said.” Report that women have said that Harvey Weinstein harassed them. It’s a true statement and doesn’t opine as to the truth of the matter. There’s nothing about it that exposes a publication to a defamation claim and if there’s any risk that this prevents women from being marginalized and ignored, then it’s worth adopting.

Unfortunately, while this is a valuable tactic today, it’s already doomed. Consider the NAACP and the UNCF. Two organizations that named themselves with words that were considered enlightened alternatives in their day, but that would be inappropriate today. Writing in Slate, Professor John McWhorter advances a theory that progressive terminology can only remain enlightened for so long — once language becomes accepted, the negative impulses behind the old phrasing import themselves on the new. In other words, how long until someone sneers, “Those are just things she said.”

That’s not a reason not to do whatever we can in the moment to avoid stigmatizing victims, it’s just an acknowledgement that “solutions” are not perfect.

Moreover, using “said” doesn’t solve the Franken question (not that Moskovitz was trying to — her post predates the Franken allegations). A picture can’t “say” something. Does it “show” something? Yes… though what does it show? Franken grabbing a woman’s breasts? Franken about to grab a woman’s breasts? Franken pantomiming grabbing a woman’s breasts? All of these are harassment, but consider the writer committing this to paper — can they go all in and say what the image “shows”? Not really, which is why they’ll say “apparently shows” or “seems to show,” and that’s right back to square one.

Even his admission doesn’t resolve the problem. He admitted to an inappropriate and unfunny joke. Sure, but what exactly was that joke? Without qualifiers, reporters can’t go beyond the four corners of that admission. Publications that offer more commentary than straight news can introduce hypotheticals — “assuming he touched her” — and argue the point, demonstrating the seriousness of the crime and tilting the balance of the piece just a little bit closer toward appreciating the gravity of the victim’s claims. But even that begins from the premise that the victim can’t be trusted on face and, ultimately, doesn’t fully repair the damage of qualifying language.

In the end, there’s no easy path around the libel laws. As Professor Hébert notes, the libel laws don’t provide much room for enlightened exceptions. It’s not like anyone likes to write or say “allegedly” all the time. It’s clunky and awkward and usually laughably superfluous. It’s there to keep the media reporting.

Talk is reasonably cheap on social media, where some are calling for established media outlets to buck the trend and stop hedging their reporting of sexual misconduct or face boycotts. That sounds noble in theory, but to side rhetorically with the person making the claims before the case is tried is taking on an awful lot of litigation risk in a challenging environment. A lot of outlets, in particular the small, non-corporate outlets who do a lot of the best coverage in the area will just stop writing about it at all to avoid enterprise killing litigation. Boycotting reporters working on these cases for choosing to cover themselves legally could result in a troubling chilling effect.

Waiting until a story has 30 sources may provide the confidence to go all in, but it’s rare that the floodgates open like that. More often it’s one voice going public that starts a process. If there’s no way for media to report the stories of those lone voices without being sued, we’ll never hear any of these stories.

Ultimately, the critical legal theory tradition has the right of it here. There is no single action that will fully repair the damage that defamation laws do to reporting on sexual misconduct, it’s a matter of recognition and constant vigilance. We need a populace that better understands that words like “alleged” and “accused” aren’t normative, they’re descriptive. Articles like the Post and Concourse pieces do the service of educating audiences about how libel laws work and why qualifying language gets put in stories in the first place.

Robbing the language of its stigma is more helpful in the long-run than trying to run headlong into the litigation risk wood-chipper.

A photo shows Al Franken touching Leeann Tweeden’s chest. Many media reports still say he ‘allegedly’ groped her.
Against Allegedly

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You Gotta Be On Your Game — See Also

Biglaw Lawyers Are Charging Lots Of Money: So they always have to be on.

The Fallout Over Harvey Weinstein Continues: David Boies loses another client.

What Is Going On At Valpo Law? The school is considering its options.

Judicial Nominee Apparently Supports The KKK: Yeah, apparently there is somewhere lower to go than “ghost hunter.”

Ever So Slowly: The glass ceiling in the legal profession is being chipped away.

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Someone Needs To Invent ‘Global Pay Your Lawyer Day’

Can anyone tell me what happened on November 3^rd ? No, it wasn’t my birthday, was it yours?

Here’s what has happened on various November 3rds in history: Henry VIII became head of the Church of England in 1534; John Adams was elected the second President of the United States in 1796; Ulysses S. Grant became president in 1868, the same year that the first African-American congressman was elected; John W. Menard from Louisiana, Utah, elected Martha Hughes Cannon in 1896 as the first female United States senator, the same year that William McKinley won the presidency; in 1908, William Howard Taft won the presidency; in 1936, FDR won a second four-year term as President; Clarence Birdseye marketed frozen peas in 1952; 1953 saw the first coast-to-coast television broadcast in color; in 1957, Sputnik launched with an astrodog; LBJ won the presidency in 1964; and Bill Clinton won his first term as president in 1992.

November 3^rd should have been near and dear to lawyers: it was Global Love Your Lawyer Day, and no, I am not making this up.

How could we have missed this? We calendar court appearances, filing deadlines, deposition dates, birthdays, anniversaries, meetings, networking events, medical/dental appointments, holidays such as Administrative Professionals Day, anything and everything goes on the calendar. (Full disclosure, I still use paper calendars, and I chortle every time I have to wait for someone to boot up the calendar on the phone, while I stand there with paper and pen at the ready. Yes, I’m a dinosaur, but I’m a lot faster writing down appointments than someone who can’t type on a smartphone.) I digress.

Did you know that there’s an organization dedicated to promoting Our Day aka Global Love Your Lawyer Did?  I didn’t. Now I do. It’s the American Lawyers Public Image Association (ALPIA).

The website says that it’s “…the only association in the world whose sole purpose is to promote a positive public image of lawyers.” (Do you think that it has its work cut out for it?) Formed in 2000, the Association describes itself as a “non-profit organization with an international reach.” It’s the organization that promotes “Global Love Your Lawyer Day.” ALPIA suggested a number of different ways in which people could have shown lawyers some love.

One of the initiatives for Global Love Your Lawyer Day, according to the website,  is “… to ask lawyers to either perform one hour of pro bono work or donate the equivalent of one billable hour to their favorite charity.”

I thought the love was supposed to flow to the lawyer, not from. And how many billable hours have you written off? I guess “involuntary pro bono” doesn’t count.

Did you hear any lawyer jokes that day? Did any of your clients contact you by email, text, phone, or Harry Potter’s owl to thank you for what you were doing/had done on their behalf? Did you receive any gift baskets? A card? Any token of appreciation? (I think all lawyers would appreciate timely payment of outstanding invoices. That would probably show the most love.)

Did any client take you to lunch? Dinner? Even coffee?  Did any client make a donation to charity in your name?

Did you receive any love at all? I thought not.

So here’s my own list of how you can help your client to show you the love on the next Global Love Your Lawyer Day in 2018. Please feel free to rip off any and/or all of the suggestions to share with your clients. This gives you (and the clients) plenty of time to prepare:

1. Pay your outstanding bills, whether those bills are 30 days past due or months or even years in arrears. The lawyer works hard on your behalf; show him or her appreciation by paying those invoices. Lawyers have bills to pay, too. Contrary to what you may have heard or seen, not all lawyers drive luxury cars, live in luxury homes, and have luxury playthings that are way beyond the means of most of us.
2. Respond promptly to your attorney’s emails, texts, phone calls, or whatever form of communication the attorney is using. She’s not contacting you for schmoozing purposes; there’s something (or some things) that need to be discussed, handled, resolved. Verifications to be signed? Perhaps there’s a settlement offer out there?
3. Don’t be nasty with your lawyer. What good does that do you except piss off your lawyer and make communication difficult?
4. Pay your outstanding bills, whether those bills are thirty days or months or even years. The lawyer works hard on your behalf; show him or her appreciation by paying them. Lawyers have bills to pay, too. (Yes, I know this repeats most of #1, but I think the premise bears repeating and I am a dinosaur lawyer so I repeat things.)

The Twittersphere had some comments about Love Your Lawyer Day.  One of the informative ones: November 3 was also Sandwich Day, Cliché Day, Jellyfish Day, and Fountain Pen Day. Who knew? One Twitter poster asked whether every day should be Love Your Lawyer Day or should it just be when you need a lawyer? Is that a trick question?

How about a “Love Your Opposing Counsel” day?  That could be the one day when lawyers must be civil and courteous, even pleasant to each other. Stop whining; it would only be one day. No nasty emails, faxes, letters, or texts permitted.

If a lawyer spurned that love, a court could be creative about the nastiness and incivility. Instead of the normal monetary slap on the wrist, why not a much more imaginative and thoughtful sanction?

While this was not a lawyer that had to comply with the court’s order, it does suggest a new way to get an attorney’s attention. Do you think you could write 144 separate and distinct nice things about your opposing counsel? All those in favor of Love Your Opposing Counsel Day, please raise your hand.

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Jill Switzer has been an active member of the State Bar of California for 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.

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Serbian court gives suspended sentences to rioters who damaged US Embassy

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International Law

By Terry Carter

Posted November 14, 2017, 5:26 pm CST

In a move likely to strain relations with the United States, a Serbian court today gave suspended prison sentences to four men involved in the rioting in 2008 that resulted in serious damage to the U.S. embassy in Belgrade, the Associated Press reports.

Rioting nationalists and soccer hooligans stormed the embassy days after Kosovo declared its independence from Serbia, a move supported by the U.S. It took several years before anyone was charged in the embassy attack, and then even more time for this ruling by Belgrade’s Higher Court.

The U.S. embassy issued a statement saying “it is difficult to understand how it has taken nine years to reach the verdict in this case … with the final result that one of the seven defendants, four of whom admitted in the presence of counsel to participating in a serious offense, was sentenced to serve time in jail.”

Tuesday’s ruling found there was insufficient evidence to convict three of the men charged, and acquitted them. In this retrial, ordered by an appellate court after earlier convictions, three of the men received sentences of six months, suspended, and one got a five-month suspended sentence, Serbian news organization B92reports.

Charges against the four men stemmed from throwing rocks that broke windows in the embassy. They were convicted for endangering public safety. Others, as yet unidentified, then threw torches into the building, and the resulting fires caused nearly a half-million dollars in damage, according the U.S. embassy.

Serbian anger and frustration had simmered for years after NATO bombed the country in 1999 to force removal of its troops from Kosovo, the New York Times reported soon after the rioters damaged the U.S. embassy in Belgrade.

Kosovo’s declaration of independence in 2008 was perhaps the biggest in a series of blows over many years to Serbia as the former Yugoslavia fell apart by secessions.

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These Lawyers Here Are Being Dumb As All Hell — See Also

NO, FLORIDA STATE LAW STUDENT, THAT’S NOT HOW THIS WORKS: Normally, I’d be on the side of adult law students complaining about a “dry” campus meant to thwart underage drinking. Universities need not reduce everything to the level of stupid kids. But this response from one Florida State law student is the dumbest excuse to drink. Staci explains that you don’t need alcohol on campus to improve your U.S. News rankings.

THIS PARTNER DEFENSE OF ALLEGED PEDOPHILE ROY MOORE IS JUST DISGUSTING: Granted, there’s no “good” defense for multiple, well-sourced accusations that you groped a 14-year-old girl when you were in your 30s, but this “women are gold-diggers” defense is pretty bad. Kathryn explains here.

SPEAKING OF MOORE, I BET HE’S NOT ACTUALLY GOING TO SUE THE WASHINGTON POST: It would be stupid for him to do so. He’s just saying he will because that’s what you want to hear.

“JUST SAY NO” IS ALSO A STUPID LEGAL DEFENSE: Jeff Sessions’s reason for being against medical marijuana comes down to a stupid, discredited slogan. This 12-year-old girl might put a stop to it, once and for all. I explain her lawsuit here.

DESPITE ALL OF THESE STUPID LAWYERS: Lawyers are incredibly useful. Joe explains the scientific evidence here.

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This Biglaw Partner’s Insulting Appearance On Fox News

Mercedes Colwin via Fox News

As the sexual harassment and assault allegations are piling up against powerful men in entertainment, politics, Silicon Valley… and well everywhere in between, there has been increased visibility of #metoo stories and corresponding calls to believe the women and men who are brave enough to speak out. Gordon & Rees partner Mercedes Colwin has taken a… decidedly different tack.

Colwin is the managing partner of the Biglaw firm’s New York office whose litigation practice focuses on employment law, commercial litigation, class actions, products liability, professional liability, wage and hour class actions, civil rights violations, and criminal law. Also included in her firm bio is this little gem, “Ms. Colwin regularly defends corporate executives from Fortune 500 companies accused of wrongdoing including claims of sexual misconduct.”

Yeah… you just know when Colwin appeared on Hannity Thursday night to discuss the allegations that Alabama Senatorial candidate Roy Moore dated underage girls it was going to be a doozy.

If you’re looking to be outraged, Colwin does not disappoint:

Hannity: Do people do it for money? Do they do it for political reasons? Is that more common than people think?

Colwin: Oh definitely.

Hannity: They will lie to make money?

Colwin: Undoubtedly. I mean, there are individuals who will come forward with these outrageous allegations, and they fall…

Hannity: And that hurts women who are victims.

Colwin: Yes. I used to work in sex crimes in the DA’s office. It was very pitiful to see that. Because some jurors don’t believe it because they have, in their own lives, there are people who have made these accusations for money. You see this time and time and time again. And sexual harassment, that term is coined everywhere, frankly, the laws are very clear about what it takes to have some sort of violation of the law. You have to have some sort of damage. And these individuals, a lot of these women, it’s all about money, and they bank on the fact that these corporations have the reputation that they want to save.

Hannity: And the hard—this is where you thread the needle, because there are women who are victims of predators.

Colwin: Yes, there are. There are. But very few and far between.

Way to trot out the trope that women are gold digging liars there. And I suppose the deluge of #metoo narratives have done nothing to change her default that men should be believed — even when a pattern has been established.

Jordan Weissmann, writing for Slate, shares the disgust over the Colwin’s awful victim blaming. He reached out and asked her to clarify her statements:

She didn’t walk back the “few and far between” quip. Instead, Colwin wrote that she was “profoundly sympathetic” to harassment victims “as one who has personally experienced such treatment and also had a deceased sister who was a victim of domestic violence.” But she also said that “in some cases, incidents of alleged sexual harassment can be misrepresented or even fabricated” and the accused deserved the “presumption of innocence.”

“I did not in any way mean to trivialize or minimize the impact of sexual harassment on any victims of such practices or to condone such behaviors in any setting, whether business or personal,” she added. Which, fair enough. She merely suggested most victims aren’t real.

Don’t believe Colwin’s attempt to deflect away from the harmful impact of her words. She tries to create a false dichotomy between “real” victims of sexual harassment and abuse, and women, like those speaking out about Roy Moore’s alleged behavior, who are coming forward. Under Colwin’s worldview their stories will always get caught in the crossfire and implicit biases about who gets to count as believable will rule the day.

Instead, may I suggest something radical and believe women.

Gordon & Rees, never known to handle PR blunders particularly well, has yet to issue a comment about the incident.

Colwin’s full response to Weissmann is below:

I would like to take this opportunity to clarify certain of my remarks from the November 9 broadcast of the Sean Hannity Show. First and foremost, I am profoundly sympathetic of anyone who has been the victim of sexual harassment and believe they deserve full and complete protection under the law. As one who has personally experienced such treatment and also had a deceased sister who was a victim of domestic violence, it is entirely apparent to me that sexual predators do indeed exist in our society who deserve to be called out, civilly pursued and criminally prosecuted to the fullest extent of the law.

On the other hand, my comments made during the broadcast were intended to address a different set of circumstances which I have observed both as an administrative law judge and an attorney over a number of decades—namely that in some cases, incidents of alleged sexual harassment can be misrepresented or even fabricated as a means of leveraging an advantage in court or otherwise. And given the incredibly serious nature of such accusations, it is important to bear in mind that the accused also have rights and are deserving of the presumption of innocence embedded in our legal system.

In any event, I did not in any way mean to trivialize or minimize the impact of sexual harassment on any victims of such practices or to condone such behaviors in any setting, whether business or personal.

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Kathryn Rubino is an editor at Above the Law. 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).

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L.A. District Attorney Preparing A Sexual Harassment Task Force

(Photo by Dia Dipasupil/Getty Images)

* 60 million people voted for a president who was caught on tape explaining how he was famous enough to grab women by their genitals without consent.
* The people of Alabama are about to vote for an alleged pedophile, stating plainly that even if the allegations are proven against him they’d still send him to the United States Senate.
* But this country is finally ready to do something… about sexual harassment in Hollywood.

Los Angeles County prosecutors are preparing to tackle Hollywood’s growing tide of sexual misconduct accusations with a new task force.

The group of veteran sex crimes prosecutors will “ensure a uniformed approach to the legal review and possible prosecution of any case that meets both the legal and factual standards for criminal prosecution,” Jackie Lacey, the Los Angeles County district attorney, said in a statement Thursday.

Don’t get me wrong: this is a good thing, and long overdue. It is clear that powerful men in the entertainment industry have been taking advantage of young people, women and men, for (possibly) ever. Nothing was done, because nobody cared. And law enforcement let at least some of these people get away with more than mere “inappropriate behavior” but actual crimes.

Since the time of Eliot Spitzer, the New York Attorney General’s office has made it their mission to be the “regulator of last resort” of Wall Street. If the L.A. D.A.’s office would make it their mission to be the defender of women and young people in Hollywood, it would be a good and appropriate use of prosecutorial power.

But… the national willingness to finally go after sexual predators in Hollywood puts into stark relief our unwillingness to do anything about sexual predators in our politics.

We shouldn’t have to have a double standard, we should hold the REPRESENTATIVES OF AMERICA to at least the same standard we hold our purveyors of popular culture. We can be outraged at Harvey Weinstein and Kevin Spacey. We can take away Louie CK’s new movie. AND we can take away Roy Moore’s presumptive Senate seat and never let Donald Trump go a day without knowing that we haven’t forgotten the 11 women who have accused him of sexual misconduct. WE CAN DO BOTH.

What stops us from doing both would seem to be… Republicans. Progressives have turned on “our” guys. Louie CK was generally regarded as a pro-feminist comic in a culture that has too few of them. He’s done now. Anthony Weiner is not the mayor of New York, he’s in jail for sending dick pics to under-aged women. Bill Clinton is not the president, and it’s unlikely he’d be able to win a Democratic nomination in this climate, even just looking at the instances where he’s admitted to having mutually consensual relations with that woman.

There is no liberal man, in politics or culture, who could maintain his liberal fans after credible allegations of inappropriate sexual contact with a 14-year-old.

Will Republicans meet us at the same standard?

And if not, why?

The L.A. task force is a nice step. Where’s the D.C. task force? … Where’s the Montgomery D.A. task force? How many more disgusting things have to be revealed before the “Christian” parts of the country start to take this seriously?

L.A. County District Attorney Forms Task Force for Hollywood’s Sexual Misconduct

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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Noticeable Improvement In Leadership Representation, But Challenges Remain For Minorities In The Legal Profession

“But—look around, look around, the Revolution’s happening in New York.” — Angelica, Hamilton (Lin-Manuel Miranda)

This week, the New York City Bar (City Bar) released its most recent annual Diversity Benchmarking Report.

Seventy-one firms (signatory firms) participated in both the 2015 and 2016 benchmarking surveys, which allowed the City Bar to perform statistical comparisons on representation, leadership, and hiring. What is it about the number 71? As of the report’s publication, 71 Fortune 500 companies have signed onto the ABA Resolution 113 Model Diversity Survey.

In terms of overall representation and hiring data in the 2016 City Bar Benchmarking Report, not much has changed from the prior year. The good news is that there has been a noticeable increase of women and minority representation in leadership roles. The bad news is that the same old challenges remain for most of the legal industry: 1) Racial/ethnic diversity at the partner level; 2) Erosion in the associate pipeline; and 3) Voluntary attrition.

Without further ado, here are several highlights from the report:

• Signatory firms’ leadership continue to reflect increasing commitment to diversity and inclusion efforts, with 44% of firms reporting that a management committee member serves as chair of the diversity committee, an increase of seventeen percentage points from 27% in 2015.
• Signatory firms are implementing “better practices,” with a majority of firms providing attorney development opportunities with an enhanced focus on client relationships, and building more inclusive firm cultures.
• Overall representation of minority attorneys increased slightly to 20.6% in 2016 from 18.8% in 2015.
• Nearly half of signatory firms have no racial/ethnic minorities on their management committees and more than one-third have no minority practice group heads.
• In 2016, white men represented 77% of all equity partners at signatory firms. Minority and women partners continue to be concentrated at the income partner level, rather than at the equity level.
• Erosion in the associate pipeline directly affects future leadership — 45% of associates are women compared to 19% of partners and 28% of associates are racial/ethnic minorities compared to 9% of partners.
• 36% of first-year associates were minorities — dropping to 26% of mid-level associates, and 22% of senior level associates. By the eighth year, only 20.5% of associates were minorities.
• Voluntary attrition is down overall in law firms, but continues to disproportionately impact minority and women attorneys — 15.6% of minorities and 14.3% of women left signatory firms in 2016 — 150% and 135% above the 10.6% rate for white men respectively.
• LGBT attorney representation has more than doubled since the City Bar began collecting data in 2004, from 1.6% to 4.1%, and representation of self-identified LGBT partners has doubled from 1.4% in 2004 to 2.8% in 2016.

When attempting to solve a problem such as the diversity crisis in our profession, we must begin with the end in mind. We have to understand the root causes of why law firms are failing on the diversity front to develop a proper strategy to combat the status quo.

As I mentioned before, transparency is key and it starts with research such as the City Bar’s Benchmarking Report. In addition, as the Boston Consulting Group (BCG) stated in its diversity report about Silicon Valley:

Executives will need to look beyond these topline numbers and conduct quantitative and qualitative analyses of their workforce through surveys, interviews, benchmarks, focus groups, and quick pulse checks. The data should be broken down by business unit, function, and region. The point of such a diagnosis is not to lay blame but to improve. Such data typically reveals pockets of best practices that can be replicated. The findings also may indicate places to dig further for evidence of unconscious biases in hiring, promotion, and retention practices.

This level of transparency and thoroughness demonstrates commitment to employees and recruits—much more so than simply releasing raw, topline diversity statistics. This root cause analysis allows companies to turn the page and start creating a diverse and inclusive workforce in a new way. The results should be on the dashboards of senior executives and business leaders and refreshed regularly.

The data in the City Bar’s most recent publication is great, but its analysis, recommendations, best practices, and strategies for moving forward are what makes this report a must read.

The City Bar concludes its report with three tips  for individual law firms: 1) Know your challenges; 2) Have a strategic plan; and 3) Engage everyone in your diversity initiatives.

If you’re serious about improving diversity at your firm, then be sure to print several copies of the 2016 Diversity Benchmarking Report and share it with your colleagues.

On behalf of Above the Law, I would like to give a special thank you to the seventy-one firms that participated in this survey the last couple of years and to the City Bar for its decade of research on these issues.

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Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

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MyShingle Theme Week: The Power Of An Extra Hour

This past weekend, as the clocks fell back we gained an extra hour. And since it usually takes a couple of days to acclimate to the time change, most of us ought to be able to take advantage of that extra hour each day this week.

So this week, the theme of MyShingle is “The Power of An Extra Hour.” Each day of this week, starting today, I’ll blog about different ways that you can use that extra one hour to convert it into one – or more – new matters. Spoiler alert: each of the topics is listed on this nifty infogram depicted here – but the posts will offer far more detail, including resources and scripts that you can use to make the most of your hour.

Because an hour a day isn’t much time, to make the most of it, follow the steps on this handy, downloadable checklist:

Download PDF

By the way – the MyShingle theme week is an experiment. For years, most of my content has been fresh – meaning, produced the day of publication – rather than canned in advance. But with my schedule as crazy as it’s been over the past few months, fresh content simply isn’t feasible so I came up with the idea of theme weeks to help to generate posts in advance.

Meanwhile, the theme for next week is Annuals: Holidays & End of Year Traditions.

Here is a link to the first post, Update That Profile!

Power Hour #2: Seasonal Business Cards

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alt.legal: Diffusing Innovation In The Law, The Amazing Work of Bill Henderson

“Be not the first by which the new is tried, nor the last to lay the old aside” — Alexander Pope

Meet Bill Henderson — Chicago law school grad, 7^th Circuit Clerk, and leading academic on the diffusion of innovation in legal (or lack thereof!).

Last week, Bill honored my colleagues Paul Stroka, Rebecca Thorkildsen and me, by asking us to teach his class at Northwestern Law about our experience as agents pushing for the diffusion of innovation in the legal industry. In turn, I wanted to share with our alt.legal audience the great work Bill is doing.

In class, Bill asked us to share with law students (and others) how we convince lawyers to try new stuff (it does happen, I swear). Bill wrote a great summary of the class (and I agree with Bill that Rebecca Thorkildsen is “the single most knowledgeable person on legal technology” out there). But in the end, it was I who was convinced… convinced that Bill has thought more deeply about legal innovation than anyone out there.

Bill is a prolific author and lecturer on the legal market. His industry accolades include ABA Journal Legal Rebel (2009), National Law Journal 100 most influential lawyers in America (2013), and National Jurist most influential person in legal education (2014 and 2015). Bill is also a Fellow of the College of Law Practice Management.

Whereas I work at an alternative legal services provider, and write about other legal innovators, Bill is finding examples of what is already working and sharing them with readers.  Toward this end, Bill is the editor of the exciting website legalevolution.org, which uses applied research to solve a practical problem: lagging legal productivity. IMHO, this site is a must read (but do not let your productivity lag before finishing the column!).

The Legal Innovation Paradox Revisited

But Bill is not just an academic, he also sat in my seat for six years. Working at a company called Lawyer Metrics (now owned by AccessLex Institute), he was part of a team that built and sold data analytics products and services to lawyers.

And he understands the Legal Innovation Paradox we described in our last two columns:

I have seen numerous legal start-ups struggle and fail because the founders were pitching efficiency to law firms. Although clients complain about high legal bills, the law firm that makes a large capital investment in efficiency has a very difficult time capturing a reasonable portion of the value created.

More importantly, Bill lucidly explains why lagging legal productivity is such a problem. Because, “solving legal problems is becoming, in a relative sense, more expensive over time.” This stands in sharp contrast to many of the goods we consume (think food and technology), which have come down in price in recent years (on a relative basis). Bill says it best in his opening post:

In the individual client market, more citizens go without access to legal services.  In the corporate market, clients cope with budget constraints by demanding fee discounts from law firms, which undercuts the incentive to create better systems and process.

Bill teaches legal innovation with the help of the Rogers Diffusion Curve:

Lawyers love to think of themselves as coldly rational (hey, 1/4 of our law school entrance exams are logic games totally irrelevant to real life). But the Rogers diffusion curve shows that only 1/6 of adopters purposefully integrate new innovations.

This leads to some awesome conclusions:

For roughly 5/6th of the legal market, the adoption of new innovations is more a social process of imitation than a mental process of analytical reasoning.  This means that the vast majority of lawyers (or law students or law professors) won’t change until they see others successfully change first.  Adoption decisions are more than rational, explicitly stated risk calculations; they are also strongly influenced by the often unstated desire to fit in or, alternatively, the fear of being left behind.

We all know it. Lawyers don’t try (hard) to get ahead, but are terrified of falling behind. Makes lawyers sound more like the cliques in the movie “Mean Girls” than the supremely rational beings they believe they are.

Enjoy our Q&A below:

Joe Borstein:  Bill, you study the difficulty of innovation in legal, but do you see any silver lining? Are the cycles of innovation getting faster?

Bill Henderson: The cycles of innovation are getting faster because the communication channels for disseminating examples of innovations are becoming greater in number and more prolific. Above the Law’s regular coverage of legaltech, NewLaw, and alt-law, etc., is raising awareness. Also, we see ALM, Thomson Reuters, Bloomberg, the ABA Journal and other outlets expanding their innovation coverage.

More and bigger “communication channels” (a diffusion theory term of art) increases “awareness knowledge” of innovation. Innovators and early adopters then have an opportunity to consider adoption. If and when they obtain a significant benefit, the rest of the “social system” — and law is definitely a social system with numerous subsystems — adopts the innovation, as you note above, primarily through a process of imitation. That, in a nutshell, is diffusion theory.

However, a careful application of diffusion theory to the legal industry reveals the likelihood of slow diffusion of innovations. Features that slow down adoption include the partnership decision-making model (e.g., a committee meeting of partners to spend $12,000 for cloud-based tech), the inability of lawyers to co-venture with other professions (Rule 5.4), a generally conservative ethos, and “opinion leaders” (elite NYC firms, the T14 law schools) that are seldom early adopters. Change is still going to occur, but more water has to accumulate behind the dam to create the requisite pressure and payoffs.

Organizations that understand diffusion theory can use it to get ahead of the competition — by creating better service and product offerings, and learning how to sell it. That is good for the clients and the overall industry.

JB: For our readers out there, which schools are in the forefront of teaching legal innovation?

BH:  Suffolk, Michigan State, Vermont, Miami and Chicago-Kent all have some terrific programs (along with Indiana Law), though we also see elite schools like Harvard, Northwestern and Georgetown making significant inroads. Likewise, some of the Canadian law schools, such as Toronto, Calgary, and Osgoode Hall are doing interesting things.

Note that in all these cases, there is an “innovator” law faculty member who does the initial lift. Dan Katz, Andy Perlman, Tanina Rostain, Dan Linna, Michele DeStefano, Oliver Goodenough, and others fit this mold. Also, we definitely have some early adopter deans like Trish White (Miami), Dan Rodriguez (Northwestern), and Ian Holloway (Calgary). Now Perlman is the dean at Suffolk and the Chair of the ABA Center on Innovation. So things are changing.

My apologies for the many innovators and early adopters I am leaving out.

JB:  What excites law students the most about legal innovation?

BH:  Richard Susskind has a great observation on this topic, which has been my experience as well. The most conservative audience in all of law tends to be law students, largely because their views of law are shaped mostly, or least disproportionately, by pop culture. In my first-year Legal Profession class, I walk students through the data, puncturing their views of what it means to be lawyer.

What is different about law students is that the disillusionment only lasts for a day or two, then they bounce back. Mid- and senior-level lawyers are much less resilient because more of their careers and identity are tied up with the survival of traditional law practice. Many of my students are excited by this new legal ecosystem because it creates opportunities for doing both good and well. Also, this is a generation looking for work-life balance, and legaltech combined with new business models arguably put that within reach. The challenge for all of legal education is that these new opportunities are not packaged up and institutionalized like the old on-campus interview (OCI) process. But that will happen over the next half generation.

A new and more accurate narrative on the legal sector is slowly being written.  Biglaw will definitely remain an important cast member, but the days of Biglaw as the center of the legal universe are over.

JB: Final question, do you think the time has come for a legal incarnation of Jeff Bezos?  In other words, will we see in the next ten years our first legal innovation billionaire? Why/Why not?

BH: That is a really good question. I am skeptical about billionaires from legal businesses because legal is a niche market. At least in the US, it is hard to imagine a legal-oriented business that touches 50 percent or more of ordinary consumers (think Amazon, Walmart, or Apple). The legal ethics rules are keeping the legal consumer market from rationalizing. To the extent someone gets billionaire-level rich, look for the Y Combinator crowd to figure it out. They see the water building behind the dam and the pressure/opportunities that creates.

Setting aside Bezo-like wealth, there are many people in the lawyer-to-lawyer and lawyer-to-consumer space who have already accumulated significantly more personal wealth than the typical Am Law 100 equity partner. And some got there before they were old enough to become partner. They are all innovators and early adopters. That sector is going to grow.

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Joe Borstein is a Global Director withThomson Reuters Legal Managed Services, delivering Pangea3 award-winning legal outsourcing services and employing over 1800 full-time legal, compliance, and technology professionals across the globe. He and his co-author Ed Sohn each spent over half a decade as associates in BigLaw and were classmates at Penn Law. (The views expressed in their columns are their own.)

Joe manages a global team dedicated to counseling law firm and corporate clients on how to best leverage Thomson Reuters legal professionals to improve legal results, cut costs, raise profits, and have a social life. He is a frequent speaker on global trends in the legal industry and, specifically, how law firms are leveraging those trends to become more profitable. If you are interested in entrepreneurship and the delivery of legal services, please reach out to Joe directly atjoe.borstein@tr.com.

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