Discourse.net

NYSBA Consideres 'Strengths and Weaknesses of Women' Lawyers

The New York State Bar Association was actually planning — really — to put on a panel discussion entitled Their point of View: Tips from the Other Side, described as follows: “A distinguished panel of gentleman will discuss the strengths and weaknesses of women.”

Yes, you've come a long way, baby.

(Howls of protest, threat of boycott, inspired cosmetic — but it seems not substantive —changes.)

New Florida Bar Anti-Advertising Rule Threatens Legal Bloggers?

At Prawfsblog Lyrissa B. Lidsky has a good question for members of the Florida Bar who blog: Will this post get me disbarred?

Here's the setup:

The Florida Bar has a new attorney advertising rule that aggressively regulates attorney speech on the Internet.  Florida Bar Rule 4-7.6  Indeed, the new rule regulates attorney speech so aggressively that it might even apply to this blog post.  Until recently, the Florida Bar considered all attorney websites and web communications as information provided upon the request of a prospective client and did not apply its attorney advertising rules to them.  But now the Florida Bar has extended its substantive advertising rules except for its filing requirement to all “Computer-Accessed Communications” by Florida attorneys. 

The first problem with the new Bar rule is its exceeding broad definition of “computer-accessed communications” as “information regarding a lawyer’s or law firm’s services that is read, viewed, or heard directly through the use of a computer.”  The definition includes “but [is] not limited to, websites, unsolicited electronic mail communications, and information concerning a lawyer’s or law firms’ services that appears on Internet search engine screens and elsewhere.”  Under that definition, if I write in this post that I’m a defamation expert, I’m giving you information regarding my services, and I could be subject to reprimand, suspension, or disbarment if I don’t meet the substantive requirements of the Florida Bar’s advertising rules.  Rule 4-7.6(d).  What are those substantive requirements? 

The substantive rules provide, among other things, that an attorney website can’t “describe or characterize the quality of legal services being offered.”  Rule 4-7.2(c)(2) 

As Prof. Lidsky goes on to discuss, there are some serious First Amendment problems with this rule.

There are times when I wish I'd gone ahead and taken the Florida bar exam when I moved here. This is not one of them.

(In order to discourage retirees from trying to keep a hand in when the move here, the state of Florida has zero reciprocity with other states, and makes it quite difficult for those of us who have practiced elsewhere to actually apply to take the exam — we need to list every client we ever represented, and try to get a letter from them, something that would be very hard for a former associate in a large firm, who touched many files, mostly with foreign clients. For more as to why I never got around to it, see If You Don't Ask, You Don't Get. But Some Things You Shouldn't Ask.)

I imagine this new Florida rule will not be a problem for pseudonymous Rumpole so long as no unmasks him. But will it in any way stifle David O. Markus?

The University Of Miami School Of Law Announces Foreclosure Defense Fellowships

The Law School just issued this news release:

The South Florida community is ground zero for the national foreclosure crisis. In response, the University of Miami School of Law has created Foreclosure Defense Fellowships that will enable newly minted lawyers to give free help to local residents caught in the foreclosure crisis. The School of Law is one of the first schools in the nation to create a program of this kind in response to the crisis that is sweeping the country. Recent UM graduates will acquire real-world work experience and address a serious need in the community at the same time.

The foreclosure crisis is overwhelming the Miami-Dade legal system. One in every 28 homes in Miami-Dade County is in a state of foreclosure. Last year 56,656 foreclosures were filed in Miami-Dade County alone. Almost a third involve “owner-occupied homestead property” (residential homestead mortgage foreclosures) and a very large number of owners are unrepresented. The UM Foreclosure Defense Fellows will work to fill the gaps that this legal crisis has created within the South Florida community.

“These Fellowships engage the Law School and its recent graduates in a difficult but rewarding process that serves a great public need,” said Dean Patricia D. White.

Eight UM Law graduates were the winners of these fellowships. Six fellows – Siobhan Grant, Yolanda Paschal, Matthew Weintraub, Jaclyn Gonzalez, Francisco Cieza, and Bradley Shapiro – will work for the Legal Services of Greater Miami, Inc. (LSGMI). Two additional fellows – James Duffy and Berbeth Foster — will work at the Legal Aid Service of Broward County, Inc. They will receive a limited grant totaling $10,000 in exchange for working at least three days a week for 27 weeks, commencing in early October. The fellows will receive intensive training on October 2nd at a foreclosure workshop hosted by the UM School of Law, featuring April Charney, JD ’80, a consumer lawyer and nationally recognized foreclosure defense expert. The workshop will be held at the Whitten Learning Center on the University of Miami campus from 8:00 a.m. to 5:00 p.m.

In addition, three students from the School of Law’s LL.M. in Real Property – Jessica Davis, Dushyant Amish Jethwa, and James Walter – will inaugurate a clinical track in that program by providing 15 hours per week of free foreclosure defense representation. The LL.M students will work under the supervision of local lawyers who also will be working without pay. These fellows will be placed at “The Foreclosure Project,” created by Richard Burton, JD ’74, which provides free legal representation to homeowners facing foreclosure in Dade and Broward counties.

UM law professor A. Michael Froomkin describes how he came to create the Foreclosure Defense program: “Last fall, I was standing in front of the courthouse one evening talking to a local lawyer who was telling me about the thousand of foreclosure cases stacking up in the judges’ chambers, many with unrepresented parties who had valid defenses that were not being made because they didn't have a lawyer.” Froomkin recalls that the lawyer stated, “‘Someone should do something.’ And, right there, I decided that if no one else would do it, that it would be me.”

About Legal Services of Greater Miami

Legal Services of Greater Miami, Inc. provides innovative, effective legal services to help thousands of individuals in Miami-Dade and Monroe counties each year, creating a positive impact on the community as a whole. LSGMI is the largest provider of broad-based civil legal services for the poor in Miami-Dade and Monroe counties, and is recognized in the state and in the nation as a model legal services law firm. Its diverse staff provides clients with legal services in three languages from its main, regional and neighborhood offices.

According to Carolina Lombardi, LSGMI Senior Attorney who oversees the Mortgage Foreclosure Defense Project, “There is an unprecedented need for legal assistance for homeowners facing the loss of their homes through foreclosure and we cannot help everyone who asks for our assistance. Legal Services of Greater Miami, Inc. is thrilled to have recent UM law school graduates working with us so that we can provide legal help to more homeowners.”

Despite being staffed by six full time staff attorneys, LSGMI is only able to represent a fraction of the low income home owners in Miami-Dade County who are facing the loss of their family home. The addition of the University of Miami School of Law Mortgage Foreclosure Defense Fellows will expand the number of low income homeowners LSGMI is able to assist while at the same time training new attorneys to address this serious community need.

About Legal Aid Service of Broward County

Legal Aid Service of Broward County, Inc. (LAS) has provided free civil legal services to the poor in Broward County for over 35 years. In 2005, a regional office in Collier County was opened to serve the civil legal needs of the disadvantaged population in Collier County. Despite having an experienced, culturally diverse staff of 60, including 21 attorneys in Broward County, LAS can only meet the needs of 40% of the clients who seek their help.

“In Broward County, we have seen over a 600% increase in foreclosure case filings since 2006,” said Legal Aid Service of Broward County, Inc. Director of Advocacy Shawn Boehringer. “Even before the foreclosure crisis, we had insufficient resources to address foreclosures. We certainly have not seen a 600% increase in funding to assist clients since 2006. We applaud Professor Froomkin and UM Law School for starting this pilot and we are looking forward to working with the talent they have provided us. UM is a great law school, and our clients will benefit tremendously from the assistance the fellows will provide.”

For Students About to Take the Bar Exam

Ilya Somin has A Modest Proposal for Bar Exam Reform:

Members of bar exam boards, such as the Virginia Board of Bar Examiners and presidents and other high officials of state bar associations should be required to take and pass the bar exam every year by getting the same passing score that they require of ordinary test takers. Any who fail to pass should be immediately dismissed from their positions, and their failure publicly announced (perhaps at a special press conference by the state attorney general). And they should be barred from ever holding those positions again until - you guessed it - they take and pass the exam.

After all, if the bar exam covers material that any practicing lawyer should know, then surely the lawyers who lead the state bar and administer the bar exam system itself should be required to know it. If they don't, how can they possibly be qualified for the offices they hold? Surely it's no excuse to say that they knew it back when they themselves took the test, but have since forgotten. How could any client rely on a lawyer who is ignorant of basic professional knowledge, even if he may have known it years ago?

Prof. Somin's point is that the bar exam as constituted is pretty silly. And he's mostly right: the bar exam tests only a small fraction of what lawyers need to know, much that they don't need to know, and even more that they don't need to have memorized. We all forget lots of it quickly. I know that I couldn't pass the New York bar exam today without some serious review — I've forgotten huge swaths of estate, family and criminal law, not to mention most of the details on New York's CPLR. On the other hand, I've learned huge swaths of things not tested on any bar exam, including federal administrative law, trademark law, and of course internet law. Does that make me a bad lawyer or a specialist?

Unlike some, however, I don't oppose the idea of a bar exam in principle. I think there's much to be said for ensuring that all lawyers have a common foundation. There may also be something to ensuring that people who practice in a given state are sensitized to the peculiarities of local law, although I'm less certain about the need to enforce that with an exam. The problem is that the bar exam's choice of subjects is arbitrary and archaic, and the testing somewhat picayune as well.

To those about to undergo our profession's hazing ritual, good luck.

New Lawyer Salary Distribution Has a New Shape

Bill Henderson, Empirical Legal Studies: The End of an Era: the Bi-Modal Distribution for the Class of 2008:

Of the 22,305 law school graduates in NALP's sample (over half of all 2008 graduates), a remarkable 23% (5,130 '08 grads) reported an entry-level salary of $160,000. In contrast, 42% of entry level lawyers reported salaries in the $40,000 to $65,000 range. Once again, the central tendencies are a poor guide to the distribution as a whole: whereas the mean salary is a $92,000, the median salary was $72,000. Further, the two modes ($50,000 and $160,000) are separated by $110,000.

Amidst all the layoffs, deferrals, salary cuts, and apprenticeship programs announced in 2009, it is safe to venture that the bi-modal era has peaked. Every law school class for the foreseeable future will graduate to a much different economic landscape. Although many students will regret the opportunity to earn such a big payday upon graduation, it brought with it intense billing pressure, client resentment, heavy leverage, and very little substantive training for new hires. I would argue that profession as a whole (including current and future graduating classes) is better off with a lower entry level salary.

Admittedly that is a long-term view for the profession as a whole. In the short term, current students and recent graduates are in a world of hurt.

And that hurt is spelled D-E-B-T. This has to have implications for law schools.

Someone Could Make Money on This

There's clearly a business model here for a multi-national legal partnership willing to provide this service at commodity prices.

Tales from the encrypt: the secrets of data protection | Technology | guardian.co.uk

But what if I were killed or incapacitated before I managed to hand the passphrase over to an executor or solicitor who could use them to unlock all this stuff that will be critical to winding down my affairs – or keeping them going, in the event that I'm incapacitated? I don't want to simply hand the passphrase over to my wife, or my lawyer. Partly that's because the secrecy of a passphrase known only to one person and never written down is vastly superior to the secrecy of a passphrase that has been written down and stored in more than one place. Further, many countries's laws make it difficult or impossible for a court to order you to turn over your keys; once the passphrase is known by a third party, its security from legal attack is greatly undermined, as the law generally protects your knowledge of someone else's keys to a lesser extent than it protects your own.

…

Finally, I hit on a simple solution: I'd split the passphrase in two, and give half of it to my wife, and the other half to my parents' lawyer in Toronto. The lawyer is out of reach of a British court order, and my wife's half of the passphrase is useless without the lawyer's half (and she's out of reach of a Canadian court order). If a situation arises that demands that my lawyer get his half to my wife, he can dictate it over the phone, or encrypt it with her public key and email it to her, or just fly to London and give it to her.

As simple as this solution is, it leaves a few loose ends: first, what does my wife do to safeguard her half of the key should she perish with me? The answer is to entrust it to a second attorney in the UK (I can return the favour by sending her key to my lawyer in Toronto). Next, how do I transmit the key to the lawyer? I've opted for a written sheet of instructions, including the key, that I will print on my next visit to Canada and physically deliver to the lawyer.

Someone could package this. There would be some details to work out, especially how best to transport the data (internet? post? special encrypted usb sticks?), but it could be done.

Justice Should Smell Good

Gurrbonzo says the Miami courts stink.

Literally.

I wonder what Rumpole would have to say about this?

It's the Known Unknowns That Worry Me

Lawrence Cunningham has a soothing historical perspective on the mass of law firm layoffs at Steel, Patience amid Adversity:

In September 2001, after terrorists attacked lower Manhattan, the stock market closed for several days. Corporate finance and deal activity contracted. Law firms lost work. Associates were let go and firms cut back hiring. Eventually, work resumed, with deal flow flourishing.

Then a professor, I went to the library to leaf through the law reviews published in the period just after the bombing of Pearl Harbor that brought the United States into World War II. I also read books about law firms during that period.

Amid World War II, people were terrified, deal flow contracted, associates at large firms were let go and hiring contracted. Scholarship appeared to have been cut back, but in corporate and securities law, did not seem to abate or shift course due to the attacks or resulting war. Eventually, the war ended, markets resumed, expanded, deals flowed, associates were hired, paid, made partner, and prosperity resumed.

Ditto with the episodic booms, busts, scandals and havoc that have ensued—the 1960s electronics boom and bust; the 1970s foreign bribery scandals; the Vietnam conflict and related upheaval; the 1980s savings & laon crisis; the 1980s/90s junk bond boom and bust; the late 1990s / early 2000s telecom boom and bust; and the current crisis, and its coming resolution.

Patience is a virtue for all those affected by adversity, whether economic, military or otherwise.

There's more, but I want to focus the part I quoted. Yes, it's good to learn from history. And indeed, the business cycle tends to repeat. But there are two reasons why I can't quite feel soothed. First, there's the question of which is the right parallel. We're not in 1929 yet, and I still think the smart bet is that we won't get there, but until we see a floor, we can't be sure about that. Especially since just about the entire minority party in Congress, which includes a blocking minority in the Senate, has wedded itself to idiocies such as being for economic stimulus but against spending. Yes, I actually heard a senator say that on the radio last week. And there's lots of it around.

Second, as regards the legal profession we face structural changes not encountered in a while. And I don't mean the likely collapse of the inflated salary structure (and unhealthy billables/month) for the best-compensated associates (and, I'd argue, partners). That's minor compared to the competition from off-shoring legal suppliers in India and elsewhere, not to mention the looming, inevitable, introduction of computer-assisted legal drafting.

Is it time to start writing the contract-generating AI of the future?

What Good Lawyers Do

Although it came highly recommended there were a number of things that I found didn't resonate for me in Deconstructing the First Year: How Law School Experiences Lead to Misunderstandings of What Lawyers Do at the blog called “clinicians with not enough to do.” I do think almost all of this part is pithy and descriptively accurate:

Really good law students succeed in part by figuring out how law school works and organizing around long-standing structures. Really good lawyers succeed in part by pointing out (diplomatically) what facts the judge does not understand accurately, or by making an argument never tried before in a particular jurisdiction. Really good lawyers know their cases and their files better than anyone else, inside and out. Really good lawyers understand the policy behind the law and why the laws are written a particular way. Really good law students learn to accommodate authority. Really good lawyers confront authority (again, in a diplomatic way).

My only caveat with the quoted passage that I'd say really great law students learn to maneuver around authority structures. But that's hard.

One could of course have a long discussion as to whether this is a good way for a law school to be. But I hope we'd agree that a good part of what a really good law school does is offer the initial training people need to be really good lawyers.

Secret Taping in Florida 10th Judicial Circuit Courts

This very confusing article entitled More questions about court recordings indeed raises more questions than it answers. Piecing together the story between the official obfuscation and the uneven writing, what seems to have been going on is…

• Someone — we don't know who — in the state court system in the 10th Judicial Circuit installed an official backup taping system in the Florida state courts. At present no one is willing to take the credit for this innovation.
• Signs were posted warning the public that taping was going on, but it is unclear if the signs referred to the primary system — which has “a blue indicator light [that] is apparent at the front of each courtroom” when it is on. More to the point, that appears to be what the public thought it meant.
• The court staff indicates judges were aware of the system and could ask for it to be turned off; they also are now suggesting that it was used more in criminal than civil cases. But if there were court orders regarding when taping should be on or off, they have yet to be produced; it's likely that litigants were not informed one way or the other.
• The tapes are public records covered by Florida's aggressive Sunshine Law — but the court staff are not responding very enthusiastically to record requests. They say they have to redact them first (I'm unclear as to how much redaction they are entitled to do).
• Although this is particularly unclear from the article , there is some implication that the tapes might have able to capture sounds over the whole courtroom, not just the front.
• Parties are concerned that private conversations with their lawyers may have been recorded.

Lots here that remains very murky. Florida is a two-party consent state for sound recording. Does putting up a sign in a court room suffice to get consent?

More About Starting Salaries

The comments to University of Miami Law Tops Florida Bar Pass devolved into a discussion of the employment prospects of our graduates.

In the course of that discussion, questions were raised about the data the law school publishes in its Viewbook. In particular, commentators questioned the claim made there that the average starting salary for UM grads who work in firms is over $100,000. I wondered about that myself, as the breakout data later on the same page seemed to suggest something lower.

Could the law school have made a (convenient) error in the viewbook?

I took my concerns to the law school administration, who responded by giving me a full data dump and a full explanation. I don't have the energy to try to type in all the data, so I'll just try a simplified version of the explanation. [If you really have to have more, or have further questions, the Dean of Career Development, Marcy Cox, mcox@law.miami.edu (305-284-2668), says she's happy to address them.]

According to Career Development Office, the reason why the both $104,500 number and the more detailed but somewhat different pie charts accompanying it are accurate has to do with response rates, differing data sets, and national reporting standards.

Not everyone who responded to the law school's survey about what they were doing immediately after graduation chose to disclose their salary. Thus, the charts about firm size, for example, are based on a bigger data pool than the salary number. In 2007 we had 378 JDs. Of that group, 346 had replied to our survey at the time the Viewbook was produced. Of that 346, however, not all worked for firms — and of the group that worked for firms only about 46% gave us salary data. So the average salary number of $104,500 is based on the data provided by that 46%.

Since firm size and starting salary are related, you might reasonably object — as I did — that it would be more reasonable to pro-rate the responses of the people who gave salary data on the assumption that the people who didn't fill in that part of the survey earned similar amounts by comparable firm size. And I still think there's something to that. But I'm told by the Career Office — and I believe them — that the average salary data is presented the way it is because that's how all law schools do it and the goal is to provide prospective students with numbers that can fairly be compared to what is provided by other law schools.

The Career Development Office avers that it collects the data and reports it in accordance with ABA and NALP guidelines, using the same methods that every other accredited law school in the country uses. Were the law school to do something else, the administration notes, it would no longer be reporting to students in the way it reports to the ABA and NALP. That would mean our data would have an asterisk. And even if we were doing it in order to provide better data the inevitable conclusion that most people would draw is that we were trying to hide something. So the Catch-22 is that we have to do it this way, possibly sacrificing some statistical excellence and even accuracy, or else we'll look like we're engaged in some sort of cover-up. And, of course, in addition to having an asterisk, we'd be harming our competitive position since we'd have gone to some trouble to calculate and report a lower number which would harm marketing and recruiting.

It seems to me that UM is between a rock and a hard place here. I would prefer that we use the best statistical techniques, pro-rate the data we have, and let the chips fall where they may. Following the national standards will, I believe, tend to cause this (and apparently almost every other) law school to report a number as “average” that is in fact likely to be higher than the reality. By my back-of-the-envelope calculations, what UM — following a methodology its competitors use — reports as an “average” salary for graduates in firms, is most likely closer to what someone in the 75th percentile of the salary distribution gets. And given the law firm salary structure is now a notoriously double-humped curve (see Starting Salaries For Law Students are BiModal — If Not Bipolar for more details), this is a fairly severe truth-in-advertising problem.

Students nationally have some right to be upset. On the other hand, it seems pretty hard to ask UM to engage in unilateral disarmament in the recruitment wars: this is a job for the ABA or the AALS to resolve on a national level. (It also means that students thinking about a law career and hoping for the giant salaries offered by the biggest firms should really understand what that double-humped curve means to their prospects.)

Meanwhile, however, I've asked the Career Development Office to include something in the next edition of the Viewbook that makes clearer the relationship between the various data sets it uses. They've agreed in principle, and we'll thrash out some language when time comes to do the next edition.

A Model of Lawyer Advertising

Tom Goldstein Wants To Be Your Lawyer.

Kudos to Miami Law Firm

The WSJ blog gives deserved praise to Maimi firm Stearns Weaver for its holiday card:

Where most year-end greetings come with photos of adorable children and picturesque snow scenes, this one featured a picture of a food-bank truck (pictured) with the following text:

Past contributions by our firm have enabled the Daily Bread Food Bank to deliver over 1.3 million meals to those in need in our community.

This year, we decided to contribute a truck to help make the deliveries a little easier.

When you see this truck in our community, you may notice that our name is not on it. That is because the gift of this truck is made in your honor. It would not have been possible without you.

Nice work, gentlepersons.

The Daily Bread Food Bank (an affiliate of America's Second Harvest) is one of the charities our household donates to.

French Firms Like Foreign Law Degrees

This surprised me:

Top French Attorneys Need US or U.K. Legal Degree | ABA Journal - Law News Now To get a top job at a law firm in France, a law degree from a well-regarded American or British law school is virtually required.

That's because France has no law school viewed as first-rank, so BigLaw firms looking for French lawyers view the foreign law degree as a virtual necessity, reports Bloomberg. Traditionally, the law has not been treated equally with business, government and economics in France—all three of which, unlike the law, are represented among the “Grandes Ecoles,” French institutions of higher learning that offer prestigious professional degrees to a select group. Legal education is offered at public universities that are open to a much larger pool of students.

Hence, major law firms looking for attorneys in France prefer candidates with a business or economics degree from a Grande Ecole and an American or British law degree, says Renaud Bonnet, who serves as recruiting partner for the Jones Day office in Paris. “It's no longer enough to just do law school.”

Many in France also see a need for more elite legal education there, and are promoting changes in the current system. “The legal profession is ascendant,'' says Louis Vogel, the Yale University-trained president of France's oldest law school. But for French attorneys to compete successfully with American and British lawyers, he says, “It is absolutely necessary to have a Grande Ecole of law.”

It's true that as far as I can tell there isn't as much interesting legal academic writing going on in France as I'd expect. There's lots of interesting academic writing going on there, some of it is about law, but a surprisingly small amount of it is by law faculty.

Surprising, though, that the legal profession in a country with a reputation for a degree of intellectual insularity and for having a conservative legal establishment would be so open to foreign credentials. Perhaps those reputations are undeserved?

Jury Duty

I have jury duty, so no blogging for most of today.

As 'Rumpole' would say….See You In Court. For a few seconds of voire dire anyway.

Previous post: Called for Jury Duty.

Sometimes Miami Law Is Just Like on TV

I like to tell prospective and incoming law students that real-life law is nothing like what you see on TV. But the trouble is, we live in Miami, a place where much more often than it should be real-life law is just as wacky as what you see on TV.

Take for example this account of the past five days in the annals of Miami Law:

(1) a murder trial in which the witnesses give credible evidence that detectives threatened them (including in one case threatening to take the witness's kids into care) in order to get them to give perjured testimony incriminating the defendant — but the increasingly pathetic-looking Miami-Dade State Attorney's Office says it has no intention of investigating whether the cops are bent;

(2) another murder case that lacked a body now features a lead detective who, on the witness stand, was made to admit to sleeping with a key witness.

(3) A local lawyer who runs a massive ticket-fixing business shot and killed an armed mugger by using the handgun he keeps in the glove compartment of his black Mercedes.

In other local traffic news, six-year-old girl foils carjacker by beating on him

“I smacked him on the head with my book”.

(4) Local Hollywood Police Chief James Scarberry blew a three-year-long FBI sting operation into corruption by officers on his force by blabbing about it to at other cops and local politicians. Not surprisingly, word quickly got out to the prime suspects who immediately tried to resign, stopping the investigation into their associates in its tracks and wasting a giant amount of police work. When first confronted about it the Chief told the press a series of lies, which he's gradually been recanting.

(5) A prominent local builder was jailed yesterday, charged with embezzling public funds to buy a sculpture of a giant watermelon slice. He very vigorously contests the charges, and was photographed giving the finger to a reporter.

Local slice of life

(6) Cops arrest blogging photojournalist for taking crime scene photos.

(Post inspired by Justice Building Blog.)

Rumpole on the Rampage

The Justice Building Blog, a gossipy yet serious attempt to talk about what happens in the local courts, is on a bit of a roll recently: I recommend both Diary of a Mad Jurist and Traffic.Parking (about how to improve conditions in traffic court). Having been through it recently, I especially like the idea of moving traffic ticket soundings (in which the magistrate offers most offenders a plea — usually, so many dollars, no points) online. But I wonder if the proposed rule about never allowing continuances isn't a bit harsh. Even the feds allow them for illness, for example.

On the other hand, I do think that last week's post about the TV exposé of local cops is a bit late (unless maybe the local station is doing reruns?). I wrote about it a year ago.

The Herald Profiles a Local Legal Legend

Great article in the Miami Herald this morning about UM Law alum and old-school criminal defense lawyer Sy Gaer. And absolutely don't miss the sidebar with quotes about and by Sy Gear.

The Origins of the Yellow Legal Pad

Legal Affairs recounts the origins of the legal pad.

Personally, while very devoted to yellow yellow pads up through law school, I discovered that I really preferred white pads some time early in law practice. I think they are easier to read.

'Rumpole' Finds a Cause

[Update (5/11): As noted by a commentator, Rumpole retracts!

THE FOLLOWING POST IS INCORRECT. RUMPOLE BLEW IT. SEE THE POST ON 511/06. JUDGE FARINA HAS NOT ORDERED ANY INTERPRETER NOT TO INTERPRET FOR A DEFENDANT'S FAMILY. SORRY. WE BLEW IT.

Maybe I should change the title to "Rumpole Loses a Cause"? (Although as the comments to the later story make clear, the incident really happened; seems it was just a misunderstanding of some kind.)]

"Rumpole" of the Justice Building Blog, now quite the talk of Miami-Dade litigators, has found a Cause, and it's a good one:

JUSTICE BUILDING BLOG: NO HABLA INGLES....EVER

Here is the scene:
A lawyer is in court.
The Defendant is in custody.
There are sensitive plea negotiations at sidebar.
The case gets reset.
The defendant has to surrender his passport, pay a large fine and restitution before the case gets settled and he can get out of jail.
The new court date is two weeks away.

The interpreter does her job in court and on the way out the attorney wants to tell his client's family the new court date and what needs to be done.

The attorney signals to the interpreter, who walks over and in Spanish asks the people if they are defendants.
They politely tell the interpreter that no, they are the family of the defendant who was just in court and they ask her what happened and when they have to be back in court.

The Interpreter reaches into her pocket, pulls out her reading glasses, clears her throat (ahhem) and loudly says for all to hear:

HEAR YE HEAR YE, BY ORDER OF THE CHIEF JUDGE OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, I CANNOT ANSWER ANY OF YOUR QUESTIONS.
FURTHERMORE, BY ORDER OF THE CHIEF JUDGE, I CANNOT TRANSLATE ANY INSTRUCTIONS FROM YOUR ATTORNEY.
YOU MAY NOT BE TOLD THE NEXT COURT DATE.
YOU MAY NOT BE TOLD WHAT JUST HAPPENED.
WELCOME TO THE ELEVENTH JUDICIAL CIRCUIT OF DADE COUNTY.
I AM AUTHORIZED TO CONVEY TO YOU THAT THE CHIEF JUDGE, ON BEHALF OF ALL OF THE JUDGES OF THE ELEVENTH JUDICIAL CIRCUIT,
WISHES YOU A VERY NICE DAY.

This is not the rule elsewhere, not even in nearby Broward, which is not perhaps the watchword for sensitivity to non-English speakers and minorities. As Rumpole says, "WHEN BROWARD TAKES THE LEAD IN RACIAL OR ETHNIC SENSITIVITY, THEN YOU KNOW SOMETHING IS WRONG."

Deposition Texas-Style

Someone posted to YouTube a short video of a particularly horrific deposition excerpt, captioned "Joe Jamail and takes a deposition defended by Edward Carstarphen. Hilarity ensues." Well, not exactly.

Joe Jamail is a famous Texas lawyer, who has won some big cases and collected some giant fees. Most notably, Jamail represented Pennzoil against Texaco and won a jury verdict for $10.53 billion, then the largest jury verdict ever. Texaco later settled for $3 billion, and Jamail pocketed a third of that.

I suppose it is possible that Mr. Jamail had been smarting from the loss of his title as world's rudest lawyer. As reported in the National Law Journal in April, 2000,

Until recently, the classic example of incivility in litigation was famed Texas lawyer Joe Jamail's defense of a deposition witness in the 1993 Paramount-QVC Network-Viacom takeover battle. According to the excerpts of the deposition transcript included in an addendum to an opinion by the Delaware Supreme Court, Jamail told the examining lawyer that he could 'gag a maggot off a meat wagon' and made other vituperative remarks that the Delaware court labeled 'extraordinarily rude, uncivil and vulgar.' . ... Mr. Jamail's 'maggot' rhetoric has now been displaced by a new classic in incivility: a pre-suit letter sent by a New York litigator that threatened the prospective defendant with the 'legal equivalent of a proctology exam' if the plaintiff's claim weren't satisfied without litigation.

Maybe he wanted his title back.

Law Firm or Cult?

Law firm or cult? Jill poses the question as she looks on life After the law firm.

Lessons from Legal Practice

Ethan Leib, who is about start teaching at UC Hastings College of the Law, writes about what he learned from two years of legal practice:

Just what have I learned? That legal realism is at least partially true; that the law is at least partially autonomous; that the judiciary has severe institutional limitations; that clerks have a lot of power and those who teach them can have immediate impact; that politics is only relevant in the marginal cases in the lower courts; that being an advocate can be redemptive; that ethical questions pervade the profession; that practicing can be as intellectual and rigorous as any theoretical enterprise; that serving clients can make one feel extremely useful and selfless; that representing the poor or thinking through the cases of the dispossessed is an ennobling experience; that hierarchy and commitment to it is very damaging to legal institutions.

This strikes me all as pretty plausible, although my lessons from practice were somewhat different. In two clerkships, I found judges who adhered to precedent when they should, albeit one judge who was quite willing to encode his preferences when the law seemed truly open. Clerks, on the other hand, only had a lot of power if the judges let them — and only the bad judges let them. My three years in the firm did throw up an ethical question or two (which the firm resolved in textbook fashion), but it hardly pervaded our lives so long as we recalled a few simple rules that should be second nature to all lawyers.

I worked with people who would have agreed “that serving clients can make one feel extremely useful and selfless”; alternately, and in less grandiose terms, they felt they were solving other people's hard problems while supporting their own families in style, and that made them feel pretty good. I respected that, but it didn't work as well for me. Although I found I liked commercial practice much more than I would have expected, in the long run my clients — good people — tended to have complex but often boring problems. Strategy was fun, but lasted two days. Implementation was grueling, and could last months. And, at the end of it all, while I was happy that our guys won, and knew it mattered to their personal futures, deep down how much did I really care which oil company got the money?

If I'd had to, I could have carried on despite the long hours. But if I was going to have children, I wanted to see them. And, the lure of controlling my own intellectual agenda was very powerful. Now I'm my own client, I have interesting and complex problems, and I often listen to my lawyer.

[posting time corrected to reflect reality]

What We Learn from Microsoft's Rules of Software Design

Item 12 on 21 Rules of Thumb – How Microsoft develops its Software, a Microsoft developer's list of rules of great software design:

“Portability is for canoes.”

Figures. Indeed, verges on abuse of a dominant position?

It's also sort of interesting to compare this list to legal task organization, for example large-team litigation. Some of the rules work perfectly, some are irrelevant.

The first rule should certainly be engraved on every lawyer's heart, and is something I always make a point of telling my students in every class I teach:

It is essential not to profess to know, or seem to know, or accept that someone else knows, that which is unknown. Almost without exception, the things that end up coming back to haunt you are things you pretended to understand but didn’t early on.

Allow Me to Fan the Flames of Your Burning Bridge

Gawker has this email purportedly from a departing lawyer at Paul, Hastings, a firm with a reputation for great intellectual brilliance exceeded by arrogance.

From: [REDACTED] Sent: Thursday, May 27, 2004 1:11 PM Subject: FW: Goodbye…

As many of you are aware, today is my last day at the firm. It is time for me to move on and I want you to know that I have accepted a position as “Trophy Husband”. This decision was quite easy and took little consideration. However, I am confident this new role represents a welcome change in my life and a step up from my current situation. While I have a high degree of personal respect for PHJW as a law firm, and I have made wonderful friendships during my time here, I am no longer comfortable working for a group largely populated by gossips, backstabbers and Napoleonic personalities. In fact, I dare say that I would rather be dressed up like a pinata and beaten than remain with this group any longer. I wish you continued success in your goals to turn vibrant, productive, dedicated associates into an aimless, shambling group of dry, lifeless husks.

May the smoke from any bridges I burn today be seen far and wide.

Respectfully submitted,

[SIGNED]

ps. Achilles absent, was Achilles still. (Homer)

(spotted via Brian Leiter)

Wilmer, Cutler to Merge with Hale & Dorr

I spent three years as an associate in the London office of Wilmer, Cutler & Pickering and still have warm feelings towards the firm, even though it has grown a lot in the decade plus since I was there, and there are fewer and fewer of the folks I knew. Now it's going to change (with the times?) by merging with Hale & Dorr, a Boston-based law firm, according to an email to firm alumni from WC&P managing chairman William Perlstein.

The initial word from the trade press seems positive, e.g. this item in the Washington Business Journal:

On the surface, the firms' practices mesh well: Both have strong litigation departments, and Wilmer's regulatory expertise combined with Hale and Dorr's corporate work would complement each other.

The firms' cultures also match, according to former attorneys at both firms.

“I would say that most law firm mergers are two dinosaurs mating, hoping to get a gazelle. That would not be the case here,” says Bill Flannery, president of WJF Institute, an Austin, Texas-based law firm marketing consultant. “Here you have two superior, cutting-edge, strong law firms. I'm very impressed by this merger, if in fact this is going to happen.”

Firm mergers tend to be difficult; for the sake of the folks I know at WC&P, I hope this one works out.

When I was there WC&P had a very intellectual and public-spirited culture, even in the branch offices (albeit slightly attenuated by distance); my sense is that this ethic has so far survived despite being under pressure from the exigencies of law firm economics. It's even possible, given the economies of scale in legal practice (which seems to push firms to being small boutiques or megafirms, with little room for midsize), that growth of this sort may be the only way to preserve that culture. It would be interesting, though, to hear from more recent and more senior WC&P alumni (hint).

Perstein's letter:

We are proud to announce some exciting news about WCP. The firm has agreed in principle to combine with Hale and Dorr LLP, effective by the end of May, to form Wilmer Cutler Pickering Hale and Dorr LLP.

We will be combining two great firms at a time when each standing alone is stronger than it has ever been. Each firm has several practices with unsurpassed reputations, and no single law firm now provides the same level of excellence in so many practice areas. We also share core values of professional excellence, exceptionally cordial work relationships, an emphasis on training and development, and a strong commitment to pro bono and the public interest. This is the first combination of two firms on The American Lawyer's “A List” of elite firms, a ranking based not only on financial performance, but also on pro bono service, the treatment and development of associates, and diversity.

The combination will be a true merger of equals between firms of roughly equivalent size. When the combination takes effect, we will be a firm of about 1000 lawyers, with offices in Washington D.C., Boston, Baltimore, McLean VA, New York, Princeton NJ, Waltham MA, Berlin, Brussels, London, Munich, and Oxford.

For law students and lawyers joining us in the coming years, the combination will be very good news. It creates an even richer mix of the highest-level work, gives our lawyers a broader range of professional opportunities, and ensures the continued growth of our professional development and training programs. Both firms have historically provided superb professional development programs for their associates. In the 2003-4 Vault Guide to the Top 100 Law Firms, Hale and Dorr was ranked third in the country for training. Together, we expect to make our programs the best in the country. In addition, both firms share a long-standing commitment to individual mentoring that we fully expect to continue and build on.

In a world that is increasingly competitive globally as well as nationally, and in which the scale and breadth of a firm's practice matters, we look upon this opportunity as a tremendously exciting platform for continuing to build our practice — while enhancing our reputation for excellence and the culture in which we take so much pride. We are looking forward to the new paths that the combination will open up for the firm and all of its lawyers.

Sincerely yours,

William J. Perlstein Managing Partner