Archive for the ‘BigLaw’ Category

The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the  Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed!  OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner.  Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. MicrosoftBush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation pow­er­­house” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.”  Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t.  As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.

BigLaw, Please Meet SmallLaw

(This is cross-published at Above the Law)

For the new ATL readers, let me introduce myself here in my first column. OK, screw that, I know you don’t really give a damn about me, so let’s jump to the meat and potatoes…

You all know that Dewey & LeBoeuf, filing for bankruptcy liquidation today, is the largest law firm to ever go bust. And that means a ton of people are now out of work, either scrambling to hitch their wagons to new firms or looking to start their own practices.

Because having your own firm is, to many, the Holy Grail of a law practice. Sure, some like the consistent fat paycheck, but the ranks of lawyers are filled with Type-A personalities who fantasize about practicing law the way they want to do it, not the way some other Type-A knucklehead has been telling them to do it.

There are only about a gazillion things to think about in starting your own shop: office space, support staff, technology and money to keep you going, to name a few. But today’s topic will be self-promotion and social media. And I don’t mean this in a good way, as in here’s how to go out and be famous on Twitter. No, no, a thousand times no. Instead I’d like to warn you about them, and help  you save your soul.

You’re welcome. Pull up a chair, and let’s review some of the more dreadful attorney marketing over the years. We’ll start in the toilet.

And when I say start in the toilet, I am perhaps, exaggerating a bit, because what I really mean is over a urinal. Now I know that no one from BigLaw would ever stoop low enough to advertise over a urinal, but you should know that marketing opportunities come in all shapes and sizes and that someone, somewhere might try to sell you something that doesn’t quite pass the smell test.

Selling is what marketers do, and dreams of a steady flow of clients is what many lawyers want to hear. That is always the salesman’s pitch, figuring out what the mark wants to hear. (“Would you like to have more cases?”) But I don’t suggest you take the ghoulish pitch from the funeral home website. Or that you advertise in a jail.

I won’t belabor the point of lousy marketing strategies, because I think you get the picture. If you’re going out on your own — and letting everyone know you are out on your own — you may start fielding inquiries not only from the commercial end of the pool where you once swam, but also questions from friends, family and neighbors that may focus on the consumer end of the law. That means criminal, personal injury, matrimonial, residential real estate, etc.

Some of you will dabble, not wanting to turn away business and curious as to how you might expand your practice. And some of you might actually like it, as your clients are likely to be real people instead of corporations. In addition to getting paid, you might get the warm, fuzzy feeling of actually helping a fellow human. But because these are people that don’t usually use legal services, it is also the domain of the mass advertiser.

So, for my new ATL readers, this is the thing to remember above all else: Marketing is part of our ethics codes. So if you outsource your marketing you outsource your ethics. It isn’t complicated; the marketer is your agent that is speaking for you. When the marketer calls and emails, you ask yourself: Is this the type of person I want to hand my law license to?

You may think that the company is reputable. But that is only because you really haven’t been watching the way some of us outside the BigLaw cocoon have been watching. Instead of giving examples of how the piddling marketing companies screw up (urinals, funeral homes, jails) — perhaps you figure you’ll just be safe and hire the biggest and best? —  let’s look at the Goliaths of the industry to see how well they have done.

First in the dock is Martindale Hubbell. One day it seems, some comment spam turned up on my blog. From them. That’s right, the great revered king of all kings in the legal directory business, was using black hat techniques to drum up business. By basically coming over to my place to stick a billboard for itself on my lawn. How did that happen? Because they weren’t actually doing the work, but had simply outsourced it to others (who may in turn have outsourced it yet again). So you should assume that no matter who you hire to market for you, it will end up being done by some kid in Bangalore, India who knows less than nothing about the practice of law and our codes of professional responsibility.

Next in the dock is FindLaw. What was their faux-pas? Creating crap. This company decided to create fax-blogs that did little more than repeat local news stories of accidents and then end with a links to the people that pay them. They were hoping that the people in the accidents would Google themselves and find the story and then click on the links to the lawyers that had paid FindLaw. At one point, I actually found them using the name of a dead child in the subject heading in order to lure in the family. Ask  yourself: Are these the types of people that you want to hand your ethics over to?

So this is the essence of what happens: The lawyer outsources marketing (and reputation) to a non-lawyer marketing company, which in turn hires or outsources your marketing (and reputation) to yet other people.

Don’t say you weren’t warned. Welcome to the world of attorney marketing. Please drive carefully.

 

Best Law School / Worst Law School

via Stu's Views

Over at Above the Law, Elie Mystal ran a bit asking his readers to vote the worst law school in New York City. The Above the Law readers, it’s important to note, have a pretty significant bias toward BigLaw and big salaries and big bonuses. The site dwells often on the gossip that comes from the big schools and firms.

So it got me to thinking —  a dangerous subject I know — where did New York’s top judges go to law school?

For comparison’s sake, we’ll first look at the US Supreme Court. Why? Because I need some other top court for a yardstick. And because it is frequently criticized for, among other things, being top loaded with lawyers that have never actually been in private practice, spending all their time in government or academia. I think that, of the list, only Justice Kennedy was in private practice for himself for any length of time, with Justice Scalia doing a brief stint in commercial law and Justice Sotomayor famously hanging a shingle in her apartment for a short time.

Here’s the Supreme’s law school list, and let me know if you see a pattern:

US Supreme Court:
Chief Judge John Roberts: Harvard Law School
Antonin Scalia:  Harvard Law School
Anthony Kennedy:   Harvard Law School
Clarence Thomas: Yale Law School
Ruth Bader Ginsburg:  Harvard Law School
Stephen Breyer: Harvard Law School
Samuel Alito: Yale Law School
Sonia Sotomayor: Yale Law School
Elena Kagan: Harvard Law School

OK, even a pre-tween kid could see a pattern. But that pattern is also a problem.

It’s a problem because people choose law schools based on three fundamental criteria: Geography, money and academics. Some folks couldn’t go to those schools regardless of their grades. Now let’s turn to New York’s top court, since that is where we are going with this:

New York Court of Appeals:
Chief Judge Jonathan Lippmann: NYU Law School
Carmen Beauchamp Ciparick: St. John’s University School of Law
Victoria A. Graffeo:  Albany Law School
Susan Phillips Read:  University of Chicago Law School
Robert S. Smith:  Columbia Law School
Eugene F. Pigott, Jr.:  University at Buffalo Law School
Theodore J. Jones:  St. Johns University School of Law

That’s a pretty good mix giving quite a bit of diversity. Four of the seven went to schools that would not be considered first tier. And yet, there those judges are, at the top of the heap on one of the most influential courts in the country. (And several of those judges, it’s worth noting, have actual lawyering experience, as I culled from online biographies; and by that I mean they knew where to find the courthouse and stand in the well on behalf of an actual, living breathing human.)

It is, perhaps, easy to stick one’s nose in the air and feel good about where you were privileged to go to school. But as the New York Times pointed out recently, law school doesn’t teach lawyering.

And I’ve never had a client or judge ever ask me were I went to law school, nor has any juror ever asked me when the trial was over. So take all that law school stuff with a few shakers of salt.

BigLaw Associates "are overworked and underpaid" (You Gotta Be Kidding Me!) – Updated!

When I saw that quote at PrawfsBlawg I couldn’t believe it was real. But there it was staring at me in all its bizarre glory from prof Eric Johnson (via ABAJournal):

“Associates at big law firms are perfectly suited to unionize. They are overworked and underpaid. And partners utterly depend on them. If associates actually used their latent collective bargaining power, it seems to me they could extract huge concessions from partners.”

I haven’t visited the issue of BigLaw salaries in awhile. After all, with associates being laid off by the thousands it didn’t seem right to rub it in. What they need are tips on interviewing or resume writing, and here is a law professor stating that they should unionize to demand more?

Two years ago I noted that starting associates were starting at $160,000, plus giant bonuses, and lots of holiday swag, and then went on to $180K, and were thus clobbering the salaries of New York state judges who remained stuck at $136K and federal judges who were getting $162K (without a juicy bonus). (And last year former Chief Judge Judith Kaye finally brought a lawsuit over the fact that NY judges were actually going backwards, since they don’t even get a cost of living increase.)

And starting associates, of course, can’t even do much. The first year of practicing law might as well be called an apprenticeship. Who would trust a first year with any real project for a big corporate client unless there was significant (read “time-intensive”) oversight? Pretty much the same is true for many second years. How many first or second year “litigators,” for example, are trusted to take the deposition of anyone higher than a mail clerk?

Back in December 2007 Scott Greenfield wrote:

First year associates are near useless as lawyers. They are incapable of producing useful legal work, and at best churn out wasteful hours of memos stating the obvious at great length in order to produce the requisite number of hours. Sure, they think they’re doing a bang-up job, but that’s only because they have no clue of the utility of their efforts.

Still, somebody is paying for this time. Hour by hour, there is a client being billed somewhere for some kid to carry a briefcase around the hallway. It must be just fine with Biglaw clients to pay some top partner $1000+ an hour on top of a posse of kids following her around, nipping at her heels, fetching coffee and taking notes, so that every hour of actual legal work ends up costing the Biglaw clients $3,750.

BigLaw was getting the BigBucks because General Counsels figured no one would ever blame them for losing a case if they paid top dollar.

And what happened to BigLaw with the oodles of money and perks they were throwing around? A big-time contraction. Their clients, it seems, decided that in a Great Recession it might be wise to watch the bottom line, and shelling out piles of dough to BigLaw so they could bill out young associates at ridiculous hourly rates no longer seemed like such a hot idea.

And Johnson thinks they are underpaid? If by underpaid he meant outrageously overpaid, he might have a point, though that point is likely lost on those lining up for unemployment. I’m guessing there aren’t too many judges, for example, who would think a first year associate that still has his or her job at BigLaw is underpaid. Nor any of the millions in jeopardy of losing homes to foreclosure. Does there exist some constitutional right to be paid $200+K per year while still being carried in a Snugli?

BigLaw, it seems, had overpaid its associates in a big, bad way while those firms suckled at the beautiful towers of corporate giants. But now reality is setting in, the teat’s been covered, and associates are being told in 50 different ways to leave. If they were underpaid, why are so many desperate to hold on to those positions?

It would be a fairly safe theory to say that one reason for the massive contraction in BigLaw today is that they had overpaid for the legal talent they hired and were too late to realize it. Many of us — the practitioners of law as opposed to the ivory towerists — had already known that. It sure is an odd time to suggest to BigLaw associates terrified of discharge that this would be a good time to put the screws to the boss and demand more money.

The safe cocoon of academia must feel very nice. End rant.

Update! OK, that rant felt good. But I just noticed that the bit was written in February 2008, not 2009. D’oh! Nevertheless, the fact remains that BigLaw associates aren’t exactly an exploited class working under treacherous conditions, though I suppose heart disease from long stressful hours and and take-out food could be a dangerous workplace environment. Of course, they’d get that anyway if they hung their own shingles.