Hanging Up a Shingle With Style

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By James Bowden

Recent law school grads throwing your hat in the ring as sole practitioners, the bar has been set.  Portland, Oregon’s newest law office features a Cornell Law Graduate with an interesting take on specialization versus general practice, an innovative fee structure, and an ambitiously nontraditional office layout.

Starting out without the support of a law firm staffed with experienced attorneys and the existing client base that they serve is a tough way to get started in the practice of law – but it is still a way to get started.  I really do admire Mr. Kaplon-Olson’s pluck and entrepreneurialism, too.  Here is a shameless personal story - my spouse is currently in business school, and she and her classmates are facing a lack of available jobs that is akin to that of law students.  Their response to adversity is inspiring – they are starting their own businesses.  The entrepreneurial spirit is something that I found lacking in law school, and something from which I think that we would have benefited greatly.

So my hat is off to Mr. Kaplon-Olson for breaking the mold and striking out on his own, and to all the entrepreneurs out there, too.

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Getting a JD/MBA Without Actually Getting an MBA: The Best Classes to Audit

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By Josh Rosenblatt 

In this competitive job market, hungry law students are looking to distinguish themselves from their classmates.  I did this by getting a joint JD/MBA.   

It has to rank as one of the best decisions I’ve ever made.  The upside: learning to “think like a business person,” valuable insight into how to network effectively, and an expanded group of contacts, to name a few.  The downside:  it is expensive and time consuming.  Also, some classes are (completely) irrelevant for a young lawyer.

So, if you are a current law student who wants to differentiate yourself by picking up some MBA skills but don’t want to spend the time and money on the degree itself, here are my suggestions for the top three classes you should audit.

Accounting

To paraphrase an accounting professor:  “If you can’t read a balance sheet, you might as well not be able to read.”  Accounting can turn off a lot of law students, especially those who think that numbers are big scary beasts to be avoided at all times.  However, the professor’s advice is spot on.  A corporate attorney needs to feel comfortable reading, analyzing, and understanding financial statements.

Corporate Valuation

I struggle with this class.  The math is over my head and the group work takes forever.  Regardless, if you are going to be a “deal lawyer,” then it is good to know how the finances of a deal work.  Corporate Valuation will teach you that ...whether you like it or not. 

Negotiations

Finally, a “soft skills” class!  This class may overlap with a negotiations class taught at your law school, so you may want to check the syllabus first.  However, it has been my experience that classes with the same name at both schools are often completely different, and thus even more worth taking.  Business students negotiate differently than law students, or so I am told.  The difference: taking vs. creating value.  (I’ll let the reader decide who does which).  Take this class to ensure that you can do both. 

A Bonus Class: Spreadsheets

The joke told during class one day was:  Q: “What’s the difference between a lawyer and a business-person?”  A: “When making a list, business-people use Excel.  Lawyers use Word.”  (Laughter ensues, seriously).  You think you know Excel?  It turns out you do not.  You should though; it is a freakishly powerful program that can help almost anyone do almost anything.   

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Wait, is that a rule?

Posted by wlansden | Filed under , , ,

By Eileen Burkhalter Smith

So, I have just learned that there are rules in hockey about who can fight whom in a fight (the allowance of which is in and of itself an unwritten rule).  Apparently, these rules are not actually written, but they are enforced.  Check out the outrage that happens when someone doesn’t follow them here.

This made me think about the unwritten rules in a trial.  I think we can all agree that we have our fair share of written rules, but would you agree with me that there are unwritten ones as well?  Here are three (a hat trick?) that I think exist based on some recent experience:

1.  Embrace your case.  We all have to be advocates, right? I was surprised recently by seeing someone act almost sheepishly about her position in a case during a trial.  I think this might be effective during negotiations, counsel to counsel communications or in other situations, but in front of the judge? The jury?  I think you have to take a stance and believe it.  If you don’t, no one else will.

2.  Pick your battles.  A trial is different than a written motion where it may be appropriate to footnote or reference every facet of every argument.  In a trial, making a mountain out of a molehill can backfire.  Consider whether your strong dispute about a harmless hearsay statement will make the Judge less likely to give you time to argue your later motion to exclude testimony.

3.  Respect their time.  I think it is also important to edit arguments, witness examinations and even evidence depending on how a case is going.  Has the point been made?  Is it 4:00 p.m. on a Friday?  If the case allows for it, I think it is appropriate to realize that the trier(s) of fact may have made a decision and would appreciate an early end.

These are all case specific, of course, but perhaps we should learn a thing or two from hockey:  don’t run a foul of the unwritten rules; it may leave you short-handed.

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Behold the Awful Price of Ethics Violations

Posted by wlansden | Filed under ,
By James Bowden

Writers for a certain network television show take note: an attorney in Tennessee has not only been disbarred for violating the rules of professional responsibility – he’s also on his way to jail.

The attorney’s ethical transgressions run the gamut, including (among many other things) assorted failures to keep clients informed, sharing the profits and losses of legal practice with a non-lawyer, and that mortal sin of professional responsibility – mishandling client funds.  The story as to how he landed himself with a stint in the clink, however, is even more tragicomic: after his license was suspended on February 24, 2009, the offending attorney somehow managed to rack up 50 charges of criminal contempt for practicing law without a license and holding himself out to the public as an attorney by July 24, 2009.  The maximum sentence available under Tennessee law is $2,500 plus ten days in jail for every contempt charge, or 500 days.  The Tennessee Supreme Court took pity on him due to his being disbarred, however, and reduced his jail time to 50 days.  For those of you keeping count, that means that disbarment = 450 days in jail.

Denying the Board of Professional Responsibility’s Motion to Strike the wayward attorney’s brief for failure to comply with the Court’s instructions the Tennessee Supreme Court added: “although the Court is inclined to agree with the Board’s recitation, having the brief remain in the record is the best way to evidence its deficiencies.”  Ouch.  A stinging bench-slap like that would leave the most hardened transgressor chastened, right?  Nope – reached for comment following the Court’s order, he was sporting the glasses with rose lenses: “I think I did a good job for 99 percent of the people I represented."  Exit, pursued by a bear.

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Web 2.0: Twitter User Gets Slapped with Libel Suit - UPDATE

Posted by wlansden | Filed under , ,
By Brian Malcom 

We first reported about a tweet causing a stir in Illinois in July 2009.  A young woman implied in a tweet that her apartment was moldy and the realty company that owned the property did not seem to care.  The realty company sued the tenant for libel, but they may have only made matters worse with no real recovery to show for it.

The ABA Journal is reporting that a state judge has dismissed the complaint against the tweeting tenant.  "[The Tenant] was represented by lawyers from The John Marshall Law School's Center for Information Technology and Privacy Law.  They had argued in a motion that her tweet was "opinion" and "rhetorical hyperbole.""

The judge dismissed the complaint against the tenant, because the complaint was too vague.  Both parties argued the significance or impact of tweeting as a form of publication in their respective filings with the court.

Happy tweeting.

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Driving Me Over "The Deep End"

Posted by wlansden | Filed under ,
By James Bowden

As I’m sure everyone is aware, yesterday was a significant date in the history of American law.  Oh, and ABC premiered a new TV show, too, quite appropriately named “The Deep End.”  Interested in detailing how closely the trials and tribulations of the telegenic foursome of new attorneys featured on the new show tracked the actual experience of law firm associates, I assembled a panel of similarly telegenic young lawyers for a viewing of the series premier.  Sorry, ABC, but we’ve got a bit of a problem.

There are, of course, the inaccuracies that are the necessities of any drama.  First-year associates negotiating directly on behalf of and representing clients alone in court on their second day of practice?  Not so much.  Billy “Prince of Darkness” Zane “marshalling the partners” to give the boot to a partner whose name happens to be on the firm’s letterhead for (gasp!) supporting pro-bono work?  Not likely - Marshalling partners is like herding cats across the Gobi Desert: the real Prince Of Darkness might struggle to marshall four partners to go for coffee, let alone for a casual act of regicide.  Celebrating the day’s victories over shots every night at a bar featuring a pool stocked with bikini models?  That is a completely false allegation – mostly.  And all the bawdy stuff?  Our firm is more Emma than Pamela.  The dialogue is a little bit less than lawyerly, too.  Still, after laughing hysterically about the hiring partner’s confession that he is motivated mostly by a love of “cashmere and corn liquor,” we all admitted that we do, in fact, like cashmere.  And then we topped off our glasses of whiskey.

The big problem, however, is that the artistic license that Hollywood has taken portraying the legal profession in “The Deep End” is a license to kill.  The conflicts that drive the plot unabashedly operate in complete (and perhaps deliberate) ignorance of the rules of professional responsibility.  The part where the managing partner knowingly allows an associate to represent a pro-bono client against an existing client?  No.  The same managing partner going one giant leap further by ordering that the pro-bono client’s interests be thrown under the bus in favor of the existing [paying] client?  Giant, angry, flaming Rule 1.7 no.  Legal-malpractice-with-a-side-of-sanctions-and-reputational-suicide-while-your-risk-management-partner-beats-you-to-death-with-a-redwell no.

And therein lies my real issue with the show: by ignoring the existence of the rules of professional responsibility, it falsely portrays the legal profession in a light consistent with that of the legal profession’s most cynical detractors.  What makes it worse is that the show seems to play to the idea that there is no consequence to an egregious ethical shortcoming, which is certainly not true.  So ABC: I’m going to send you a copy of the ABA Model Rules of Professional Conduct.  Please, please read them and try again.

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What Can Lawyers Do for Haiti?

Posted by wlansden | Filed under , ,
By James Bowden

I know that there is an easy answer to this one: donate money.  Despite the great recession and the fuss that has been made about the collapse of the legal market, attorneys often still earn very competitive wages.  We really should be able to give a little bit to help when crises arise – but that is not what I am talking about.  Making a cash donation feels particularly anemic, even if it is what aid organizations would prefer.

Doctors, EMTs and professional first responders, law enforcement officers, nurses, aid workers, and others certainly have skills and experience that are directly translatable to crisis management.  Even some of the newscasters who are reporting on the evolving tragedy are finding ways to help.  Maybe discretion is better part of valor here, but it is a little bit frustrating that my training in wilderness first aid and my experience as a white water raft guide would likely be far more useful than my license to practice law were I to find myself at the scene of a disaster.  For guidance on what I could do as a lawyer to assist in a humanitarian crisis, I looked to Lawyers Without Borders, an organization dedicated to “supporting the rule of law, economic development, peacebuilding and sustainability in the legal sector” through pro bono service across the globe.  Their recommendation was, admittedly, less than I’d hoped for.

So are lawyers professionally incapable of adding value in these situations?  Certainly not – lawyers clearly are actively working to help the victims of last week’s earthquake at all levels, through advocacy, philanthropy, and leadership.  Their contributions may seem less immediate, but are no less noteworthy; they just get less dust on their boots in the process.

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Good Idea - Bad Idea: "I think the record should reflect that the witness is vomiting."

Posted by wlansden | Filed under
Good Idea:  Effectively managing a witness under cross examination through incisive questioning, thereby advancing the interests of your client.

Bad Idea:  Frightening a witness under cross examination to the point that the witness barfs. Right there. In the courtroom. Over and over again.

This actually happened during a murder trial in Winnipeg, Manitoba.  It should be pointed out that the witness (a) was testifying against his own cousin and (b) has irritable bowl syndrome AND acid reflux, which is a gastroenterologist’s way of saying “game over.”  The judge [mercifully] allowed the jury to go home early.

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Is Discovery the Red-Headed Step-child?

Posted by wlansden | Filed under , ,
By Eileen Burkhalter Smith

Query: Are discovery responses of a party admissible as evidence, if offered by that party? Your response will surely be “for what purpose?”  But, does it matter?

I have touched on a similar topic before here concerning pleadings.  I think we can all agree that pleadings are admissible in a trial.  As I said in the earlier post, pleadings are allowed in part because they are “court records” and contain “adjudicative facts.”  See Federal Rule of Evidence 201.  Should discovery responses fall under this rule?

In a recent trial, I asked a party representative a question—the exact question that had been asked of my party in interrogatories.  My party representative was poised to give the same response we had provided to the interrogatory about four years ago.  The other side objected and argued “relevance;” sustained.  Without considering its actual relevance, I wonder if this would have worked if the roles had been reversed?  Would the evidence have been kept out if I had wanted to prevent it—evidence asked of a party representative which had been provided in interrogatories?

I am really not sure of the answer, nor what it should be.  I think a pleading or discovery response (which, incidentally, in some courts, would have been a pleading) is different than deposition testimony or documentary evidence.  It is a response of a party which was prepared and signed.  Who’s with me?   

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Hell Hath No Fury Like An Assistant's Wrath

Posted by wlansden | Filed under ,
By Brian Malcom 

Be nice to your colleagues and staff, and don't use them to perform unethical or illegal tasks.

One lawyer in New Jersey is learning this lesson the hard way.  David Gross, a former president of the Association of the Federal Bar of New Jersey and a prominent product liability attorney in New Jersey, is facing disbarment for allegedly failing to share a $50,000 check with his firm partners.  Apparently, Gross's secretary, Claudette McCarthy, refused to do work for Gross's wife, also a lawyer at the same firm.  Gross also called McCarthy a "[expletive] idiot" and refused her vacation request.

For payback, McCarthy revealed the check to Gross's partners at Budd Larner four years after he received it in 1998, though she had been told in 1998 to keep it a secret.

Check out the ABA Journal for more.

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