Glimmers of Hope: Latham May Unfreeze Salaries

Posted by wlansden | Filed under , , , ,
By Brian Malcom

In the event that you missed the post on Above the Law, Latham & Watkins is contemplating a "double bump" increase of associate salaries.  This author is not sure what that means.  Does this mean the associates will get a true raise?  Will associates be where they would have been without the freeze?  Time will tell.

According to ATL, Latham is prepared to make salary raises on January 1, 2010.  Happy New Year indeed.

Let's hope the dominoes start falling.

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Could Your Secretary Cost Your Client/Employer Billions?

Posted by wlansden | Filed under , ,
By Brian Malcom

Yahoo! Finance is reporting that a busy secretary could cost PepsiCo $1.26 billion dollars.  Kathy Henry, a secretary to PepsiCo’s Deputy General Counsel Tom Tamoney in PepsiCo’s law department, apparently received a legal document related to a pending lawsuit against PepsiCo on September 15.  Henry, who was apparently busy preparing for a board meeting, put the letter aside and did not tell anyone about it.

On October 5, Henry received a forwarded copy of the plaintiff’s motion for default judgment from Yvonne Mazza, a legal assistant for Aquafina matters.  Henry remembered that she had the September 15th document in the same matter and passed it back to Mazza.  Mazza then sent the documents to David Wexler, a department attorney, and he immediately noticed something was wrong.  Wexler called the agent to get a copy of the Complaint.

It was too late.  Damages were awarded the previous week on September 30.  PepsiCo filed motions to vacate the order and dismiss the claims on October 13.  It argued that it was not even aware of the lawsuit until October 6.

“The litigation began in April when Charles Joyce and James Voigt sued the soft drink maker and two of its distributors, alleging they had misappropriated trade secrets from confidential discussions the plaintiffs had with the distributors in 1981 about selling purified water.  The information was illicitly passed to PepsiCo, which used it to develop and sell Aquafina bottled water, the plaintiffs allege in the case filed in the Circuit Court of Jefferson County before Judge Jacqueline Erwin.”

There is a lesson here:  speak with your assistant about timely notification of incoming legal documents.  Make sure your assistant is organized and understands the importance of careful and timely review of incoming documents.

Default judgment is a dangerous thing.  Going to a judge and saying, “my secretary never gave me the document” is a lot like going to a school teacher and saying, “my dog ate my homework.”  This is especially true when you are responsible with representing a Fortune 100 company.  You’re supposed to know what you’re doing and have all your ducks in a row.

You are ultimately responsible.  Make sure your supporting staff is happy, organized and not overwhelmed.  This could have happened because the attorney was overwhelmed, too.  Make sure you are managing your workload.  If you’re overwhelmed, tell someone.

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Thanks for Hiring and Happy Anniversary, Defendants

Posted by wlansden | Filed under ,
By Brian Malcom

This Wednesday will mark the one-year anniversary of Thelen's collapse.  All that remains of the once-powerful firm is a shell of a website http://www.thelenreid.com/ and some hard feelings.

The Recorder reports that Thelen's former employees are suing law firms that hired the partners after Thelen's demise for $18 million.  In sum, "[t]he employees, represented by Los Angeles litigation boutique Blum Collins, argue the firms' hiring of the partners amounted to purchasing a portion of Thelen's business. Therefore, the firms are bound by the same obligations as an employer under the WARN Act.  The defendant firms, meanwhile, argue that since there was no merger, they had no obligations to former Thelen staff."

After Thelen's collapse, hundreds of lawyers scrambled and scattered to dozens of firms.  Even still, hundreds of employees were left unemployed.  Staffers only received a 30-day notice, not a 60-day notice as the WARN Act requires.  "The WARN Act portion of the claims is $6 million."

"The defendant firms, Orrick, Herrington & Sutcliffe; DLA Piper; Nixon Peabody; Howrey and Morgan, Lewis, filed motions to dismiss the case in August.  They argue Thelen dissolved and there simply was no acquisition or merger."

Morgan, Lewis, one of the defendant firms, argued in its motion to dismiss that "’Neither Thelen's individual partners nor its individual employees were 'assets' to be 'purchased' by Morgan Lewis or anyone else[.]"

This begs the question: if partners or employees are not “assets” of a law firm, what are?  Is it the only “asset” of a law firm the goodwill associated with the name?  Are the only “assets” of a law firm the property of the law firm?

It will be interesting to see how this case plays out.  In the meantime, collapsing law firms should strive to give at least 60 days notice to employees just to be safe.

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2009 Fall Recruiting Wrap Up

Posted by wlansden | Filed under ,

By Kathleen Pearson

OCI is over, callback interviews have happened and offers are out the door. It's official - 2009 fall recruiting is winding down. It was a different (and difficult) year for students, schools and firms across the country. Only time will tell how much the law student recruiting model will change as a result of crazy pipeline issues affecting the legal industry.

All gloom and doom aside, this is also a time for bright-eyed, bushy-tailed 1Ls to learn from the mistakes of their 2L predecessors. Career services at schools definitely prepared all students very well this year. Candidates were poised, prepared and most of all eager. However, a few missteps along the way are worth mentioning:

Top 5 Interview Disasters from 2009:

  1. Nose picking in the interview . . . Ewww.
  2. Not knowing anything about our firm, locations or practice groups - Seriously. It's the age of the internet. At least know how to look up a firm before darkening the door.
  3. Forgetting to cut off the paper bar bracelet from the night before - I'm glad this person had a really good time last night, I just don't want to know about it.
  4. Coifing hair into a very pronounced fauxhawk - While it might look awesome on campus and heighten street cred, this candidate forgot they were interviewing in one of the most conservative professions in the world . . .
  5. Exaggerating on a resume - While it is good to be comprehensive about work experience, don't try to tell us you actually helped 1st chair a trial last summer during your 1L clerkship.  This candidate was not Reese Witherspoon and we are not Legally Blonde . . .

And, yes, these all really happened . . .

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Speed Reading Your Way to Malpractice

Posted by wlansden | Filed under ,
By Brian Malcom

The ABA Journal posted a story today about a lawyer being pressured to review 80 documents an hour.  Now, is a "document" a single page?  Is a "document" a collection of pages?  Either way, this "mandate" seems a bit absurd.

The story first appeared on the blog, Temporary Attorney.  The contract lawyer reviewing documents received this email: “Please pick up the pace.  They are expecting you to do about 80 docs an hour and all of you are less than half that.  Changes will be made soon if this does not change asap.”  I am betting the "changes" would not be an increase in pay or a nicer office overlooking a park.

Apart from scanning for keywords or looking for bloodstains on a document, how can an attorney carefully and responsibly review more than one document per minute?  How can an attorney thoughtfully review more than one page per minute?  This is assuming, of course, the contract attorney is not reviewing one-sentence emails or enlarged images of Sunday comic strips.  According to an anonymous comment post on Temporary Attorney, these are "dense scientific reports."

I wonder if the employer is supplying the contract attorney with malpractice insurance.  I am betting it does not.  According to a commenter at Temporary Attorney, some of the pressure to review documents at such an absurd rate is coming from the threat of outsourcing.  Apparently, the outsourced labor bills by the document and not by the hour.

The final paragraph of the Temporary Attorney post reads:

"What a dump this place is.  Every week half the project leaves.  We drew a little graveyard with tombstones and the grim reaper on it.  Soon, it won't be able to hold all the contract attorney dead [sic]."

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Bar Results Day - a Summary

Posted by wlansden | Filed under , , ,

By James Bowden

Personal Time Entries for October 16, 2009

7:30 – Leave home for work; expect to vomit for one reason or another in the following 12 hours

10:00 – Leave work to pick my spouse up from the airport, whose arrival is conveniently scheduled to remove me from the office when bar results are set to post; compulsively visit the Tennessee Bar Examiners’ “Successful” website via blackberry for 7,943rd time from the parking garage to no avail

10:45 – Arrive at home to drop spouse off before returning to work; question wisdom and necessity of returning to work due to personal conviction of failure; consider eating palpable doom and foreboding for lunch; think better of it; remember that I am required to return due to inopportunely scheduled training luncheon (“this is what you would be doing if you had actually passed the bar”)

10:46 – Receive text message from friend and law school classmate in Missouri: “Congratulations!;” receive Practice-Group wide email from Practice Group Leader congratulating all new associates for passing the bar; enjoy comfortable silence after dry heaving subsides; receive congratulatory kiss from spouse

10:51 – Leave home for work, having decided doing so was no longer awkward; commit first act of legal significance following receipt of results - break traffic code by placing cell phone call to mother while driving; mentally review affirmative defense of necessity

10:53 – Phone call to mother interrupted by phone call from insurance agent seeking to sell me a life insurance policy; really; ignore insurance agent call, consider purchasing call blocking

11:10 – Arrive at work; ponder that the world feels the same despite the addition of honorific suffix; remember that I owe $10 to a guy in Real Estate on the best lost bet ever; consider decorating office

Congratulations to everyone who passed the Tennessee Bar!  Remember: it isn’t unauthorized practice of law anymore – now it’s straight malpractice.  If you need to talk to someone, I know a really eager insurance agent.

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Can Young Lawyers Take a Vacation?

Posted by wlansden | Filed under , , ,
By Brian Malcom

Can young lawyers take a vacation?  Yes, and they should.  The practice of law is not easy.  It is a difficult career.  It demands much of one’s time, energy, effort and mind.  Young lawyers should take a vacation every now and then.

I realize that some of our readers are going to disagree with this post.  Given the state of the economy, many might say that a young lawyer should remain at his or her desk 52 weeks a year and at least six days a week.  However, I disagree.

A vacation can give your mind a break.  A recent article by Psychology Today, discusses the benefits of a vacation.  The very first paragraph of the article encourages people that think for a living (i.e. lawyers) to take breaks, during which they do not think about work for a while.  The article then goes on to discuss the benefits of a mental rest.  Research suggests that we should place value on a fresh mind, as this is the time we are more likely to be able to solve tough problems.  In other words, the mental rest allows us time to engage in non-linear problem solving.  Non-linear problem solving is also known as the “aha” phenomenon.

I am sure each of you have experienced such an “aha” moment in one way or another.  Often, people will grind through possible solutions when faced with a difficult problem.  These problems typically have no linear or obvious solution.  Once frustrated or exhausted, the person facing the problem will often walk away from the problem or engage in some other task as a way of taking a break.  It is during this break, when the mind is not actively focused on the difficult problem, that the mind so often comes up with a creative, non-linear solution to the difficult problem.  This is insight; this is an “aha” moment.

T
he Psychology Today article credits the ability of the mind to solve difficult problems after a period of rest to the following factors:  a rested mind isn’t stuck in the wrong answers; a quiet mind notices subtle signals; a happy mind is an open mind; and clarity comes from distance.  “When we are too close to an idea, either by knowing too much, having an agenda or experiencing strong emotions, it is hard to see an idea completely.”  Distance encourages creativity and non-linear problem solving.

If the above research by Psychology Today is not enough for you, I have one more reason all lawyers should take a vacation.  The reason is a bit of a cliché:  the practice of law is a marathon and not a sprint.  Most lawyers do not go into private practice to practice for one-to-five years and then turn to another career.  Most young lawyers are in it for the long haul.  To keep yourself happy, fresh, and enthusiastic about your work, you should take a vacation.  You don’t have to spend a lot of money to take a mental break.  You just have to make an effort to make yourself rest.  I just took a vacation, and it was nice to give my mind and body a break for a few days. 

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Good Idea - Bad Idea: Law License

Posted by wlansden | Filed under ,
Good Idea: Using your law license to help your family with minor estate planning issues.

Bad Idea: Using your law license to allegedly rob your disabled 95-year-old grandmother of a cold half-mils' worth of inheritance.

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Tips for Time Entry

Posted by wlansden | Filed under , , ,
By Bob Felber

As a young lawyer in tough economic times, you may be faced with increased pressure to find billable work and get your time entered and released quickly – in some firms by the next day!

As you enter your time, keep in mind that, while you may never see that time entry again, others will – particularly, the partner who sends out the invoice on which that time entry appears and, ultimately, the client who receives the invoice.  If your time entry is ambiguous, trivial, confusing, or not consistent with firm or client billing guidelines, you are creating headaches for the partner who must spend his or her time reviewing and editing that invoice prior to sending it to the client.

Make sure you have taken the time not only to get your time entered on the correct file but to state clearly and concisely the value of the work you have undertaken.  To accomplish that, consider the following guidelines: 

  1. When entering your time, put yourself in the shoes of the client reading the invoice.  Confusing invoices = no payment!  Also, remember that the client contact with whom you work may not be the same person who reviews and pays the invoice.

  2. Avoid trivialization of your work and be descriptive.  For example: “Prepare memorandum to S. Smith regarding Davidson County building codes” is better than “Email to S. Smith”;  “Confer with J. Doe re: strategy for completing Jones Company license agreement” is better than “Exchange emails with J. Doe.” Time entries should convey value delivered rather than the mechanics of completing a task.
     
  3. Use care in billing for meetings with colleagues within the firm. While these meetings may be very productive and ultimately benefit the client, clients tend to balk at paying for a lot of internal meetings and some have policies stating that they will not pay for them.

  4. Watch the shorthand.  Bills are a serious matter to clients and should not be casual.  Using a lot of abbreviations for terms that the person processing the invoice will not likely understand only creates a potential for confusion and delay in payment.

  5. In the end, make certain that you follow both firm policy and client billing guidelines when entering time.

If you are careful and thoughtful with your time entries, the result will likely be a happier partner, a happier client and a more successful associate.

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Behavioral Questions in the Modern-Day OCI

Posted by wlansden | Filed under , , ,
By Brian Malcom

Apparently, an on-campus interview is not about how you dress and how you shake hands anymore.  Now, it is being used by firms to screen out more and more candidates.

Firms are sending more senior attorneys to campuses to meet with potential new hires.  These upgraded interviewers, usually skilled in interrogation-like techniques from years of experience in negotiations or litigation, are coming to campus with deliberate questions in tow.

According to the ABA Journal and the American Lawyer, behavioral questions are the new "in" thing for law firm interviewers.  "Behavioral questions often begin with the words 'Tell me about a time' or, 'Give me an example of a time.'"

According to the American Lawyer, “it's no longer about whether you like the same sports teams . .”  Law firms want to know how you perform in certain situations or under particular circumstances.   These questions have a very specific purpose: law firms want to know if you possess certain characteristics or personality traits that they have identified as increasing the likelihood that you will be a successful associate.   Citing a 2005 article in the NALP Bulletin, the ABA Journal points out that "[l]aw firms are are often looking for these four behavior patterns, according to the NALP article:

1) Decision-making and problem-solving skills. An interviewer might ask: Tell me about a difficult decision you had to make.

2)
Motivation. An interviewer might ask: Tell me about a time when you failed to meet expectations.

3)
Communication and interpersonal skills. An interviewer might ask: Describe an unpopular decision you made and how you dealt with the aftermath.

4)
Planning and organization. An interviewer might ask: Tell me about a time when you were too busy and had to prioritize your tasks."

Perhaps these questions are a better way to assess whether the interviewee will be a successful attorney than asking about hobbies or sports teams.  Perhaps these questions are better suited to determine whether the personality of the candidate matches the personality of the firm.  However, the cynic in me believes that these questions might also be a methodical device surmised by firms to give a substantive basis for a decision not to hire.  I also believe these questions stifle diversification of personalities within a law firm and promote a uniform culture.  Some may view such a culture as a strength, but I believe this is a weakness.

Regardless, the YLB remains committed to helping you prepare for recruitment.  Prepare for the behavioral questions.  They are likely to come your way.  Have you had a behavioral question already?  Do tell.

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