The Wyoming Trial Lawyers Association Channel

Ashish Nanda
The American Lawyer
October 13, 2009

The current oversupply of new associates has sent law firms scrambling to implement short-term adjustments, such as secondments and deferrals. But the legal profession needs more than temporary half-measures. The new-associate recruitment market is fundamentally broken, and it has been for some time. Incremental changes are not going to address its underlying problems. The market needs a structural fix -- a centralized matching authority, like the one that the medical profession has been using for more than half a century.

Firms make most of their new-associate offers to their summer interns. Thus, associate recruitment mostly happens at the intern-selection level. Summer internships operate as a bilateral matching market, in which law firms rank the candidates they interview and the candidates rank firms with which they wish to intern. The labor market "clears" in a decentralized manner. Law firms choose schools from which to interview, interested students at those schools apply to particular firms, the interviewing firms offer summer internship positions to specific students, and the students decide whether to accept the offers.

This decentralized clearing of the labor market leads to predictable inefficiencies, to the detriment of both firms and students. First, it creates bad matches. A firm waits for a top-ranked candidate to decline its offer before making an offer to a second-ranked candidate, who by then has gone elsewhere, perhaps to their second-ranked firm. The same dynamic occurs on the other side of the market: A candidate who is wait-listed by their first-ranked firm risks that forgoing a second-ranked firm could leave them without an offer from either. Candidates hoard offers, and firms make "exploding offers" that push candidates to decide very soon after receiving them.

Second, the job market can "unravel." A second-tier firm tries to preempt first-tier firms by approaching students earlier and making them time-bound offers. First-tier firms respond by also moving their recruitment dates up. This spurs second-tier firms to move their recruitment dates further up. The same dynamic occurs among law schools. A second-tier school opens its campus recruitment window just a little earlier than first-tier schools, hoping to encourage firms to make more internship offers to its students than they would otherwise. Recognizing that they are being preempted, first-tier schools also move up their recruitment windows, encouraging a second-tier school to move still earlier.

The consequence is that recruitment occurs long before jobs begin. Currently students are recruited at the beginning of their second year of law school, almost two years before starting their jobs. This situation causes three main problems deleterious to both the firms and the candidates: Firms have to recruit based on limited information, the labor market becomes inflexible and summer internships lose meaning.

At recruitment time, students have been through only one year of graduate school. Many have no full-time work experience. Other than from the interviews themselves, firms judge candidates' abilities principally through extrapolation from the reputation of their law schools and their first-year grades. Since these are exceedingly important determinants of where the students will get their first jobs, both law school admission and first-year academic performance become even more stressful and laden with meaning for law students. Over the next two years of law school, students will learn their strengths and weaknesses, interests and passions. But neither the students nor the hiring firms are able to use those insights and information; job assignments have already been made. Instead, many of the students, secure in the knowledge of where they will go upon graduation, pay less attention to second- and third-year courses.

As demonstrated by law firms' current predicament, recruiting two years before jobs begin introduces rigidity into the labor market. If the economic environment changes dramatically, firms, unable to easily adjust their new associate numbers, face a supply-demand imbalance: undercapacity, if times are better than expected; overcapacity, if times are worse (as is the case now). In difficult times, firms have to renege on implicit commitments to new hires (such as reducing the ratio of summer candidates to whom they make job offers or postponing start dates) or force current junior and midlevel associates to bear the brunt of the stress (such as through layoffs).

In the current system, internships lose their value. Properly conducted, internships are opportunities for firms and prospective associates to try out one another, evaluate such soft elements as the firm's work environment and culture and the intern's work ethic and collegiality, and eventually gauge the fit between the firm and the intern.

Law firm summer internships currently do not perform this filtering function. If a firm considers not offering a position to an intern, it likely no longer has access to second- or third-ranked choices, since they would probably have been offered jobs in the firms at which they interned. Thus, a firm will choose to extend an offer even to a less-than-ideal intern. Similarly, a student may not be happy at the firm with which they interned but hesitates to reject an offer because they will be forced to interview only with firms that have not been able to fill their job openings with interns. Thus, summer internships have become formalities. Firms try to not cause prospective associates to worry too much about their jobs and interns try not to create unnecessary waves.

These problems can be addressed by creation of a centralized matching authority. Under such a system, participating firms would still interview candidates for summer placement. At these interviews, candidates and firms would still be free to discuss any aspects of the internships. But the firms would not make offers directly to students, nor would students finalize placement at the time of the interview. Instead, firms would give the matching authority their preference ranking of candidates, along with the number of seats they have available. Students would give the matching authority their preference ranking of firms. On a preannounced date, the matching authority would match the firms with the candidates, taking into account both sides' preferences.

The matches would be made through an algorithm. These have long been in use and shown to work well in other settings. The best-known is the algorithm employed by the national medical residents matching program. Since 1952, a centralized matching bureau has annually assigned medical school graduates to their first jobs as residents. The algorithm, with some modifications, remains in use to this day, with very high levels of voluntary participation from both sides of the market, placing 20,000 graduating physicians in their jobs every year.

Careful studies of the matches have demonstrated that the algorithm does not favor either side of the market and allows few possibilities for strategic behavior by participants. An antitrust case that argued that centralized matching depressed resident salaries was dismissed by a federal district court in August 2004. Also in 2004, Congress passed legislation clarifying that the matching program does not violate antitrust laws. With use, the matching algorithm has become increasingly sophisticated, allowing the matching bureau to take into account considerations such as paired geographical preferences of couples who enter the labor market at the same time.

For centralized matching to be effective in the legal profession, major schools and firms must sign on. Once major schools and firms have agreed to centralized matching, other schools and firms can choose to join the regime, or, if they stay away, risk signaling lower quality to the market. Nonparticipation can be reduced if participating schools and firms commit to giving priority to other participating firms and schools.

It is crucial that members of the matching authority understand the concerns of both sides of the labor market but be independent of each. The matching authority should have the right to investigate allegations of cheating and punish those who it finds to have broken the rules. To retain independence, the matching authority should be financially self-sufficient, funded by fees from member firms and small fees from candidates who request matches.

Because matching would be done by a centralized authority on a particular date, problems associated with decentralized matching would disappear. Inefficient matches would be avoided. If a candidate or a law firm is unable to get its first-rank choice, they can seek a second-rank choice before moving further down their preference ranking. Market unraveling would be prevented by the matching authority disciplining schools or firms that encourage or make offers ahead of the match date. Rule-breakers could be fined or suspended from the matching regime.

Once unraveling is prevented, recruitment could be rolled back to dates closer to the summer internships. Firms would have more information on candidates. Students would focus on learning in the early part of the second year and develop a deeper appreciation of their own interests and strengths before recruitment begins.

If centralized matching is beneficial to market participants on both sides and addresses most of the problems of decentralized matching, why has such a system not emerged already in the legal profession? There are three reasons: concern with centralization of power, the challenge of instituting collective action and resistance to change.

Some market participants recoil from the idea of centralized matching because they conflate centralized markets with centralization of power. Centralized matching does not take choice away from individual students or firms. Instead, it provides a common platform for the labor market to function efficiently. In that regard, it is akin to a stock exchange, which allows people to execute trades according to their individual preferences but within the ambit of explicit rules that increase the efficiency and robustness of trading.

Centralized matching requires collective action. Most of the major market participants have to agree to a centralized matching regime to make it work. Individual schools and firms feel unable to move to such a system on their own. Because of this inertia, the existing system prevails, even though individual market participants have to live with its inefficiencies.

Replacing the current system with centralized matching might make recruitment officers at firms and placement officers at schools feel threatened, even though it would allow both recruitment offices and placement offices to focus on what their primary goals ought to be -- for the former, finding and ranking the best candidates and encouraging them to choose their firm, and for the latter, advising students on application and interview strategies and prioritization of preferences. However, because centralized matching obviates the need for their involvement in the match process itself, individual recruitment officers or placement officers might perceive it as diminishing their roles and resist its introduction.

A transition to centralized matching, therefore, is unlikely to be triggered by a bottom-up process or through the initiative of individual law schools or law firms. It requires the shared commitment of leaders of law schools and law firms. Centralized matching will become a reality only if they concur that it is superior to decentralized matching and are prepared to establish a matching authority with the requisite capability and authority. Is it time to institute this radical but much-needed change?

Ashish Nanda is Robert Braucher Professor of Practice, Faculty Director of Executive Education, and Research Director at the Program on the Legal Profession at Harvard Law School.

 

 

Stephen Zack Interview in English

Miami lawyer Stephen N. Zack, a partner in the national law firm Boies, Schiller & Flexner, was elected as president-elect of the American Bar Association – the first Hispanic American to achieve that distinction.  Zack will serve one year as president-elect before taking office as president in August 2010 at the ABA’s Annual Meeting in San Francisco.  

The son of a Cuban mother and American father, Zack is focused on promoting civics education, the importance of inspiring a new generation of lawyers and ABA programs that advance access to justice for everyone in the United States.  In addition, he will work to create a commission on Hispanic rights.

“I am proud to be the first Hispanic American slated to become the president of the ABA.  This country is still a land of opportunity.  I want to work as an advocate for access to justice – and also for the possibilities that can exist for all young students from all backgrounds.”  

Stephen ZackIn his speech to the House of Delegates, Zack said he will focus on “two critical areas” of the legal profession – civics education and the high cost of legal education.  He said these issues and the programs and strategies to address them will have “an impact on the profession and on future generations.”

In the coming year, Zack, who grew up in Cuba and has practiced law for more than 35 years, will work with other bar associations to develop a pilot program for an American to teach students about everything from making an opening statement to understanding the Bill of Rights.  The goal is to eventually enroll a small group of students – half of which would be minority students — from every high school in the United States to participate in an educational program over the President’s Day holiday weekend.  Zack called on members of the ABA to get involved.

 “Every last one of us will go in and teach these students.  We can’t wait.  We will begin to reach out to a new generation,” said Zack.

In addition, Zack said he is determined to push for a renewed focus on teaching civics education in the classrooms of America so that students truly understand why we have three separate branches of government.

“With every right that we have comes an obligation to understand those rights,” Zack said after quoting a study that revealed that most Americans cannot name the three branches of government.

 His hope is that a renewed interest in civics and an understanding of the role of government will not only create a more informed citizenry, but also increase student interest in pursuing a career in law.  

Zack said a law school education must be affordable for all, otherwise, “We will become an elitist profession at a time when we must look like the people we represent.  We have an overriding obligation to make sure that a new generation can service the needs of all Americans.”

Prior to his selection as president-elect, Zack served from 2004-2006 as chair of the ABA’s House of Delegates, the 555-member body that debates and votes on issues that become official ABA policy.  The chair of the House is the second highest elected office within the association.      

More than three decades ago, Zack became an active ABA member not long after completing his law degree at the University.  He is passionate about the mission of the ABA – serving the public and legal profession by “defending liberty and delivering justice as the national representative of the legal profession” – and believes that all lawyers have a special obligation to promote these goals and to speak out against the repression of freedom.

At the ABA, Zack has a long record of service.  In addition to his serving as chair of the policy-making House of Delegates, recent activities have included being a member-at-large of the Long Range Planning Committee of the Board of Governors, member of the Advisory Committee to the chair of the House of Delegates, member of the Center for Racial and Ethnic Diversity, member-at-large of the Section of International Law and secretary of the American Bar Endowment.

Zack has served as a member of the House of Delegates since 1988, and was a Florida delegate from 1997-2000.  He is a former member of the ABA Board of Governors (1992-1995), and was a board liaison to the Sections of Litigation and Dispute Resolution.  In addition, Zack served as president of the National Conference of Bar Presidents, is a former chair of the Standing Committee on Bar Activities and Services, a former member of the Commission on the Judiciary in the 21^st Century and a former chair of the ABA Latin American Council.

Zack is also a founding member of the Cuban American Bar Association and a life Fellow of the American Bar Foundation, which promotes justice through research on the law and its impact on society.

An active member of the Florida Bar Association, Zack has served as president of the association, president of the Young Lawyers Section and chair of the International Law Section.  He was a member of the 11^th Circuit (Miami-Dade) Judicial Nominating Committee for the Southern District, the Federal Judicial Nominating Commission’s Board of Governors and a Florida Bar Fellow.

Zack’s civic activities in Florida include special counsel to Gov. Bob Graham, chair of the State Ethics Commission of the State of Florida and member of the Florida Constitutional Revision Commission.  He chaired the City of Miami Beach Charter Review Commission and the Environmental Commission for the City of Miami.  He is a former legislative aide to Rep. Claude Pepper and a former member of the Orange Bowl Committee and of the Public Health Trust.

Zack received his B.A. from the University, where he was elected to its Hall of Fame.  He has been admitted to practice in Florida, New York and Washington, D.C.; the Supreme Court of the United States; the Supreme Court of Florida; the U.S. Court of Appeals for the 11^th Circuit; and the U.S. District Courts for the Northern, Middle and Southern Districts of Florida.

With more than 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

(Source: American Bar Association)

(How to become A Legal Broadcast Network Commentator)

 

(Boston.com) A  Connecticut lawyer has filed hundreds of ethics complaints across the country, setting the stage for a possible major change in how legal services are marketed over the Internet.

Zenas Zelotes, a Norwich  resident and bankruptcy lawyer, said he has filed more than 550 complaints in 47 states, claiming improper referrals are being made through Internet sites run by Total Attorneys Inc. of Chicago. Referrals obtained through sites such as totaldivorce.com and totaldui.com breach rules against for-profit lawyer referral services, Zelotes claims.

Kevin Chern, president of Total Attorneys says this is a cooperative advertising arrangement permitted Kevin Chernunder the rules,and attorneys are paying him for the cost of licensing the website and marketing costs.

This is a "natural extension of marketing models that are ubiquitous across the Internet," Chern said.

Hawaii Rules

(Business Wire) The first to rule on the complaint, Hawaii’s Office of Disciplinary Counsel completed a full inquiry and determined that there is no basis upon which to take any action in the case. Hawaii also stated in its letter that the complaint raised serious First Amendment free commercial speech and other legal issues.

“The ruling in Hawaii affirms our belief that the advertising model used by Total Attorneys is within the bounds of ethical and professional conduct,” said Chern. “In Connecticut, as in most states, the Rules of Professional Conduct do not expressly address modern technology. That said, the Hawaii finding demonstrates that reasonable attorney regulators can certainly apply antiquated Rules to contemporary technology in a way that fulfills their mission to protect consumers and that retains the spirit of those Rules.”

 

(National Law Journal) An unusual twist in the multibillion-dollar battle between the federal government and utility companies over spent nuclear fuel threatens to send more than 50 breach-of-contract lawsuits back to square one after a decade of litigation.

Last week, the full U.S. Court of Appeals for the Federal Circuit heard arguments on whether the government, for the first time, can argue "unavoidable delay" to excuse its failure to pick up and dispose of the industry's nuclear waste.

The issue in Nebraska Public Power v. U.S. comes before the court nearly 10 years after the Federal Circuit found the government liable for breaching the utility contracts and after more than $1 billion has been awarded in damages and settlements. "We're now very far down the road and this would potentially open up everything," said Jay Silberg, a partner in Pillsbury Winthrop Shaw Pittman's Washington, D.C., office who represents Nebraska Public Power.

Jerry StouckAnd that road has been very long and costly, said Jerry Stouck, a partner in Greenberg Traurig's Washington office who filed the first suit charging the government with failure to begin picking up his clients' spent nuclear fuel by Jan. 31, 1998, as required by contracts entered into in 1983.

Lawyers involved in the litigation were stunned not only when the delay argument came alive in a U.S. Court of Federal Claims case but when, after waiting more than a year for a decision on an appeal to a Federal Circuit panel, the full court intervened to hear the case. "This latest episode is particularly interesting because it's a fascinating insight into the Federal Circuit and these big, high-powered cases, a real example of how challenging it can be to obtain relief from the federal government," said Stouck.

Nine years ago, the Federal Circuit held in Stouck's first case -- Maine Yankee Atomic v. U.S. -- that the government's delay in picking up the fuel constituted a breach of contract. In 2006, Stouck won $143 million in damages for Maine Yankee and two other utility clients -- awards still mired in litigation.

To date, utilities have filed 71 breach-of-contract cases in the Claims Court. With liability established, the utilities and the government have been fighting primarily about damages. The utilities seek damages largely for the costs of storing the fuel, often on site, costs they would not have had if the government had performed in a timely manner.

The Department of Energy's most recent estimate of the government's potential liability is $12.3 billion, based on a pickup date of 2020. But the industry estimates damages claims ultimately will total about $50 billion.

"This involves a lot of money," said James Ramsay, general counsel to the National Association of Regulatory Utility Commissioners. "It's now more than 20 years [since the contracts were signed] and billions spent on Yucca Mountain as a repository, which is not going anywhere. We're not happy to see the issue being raised now in the Federal Circuit."

WASTE AND TIME

The issue that the Federal Circuit will hear on Sept. 18 has its roots in a 1997 decision by the U.S. Court of Appeals for the D.C. Circuit. Soon after the 1983 contracts were signed, it became clear that the Department of Energy would not meet the Jan. 31, 1998, deadline to beginning picking up the waste. There was no operating storage facility, and potential sites, such as Yucca Mountain in Nevada, soon faced political and public opposition.

In 1995, the department issued a "final interpretation" of its obligations under the Nuclear Waste Policy Act and the contracts, saying it had no obligation under either to begin disposal in the absence of a repository or interim storage facility. Several utilities and state commissions petitioned the D.C. Circuit for review of the department's interpretation. The court said the department was wrong -- the government had an obligation under the act reciprocal to the utilities' contract obligation to pay into the Nuclear Waste Fund to cover storage costs.

But on remand, the department again said it could not meet the deadline but its delay was excused by the "unavoidable delay" clause in the contracts.

The utilities returned to the D.C. Circuit seeking an order to compel performance by the department. The court did not issue that broad writ of mandamus but a narrower one in which it specifically precluded the government from using "unavoidable delay" as a defense to breach-of-contract claims. That defense, it said, was inconsistent with the department's obligation under the federal act.

Fast forward to 2006 and the Nebraska Public Power case. Claims Court Judge Francis Allegra becomes the first and only judge in the spent nuclear fuel litigation to hold that the D.C. Circuit's 1997 order is void because it exceeds the D.C. Circuit's jurisdiction and infringes the Federal Circuit's jurisdiction. Unavoidable delay as a defense is back on the table. "We're revisiting this history at a time when the government said nothing about this from 1998 to 2005, and all these cases are proceeding forward and all the judges are operating under the assumption this is a valid decision by the D.C. Circuit," said Silberg.

The Pillsbury lawyers argued an appeal to a three-judge panel of the Federal Circuit in December 2007, and then "we tried to read the tea leaves" as to why a decision was so slow in coming. In June of this year, the Federal Circuit issued its en banc hearing order.

The National Association of Regulatory Utility Commissioners and a number of utilities with spent nuclear fuel cases have filed amicus briefs supporting Nebraska Public Power. They and Nebraska Public Power argue that the D.C. Circuit properly exercised its jurisdiction to interpret the statutory provisions of the Nuclear Waste Policy Act under that act's judicial review section and properly directed the parties to seek remedies in the Federal Circuit under the contract if and when the breach occurred.

But Assistant Attorney General Tony West counters that, absent action by Congress granting another court jurisdiction to hear contract claims, the Court of Federal Claims has exclusive jurisdiction. The Nuclear Waste Policy Act's judicial review provision, he said, did not give the D.C. Circuit jurisdiction to issue an order concerning contract remedies.

DEFINING DELAY

The delays clause in the utilities' contracts has two subcategories, according to Greenberg's Stouck: avoidable and unavoidable delays. The Federal Circuit, in one of Stouck's cases, interpreted avoidable delays as applying to delays during the performance of the contract, he added. "When the government fundamentally fails to perform its most basic obligation, that's not a delay," said Stouck.

The unavoidable-delays category has not been interpreted by the Federal Circuit, but the utilities urge the court in their briefs to settle the issue of what it means if they lose the jurisdiction issue. "The rationale is the same," said Ramsay of the National Association of Regulatory Utility Commissioners. "Those clauses were not meant to apply to a systemic failure of a government program. They were meant to apply in situations like hurricanes, acts of God and war."

If the government wins in the Federal Circuit and that court does not interpret "unavoidable" delays, Stouck predicted the utilities will endure another five years of litigation in the Claims Court and Federal Circuit only to find that the government's failure to perform is not an unavoidable delay. "The government, like any contracting party, is not excused by events it is in control of," he said. "It's possible to construct and operate a storage facility for spent nuclear fuel. The contract doesn't require Yucca Mountain to be built."

Both sides are concerned about the time and cost of the litigation.

Deputy Assistant Attorney General Michael Hertz, in July testimony before the House Budget Committee, told the lawmakers, "A legislative solution would be preferable to the current drain on the resources of the courts and the Department of Justice caused by the seemingly endless litigation."

He reported that, of the 71 lawsuits filed, 51 cases remain pending either in the Claims Court or the Federal Circuit, 10 have been settled, six were voluntarily withdrawn and four have been litigated through final nonappealable judgment.

Of the 51 pending cases, the trial court has entered judgments in 13 cases, most of which are not final because of appeals and remands.

Counting judgments and settlements, Hertz said, the government's liability to date stands at $1.3 billion. The government, he said, has paid $565 million in settlements and one judgment that was not appealed.

The department, he said, has spent approximately $24 million in attorney costs, $91 million in expert funds and $39 million in litigation support costs in defense of these suits.

"There is every reason to believe that these cases will continue to be filed and litigated into the foreseeable future, and these costs will continue to be incurred," Hertz said.

The costs to the utilities are staggering too, said a number of their lawyers. Taking a case just from complaint through trial averages $5 million to $7 million, not including expert witness fees, a document-maintenance fee and other costs, they said. And, utilities are still paying fees into the Nuclear Waste Fund -- their side of the contract.

"It's a lot of money, and even if we get a judgment, we haven't been able to collect it, and its value diminishes with time," said Silberg.

(Marcia Coyle NLJ)

 

(NY Times) This fall, law students are competing for half as many openings at big firms as they were last year in what is shaping up to be the most wrenching job search season in over 50 years.

For students now, the promise of the big law firm career — and its paychecks — is slipping through their fingers, forcing them to look at lesser firms in smaller markets as well as opportunities in government or with public interest groups, law school faculty and students say.

The frenzy has even pushed the nation’s top firms, a tradition-bound coterie, into discussing how to reform the recruitment process with an earnestness that would have been unthinkable just years ago.

 

Read the article in the New York Times

 

Washington and Lee Law School Dean Rod Smolla discusses the current job market and the school's revolutionary 3L curriculum with LBN host Scott Drake.

 

In a stunning turn of events on what could be one of the largest Qui Tam cases in US history, the First Circuit Federal Appeals Court released it's opinion today reinstating a part of the whistleblower claim against Ortho Biotech, the Johnson & Johnson subsidiary, regarding the alleged kick back scheme for it's drug Procrit.  

You may read the entire opinion by clicking the link here, The case number is 08-1409 and the name is United States, ex rel. Mark Eugene Duxbury and Dean McClellan, Plaintiffs vs Ortho Bio Products.

This case was spearheaded by Attorney Jan Schlichtmann on behalf of the relators Duxbury and MacClellan and when the trial court dismissed the claim, the appeal was filed and argued in mid 2008 and today's decision affirmed part of the decision but cleared the way for the Duxbury claim on kick backs and rebating tied to the off label marketing and use of Procrit in oncology clinics and hospitals.

In this exclusive interview, Duxbury and McClellan's attorney Jan Schlichtmann discusses the courts ruling, shares his thoughts on the elements that were affirmed as well as the next steps in this long dormant but now front page Whistle Blower case regarding Procrit and the marketing of it's off label use. As long time readers of this page will recall this was also featured in a Wall Street Journal profile on the case at about the time of  the original trial in 2007 and while many had given the case up for dead, the Appeals Court has done a comprehensive analysis of what the bar is to filing a Whistle Blower claim and brought in a real stunner on what could be a massive potential claim against Ortho Biotech.

BOSTON - A jury in a high-profile federal copyright infringement trial here ordered a Boston University graduate student to pay $675,000 to several record companies for illegally downloading and distributing 30 of their songs.

Joel Tenenbaum appeared stoic as the jury announced that each of the 30 counts of willful infringement would cost him $22,500. The tab— while steep — is far less than the $4.5 million that the companies could have received had the jury imposed the maximum per-song damages allowed under law. Copyright law allows for damages of $750 to $30,000 for each copyright infringement and up to $150,000 for each willful infringement.

Tenenbaum said he was happy the verdict wasn’t in the millions and “not displeased with the jury given how the trial went.”

Tenenbaum’s attorney, Harvard Law School professor Charles Nesson, whose case has faced several setbacks in recent weeks, closed his eyes just before the jury read the verdict. Nesson said he expects to appeal the judgment – and contends that U.S. District Judge Nancy Gertner’s ruling that Tenenbaum couldn't cite fair use, or the legal use of copyrighted works under certain circumstances, is “vulnerable.” That ruling was issued the morning jury selection began.

“It’s not a fair verdict because the jury never got to consider the fairness issue,” Nesson said. “We had a pretty darn good argument.”

Nesson himself tangled with plaintiffs lawyers after the jury left the room Friday. The lawyers — Matthew Oppenheim of the Oppenheim Group in Potomac, Md. and Timothy Reynolds of Denver-based Holme Roberts & Owen — sought sanctions against Nesson for posting deposition excerpts on the Internet.

Nesson said the plaintiffs’ side offered to drop the sanctions motion if he destroyed the materials at issue. But he said he wanted to use at least some of the materials for teaching purposes. Oppenheim told Gertner that he and Reynolds didn’t want to be a part of Nesson’s classroom materials or to be a party to any Internet distribution of the information. Gertner asked Nesson to send her a letter by Aug. 10 outlining his plans for the material.

Throughout closing arguments on Friday, Nesson, tried to convince the jury to keep damages low. He argued that Tenenbaum was “addicted” to downloading music, and that the college student was only taking advantage of available technology. He was not, Nesson said, attempting to deprive the record companies of profits. Declining profits at record companies, Nesson said, was caused by their inability to keep up with technological change.

“Progress happens, it’s not Joel who is responsible,” Nesson said. “There’s no reason for [the industry] to put their calamity off on kids.”

Near the end of three hours of testimony on July 30, Tenebaum admitted liability for downloading and distributing the songs at issue in the case. After Tenenbaum’s testimony, Gertner ruled that the jury had only to decide whether infringement was willful and how much Tenenbaum should pay in damages.

In a statement for the plaintiffs’ side, the RIAA said the organization “appreciates that Mr. Tenenbaum finally acknowledged that artists and music companies deserve to be paid for their work...We only wish he had done so sooner rather than lie about his illegal behavior.”

The District of Massachusetts case, Capitol Records Inc. v. Alaujan, is one of many that record companies and the Recording Industry Association of America have filed against college students for making illegal Internet music downloads. (The companies involved in the case at this point are: Arista Records LLC, Sony BMG Music Entertainment, Warner Bros. Records Inc., and UMG Recordings Inc.)

Most have settled, but Vivendi-owned The Universal Music Group took home a $1.92 million verdict in June when a Minnesota jury decided Jammie Thomas-Rasset should pay $80,000 for each of 24 songs she posted on a Web site for others to download.

The final day of trial focused on damages after an earlier order by Gertner ruling for the plaintiffs on the issues of copyright ownership and liability.

On Friday, Nesson called ethnomusicologist Wayne Marshall, a Mellon Fellow at the Massachusetts Institute of Technology, as his sole witness to demonstrate the current ease of buying an MP3, or digital song, from Amazon.com for 99 cents.

Gertner directed Nesson to do a trial run of Marshall’s testimony without the jury because the plaintiff’s team expressed concerns about the late addition of Marshall as a witness.

Later, during his closing argument, Nesson said Tenenbaum “didn’t have the option of getting an MP3 song in a sleek and easy way” as late as August 2004, when the record companies captured images of 800 songs Tenenbaum infringed.

Gertner sustained a few of the numerous objections the plaintiffs lobbed at Nesson during his closing, including his advice that the jury had “the power not to fill in the boxes” on the jury form, which asks jurors to list damages for copyright infringement of each of the 30 songs.

Nesson said the form looks like “a kind of school exam,” but he said, “justice is in the bottom line, the total number.”

“If that bottom line is just and appropriate, then you’re doing your job,” Nesson said. Nesson also said that because Tenenbaum was distributing music downloaded from others as opposed to posting the first copy, he wasn’t responsible for the companies’ lost revenue. “[As for the] value of the copyright to Joel, I submit it’s 99 cents [for each song],” Nesson said. “That’s what he has to pay for it if he purchases it from Amazon.”

The plaintiffs' attorney, Reynolds, painted Tenenbaum as a “hard-core, habitual, long-term infringer.”

Reynolds also disputed Nesson’s arguments that Tenenbaum’s sharing simply passed along other people’s downloads. He said Tenenbaum downloaded 600 to 5,000 songs onto a Goucher College shared network while he was an undergraduate and before the Baltimore-based school shut down online song sharing.

He also noted that Tenenbaum continued making illegal downloads for at least a year-and-a-half after the record companies notified him he’d been caught. Illegal downloading has caused lost sales, significant layoffs and harmed the record companies’ ability to develop new products, he said.

“The need for deterrence here is great,” said Reynolds.

Scott Drake Interviews Harvard Law professor Charles Nesson.

 

Scott Drake speaks with RIAA plaintiff lawyer Matthew Oppenheim

 

 

Sales rose to an annual rate of 384,000 in June, the Commerce Department reported, up 11 percent from May. * Housing inventory fell to 8.8 months of supply, compared with 9.6 months a year ago. * The rise in sales and the declining inventory is another indication the housing sector, which led the United States into the current recession, may have hit bottom and is starting to rebound. * Despite the encouraging data, the median sale price for a newhome fell to $206,200, down 5.8 percent of the previous month, and down 12 percent from a year ago.

Real Estate and Financial expert James Ponte in Scottsdale is interviewd by LBN host Scott Drake. They discuss the current state of the housing market which Ponte says probably won't start recovering until mid 2011.

 

 

 

The U.S. Supreme Court today ruled that school officials violated the constitutional rights of a 13-year-old Arizona girl when they strip searched her based on a classmate's uncorroborated accusation that she previously possessed ibuprofen. The American Civil Liberties Union represents April Redding, the plaintiff in the lawsuit, whose daughter, Savana Redding, was strip searched by Safford Middle School officials six years ago.

"We are pleased that the Supreme Court recognized that school officials had no reason to strip search Savana Redding and that the decision to do so was unconstitutional," said Adam Wolf, an attorney with the ACLU who argued the case before the Court. "Today's ruling affirms that schools are not constitutional dead zones. While we are disappointed with the Court's conclusion that the law was not clear before today and therefore school officials were not found liable, at least other students will not have to go through what Savana experienced."

Savana Redding, an eighth grade honor roll student at Safford Middle School in Safford, Arizona, was pulled from class on October 8, 2003 by the school's vice principal, Kerry Wilson. Earlier that day, Wilson had discovered prescription-strength ibuprofen – 400 milligram pills equivalent to two over-the-counter ibuprofen pills, such as Advil – in the possession of Redding's classmate. Under questioning and faced with punishment, the classmate claimed that Redding, who had no history of disciplinary problems, had given her the pills.

After escorting Redding to his office, Wilson demanded that she consent to a search of her possessions. Redding agreed, wanting to prove she had nothing to hide. Wilson did not inform Redding of the reason for the search. Joined by a female school administrative assistant, Wilson searched Redding's backpack and found nothing. Instructed by Wilson, the administrative assistant then took Redding to the school nurse's office in order to perform a strip search.

In the school nurse's office, Redding was ordered to strip to her underwear. She was then commanded to pull her bra out and to the side, exposing her breasts, and to pull her underwear out at the crotch, exposing her pelvic area. The strip search failed to uncover any ibuprofen pills.

"The strip search was the most humiliating experience I have ever had," said Redding in a sworn affidavit following the incident. "I held my head down so that they could not see that I was about to cry."

The strip search was undertaken based solely on the uncorroborated claims of the classmate facing punishment. No attempt was made to corroborate the classmate's accusations among other students or teachers. No physical evidence suggested that Redding might be in possession of ibuprofen pills or that she was concealing them in her undergarments.

Furthermore, the classmate had not claimed that Redding currently possessed any pills, nor had the classmate given any indication as to where they might be concealed. No attempt was made to contact Redding's parents prior to conducting the strip search.

In response to today's ruling, Redding said, "I wanted to make sure that no other person would have to go through this, so I am pleased by the Court's decision. I'm glad to have helped make students feel safer in school."

The case, Safford Unified School District v. Redding, was appealed from the U.S. Court of Appeals for the Ninth Circuit, which found the strip search to be unconstitutional. A six-judge majority of the appeals court further held that, since the strip search was clearly unreasonable, the school official who ordered the search is not entitled to immunity. In today's Supreme Court decision, despite deeming the strip search of Redding unconstitutional, the Court found that the school officials involved are immune from liability. The decision leaves open the possibility, however, that the Safford Unified School district could be held liable.

"Neither the Constitution nor common sense permits school officials to treat a strip search the same as a locker or backpack search," said Steven R. Shapiro, the ACLU's national Legal Director. "Today's ruling eliminates any confusion that school officials may have had about this seemingly obvious point."

The ACLU and ACLU of Arizona were joined in the case by Bruce Macdonald, with the law firm McNamara, Goldsmith, Jackson & Macdonald, and Andrew Petersen, with the firm Humphrey & Petersen.

In addition, a broad constellation of adolescent health experts and privacy rights advocates filed friend-of-the-court briefs in support of Redding, including the National Education Association, National Association of Social Workers (NASW), CATO Institute, Rutherford Institute, Goldwater Institute and Urban Justice Center, among others.

The decision is available online at: www.aclu.org/drugpolicy/search/40031lgl20090625.html

The ACLU's brief in the case is available online at: www.aclu.org/scotus/2008term/saffordunifiedschooldistrictv.redding/39160lgl20090325.html

 

Scott Drake interviews ACLU attorney Adam Wolf.

Jerome Kowalski, a legal consultant who tracks the New York Market discusses why major law firms are shrinking with LBN host Scott Drake. Kowalski says “The mood at White & Case — and at probably 15 or 20 more firms in New York — is kind of like sitting at a deathbed and watching a close relative wither away. It’s like you’re right there in the I.C.U. with the patient and you know that the condition is terminal.”

(NY Times)

While the legal industry is hardly battling the existential threat that is facing, say, the newspaper trade, Big Law — especially in competitive New York — is facing a potential paradigm shift as fundamental as the one that has hit investment banks and the auto industry. Big, as a business model (let alone as an expression of the national mood), seems bound for obsolescence.

The Hildebrandt index found, for example, that at the nation’s 20 top-grossing law firms — 12 of which are in New York — average profit per partner and revenue per lawyer both dropped in the first quarter of 2009, for the first time since 1991.

At the root of the law-firm crisis, legal experts say, is the credit crisis, which has pulverized the need for traditional practice areas like structured finance, mergers and acquisitions and private-equity transactions — the very things that have always kept a high gleam of polish on the city’s whitest shoes. The downward trend has been unrelenting: fewer Wall Street deals mean fewer Wall Street lawyers.

“I hear the stories all the time,” Mr. Kowalski, the consultant, said. “Real estate lawyers are honing their skills playing solitaire. Younger lawyers are gossiping all day and scaring the crap out of one another. The head of the corporate department of a major firm just told me that he hasn’t billed a minute’s worth of work in the last two weeks,” he added.

The article in the New York Times

Watch the Interview below.

 

Brad Bannon's writes about the Sotomayor confirmation hearings in this commentary from US News and World Report:

Scott Drake interviews Brad Bannon in the accompanying video.

Brad Bannon is president of Bannon Communications Research, a political consulting and polling firm that works for Democrats, labor unions, and progressive-issue groups.

 

Sonia Sotomayor is exactly the person that the Supreme Court needs. She is a distinguished jurist and will be the first Latina to serve on the Supreme Court. As a bonus, she will improve female representation on the Court and, because of her background as a poor kid from the Bronx, she will give voice to the millions of Americans who are struggling economically to keep their heads above water.

President Obama's appointment of Judge Sotomayor to the vacancy on the U.S. Supreme Court will also begin the culture wars in earnest.

Actually, the first shot in the culture wars was President Obama's response to antiabortion advocates who boycotted his appearance at Notre Dame University's commencement ceremony. In his speech, the president tried to find common ground between the pro-choice and pro-life forces. His attempt to moderate the culture war contrasts with his economic program, where the president has gone full steam ahead without compromises that would lessen Republican opposition.

The contrast between the president's approach to social and to economic policy reflects Democratic confidence in its strength on bread-and-butter issues and a defensiveness on cultural issues.

Even though Democrats usually win battles on the economic front, their track record in culture wars are not nearly as good. Since the 1960s, Republicans have successfully used the social issues to drive a wedge between blue-collar union members and the Democratic Party with a steady diet of guns, God, and gays. And even now, after getting Congress to pass his stimulus program, the president not been able to prevent NRA supporters in the Senate from attaching pro-gun riders to important pieces of legislation.

But after three months of focusing on the economy like the proverbial laser beam, the Sotomayor confirmation hearings will force the president to fight the culture wars whether he wants to or not. Since Massachusetts legalized gay marriage four years ago, the focus of the culture wars has moved from abortion to gay rights.

This week, the California Supreme Court upheld the voter ban on gay marriage that passed last year. This case is likely to get to the Supreme Court, so the Republicans in the Senate will probably focus on Judge Sotomayor's positions on same-sex marriage. The judge will probably be noncommittal on the subject to avoid prejudicing future cases, but the left and right will press her on the ramifications of the California case.

The GOP is chomping at the bit for a fight over Judge Sotomayor, even though Republicans know they will lose the confirmation battle. They will fight the nomination anyway because it energizes the base, helps them raise money, and puts Democrats, including the president, on the defensive. So expect the Senate Republicans to fight Judge Sotomayor tooth and nail.

But the GOP should be wary of the demons that fly out of Pandora's box during the confirmation hearings. Although the culture wars have not been kind to the Democrats in the past, they may become an advantage for the party.

Support for gay marriage has increased significantly in the last few years and a clear majority of Americans under 40 support same-sex marriage. As the millennial voters make up more of the electorate, support for gay marriage will increase. Voters under 30 voted for Barack Obama last year, and the GOP is in danger of losing a group that could give Republicans fits for a whole generation. Young voters are very liberal socially and GOP opposition to gay marriage will drive a wedge between the party and the fasting-growing segment of the voter pool.

Gay marriage has been legal in Massachusetts for four years and it clearly has not shaken the cultural foundations of the state. As more and more states like Vermont and Iowa legalize same-sex marriage, more and more voters will get used to the idea.

Cultural issues have backed the GOP into a corner. The problem for Republicans is that the party's base is shrinking because of moderate defections. As moderates leave the party, it becomes even more conservative, which in turn causes the GOP to lose even more moderates. So the GOP's focus on cultural issues during Judge Sotomayor's confirmation battle will make the party appear even more conservative and drive even more millennial voters out of the party.

If Republicans don't stop this vicious circle and get their act together, they party will go into the wilderness where Democrats have spent most of the last 40 years. The GOP's challenge starts with its handling of confirmation battle over Judge Sotomayor.

Dahlia Lithwick's commentary at Slate:

Confirmation hearings are inevitably an invitation to behave badly. Something about the bright lights of the Senate judiciary committee brings out the worst in people. Legal thinkers who are otherwise reasonable and intelligent somehow become great big puddles of snarling, hateful id. I think Democrats made a mistake when they accused Chief Justice John Roberts and Justice Samuel Alito of being misogynists and racists at their confirmation hearings. And Republicans are poised to make the same mistake when they attack Obama's Supreme Court nominee, Sonia Sotomayor, as a "liberal judicial activist of the first order who thinks her own personal political agenda is more important that the law as written," as Wendy Long, of the Judicial Confirmation Network, did today. (Don't those phrases ever get old? Don't these people own a thesaurus?)

Undaunted by the hyperbole that festers beneath her hyperbole, Long then went on to condemn Sotomayor for somehow aiding and abetting the 9/11 attackers with her decision in the controversial New Haven, Conn., firefighters case: "On September 11, America saw firsthand the vital role of America's firefighters in protecting our citizens. They put their lives on the line for her and the other citizens of New York and the nation. But Judge Sotomayor would sacrifice their claims to fair treatment in employment promotions to racial preferences and quotas." So just to get this straight: Sotomayor isn't just a far-left activist, she's also out to destroy firefighting?

The case against Sotomayor—to the extent it's being made, is that her life is such a tumultuous blend of personal hardship and deep feeling that she cannot separate the law from her own agenda. In short, she feels too much.

Washington Post columnist Charles Krauthammer was also quick to condemn Sotomayor on Fox News today, warning that her "concern for certain ethnicities overrides justice." And even though Sotomayor has decided only a single abortion case (against the abortion-rights side), Charmaine Yoest, president of Americans United for Life, rushed to describe her as "a radical pick" who "believes the role of the court is to set policy which is exactly the philosophy that led to the Supreme Court turning into the National Abortion Control Board."

If the Republican attack on Sotomayor is really going to consist of scattershot claims that she is too female and ethnic to be truly fair or impartial, it will be a losing demographic battle. Recall that 67 percent of Hispanics and 58 percent of women voted for Obama in 2008, along with 96 percent of blacks. Folks across the political spectrum may wish that Obama hadn't opened the door to discussions of the complicated connection between experience and judicial "empathy." But now that we are there, it simply has to be a mistake for her opponents to attack Sotomayor as someone who is just too darn human to sit on a court.

For one thing, such outbursts tend to offend other humans.

Moreover, the case against Sotomayor on this front is so ideologically loaded, and selective, that it quickly starts to look hypocritical. Why did Republicans treat Samuel Alito's blue collar upbringing as a great humanizing factor in his confirmation hearings? Why did they deem Clarence Thomas' childhood poverty an advantage, whereas they now cast Sotomayor's as a handicap?

Instead of wading into a bruising identity politics war they cannot possibly win, conservatives—even the angriest conservatives—should wade into Sotomayor's vast legal writings. There are hundreds of cases for them to read and parse and quote out of context. Let's have this confirmation battle on the merits, rather than in the sinkhole of unfounded character attacks. The real problem for Sotomayor's opponents is that anyone who has closely read her opinions won't find much to build a case on. As the indefatigable team at SCOTUSblog has chronicled here and here, on the appeals court, Judge Sotomayor has taken a fairly moderate, text-based approach to the cases before her, placing her much closer to retiring Justice David Souter than to the late Justice William Brennan on the judicial activism spectrum.

She has been overturned three times at the Supreme Court, and may well be again soon. But she was also a state* prosecutor, a corporate lawyer, and a Bush I appointee to the federal bench. As the White House points out in its talking points today, "In cases where Sotomayor and at least one judge appointed by a Republican president were on the three-judge panel, Sotomayor and the Republican appointee(s) agreed on the outcome 95% of the time."

What evidence does anyone anywhere have that Sotomayor has spent her career departing from the letter of the law to impose her personal preferences? Her participation in the (poorly handled) decision in the New Haven firefighters case was anything but judicial activism, much as it will be spun as symbolic of her lifelong hatred of white men. On a conference call with reporters today, a senior administration official noted that in the New Haven case, Judge Sotomayor did nothing more than apply the case law: "You can't say she's a judicial activist and then criticize her for applying 2nd Circuit precedent." Her judicial record reveals a lot more humility than hubris.

Sotomayor will also draw heat in the coming weeks for a speech she made in 2002 at the University of California at Berkeley. Talking about the effect of race and gender on judicial decision-making, Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." She also said that "the aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging." That seems a particularly thoughtful observation, in the context of a long and thoughtful meditation on the role of personal experiences in judicial thinking. Sotomayor never pretends to know better than white men, and she doesn't purport to speak for all Latinos or all women. She merely believes that different judges make a difference in judging. And if you strip away all the rage of the identity politics wars, that point is irrefutable.

The angry screeching from the right that Judge Sotomayor is too emotional to fairly apply the law is already starting to sound, well, hysterical. And the fun is only just beginning.

Scott Interviews Dahlia Lithwick.

In Maryland earlier this month, a Montgomery County judge in a powerful strike against Med Mal caps, declined to cap the non-economic damages in a multimillion-dollar medical malpractice verdict, saying the state's limit on such awards applies only to lawsuits that were first submitted to arbitration.

As any trial lawyer, particularly those involved in medical malpractice is aware, the wave of damage limits and med mal caps that swept through the states in the 1990s and early part of the new century profoundly impacted the types of cases attorney's would take on. The steady chipping away at these caps in court and in the legislature now that people see the impact it has on equitable reimbursement to injured parties for damages is a story we will be following for the rest of 2009.

Scott Drake talks with the plaintiff's attorney Patrick Malone about how this case was handled, the implications on medical malpractice in Maryland and whether or not this represents a major change in how the courts look at caps:

 

 

Renea Poppel, a passenger seriously injured in the Metra derailment in Chicago on September 17, 2005, received a $29,560,081.15 jury verdict after a two-week trial presided over by Cook County Circuit Court Judge Thomas H. Hogan. The verdict is believed to be the largest mass transit crash verdict in Illinois history. The plaintiff was represented by Chicago personal injury attorneys Thomas A. Demetrio, Daniel M. Kotin and William T. Gibbs of the Corboy & Demetrio law firm.

Metra Lawsuit

"Renea is one of the most extraordnary individuals I've ever had the pleasure to represent. It is professionally satisfying that the jury responded to her in such a favorable manner"

On September 17, 2005, a double-decker five car Rock Island Metra train was traveling from Joliet toward downtown Chicago with 185 passengers on board. At about 8:30 a.m., the train encountered a track crossover with a maximum allowable speed of 10 miles per hour (mph). The train entered the crossover at 69 mph, causing it to violently derail.

Renea Poppel, 25 years old and a graduate of Lewis University, was traveling downtown on the Metra Rock Island Line from her home in Midlothian, Illinois, to her new job as an admissions counselor at Kaplan University. She was 13 weeks pregnant at the time. As a result of the derailment, Renea suffered traumatic brain injury. She remained in a coma for several months. Renea's unborn child survived the wreck, and was born via emergency C-section on January 21, 2006.

According to Tom Demetrio, "Renea is one of the most extraordinary individuals I've ever had the pleasure to represent. It is professionally satisfying that the jury responded to her in such a favorable manner."

Dan Kotin stated, "This verdict exemplifies the fact that juries almost always do the right thing. This jury learned all about Renea before she was injured. They met seven of her treating doctors and heard about her future. By this jury verdict, Renea will be taken care of for the rest of her life."

Bill Gibbs added "Renea Poppel is a remarkable young woman whose life was forever changed by this derailment. The jury's verdict appropriately compensated her for all she has been through and all she will go through for the rest of her life."

Bank of America, N.A. and Geraldine Edmonds, Co-Guardians of the Estate of Renea Poppel, a disabled person, v. Northeast Illinois Regional Commuter Railroad Corporation, d/b/a/ Metra. Case number 200L010320 E

About Corboy & Demetrio
Named as a Top Law Firm by Chicago Magazine in 2008, Corboy & Demetrio is one of the nation's premier law firms. The Chicago law firm represents individuals and their families in serious personal injury and wrongful death cases, and is renowned for its achievements in the courtroom and for its contributions to the community. The rights and concerns of its clients are at the core of Corboy & Demetrio's practice. That dedication, compassion and relentless drive has resulted in exceptional service and exceptional results for its clients. The Chicago based personal injury firm has acquired more than $3 billion in settlements and verdicts and has attained more than 500 settlements and verdicts in excess of $1 million.

Source: PRWEB

Scott talks with Thomas Demetrio about the verdict and some of the unusual aspects of this case.

Ex-Berkeley Law Professor Marjorie M. Shultz and Psychology Professor Sheldon Zedeck have come up with a new test they claim measures raw talent for being a lawyer. Professor Shultz and Professor Zedeck have developed a test that could be administered to law school applicants to measure their raw lawyerly talent.

Shultz has long insisted that the LSAT does a poor job of predicting how good a lawyer someone will be and also discriminates against minorities, so with some funding from LSAC, which administers the LSAT, she and Zedeck set out to identify important lawyer characteristics and formulate a test based on them.

The result is a test that presents hypothetical situations and asks test takers to respond. This new test was much better in predicting lawyer effectiveness than the LSAT but didn’t better predict how a student would perform in law school. Significantly, though, the newly formulated test didn’t result in score gaps among racial and ethnic groups. (Source: About.com)



Scott discusses the study with Professor Sheldon Zedeck

A tidal wave of public outrage over bonus payments swamped American International Group yesterday. Hired guards stood watch outside the suburban Connecticut offices of AIG Financial Products, the division whose exotic derivatives brought the insurance giant to the brink of collapse last year. Inside, death threats and angry letters flooded e-mail inboxes. Irate callers lit up the phone lines. Senior managers submitted their resignations. Some employees didn't show up at all.

"It's a mob effect," one senior executive said. "It's putting people's lives in danger."

Politicians and the public spent yesterday demanding that AIG rescind payouts that they said rewarded recklessness and greed at a company being bailed out with $170 billion in taxpayer funds. But company officials contend that the uproar is scaring away the very employees who understand AIG Financial Products' complex trades and who are trying to dismantle the division before it further endangers the world's economy.

"It's going to blow up," said a senior Financial Products manager, who spoke on condition of anonymity because he was not authorized to speak for the company. "I have a horrible, horrible, horrible feeling that this is going to end badly."

Scott Drake gets analysis from CNBC's Jordan Kimmel.

President Obama yesterday vowed to "pursue every legal avenue to block these bonuses." But that pledge might have come too late. About $165 million in retention payments started to go out Friday to employees at Financial Products, after numerous discussions with the Treasury Department and the Federal Reserve.

Attorneys working for the Fed had been examining the matter for months and determined that the retention payments couldn't be touched because AIG would face costly lawsuits and be subject to penalties from states and foreign governments. Administration officials said over the weekend that they agreed with that assessment.

AIG disclosed its retention-payment program more than a year ago, and the amount of the bonuses -- more than $400 million for Financial Products alone -- had been widely reported. But as the payments were coming due in recent days, the White House began to express its indignation.

Pressure on the 370-person Financial Products unit, based primarily in Connecticut and London, grew even more intense yesterday when New York Attorney General Andrew M. Cuomo threatened to issue subpoenas if the company failed to provide details about recipients of the retention payments.

The payments represent only the most contentious of a larger group of bonuses being paid throughout AIG. The company's top seven officials, including chief executive Edward M. Liddy, agreed in November to forgo bonuses through this year.

After a Wednesday call between Liddy and Treasury Secretary Timothy F. Geithner, AIG agreed to restructure payments for the next 43 highest-ranking officers at the company, who are to receive half of their bonuses -- which total $9.6 million -- immediately, one-quarter July 15 and the rest Sept. 15. The last two payments would depend on whether the company makes progress in restructuring its business and paying back taxpayers. In addition, the company is set to pay another $600 million in retention awards to about 4,700 people throughout its global insurance units.

But each dollar remains in question after the president's reprimand yesterday and the deluge of rage from legislators and the American public. Government leaders already say they plan to recoup some of the bonus and retention pay while restructuring the company. In addition, administration officials said that the Treasury is planning to try to recover some of the bonus money by adding provisions to the additional $30 billion it gave AIG access to earlier this month.

The payment plan had been no secret.

Beginning in the first quarter of 2008, AIG disclosed the plan to offer retention awards at Financial Products. The unit had already begun to hemorrhage money, a problem that would later grow exponentially. The unit's executives, fearing they might lose valuable employees in the tumultuous months to come, successfully negotiated more than $400 million for their workers, to be paid this month and again next year.

At the Federal Reserve Bank of New York, which has directly overseen AIG since its federal takeover in September, officials have studied the possibility of rescinding or delaying the bonuses. They even brought in outside lawyers for advice. The conclusion: If the bonuses weren't paid, the AIG staffers would be able to sue the company and probably would win, not just what they were owed but also punitive damages that would make the ultimate cost perhaps two to three times as high as the bonuses themselves.

Moreover, Fed officials also hope to keep current employees with the company. The senior executives whose decisions caused the company's collapse are long gone. Most of those left behind are trying to unwind complicated derivative contracts. Completing that process correctly is essential to preserving as much value as possible for taxpayers, officials at both the government and AIG have argued. If it is mishandled, it could expose taxpayers to billions of dollars in additional losses.


Law professors agreed with the Fed's assessment but said AIG employees could still agree to reduce their own bonuses.

And the outrage expressed by the president and lawmakers was designed to put pressure on these officers to do just that, the legal experts said.

Jonathan Macey, a professor at Yale Law School, said it was unlikely that any AIG employees would end up suing the company for changing compensation contracts, mainly because their names would be revealed publicly in a lawsuit and they would then be excoriated.

Macey added that the government is caught in a difficult position, squeezed between public outrage over the bonuses and the need to keep AIG Financial Products going so the company can restructure and the government can recoup some of its money.

"What's good for AIG is definitely not good for the country," Macey said. "But now that the government is invested, it may have to do what's good for AIG."

Liddy is scheduled to appear tomorrow in front of a House financial services subcommittee.

(National Law Journal) Young attorneys are often led to the field of law because of a seductive proposition: You can do anything with a law degree. Unfortunately, a law degree does not even guarantee an opportunity in law, let alone an entree into a different field. For those law graduates who choose to pursue legal careers, many find that navigating the profession is far more complex than the bar itself, and while some learn to tread water and stay afloat, others tank.

A multitude of smart folks pass the bar, only to find themselves stuck behind prefabricated desks without much interest in the subject matter that fills their days. Their brains overloaded with statutes and data, many wonder why opportunities fail to abound.

Unfortunately, a critical message was omitted from the recruiting process: Although you may be able to do anything with a law degree, a law degree and solid experience alone will not do it for you. For those young attorneys who dream of becoming top lawyers, the key is to be three parts lawyer and one part marketing agent.

Scott Drake interviews Shai Littlejohn

If I were a law school dean, I would establish a course called "Self-Marketing for Lawyers." Before a single student graduated, this required course would demonstrate how careers excel or stall based upon the personal brand lawyers create or neglect. This is true in nearly every intellectual profession no matter what field you want to maneuver.

Everyone has a personal brand even though most don't seem to know it. Your personal brand is how decision-makers view you. It is the total sum and breadth of your work history, reputation, involvement, initiative and personal values. Brand you is riding on whether people think you are competent, committed, available and willing to offer counsel. Sometimes for free. And often after hours.

If you are frustrated about not attaining high levels of success in your career, consider whether you have been cultivating or neglecting "brand you."

Your personal brand is established by the places you work and the titles achieved while there. It is your reputation for producing or failing to produce reliable, timely and quality work product. Your brand reflects your ability to communicate specialization but also to understand the issues and policies affecting your entire organization.

For top lawyers, career is not just about self interest. It is about contributions to the interests of the decision maker and the larger community.

Through expertise, involvement and shared values, top lawyers continuously cultivate reputable self-brands. It's the essence of those brands that separates top attorneys from colleagues destined for repeated lateral moves or career stagnation.

Top lawyers know that, while most of their colleagues look forward to relaxing at home at the end of the day, the highest-achieving ones do not focus on when one day ends and another begins. They look forward to the firm reception or foundation meeting at night because they are acutely aware that a little extra involvement is what moves the ordinarily competent attorney into the extraordinary, top attorney column. Even when not working, the top attorneys remain available and on call, considering the interests of their employers and communities at all times.

If it sounds like too much work, think again. Top attorneys don't view their involvement as work as much as they do a service for the people and causes they find most compelling. They recognize involvement as an indispensable component to staying on top in their careers.

If your objective is to become a good lawyer, then good jobs must suffice. You cannot offer only enough to be a good attorney and then be disappointed when you are not offered the top jobs.

Should you desire the top jobs, then simply put -- the top jobs go to the top lawyers. So it raises the question: What does it take to become a top lawyer? Build your brand.

Decision-makers give top jobs to the attorneys with the strongest brands. These are the brands that demonstrate shared values like reputation for responsiveness, accuracy, discretion, political savvy, family and participation in lofty priorities beyond day-to-day work.

Brands achieve recognition based upon consistency. While it is difficult to change a negative brand image, it is easy to destroy a positive one through inconsistency. Lawyers who desire higher levels of opportunity should begin contributing their time on workplace committees, in local politics or in community organizations. They should hone an expertise and develop relationships through involvement in shared interests.In time, the sincere involvement produces beneficial relationships that lead to the opportunities nearly every lawyer desired at the start of his or her career.



Shai Littlejohn is general counsel for the DC Sports and Entertainment Commission in Washington, D.C. She actively builds relationships through involvement in community affairs, politics and associations. Littlejohn also writes the weekly Web column "Smell the Roses." She can be reached at shai@shailittlejohn.com.

In today's edition of Speaking of Justice, host Scott Drake is joined by the Executive Director of the Wyoming Trial Lawyers Association, Marcia Shanor to discuss the organizations up coming "Ski CLE" to be held in the breathtaking location of Jackson Hole, WY. This is the third annual ski event and each year it's popularity grows as more and more attorney's from around the country who love to ski participate in this unique event.

You can find out all you need to know about the CLE, which is being held from March 26th to the 28th in Jackson Hole and registration is available right up to the last minute by contacting the Wyoming Trial Lawyers Association at 307-635-0820, or by going to their web site at www.wytla.org. This is a great event, there is over 300 inches of base snow in Jackson this winter and if you love to ski and want some top quality CLE this event is for you!

The headline speaker, Attorney Richard Friedman is the author of two highly regarded books for trial lawyers,   " Rules of the Road" and " Polarizing the Case".        

Rick Friedman is one of the nation's top civil trial attorneys representing individuals and small businesses injured by large corporate and government interests. He has established a reputation for obtaining large verdicts in cases other law firms have been unable or unwilling to take on in the fields of personal injury, defamation, insurance bad faith and business torts.

Rick Friedman's successful career has been distinguished by multi-million dollar verdicts and precedent-setting case law. Among many of his landmark cases are the $150 million awarded to a State Farm agent in Bellott v. State Farm, $84 million awarded to a disabled doctor in Ceimo v. Paul Revere, $17.3 million awarded for improper denial of disability benefits in McKendry v. General American, $16.5 million awarded to a disabled worker in Ace v. Aetna Life Insurance Company, and $12.7 million awarded to a disabled businessman in - Merrick v. Paul Revere. Rick handles all types of cases, including personal injury, wrongful death, medical malpractice, insurance bad faith and business torts. Rick is a member of the Inner Circle of Advocates, an invitation-only group that limits its membership to 100 of the leading trial lawyers in the country. He is also a member of the International Academy of Trial Lawyers.

In what will be one of the most unique and innovative CLE programs in the country the WTLA will be hosting a live continuing legal education forum in beautiful Scottsdale, AZ from November 1-3 at the Scottsdale Plaza Resort. This is one of the most beautiful settings in Scottsdale and it will be the home base for 14 hours of CLE for each attendee.

However, what makes this event so unique is that virtually every speaker will be captured in HD quality video and rebroadcast after the event both online and via DVD. This ambitious project is being produced by The Legal Broadcast Network on behalf of the WTLA and it will provide 14 hours of video CLE which can be purchased either by the hour or in a complete set. What also makes this different then any other video presentation is that each hour will be hosted by one of several prominent trial lawyers who have agreed to moderate each hour, with a setting more like "the actors studio" or a talk show then your typical video. Gone are the power points and static shots behind a lectern, and in their place will be dynamic interviews in which some of the nations top trial lawyers and experts are interviewed at length about their cases, their tactics and unique knowledge.

The complete list of speakers includes the following:

Attorney Zoe Littlepage. Zoe Booth is one of the nations leading trial lawyers and the attorney that just brought in the stunning $134.5 million verdict against Wyeth in the HRT, Prempro/Premarin litigation just two weeks ago. In her first major appearance before a trial lawyers group since that award Zoe will be joined by her legal partner Rainey Booth for a full hour on the back ground of HRT litigation, how this case was developed and tried and what the future holds for HRT litigation.

Attorney Rainey Booth. Rainey Booth is the other name partner in Littlepage Booth, one of the nations top firms in the area of HRT litigation and other pharmaceutical mass torts. As part of the team that won the recent verdict in Reno, NV. in which Wyeth was ordered to pay over $134 million in damages to three plaintiffs, he will be part of the CLE hour hosted by Rick Kuykendall in which the details of this litigation and case are explored.

Attorney Christina Fountain. One of the nations leading experts in Federal Rule 26 protective orders will be sharing her extensive knowledge of this very specific, but vitally important, area of the law. Rule 26 issues are often time where cases are won and lost in pre-trial discovery and every trial lawyer needs to know as much as possible about these procedures.

Attorney Jim Orr. Just two months ago in Palm Beach, FL the first major verdict in the Fentanyl and Duragesic Patch cases came in for the plaintiff, and the attorney arguing this case for his client was Jim Orr. How he and his partner, Angel Reyes came into this case, developed their arguments and carried the day will be part of the CLE hour on Fentanyl litigation and mass tort issues, again hosted by Rick Kuykendall.

Attorney Angel Reyes. In the second part of this CLE hour nationally renown mass tort attorney Angel Reyes will share his insights on developing a mass torts practice, partnering with other attorneys to develop and try cases as well as how to manage a mass tort case and practice. This is an segment that every attorney interested in Mass Torts should be sure to watch and listen to as Rick Kuykendall and Angel Reyes review the world of Mass Torts.

Attorney Rex Burch. One of the most intriguing areas of mass tort or claims is the FSLA case centering on wage and hour litigation. As it will be pointed out in this hour on these topics, wage and hourly cases exist in virtually every city and town in the US and trial lawyers need to learn about this growing area of the law and how to recognize and develop these cases. If you only purchase one hour of the CLE this might be the one that pays the greatest dividends.

Attorney Eric Oliver. One of the leading experts in teaching trial lawyers how to develop effective and winning communication strategies both for pre-trial and at trial. A consistent theme, communication tools and a strategy for talking to a jury are crucial components of every trial lawyers practice. Eric Oliver will spend over 3 hours showing you how this is done and get you thinking in ways you may never have thought about when it comes to your ability to craft your case and arguments.

Attorney Matt Garretson. Medicare liens, Medicaid liens and private health care liens are the bane of every mass tort attorney in the US. There is no way to avoid the issue of how liens must be resolved and handled in mass tort cases and Matt is the acknowledged leader in the rights and responsibilities of trial lawyers in handling lien resolution. If you are still scratching your head over the Ahlborn decision, then you have GOT to get this hour of CLE and learn what ticking time bombs might be hidden in your case files.

Attorney Rick Kuykendall. One of the nations leading experts in mass tort cases and issues, Rick has generously agreed to host the first 5 hours of CLE for us and to conduct the in depth interviews with each expert. His 30 years of litigation experience, mass tort negotiations and political expertise will all be on display as he creates a dynamic and insightful interview with each guest on their area of the law. Finally, a CLE where lawyers are talking with other lawyers about the issues and questions we all have. Rick is a member of the Murphy Law Firm in Baltimore, MD and a frequent guest and contributor on The Legal Broadcast Network.

Attorney Jan Schlichtmann. The Civil Action attorney and co-founder of The Legal Broadcast Network will be conducting 5 hours of CLE interviews on topics such as 468b trusts, factoring, legal financing, structured settlements, structured legal fees, medicare and medicaid lien resolution and qui tam cases. One of the leading advocates for trial lawyers and innovative approaches to the law, Jan will bring his passion and unique insights to every interview.

Attorney Robert Wood. The acknowledge expert in the US on taxable damage cases, 468b trusts and how to handle tax issues related to settlements. The man who literally wrote the book will be joining us for a full hour discussion on taxable damages, the Murphy vs IRS case, how to minimize the tax impact of a taxable case and other strategies that are vitally important for any attorney working on taxable cases such as wrongful termination, wrongful imprisonment, sexual abuse, environmental claims, etc.

Attorney Matt Bracy. One of the nations leading experts on factoring will be joining Jan Schlichtmann in a full hour discussion of the Structured Settlement Protection Act, attorneys rights and obligations when a client looks to factor an annuity as well as a cross examination regarding the misconceptions about factoring. Every trial lawyer must know what to do and how to respond to clients who are looking to cash in their structured settlement and this hour will focus on those issues.    

Mark Wahlstrom and Kenneth Winthrop. Why is it that trial lawyers get caught on a vicious cycle of funding cases and paying expenses and taxes, but rarely putting away sufficient money for their own retirements? In this hour long discussion the innovative approach of using a structured legal fee to fund your retirement plan will be laid out and reviewed in detail. It's a primer on how trial lawyers can take large taxable fees and instead of getting pounded with taxes, defer their fees over a period of years, and then put those deferred amounts into a qualified retirement plan. Every sole practitioner or lawyer working as a PC needs to know how this program works and implement it into their practice management.

Michael Blum. No area in the trial lawyers practice has expanded as quickly and dramatically as legal and case financing. The reality is that most litigation needs to be financed and with the explosion of finance companies available to lend, trial lawyers need a how to manual on their rights, obligations, tax issues and ethical constraints as to how these lending options work. If you are curious as to how legal financing works and what you need to watch out for, this hour should prove invaluable.

Starting the week after the event we will be posting highlights of each speaker, as well as links to purchase any hour that interests you, or the entire 14 hours at a value price.  

As part of it's continuing effort to provide interesting and meaningful opportunities for both Wyoming trial lawyers, as well as other trial lawyers from around the country, the WTLA has announced a dramatically different kind of CLE that will be held from November 1st through the 3rdh, and be located at the beautiful Scottsdale Plaza Resort in Scottsdale, AZ.

What makes this event so distinctive is that it will provide a wide range of CLE, with 14 hours total available for attendees, but also a truly unique golf event based upon both team and individual play. The golf event is being sponsored by Wahlstrom & Associates, of Scottsdale, AZ and is open to trial lawyers from all 50 states who are interested in competing and representing their state.

The event well be held at the nationally known 4 star Scottsdale Plaza Resort. You can check out their web site and take a tour, but rest assured this home base for the event is located in the very heart of Scottsdale's entertainment, shopping and golf district, literally in walking distance to many major night clubs and restaurants. The resort has been selected both for it's excellent service, but also to insure your time spent driving to golf, airports, clubs and dining are minimal so more of your time is spent enjoying your weekend in the desert.

 

The golf, which will be a one day tournament, is to be held at the nationally renown Talking Stick Golf club. Talking Stick is a short 5 minute drive from the host hotel, and is a Bill Coore/Ben Crenshaw design, managed by Troon Golf and ranked 4.5 stars by the readers of Golf Digest Magazine and ranked the number two public course in Arizona by Golfweek magazine. Our attendees will play both the North course in the one day event and we will have run of the course both days once the CLE is completed. This is an unparalleled opportunity to play a Coore/Crenshaw design in a tournament event and as part of a truly inspirational and innovative CLE program.  

If you are a trial lawyer either in, or outside of Wyoming, and you are interested in either forming a team to compete, or are just interested in attending the CLE and taking advantage of the social, educational and networking opportunities this event will provide, you can contact the WTLA offices in Cheyenne, WY, 307-635-0820.