Archive for May 2011

Biglaw Litigators, Rejoice! A Circuit Court Opinion on a Discovery Dispute

By David Lat

ALL YOUR DOCS ARE BELONG TO US.

Litigators at large law firms spend an inordinate (and depressing) amount of time on discovery disputes. They bombard poor magistrate judges with motions to compel. They bicker over deposition timing and location. They compile massive privilege logs. They file letter briefs with the court, explaining their entitlement to certain documents that opposing counsel is withholding, without justification.

Partners who work on such matters often say to their associates, “Find me a case in which a judge sanctioned a party for failure to comply with discovery obligations — preferably a case in which the non-compliance is exactly what opposing counsel is doing here, and ideally featuring soaring rhetoric about the importance of following discovery rules.” The associate spends several hours on Westlaw or Lexis, then returns empty-handed; there was nothing quite on-point. There was certainly no soaring rhetoric.

This shouldn’t be surprising. Do you think successful lawyers give up the practice of law in order to keep dealing with discovery-related headaches, for a fraction of what they earned in the private sector? Of course not. Federal district judges prefer to write published opinions about Sexy Constitutional Issues, leaving their magistrates to oversee the discovery playpen. In the rare discovery-related cases that do go up on appeal, federal circuit judges affirm as quickly and summarily as possible, so they can get back to the fun stuff. [FN1]

If you’re a Biglaw litigator searching for a published opinion addressing discovery issues, well, today is your lucky day. Check out this great opinion, just handed down — not by a mere magistrate or district judge, but by the U.S. Court of Appeals for the Tenth Circuit….

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Non-Sequiturs: 05.03.11

By Elie Mystal

* In case you can’t get enough of speculating on what would have happened to a captured alive Osama bin Laden, here you go. [Sentencing Law and Policy]

* The Skadden lawyer who moved to Nepal blogs about his experiences. [The Kathmanduo]

* I guess the administration is no longer defending DOMA but still enforcing it. [Stop the Deportations]

* TomTom data is used by cops to create speed traps. Recalculating! [Legal Blog Watch]

* Don’t you get the feeling that everybody punched themselves out over Arizona’s immigration law so they end up not having much left over for Utah? [WSJ Law Blog]

* Wouldn’t it be better if the call to blow up some levees to protect towns in Illinois and Kentucky at the expense of farmland in Missouri was through war instead of by a strong central government? Wait, state’s rights farmers in Missouri, that was supposed to be a joke. [Reuters]

* Exercise tips for young, overworked professionals. I became tired just reading these as they are useless to my life, but I understand that not everybody can rock the Big Sexy like I can. [Tips for Young Lawyers]

* Is it that working at DLA Piper doesn’t gross you enough income to pay off even a nominal amount of debt? [Law Shucks]

Associate Bonus Watch: DLA Piper’s People Pipe Up — and They’re Not Happy

By Elie Mystal

DLA Piper has released some information about its associate compensation and bonus payouts, and some associates who work for the firm are unhappy. Why? I don’t really know. I don’t know why they thought that working for the largest firm in the world would be a good thing when it came time to pay out bonuses.

Attempts to economize on associate salaries are not new at DLA Piper. The firm has been at the cutting edge (pun intended) of reduced associate base salaries, deferrals of incoming associates, and various other methods for keeping the cost of associates down. It’s just how they roll.

It should surprise no one that DLA associates are complaining about the firm’s bonus plan. In fact, I’m not even sure it’s news that the firm seems to be low-balling associates. If anything, the news hook is that there are still associates at DLA Piper who are surprised by sub-market comp….

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Nationwide Pay Raise Watch: West Coast Action

By David Lat

We recently reported on Wilson Sonsini restoring associate base salaries to pre-recession levels. Wilson Sonsini associates in five major offices — New York, Palo Alto, San Diego, San Francisco, and Washington, D.C. — are now paid on what might be called the New York market scale or the $160K scale (a scale I’ve committed to memory: 160/170/185/210/230/265).

In our story, we quoted a WSGR associate who viewed the firm’s raise as a response to salary hikes by two Silicon Valley peer firms, Cooley and Gunderson Dettmer. At the time of our story, however, Cooley and Gunderson had not raised SV associate salaries to NYC market levels.

UPDATE: To be precise, Cooley had announced a raise at the time of the WSGR memo, but the raise had not yet taken effect. Gunderson did not announce until yesterday.

Let’s learn more….

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Career Center Survey Results: Comparing Compensation Systems

By Above the Law

Back in 2009, when killing lockstep was all the rage, a number of large law firms announced that they would be moving to some form of a merit-based compensation system. Now that we’re a few years into those systems, how many firms have stuck with the plan? And which systems do associates prefer?

Of the 86 distinct Biglaw firms at which survey respondents work, 63% of the firms pay base salaries on a lockstep system, and the remaining 37% of firms use a merit-based system or hybrid-lockstep system for paying base salaries. The vast majority of respondents, 70%, say they prefer the lockstep model for base salaries because of its transparency and predictability.

For year-end bonuses, 70% of the firms utilize a merit-based or hybrid-lockstep system, while 30% have a lockstep system based either on class year or billable hours. According to 62% of respondents, the most preferred type of year-end bonus allocation system is a merit-based or hybrid-lockstep system.

After the jump, find out how various combinations of compensation systems measure up against market.

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Size Matters: Does Skadden Do Personal Injury?

By Valerie Katz

I recently met Ray Zolekhian at a wedding. He went to Harvard Law School, worked as an associate at Skadden in Los Angeles, and started his own law firm with a friend, Robin Hanasab.

As soon as I heard Zolekhian’s background, I immediately guessed that he started a personal injury firm. Isn’t that the most natural progression?

Apparently so. Founded in July 2009, Hanasab & Zolekhian, LLP began as a firm specializing in restructuring commercial real estate loans. The firm then transitioned to personal injury litigation, because the founding partners found the work interesting and lucrative. But Zolekhian had no background in personal injury; according to Zolekhian, the pair was “thrown into the fire.” They were not devoid of help, however, and benefited enormously from the resources and mentoring given by other attorneys in the close-knit plaintiffs’ bar.

What does Zolekhian like most about his practice?

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Fun Fact of the Day: Legal Eagles Don’t Soar As Pundits

By David Lat

Finally, those prognosticators with a law degree were more likely to be wrong.

– one of the findings of a research paper, Are Talking Heads Blowing Hot Air? An Analysis of the Accuracy of Forecasts in the Political Media, analyzing the accuracy of predictions by 26 leading print and television commentators. (The top five most accurate pundits were Paul Krugman, Maureen Dowd, Ed Rendell, Chuck Schumer, and Nancy Pelosi.)

In-House Positions Are Slightly Less Crappy Better For Women Of Color

By Elie Mystal

Talk to almost any black woman and ask her what kind of discrimination she runs up against the most: prejudice against minorities, or prejudice against women? She will probably say, “Gender discrimination, you stupid, stupid man.” I imagine you’d get a similar answer from non-black female minorities as well.

You’ll see a lot of crap if you are a minority male trying to excel professionally in this country. But a lot of it is subtle. When society craps all over women, there is no subtlety. “Show me your birth certificate.” > “Show me your [breasts].”

A new study from Corporate Counsel Women of Color (CCWC), which we mentioned in Morning Docket, confirms what would be obvious to any man married to a woman of color (indicating). What’s slightly more surprising is that things are marginally better for minority women lawyers when they are in-house as opposed to when they’re working at a private law firm.

Actually, when you think about it, of course the in-house environment provides slightly fewer obstacles to minority females….

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Legal Eagle Wedding Watch: Contain Yourselves

By Laurie Lin

LEWW is still coming off our royal wedding high. We’re not going to lie, people: As much as we love the legal wedding scene, we’ve never gotten out of bed at 5:30 to read about SCOTUS clerks tying the knot. But Will and Kate have flown off to happily ever after in their helicopter, so we’ll have to content ourselves with the princes and princesses of the American legal scene — at least until Prince Harry settles down.

Here are our latest finalist couples:

Katherine Boone and Joshua Geltzer

Marie-Adele Sorel and Jeremy Kress

Mark Maher and Louis Miller

Get all the details on these legal-eagle newlyweds, after the jump.

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Morning Docket: 05.03.11

By Juggalo Law

* This article details how the killing of Osama bin Laden was legal. That old honey badger Elie says he doesn’t give a s**t. [Christian Science Monitor]

* Former Winston & Strawn partner Jonathan Bristol pleaded guilty to money laundering charges yesterday in connection with Kenneth Starr’s Ponzi scheme. You know what’s a cool word? Disambiguation. [WSJ Law Blog]

* Tivo reached a settlement with Dish Network yesterday. Let’s just fast forward to the next one, shall we? [PCWorld]

* What’s the biggest impediment to “women of color” getting ahead in the legal profession? Finding a purse that matches their shoes! Am I right ladies??? [The Careerist]

* Facebook is being sued for letting kids like advertisers’ products. I can’t think of anything, so here’s a dog in a Wonder Woman costume. [Bloomberg via ABA Journal]

* This article suggests that lawyers need to have some minimal level of competency. Another thing that would have been great to know FIVE YEARS AGO, Northwestern. [New York Times]

ATL Webcast: Career Advice for This Summer (Part 2)
Beyond Biglaw; advice for 1Ls; networking.

By Above the Law

Above the Law recently produced a webcast, We Know What You Should Do This Summer, in which a panel of career experts discussed how law students can make the most of their summers. The panel was sponsored by our friends at the Practical Law Company, which provides law students with free access to its excellent resources so they can succeed over the summer. Check out PLC’s law student home page to learn more.

We divided the webcast into different segments on discrete topics, for posting on Above the Law. We posted the first clip over here. Now, on to the second segment….

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Beyond Biglaw; advice for 1Ls; networking.“

Non-Sequiturs: 05.02.11

By Elie Mystal

If Scalia could give me a non-circular definition for "Hoosier" I'd be really impressed.

* This has to be one of the best law enforcement images from the past 18 hours. [FBI]

* Twitter had the Bin Laden news before anybody else. But it was also causing jokes to get played out as fast as you could think of them. Still, I had a good night. [Not So Private Parts/Forbes]

* Bin Laden is dead, can we look into getting some of those civil liberties back? [Underdog]

* We’re going to need a name for the people who doubt Osama bin Laden’s death. I’d like to go with “Resurrectors.” [Slate]

* People are making a big deal by about all the clients leaving King & Spalding in the wake of the firm dropping DOMA defense. I’m struck by how many politically charged conservative interests the firm represented. Doesn’t the firm represent any non-lethal widget makers who don’t care what you do with the widget in the privacy of your own bedroom? [WSJ Law Blog]

* The ABA responds to Senator Barbara Boxer’s call to action with words, not deeds. [Law Librarian Blog]

* Raj Rajaratnam has athlete’s foot? Is that a real thing people can get? [Dealbreaker]

* Justice Scalia renames everybody from Wyoming. [Odd Clauses Watch]

Color Coded Productivity Computers

By Elie Mystal

I almost don’t want to write about this because I know how many law firm managers and industry consultants read this site. If you are a person of any authority at an American law firm, or even if you aspire to be such a person, please stop reading this post. We’ll consider it an Above the Law honor code violation is you read any further.

Okay, for all the rest of you, we need to tell you that on the other side of the pond, they are pioneering new ways to turn a lawyer’s sense of shame and fear of failure into more money for the firm. Roll on Friday (gavel bang: Golden Practices Blog) reports that a European law firm has started utilizing computers that change color depending on how productive you are.

Seriously, what’s next? A computer that delivers an electric shock every time you log onto Facebook?

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Small Firms, Big Lawyers: Five Tips for Dealing With Obnoxious Opponents

By Jay Shepherd

I have a temper.

That might surprise people who know me casually, like my professional acquaintances. I work hard to keep it in check. Over the past 17 years as an employment litigator (representing companies), I’ve gotten better at controlling my anger. But it hasn’t always been easy.

Because lawyers can be pretty adept at pissing people off.

In fact, I know many people who left litigation — even left practicing law altogether — primarily because they were sick of dealing with obnoxious opposing lawyers. And I’m not talking about thin-skinned, confrontation-avoiding types. I’m talking about solid, talented litigators who just stopped finding it fun to fight with douchebags all the time.

And this is more of an issue for newer small-firm lawyers, who are much more likely to deal with opposing counsel early in their careers than their Biglaw counterparts. (Maybe someone else here can write a post on dealing with obnoxious document reviews.)

So to help you deal with the toolbags that all litigators face from time to time, here are five tips that I’ve picked up along the way….

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Are Law School ‘Merit Scholarships’ A Big Racket?

By David Lat

After the 1L money runs out....

That’s the question essentially posed in a long and interesting New York Times article, Law Students Lose the Grant Game as Schools Win (which we previously mentioned on Saturday; yes, we do post on weekends). The piece is by David Segal, who also wrote a big and buzzy piece back in January, Is Law School a Losing Game?

Segal’s latest article is more interesting than the January one. His January piece, while well-crafted and solidly (if imperfectly) reported, covered ground that had already been covered by many other outlets. Readers of Above the Law, other legal industry publications, or the numerous “scamblogs” already knew that the value proposition of going to law school was very much open to question (to put it mildly).

This weekend’s piece focuses on a less familiar aspect of the law school process, namely, merit scholarships. You might think that these grants, which help law students pay for their education in an age of ever-growing debt loads and skyrocketing tuition, are undoubtedly a good thing.

Well, think again….

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No Trial For Osama Bin Laden A Gift For All Americans

By Elie Mystal

I don't think anybody needed to hear testimony from this guy.

As you might have heard, United States special forces killed Osama Bin Laden. Let’s take a moment to be happy about that, but also to remember Bin Laden’s many, many victims.

Thank God he was killed, not “captured.” If he had been captured, there would have been some kind of trial. Some kind of fake, orchestrated, television show of a trial. Lawyers, judges, and others would have danced around trying to give Osama bin Laden the appearance of a fair hearing before his inevitable execution. It would have been a farce — a farce that our military and/or civilian courts are not equipped to handle.

Better for Bin Laden to meet his end as he did: via a double tap from a Navy Seal….

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Quote of the Day: John Dowd, Mr. Congeniality

By David Lat

I hate you, I’m not telling you a thing.

– John Dowd, leading criminal defense attorney and Akin Gump partner, responding (or not responding) to reporters’ inquiries about the whereabouts of his client, Raj Rajaratnam. The jury in Rajaratnam’s insider trading trial is still deliberating.

Inside Straight: How De-Equitizing Partners Can Undermine A Business Model

By Mark Herrmann

Last week’s Am Law 100 list revealed publicly a trend that partners at big law firms have been feeling acutely: The largest law firms have de-equitized partners in the last two years in an unprecedented way. In the words of one of the articles, “Equity partner head count alone slipped 0.9 percent last year, after dropping 0.7 percent in 2009.” That trend may undermine the business models of some law firms.

Law firms have many and varied business plans and compensation systems. But one reasonable way to run a firm is to market your most marketable lawyers — concentrate business development in the folks best able to develop business. For that model to work, however, all partners must trust the institution. De-equitization reduces the necessary trust and may kick the stilts out from under this business model.

Here’s how the model works. If a potential new client asks your firm to respond to an RFP for litigation matters, you turn to your half-dozen heaviest-hitting litigators and decide which one will be offered up as the lawyer to lead the new engagement. You know that, if you’re invited to a beauty contest, the heavy-hitter will clinch the deal, because he’s clinched so many deals in the past.

If you read in today’s Wall Street Journal that the plaintiffs’ mass tort bar has just put another industry under seige, you spring into action. Pull together the firm’s marketing materials, identify lawyers with relationships in the relevant industry, draft up outlines of motions to dismiss and oppositions to class certification, assemble an outline of key issues and proposed responses, and then have your relationship lawyers call and email their client contacts, offering to have one of the heavy-hitters meet with the client to explain the firm’s capabilities. The heavy-hitter takes it from there.

If a corporate lawyer gets a serious litigation nibble, the corporate lawyer will naturally advise the head of litigation about the opportunity, so the firm can make an appropriate pitch. The head of litigation asks one of the heavy-hitters to lead the charge.

If a client asks a junior partner in the commercial trial department about the firm’s ability to defend a multi-billion dollar case, the junior partner reports up through the ranks. The firm puts together a response that proposes a talented litigation team to handle the case — led, of course, by one of the heavy-hitters.

This approach to running a firm isn’t crazy. To the contrary: Institutionally, this system makes a lot of sense. You offer up your most impressive lawyers to handle the most important opportunities, land the business, and distribute that business among the masses to keep everyone busy. Collectively, everyone at the firm benefits.

Enter de-equitization….

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Booty-Dancing Toronto Partner: ‘I Was Falsely Accused’

By Kashmir Hill
Toronto partner David Cowling, exonerated booty dancer.

Toronto partner David Cowling, exonerated booty dancer

Back in January 2009, a moot court after-party hosted by Mathews, Dinsdale & Clarke got wild enough to spark allegations of sexual harassment. Canadians do know how to party, eh? The “night of debauchery” has haunted David Cowling ever since; he was one of the partners accused of getting overly friendly with female associates and law students, while gettin’ jiggy.

He says that an internal law firm investigation cleared him of charges of inappropriate dance floor behavior, but that the firm refused to make that public, leading to rumors continuing to swirl in his work and social communities in Toronto. Oh, and have we mentioned that David Cowling specializes in labor and employment law? “If I were a personal injury lawyer, sexual harassment rumors would not be such a bad mark on my professional reputation,” says Cowling.

So he filed a libel suit against Adrian Jakibchuk and Sarah Diebel, the two associates who accused him of doing the really funky chicken on the dance floor. Apparently, they don’t study the Barbara Streisand effect in Canadian law schools. That got the allegations splashed across Canadian newspapers and here at ATL.

But now he’s got his name cleared, with a public statement from his prior firm, along with a seven-figurish settlement. He started a new firm and dropped his lawsuit against his accusers, and has a few things to say about his side of the story.

So say you’re the law student who supposedly got felt up by a partner on the dance floor, and his lawyer calls you up in the middle of exam week to talk about it. Yeah, that’s awkward. And Cowling sent along the transcript…

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Morning Docket: 05.02.11

By Juggalo Law

* The Osama Obit. [Washington Post]

* Adam Liptak asks whether the King & Spalding affair is a tipping point for gay marriage in this country. Any Scorpions fans in the house? [New York Times]

* This profile of “court-appointed bloodhound” Irving Picard fails to delve deeper into the dog/man hybrid and its potential to wreak havoc on our nation’s animal shelters. [Salt Lake Tribune]

* Alabama may be close to enacting an “Arizona-style law cracking down on illegal immigrants.” I suggest they wait until the rebuilding efforts are completed. Just saying. [Fox News]

* An extremely detailed breakdown of the temporary stay ordered last Friday in the NFL labor dispute. For a slightly less detailed breakdown of the NFL labor situation (along with an amazing picture imagineered by yours truly), click here. [SI.com]

* Sammie Alito refused to intervene in the Corps of Engineers’ plan to blast a levee and flood Missouri in an attempt to alleviate flooding concerns elsewhere. Reached for comment, Alito said “No, I own an iPod. What are you talking about?”. [BusinessWeek]