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Barry Bonds was convicted of obstruction of justice for giving non-responsive answers to questions in a grand jury. As Judge Fletcher told the government in the oral argument in the 9th Circuit en banc challenge to his conviction, “I find your reading of the [obstruction of justice] statute absolutely alarming.” And for good reason — Judge Fletcher thinks that the government’s interpretation of obstruction of justice would mean that most civil lawyers are felons.

There are a lot of ways to violate federal laws that are related to obstruction of justice. You can lie to a federal agent who is coming to your house to interview you and violate 18 U.S.C. § 1001. You can commit perjury under 18 U.S.C. § 1621. And there are a host of other false statement statutes specific to other regulatory schemes (like false statements in connection with a tax filing, or a health care request for payment, etc.).

All of those laws, though, require that the person who is being prosecuted make a false statement.

Obstruction of justice is different. Instead of having concrete elements like “making a false statement”, obstruction of justice criminalizes willfully “obstruct[ing], imped[ing], or interfer[ing] with” whatever is being allegedly obstructed.

Here, Barry Bonds didn’t make a false statement. Instead, he gave an answer that was non-responsive. The government’s theory was that Barry Bonds didn’t give a responsive answer to a question in order to throw the government off (because, apparently, having the temerity to force an AUSA to listen to questions in a grand jury and ask a follow-up question is the kind of thing that ought to brand you a felon).

And that was “obstructing” the federal law enforcement apparatus.

There are a lot of things wrong with this prosecution. The one I want to focus on is the lengths the federal government will go to in order to protect AUSAs from having to do the same basic work that the rest of the legal community does routinely.

double red triangle arrows Continue reading “Barry Bonds And The Lengths DOJ Will Go To Protect AUSAs”

Mike Sorrentino

* Per the First Circuit, plaintiffs who successfully challenge the Defense of Marriage Act in court aren’t entitled to attorneys’ fees. The Department of Justice had no comment. [National Law Journal]

* Florida Coastal Law finished second-to-last in bar passage for the July 2014 exam, with 58% of grads passing. It was one of Florida Coastal’s worst performances to date. [Florida Times-Union]

* ASU Law got a $10M donation, its largest ever. “The remarkable thing about it is we didn’t ask him for it,” says the dean, which is a slightly better response than Drexel’s dean had. [The Republic]

* Much to his defense team’s chagrin, accused Boston Marathon bomber Dzhokhar Tsarnaev’s trial will remain in Boston. The media spectacle is set to begin in January 2015. [New York Times]

* Mike “The Situation” Sorrentino of Jersey Shore fame was indicted on tax fraud charges to the tune of $8.9M. He pleaded not guilty yesterday afternoon. There aren’t tanning beds in jail. :( [Asbury Park Press]

Can you identify this guy?

* Quiz: Can you match the picture of the plaintiff to the landmark Supreme Court decision? [Slate]

* Ninth Circuit expedites Ed O’Bannon appeal. [USAToday]

* New NBC comedy about a law student who becomes a garbage man. Better job security, I suppose. [The A.V. Club]

* The federal prison population declined by about 4800 inmates, giving the United States… well, still the worst incarceration rate in the world, but hey, you’ve got to start somewhere. [ABC News]

* The contract attorney who sued Biglaw is living in his car and considering a career in construction. Perhaps it was a Freudian thing. [Law and More]

* Some philosophy professors are concerned about an individual getting very testy with perceived critics. Anyone want to guess the individual? [Professor David Velleman Homepage / NYU]

* In case you missed it, Howard Bashman’s announcement of our new partnership. [How Appealing]

* Middle school convinces special needs girl to allow suspected rapist to take her into a bathroom so the school can “catch him redhanded.” She gets raped. Judge dismisses the lawsuit saying he wouldn’t “second-guess” school officials. [Al.com]

If, unfortunately, someone in your family faced catastrophic injuries that you thought had legal issues, they would be on a very, very short list of firms to consider.

Roger Dennis, dean of the Drexel University’s Thomas R. Kline School of Law. He’s telling the Philadelphia Inquirer about Thomas R. Kline. “Short list,” eh? After Kline donated $50 million and the school scrubbed poor Earle Mack from their letterhead and renamed the school, the best praise the dean can summon is that Kline belongs on a “short list.” Once you rename your law school, you’re already a commercial, so go right ahead and tell the reporter “Thomas R. Kline is the best goddamned lawyer on the planet!”

An artist’s visualization of the recent Clio Cloud Conference.

Big used to matter in companies providing legal support, research, and services solutions to law firms.

Lots of money, broad distribution networks, seasoned executives, big conference booths, and fancy branding collateral.

Big was the safe choice. You didn’t get fired for buying from the big company from which every other law firm was buying.

No longer. Small startups are becoming the providers of choice for law firms across the country — and the world.

First, larger legal companies are struggling. They are laying off people. They’re have trouble bringing innovation to the market. Will they be around for the long haul?

Second, law firms like small, for a lot of reasons:

double red triangle arrows Continue reading “Legal Technology: Small Is Beautiful”

Most of you know that Lexpert “ranks” Canadian law firms and lawyers every year. I thought it would be interesting to take a totally unscientific look at the Lexpert rankings and see if anything monumental comes out of it.

Here are the rules for reading this column:

1. It’s all meant in good fun. Don’t send me nasty emails if you don’t agree with something I write.

2. Read Rule #1 again.

A little background for those of you who don’t know. Lexpert has a methodology for divining the best law firms and lawyers by practice areas. I have no idea what the methodology is and I don’t care. I think all ranking methodologies are next to useless. What is important is once you declare you’re going to rank something, and put those rankings into a glossy magazine, people (lawyers and clients) put some stock into them. Lexpert could use a Capuchin monkey to pick names out of a hat and a lawyer would still brag to her mom if she was named one of Lexpert’s leading attorneys.

Lexpert has four categories: Most Frequently Recommended, Consistently Recommended, Repeatedly Recommended, and Everybody Else. Okay, it doesn’t use Everybody Else, but you get the drift. You’re either in one of the Recommended categories, or you’re on the outside looking in…

double red triangle arrows Continue reading “The View From Up North: To Rank Law Firms Or Not To Rank…”

Over the last two weeks, I gave a lot of thought to the email that I sent to Stephanie. Even though I do not regret telling her that I am looking for full-time work, I thought that I may have told her too much about my personal situation which might have made her feel awkward. I planned to call her and let her know that things are fine and I was just having one of those days. But before I got the chance, Stephanie called me. She wanted me to schedule a time where I can meet with her and one of her partners to discuss working full-time at her firm.

There are some things you should know about Stephanie and why I hold her in such high regard. She is the managing partner of a highly respected boutique specialty firm. She is charismatic and her knowledge of the law is encyclopedic. Some of the attorneys at her firm have moved on to Biglaw, judicial clerkships, and other prestigious positions. All of her firm’s partners and associates have solid academic and professional backgrounds.

And now she is giving me a chance to work for her.

Could this be the opportunity I have been waiting for? After the jump, I will talk about what I will be doing at Stephanie’s firm and whether this could be the end of the race. Also, read onwards for information about a special federal clerkship opportunity…

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In the most Canada news ever, a man has brought a class action suit against the Canadian government for its failure to control the moose population in Newfoundland and Labrador. An appeals court dismissed the claim, but personal injury lawyer Ches Crosbie vows to take his campaign all the way to the Canadian Supreme Court: “The case is unprecedented in many ways… It’s rife with live legal issues for a court of appeal.”

The theory of liability here is that the Canadian government introduced moose to Newfoundland island in 1904 as a source of food. Now their population is out of control, and motorists routinely slam into them and are injured by the large herbivores.

Let’s get this out of the way quickly… the solution is NOT to release an “apex predator” to control the moose population. A prime moose can generally not be messed with by any alpha predator. Top predators will eat some moose calves, but when you get out to check the damage the moose did to your car, the sound of timber wolves closing in around you is not something you are going to want to hear.

Oh, and for the Texans in the audience, shooting them hasn’t really been a successful answer either. Sorry Canada, you have a trophic cascade on your hands, and there is little that can be done about it….

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Many people enter the legal profession with the expectation that the public will see them as members of a noble trade to be revered and admired. Unfortunately, that’s simply not the case at all. For every would-be Atticus Finch, there exists an off-color lawyer joke. If you’d call 5,000 dead lawyers at the bottom of the ocean “a good start,” then you’re not alone.

According to a new study, although lawyers are viewed by the public as part of an “envied” profession, no one really likes them. Sure, lawyers may gain a scant amount of respect from some, but when you’re viewed generally as heartless bastards, no one will trust you…

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If you’re like me, you’ve been reading Howard Bashman’s excellent appellate litigation blog, How Appealing, for years. When I started to write online more than a decade ago, Howard, a pioneer of legal blogging, was a role model and inspiration. (I pay homage to Howard Bashman and How Appealing with shout-outs in my forthcoming novel.)

Given our longtime admiration of Howard Bashman and How Appealing here at Above the Law, we are absolutely delighted to announce this partnership: effective October 1, 2014, How Appealing will be hosted at howappealing.abovethelaw.com. You can read Howard’s announcement of the affiliation here.

For those of you who love How Appealing and Above the Law as they are, there’s nothing to fear. Howard Bashman will continue to run the web’s top blog devoted to appellate litigation, and we will continue to cover the legal profession here at ATL in our inimitable style. We will display headlines of recent How Appealing posts on ATL, and How Appealing will display headlines of recent ATL posts. The primary change resulting from this partnership will be felt by advertisers, who will now enjoy a broader range of options within the Breaking Media family. If you are interested in advertising on How Appealing, Above the Law, or both, please contact advertising@breakingmedia.com.

Given How Appealing’s record of excellence dating back to 2002, we couldn’t be happier with this partnership. We look forward to working with Howard Bashman and How Appealing in the years ahead.

Announcing the new location of “How Appealing” [How Appealing]

Now, I don’t consider myself the most religious person you’re likely to meet. But I’ve had my fair share of Judeo-Christian indoctrination. And there is one phrase that has always stuck with me: “There but for the grace of God go I.”

Sure, I mostly remember the phrase as my Nana would cluckingly utter it, in a tone that seemed far less Christian than a strict textual interpretation might suggest, but the point remains. Sometimes it is necessary to appreciate the dumb luck and seemingly small and inconsequential decisions that separate your good fortune from those with far less.

That is certainly how I feel about the poor, dumb bastard who had the audacity to take on Biglaw….

double red triangle arrows Continue reading “The Cautionary Tale Of A Contract Attorney’s Biglaw Lawsuit”

Dinesh D’Souza

* The United States is launching air strikes against ISIS in Syria and Iraq, but some have been compelled to wonder whether it’s legal under international law. Of course it’s legal, under the Rule of ‘MERICA, F*CK YEAH! [BBC]

* Dewey know whether this failed firm’s former COO can get out of paying $9.3M to its bankruptcy trustee? Dewey know whether we’ll ever be able to stop using this pun? Sadly, the answer to both questions is no. [WSJ Law Blog]

* Marc Dreier of the defunct Dreier LLP has been ordered to testify in person in his firm’s bankruptcy case in Manhattan, but he’d rather stay in the comforts of his prison home in Minnesota. Aww. [Bloomberg]

* Dinesh D’Souza won’t have to do hard prison time for his campaign-finance violations. Instead, he’ll be spending eight months in a “community confinement center,” which sounds just peachy. [New York Times]

* Northwestern Law is launching a campaign to fundraise $150M to be spent on an endless supply of Chick-fil-A sandwiches financial aid for students and curriculum improvements. [National Law Journal]

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