Screw-Ups

Sullivan & Cromwell: Because Charney v. S&C Is Just the Tip of the Iceberg

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Sullivan & Cromwell S&C Sully Above the Law.jpgWell before Charney v. Sullivan & Cromwell was ever filed, the venerable law firm was dealing with some serious issues. As aptly summarized by New York Magazine’s Intelligencer, “Sullivan & Cromwell lost about 30 percent of its associates in 2004 and 2005. It might take more than a raise to fix that.”
From a fascinating rather interesting Wall Street Journal article by Peter Lattman (which we meant to write about yesterday, before we got swamped by all the pay raise news):

Faced with a surge in turnover of its associates, the prestigious law firm Sullivan & Cromwell LLP has been putting on a charm offensive to hold onto junior lawyers.

The crash course in etiquette went into high gear at a partners meeting last February. To deal with low associate morale and high attrition, a confidential slide presentation reviewed by The Wall Street Journal urged partners to say things like “thank you” and “good work” to associates they supervise.

What else should partners do? “Return associates’ phone calls as quickly as you would a partner’s or client’s,” said one bullet. “Be sensitive to not canceling associates’ vacations,” said another.

Additional bullet-points made these helpful suggestions:

“Don’t tell gay associates that they like taking it up the ass (because they might be tops rather than bottoms).”

“Refrain from subjecting associates to profanity-laced tirades in which you tell them they should be fired.”

Guess Eric Krautheimer and Alexandra Korry missed that meeting.
Discussion continues after the jump.

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Barry Ostrager of Simpson Thacher: Bad at Deadlines, Bathroom Etiquette

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Barry Ostrager Barry R Ostrager Simpson Thacher Bartlett STB.jpgWe now interrupt your regularly scheduled programming of Charney v. Sullivan & Cromwell to bring you some embarrassing news about another ultra-prestigious New York law firm: Simpson Thacher & Bartlett.
From Decision of the Day:

From the “it can happen to anyone” file, the Second Circuit dismisses a cross-appeal by Travelers Insurance Company because its law firm filed the notice of appeal one day late. After the losing party in the district court filed a notice of appeal, Travelers had 14 days to file its notice of cross-appeal. However, the firm calculated the 14 days from the date it received the notice, not from the date the notice was actually filed. The district court denied Traveler’s motion to extend the deadline by one day, explaining that this was a case of “garden variety attorney inattention” and not excusable neglect. The Second Circuit affirms (PDF).

The law firm that made this rookie mistake was one of the whitest of the white shoes, the venerable Simpson Thacher & Bartlett. The partners on the brief have stunning resumes, and the fifth-year associate has done plenty of litigating, given that he is admitted to practice in three jurisdictions and thirteen courts. So, yes, it can happen to anyone. (And in case you’re wondering, no, STB did not reject me.)

Decision of the Day is too nice to name the STB lawyers on the brief, but we have no such qualms. These are matters of public record. The attorneys who screwed up here are partner Barry R. Ostrager, partner Andrew T. Frankel, and associate Robert J. Pfister.
Barry Ostrager, by the way, is routinely named as one of the country’s top business litigators and trial lawyers. See, e.g., here, here, and here. He’s not particularly nice; as one litigator diplomatically observed, Ostrager “doesn’t suffer from the need to be loved.” But he has been very successful for his clients.
Given Ostrager’s stellar reputation, this latest defeat is particularly embarrassing. It’s one thing when you litigate a case as best you can, then lose because the law just isn’t on your side. It’s another thing when a federal trial judge finds you guilty of “garden variety attorney inattention,” and then an appeals court affirms, holding that your “attorney inadvertence” — a charitable phrasing — does not constitute “excusable neglect.” Great litigators, after all, are supposed to be careful, attentive, and detail-oriented.
But this is not Barry Ostrager’s only lapse. His failure to pay attention to detail extends to the men’s room — as we have had the misfortune of observing, firsthand.
Read all about it, if you dare — don’t say we didn’t warn you — after the jump.

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Nostra Culpa: Hatch Is Staying On Judiciary

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Orrin Hatch Orrin G Hatch Orrin Grant Hatch Above the Law.jpgWe were wrong in predicting that Senator Orrin Hatch (R-UT) would be stepping down from the Judiciary Committee. (And we were not alone in making this mistake.)
Earlier this week, we had heard rumors that various deals had unraveled — Senate committee assignments are a complex, delicate ecosystem — and that Hatch might actually be sticking around Judiciary. Now that news is official.
The other members of the committee: Specter (ranking member), Grassley, Kyl, Sessions, Graham, Cornyn, Brownback, and Coburn. It’s the same line-up as in the 109th Congress, except without Mike DeWine (who lost his reelection bid).
We’ll miss Senator DeWine. But he has earned a place in history, as the erstwhile employer of Jessica Cutler, aka Washingtonienne.
McConnell Announces Republican Committee Assignments [Senator Mitch McConnell via How Appealing]
Earmaking Kansas [American Spectator]
Assessing Roberts’ re-election prospects [Lawrence Journal-World, Lawrence, KS]
Earlier: Senator Hatch Is Leaving Judiciary

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The Duke Rape Case: DNA in All the Wrong Places

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dna lab laboratory Above the Law.jpgThings that make you go hmmm:

DNA testing in the Duke lacrosse rape case found genetic material from several males in the accuser’s body and her underwear — but none from any team member, defense attorneys said in court papers Wednesday.

The papers were filed by attorneys for the three lacrosse players charged, Reade Seligmann, Collin Finnerty and David Evans. They complained that the information about DNA from other men was not disclosed in a report prosecutors provided earlier this year to the defense.

The testing was conducted at a private laboratory for the prosecution.

“This is strong evidence of innocence in a case in which the accuser denied engaging in any sexual activity in the days before the alleged assault, told police she last had consensual sexual intercourse a week before the assault, and claimed that her attackers did not use condoms and ejaculated,” the defense said.

Two reactions:
1. We haven’t read the papers in question, and we don’t know the discovery timetable set in this case. But at first blush, this DNA information sure sounds like evidence that would be subject to disclosure under Brady v. Maryland. When was the prosecution planning on getting around to sharing it?
2. “[G]enetic material from several males,” but none from any of the defendants? ICK. Deeply troubling. And we apologize if you find this gauche or un-PC of us, but we can’t help wondering: Exactly how many is “several”?
Lawyers: DNA Not Linked to Duke Athletes [Associated Press via Instapundit]
Earlier: The Duke Rape Case: The DNA Evidence

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The Most Happy Fella… Who Molested a Nonagenarian?

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We think online advertising is fantastic. Of course, we’re biased; it’s how we pay the bills around here. For more details about how to advertise on Above the Law — which has a large, demographically desirable, and highly targeted readership — click here.
But all advertising, whether in print or online, carries risks. For example, your ad could run next to content you might not like.
In yesterday’s Non-Sequiturs, Stella Q linked to an article about a man who pleaded guilty to sexually assaulting a 92-year-old nursing home patient. This morning, tipster Patrick sent us this message (with attached screencap):

After clicking on your link, I feel bad for the poor SOB who got paid to be in the ad at the bottom of the page:

fondling old woman Above the Law.JPG

We concur. For a guy who could do up to ten years in prison, he sure seems rather cheery.
(In case you’re curious, the ad in question is for adult and continuing education programs at LaSalle University. If you click through to the page and don’t see the ad at first, simply “refresh” your browser, and it may reappear — it’s a revolving ad.)
Man admits to fondling woman, 92 [PhillyBurbs.com]
The Most Happy Fella [Wikipedia]

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Talk About a “Full Service” Law Firm

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[Ed. note: This post is on the vulgar side. It's a bit like Borat: funny to some, distasteful to others. If you're a person of delicate sensibilities, please exercise discretion in deciding whether to read further. Thank you.]
Last week we reported some top law firms involved in billion-dollar deals:

Biglaw shops are involved in all of these transactions. The lucky law firms: Sidley Austin, Simpson Thacher, Cleary Gottlieb, Howard Rice, Wachtell Lipton, Davis Polk, Debevoise & Plimpton, Covington & Burling, and Schwabe, Williamson & Wyatt.

One of these things is not like the others. Yes, you guessed it: Schwabe, Williamson & Wyatt.
The obvious response: Schwabe, a regional law firm based in the Pacific Northwest, is the least “Biglaw”-ish of these shops.
The less obvious response: Schwabe provides services the other firms do not. Check out the retention letter below, which has been making the law firm email rounds.
(Normally we’d challenge you to find the typo in the second paragraph, but today we’ve made it easy for you. After all, it’s the Monday after a holiday weekend.)
Schwabe Williamson Wyatt letter.jpg
This typographical error gives unfortunate new meaning to the SW&W “diversity logo,” featured prominently on the firm’s website:
Schwabe Williamson Wyatt diversity logo.JPG
(Query: What’s up with the green hand? Title VII doesn’t protect martians.)
Earlier: Legal Fee Voyeurism: Merger Mania Moolah
Schwabe, Williamson & Wyatt [official website]
Define:Fisting [Google Search]

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Fun With SCOTUS Transcripts

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scotus hallway Above the Law.jpgLaw dorks around America rejoiced when the Supreme Court announced it would be making available free, same-day, online transcripts of oral arguments. Because we wouldn’t have to wait for amusing typographical errors, would we?
One of you points out:

Very funny transcription error in Gonzalez v. Carhart. Justice Stevens and Solicitor General Clement are sparring about the question of viability, and Clement says: “Yes. Because the issue is whether it’s going to be performed in Ute row.”

Sounds like a reservation prison in eastern Utah. First casinos, now abortions. Those pesky natives just keep cornering depraved markets left and right.

Actually, that wasn’t what we thought of when we saw the typo. “Ute Row” sounds like a street to us — or maybe, you know, a back alley.
(Disclaimer: This post is not making light of abortion, dead babies, or women who would die if abortion were criminalized. It is simply making light of a typo — and calling it to the attention of the Court, so they can have it fixed in the final version of the transcript. You’re welcome.)
(SCOTUS hallway photo from stock.xchng, which is a great resource for stock photography. Bloggers will appreciate its comprehensive collection of royalty-free images, which their owners have placed in the public domain for anyone to use. You can check out the pics that we have taken and contributed by clicking here.)
Gonzales v. Carhart Oral Argument Transcript (PDF) (p. 13, lines 11-12) [Supreme Court]
Same-Day Transcripts for Supreme Court Arguments [Volokh Conspiracy]
Same day Supreme Court argument transcripts [Althouse]

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Do All White People Look Alike?

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No, definitely not. Due to their variegated hair and eye color, white people have the best claim to internal diversity in appearance.
But these two white people DO look alike:
Amanda Sylvester Kayce Schildauer Above the Law Legal Blog.JPG
As a result, this screw-up — while mortifying and GI-normous — is somewhat understandable:

“We are horribly sorry,” the cop said. The 17-year-old girl who was wrongly locked in jail for seven days might be feeling terribly lucky.

Amanda Sylvester might still be in jail, facing criminal charges that included aiding and abetting a robbery [of a Kwik Stop convenience store], were it not for an anonymous tip to a Crimestopper hotline….

A week later, the Crimestopper tip led to the arrest of Kayce Schildhauer, 19, of North Platte.

Pretty bad. But hey, it could be worse. Remember this story?
Innocent Girl Held A Week In North Platte Jail [North Platte Bulletin]
(Gavel Bang: Drudge Report (of course, ’cause Matt’s a sucker for s*** like this))

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Comma Comma Comma Comma Comma Chameleon

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comma missing million dollars.JPGThe lawyers among you should know: Little things matter a lot.
Earlier this month, we told you about the missing “L” that cost a county $40,000. But $40K is chump change compared to the million dollars that turns upon an allegedly misplaced comma:

[A] dispute between Rogers Communications of Toronto, Canada’s largest cable television provider, and a telephone company in Atlantic Canada, Bell Aliant, is over the phone company’s attempt to cancel a contract governing Rogers’ use of telephone poles. But the argument turns on a single comma in the 14-page contract. The answer is worth 1 million Canadian dollars ($888,000 U.S.).

Citing the “rules of punctuation,” Canada’s telecommunications regulator recently ruled that the comma allowed Bell Aliant to end its five-year agreement with Rogers at any time with notice. Rogers argues that pole contracts run for five years and automatically renew for another five years, unless a telephone company cancels the agreement before the start of the final 12 months.

(Gavel bang: blah blah blog.)
Canadian lawyers are being hired in significant numbers by major American law firms. They claim it’s because of their superior training and lawyering skills. But Canucks make drafting mistakes too, eh?
Now it’s time for you to play judge. Here’s the contractual language at issue:

“This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”

The regulator concluded that the second comma meant that the part of the sentence describing the one-year notice for cancellation applied to both the five-year term as well as its renewal. Therefore, the regulator found, the phone company could escape the contract after as little as one year.

What do you think? We don’t have a strong view. (But the fact that Rogers is attempting to bolster its position by relying upon the French version of the contract makes us lean in favor of Bell Aliant.)
The Comma That Costs 1 Million Dollars (Canadian) [New York Times via How Appealing]
Million-Dollar Comma May Aid Canadian Company [NPR via bla blah blog]
Why is grammar so very important? [blah blah blog]
Earlier: Our Kingdom for an “L”
Didn’t Get a Biglaw Job? Blame Canada!

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Sometimes This Job Doesn’t Challenge Us Enough

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From the Fox News homepage:
priest who fondled foley probed by diocese.GIF
And he liked it, too.
(Yes, this is a slight digression from hard-core law; but the Mark Foley story does have a legal angle. The claim that Foley may have been molested by a clergyman was made by Foley’s civil lawyer, Gerald Richman. Furthermore, law enforcement authorities in Florida have commented on Foley’s allegations. They’ve stated that no criminal charges will be brought against the priest, unless other alleged victims appear, because Foley does not wish to press any charges.)
See also The Things They Carried [Wonkette]
Priest Who Fondled Foley Probed by Diocese [Fox News]
Mark Foley’s Legal Team: Part II [WSJ Law Blog]

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