When he benchslaps prominent Biglaw partners or government lawyers fighting marriage equality, he’s not trying to be funny. He’s just trying to understand the facts of a case or get to the bottom of the legal arguments — and he’s, well, maybe not as diplomatic as some other judges in going about his business.
Let’s check out the latest argument where Judge Posner snarked on hapless counsel….
Well, it’s only taken a week for ExamSoft to go from a random company whose name you couldn’t remember one week after the bar exam to “ExamSoft: Destroyer Of Worlds.” Today we can report that the first lawsuit has been filed against the company. It won’t be the last.
This is going to be a fun ride, and we are only at the beginning. By next week I predict the counter-narrative to get rolling. Maybe a dean will pen a New York Times op-ed about how kids these days, with their computers and text machines and MyBooks, don’t know how to take “personal responsibility.” Somebody will say that it is the test takers’ fault, for buying a program and having the audacity to believe that it would work as intended.
Looking deeper into my crystal taco, as lawsuits proliferate, there will be a circuit split. The Second and the Seventh will affirm decisions against ExamSoft, while the Third and Fifth will reverse. The Third will say that we need to learn a powerful lesson about our over-reliance on technology, while the Fifth will hold that a reasonable person wouldn’t try to write an essay in the clouds: “that’s pure hogwash,” it’ll say.
Eventually this will get to the Supreme Court, which will rule, 5-4, to relieve ExamSoft of liability. Writing for the majority, Justice Alito will argue: “When a person, such as ExamSoft, fails so spectacularly in its duties, the key question is to determine if that person is a man or a woman. If male, the person’s own sense of shame will be punishment enough. But if female, the Court must teach a lasting lesson. Here, we find ExamSoft to be a male person, and therefore must reverse the trial courts. The students should clearly incorporate themselves if they wish to pursue further remedies.” Concurring in part, Scalia will tell us that the bar has become too easy of a test and ExamSoft merely introduced a greater barrier to entry. Breyer’s dissent will be something like: “I was robbed once just like these test takers and, goodness gracious, it was scary.”
Okay, you’re welcome. Now that we all know where this thing is going, we can savor the wonderful journey together. Let’s look at the first lawsuit….
Chum’s in the water, folks. And here come the sharks.
Since we first learned that ExamSoft ruined the otherwise relaxing experience of taking the bar exam, we’ve anticipated lawsuits. You can’t piss off all the would-be lawyers you can get your hands on and expect to come through un-served. It is known.
One person on Twitter put it this way: “Numerosity, commonality, typicality, adequacy: Pretty sure all harmed #barexam takers could form a class action against @ExamSoft.”
Muscle Milk: drink this and you’ll write awesome pro se briefs.
I’m about to share with you an awesome pro se court filing from a law student who drinks Muscle Milk — enough of the stuff to belong to a class action of Muscle Milk consumers. Please try to envision what this submission might look like.
In terms of the student, I’m imagining a real meathead. He belonged to a frat in college. He’s not a great law student, but his family has connections that will help him land a job post-graduation. His bookshelf looks like this.
As for his pro se filing, it’s probably a tale told by an idiot, full of sound and fury (and Bluebooking errors). The UVA Libel Show would call it a Muscle-Milk-induced “roid rage of shame.”
But no, it’s not; it’s so much better than that. It’s actually a work of genius….
That’s right, plaintiffs’ counsel sat down to the negotiating table and cut a deal, without knowing a single thing about what cards their opponents held. For all counsel knew — for all they know even today — there are memoranda and reports in Nissan’s internal files disclosing that the LEAF’s Lithium-Ion battery suffers from a variety of defects, and that Nissan nevertheless decided to go to market with it.
– Chief Judge Alex Kozinski, filing an objection to a class action settlement between Nissan and buyers and leasers of its electric car, the LEAF. Alison Frankel of Reuters describes having Chief Judge Kozinski as an objector as a “lawyer’s nightmare.”
A lawyer who brings a lawsuit predicated on his own stupidity is a rare, beautiful, courageous creature. It’s one thing to represent with a straight face someone who tried to make out with an industrial fan, and another to admit that you personally couldn’t master simple technology.
It’s also a bold move for a partner in a law firm to admit that he’s bringing a lawsuit over losing ONE FRIGGING DOLLAR on his mistake.
That’s why this guy deserves some credit for being so comfortable publicly admitting what no one else would…
A good chunk of America was Googling “class action” this weekend thanks to Facebook. Millions of the site’s users received an email in the last few days with the subject “Re: LEGAL NOTICE OF SETTLEMENT OF CLASS ACTION.” Those that didn’t immediately delete it as spam discovered they’re entitled to up to $10 from the social networking giant for putting them in “Sponsored Story” ads. That’s when Facebook takes something you Liked or a link you posted and uses it in an ad aimed at your friends. (So, word to the wise, never ever post a link on Facebook to a 55-gallon gallon drum of sex lube.)
Fraley v. Facebook, the class action lawsuit that could make a bunch of Facebook users a little richer and a bunch of class action lawyers (led by Robert Arns) a lot richer, was filed in California in 2011 by an enterprising group of plaintiffs led by seamstress Angel Fraley, shortly after “Sponsored Stories” launched. They claimed the company had violated the law by using their names and likenesses in ads without their permission and without paying them. (Lead plaintiff Fraley later dropped out of the suit citing Facebook lawyers’ aggressive tactics, which basically consisted of digging up embarrassing material about her from her profile page.)
Facebook and the plaintiffs settled the suit in December to the tune of $20 million. That $20 million is covering the class action lawyers’ fees ($7.5 million plus expenses), with the rest either being divvied up among approximately 125 million presumably-aggrieved Facebook users who appeared in Sponsored Stories ads, or, if the demand is too great, divided by a bunch of non-profits that work on privacy issues. If the amount of money divided by the number of claimants comes out to less than $4.99 each, the money goes to the non-profits, who surely must be in the midst of planning a major “Rock The Claim” campaign. Unfortunately, I can’t help out.
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: email@example.com.
Things have changed recently in Korea – a few of our US and UK client firms are looking, very selectively, for a lateral US associate hire. Until just recently, there was not much hiring like this going on in Korea, since US and UK firms started opening offices there. We have already placed two US associates in Korea in the past month at top firms. Most of the hiring partners we work with in Korea do not actively work with other recruiters.
If you are a Korean fluent US associate in London, New York or another major US market, 2nd to 6th year, at a top 20 firm, with cap markets or M&A focus (or mix), or project finance background, and you are interested in lateraling to Korea to a top US or UK firm, please feel free to reach out to us at firstname.lastname@example.org or email@example.com. Our head of Asia, Evan Jowers, was just in Korea recently, and Evan and Robert Kinney will be in Korea in a few weeks. We are in the process of helping several firms open new offices in Korea (a number of which are interviewing our partner level candidates) and also helping existing offices there fill openings.
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