Law And More

Saving Souls on Massachusetts Avenue, Cambridge

Is Patrick Keane typical of the many of the ambitious, determined, optimistic human beings who walk along Massachusetts Avenue in Cambridge and into Harvard Law School?  I don't know.  What I do know is that going through that door makes it significantly harder to save one's soul.

In Jay McInerney's 1996 novel "The Last of the Savages," Keane is typical, at least, of working-class, ethnic, Roman Catholic strivers who find a way out of that, into the upper-middle class, and later in midlife in need of salvation.  Keane is also typical of us who use one of the most unimaginative tools to accomplish that: Attending Harvard Law School.  That fine institution, which prides itself on diversity, lets the Keanes and the Genovas in.  I matriculated in the mid 1980s, but ever so briefly.  The more imaginative like Steve Jobs start companies. 

Keane did his three years at Harvard Law.  In that, he's certainly a type.  The Keanes have the drive and emotional strength to not veer from that road more traveled.  He goes on to a white-shoe law firm in downtown Manhattan.  His sense of how the world works and his gut tell him that making partner hinges on getting married - right.  A few weeks after his engagement to a Judge's daughter is announced, he makes partner.  Managing the pampered Judge's daughter and the Judge is more challenging than he expected but he sticks with the marriage and intends to continue doing that unless she's the one who bails.

A dumb plot gimmick is that Keane is gay.  That isn't needed.  The confusion, torment, and lack of being at home in himself are palpable, without throwing in that. After all, when I started out professionally a number of my male and female colleagues put together marriages of sexual protective coloring, without any extreme angst.  That's what they did in those days, just like the Keanes/Genovas First Gen white-collar wannabes went to college and more. It was a must-do, end of story.

The novel wraps up w/o Keane's being willing to save his soul. His alter ego Will Savage, of the manor born, has better luck.  After struggling with his background of wealth and privilege, Savage lives in the answer, not the question.  His coordinates for existence are his.  Keane's coordinates for existence remain drawn by others, ranging from Savage to his own family of origin.  There is no Keane.  There is only Keane overseeing the daily and yearly construction of Keane by external forces.

Had Keane not attended Harvard Law School would he have had fewer obstacles in his way to redemption?  Without a Harvard Law JD, he might have simply graduated Yale and gone on to be an underpaid editor at a book publisher.  Keane had a love of poetry.  That platform lacks the money, prestige and upward mobility to support an extreme class makeover. His game would have fallen apart.  Had I not left Harvard, there was no way I could have saved my own soul, never mind those of others.

Here is an e-book I recently published for those less well defended than Keane. Those who read it and thought about have reported back to me that their souls seems saved.  You can access this short book free Download savingsoulsonparkavenuekstreet.pdf.

Nation of self-promoters who are suspicious of promotion - If there's RI Lead Paint III

Advocacy in all its various commercial forms got bashed in the Rhode Island lead paint public nuisance trial II. 

There was the expose about the Lead Industries Association [LIA] and how its members allegedly conspired to sell gallons and gallons more of lead paint. Even the Judge found that ridiculous and without evidence.  It got tossed.

Then there was the attack on advertising and promotional devices such as miniature Dutch Boys.  That was supposed to lure innocent children to make their parents rush off the Sherwin-Williams or Glidden and buy up gallons of lead paint.  It didn't make sense that toddlers would have paint on the top of their nag list. 

And then there was the ahead-of-its-time mobile exhibit which toured the country. Upon hearing about that tactic, the jury might could have concluded that these paint companies were way too smart to mess around with a product that was hazardous.  

The plaintiff tried this ploy because, as Tom C. Korologos points out in his opinion-editorial in today's THE WALL STREET JOURNAL, our nation looks "with suspicion on advocacy."  Korologos had operated a federal lobbying firm for 29 years.  But this "suspicion on advocacy" is much broader than lobbying per se. 

Late marketing expert Ted Levitt put in best in his essay "Marketing and Its Discontents."  Levitt outed our ambivalence about putting anything, including ourselves, out there - even though, at that time, we were globally known for our marketing savvy and success.  It was an American corporation Procter & Gamble which invented branding in 1931. No wonder our Founding Fathers had to protect this right to commercial speech in the First Amendment to the Constitution.  My hunch is that these twisted confused ideas about selling and everything else started with the Puritans and Pilgrims.  

In both the actual RI lead paint II and in the more than two years of appeals, many trees have given up their lives so Jones Day's Mickey Pohl, who represents Sherwin-Williams, could argue how the plaintiff violated the defendants' First Amendment rights.  What was wrong about joining a trade association such as the LIA?  The plaintiff introduced logs of which defendant was at what meeting in 1930-something at the LIA.  The plaintiff also decried the toy puppets used to promote certain paint brands.  And, horrors, there was that evil ad about a boy pulling a red wagon painted with one of the defendant's products.

Should there be a RI lead paint III, the defense should have an expert testify why we hate marketing, sales and lobbying, even though we're so good at all three.

Cravath's Chief Strategy Officer - Good Luck In Volatile Times

In less volatile and less profit-pressured times, corporate America was bloated with strategic planning experts and even policy analysts.  Then, it became obvious in these volatile times of a global marketplace driven by technology this sort of "central planning" and carefully articulated party lines was a waste of time - and, just as importantly, of money.

This is something that the legal world may still have to learn.  Bruce MacEwen of ADAM SMITH ESQ. informs us that Cravath has hired its "first ever director of strategic planning."  Since, as this article by MacEwen notes, the Chief Executive Officer is and always will be the Chief Strategist, this new hire seems headed for nasty political turbulence.  And that will be generated not only from the CEO but also all the partners.  Law firms, as Sonnenschein's Chairman Elliott Portnoy frankly stated, are about profitability and increasing margins. Since that's measured in terms of per-partner, I would think partners will have plenty to say about strategy.

In addition, isn't it difficult or perhaps impossible to predict the next hot area.  It could be global warming but again that might not happen.  It could be public nuisance or public nuisance can die with the Rhode Island Supreme Court's ruling on lead paint in July. It could be employer-employee disputes but an economic depression could cool off that.  

In fact, isn't it difficult enough to sustain a practice that's doing well. As Denny Crane points out frequently on "Boston Legal," do well and that puts a bullseye on you. The competition will do everything from imitate your best practices to much worse.

And, for some reason, most organizations seem poor predictors. Microsoft missed the boat on the Internet - and can't seem to catch up.  Almost forever, Coca-Cola didn't get the coming age of natural beverages.  The Hillary campaign, led by Mark Penn, couldn't see the emerging populism.  And look at all those law firms which didn't anticipate the scope of the crash of the real estate and structured-finance markets. The Bear also seemed blindsided by the present, never mind the future.

Isn't strategy today, at least in smart organizations, an animal-like alertness, fused with total opportunism?  You don't plan for that.  It's something you do.

Sonnenschein outs pressure for profitability/better margins

It's out of the closet: Law is no longer pretending to be a profession.  Just as with business, law is about profitability [in this case per-partner] and getting better margins.  That's exactly what Chairman of Sonnenschein Elliott Portnoy told Nathan Koppel in an interview for THE WALL STREET JOURNAL Law Blog. The conversation was about the 124 employees laid off by the firm.  Kopppel describes the tone of Portnoy's remarks as "frank."

Koppel reports:

"Sonnenschein laid off lawyers whose practices have slowed, he [Portnoy] says, to sustain the firm's profit margins and overall profitability.  It takes financial heft to pay competitive salaries for top lawyers, he says, and the firm has been focused heavily on partner recruiting.  It hired 42 lateral partners last year, and is on pace to exceed that number in '08.  To hunt for big game, in other words, it can't afford to carry underperformers."

Those words coming from Portnoy could be coming from the Chairman of any major public relations agency or prestigious management consulting firm.  The pressure was probably always there but it's intensified with the death of client loyalty.  All professional services, except small shops like mine, need the brandnames to attract new business.  That detergent account can't be counted on to stay. Yet, shareholders demand steady improvement in profits as well as margins. 

In this era of social media, for example, Edelman Public Relations brought in digital-communications guru Steve Rubel. His name, in turn, is the magnet for social-media accounts. Meanwhile most everyone else is expendable.  Their quality work is usually irrelevant - and underpaid.  They will be perceived as "underperformers" unless they can hold onto an account and develop lucrative new ones.  I predict that the high turnover in many public relations agencies will become standard in law firms. Those without a gift for pleasing clients and hauling in plenty of fresh accounts will leave because of shabby treatment or be forced out.

What's the alternative to this model?  It's the little shop like Halleland Lewis Nilan & Johnson. That Midwest firm of about 55 attorneys was established by those fleeing BigLaw.  Since they get plenty of media attention, I have to assume those watching the professional-services arena are fascinated with this micro-trend.

There are also rumblings about the lion's share of legal work being pulled back in-house.  The General Counsels have had it with the big bills from BigLaw.  Under the umbrella of corporate America, there will be no ambiguity about the push for maxing profits. Lawyers will be as responsible for the numbers as the folks in manufacturing and marketing.

Can idealists exist in the legal profession?  I don't know.  

Lawyers Vote with Pocketbook - More going to Obama than Hillary

If we use lawyers' donations to this political campaign to read the tea leaves, then the winner will be Obama.  He has received more than Hillary from lawyers and law firms and lots more than McCain.

In THE NATIONAL LAW JOURNAL, Amanda Bronstad reports, "By the end of April, Obama has raised more than $17.3 million from lawyers and law firms.  Clinton had raised more than $16.7 million."  McCain received about $5 million. 

What Obama received in just April from lawyers was up by 15 percent. The sources of the donations to Obama include:

• Sidley Austin
• Skadden, Arps, Slate, Meagher & Flom
• Jones Day
• Wilmer Cultler Pickering Hale and Dorr
• Latham & Watkin.

If these law firms' bet is on the money, will they have any input on who will be appointed the next U.S. Attorney General?  Maybe the wise Chuck Moellenberg from Jones Day has a shot at that.  Obama can also create a new cabinet-level position of Food Safety Czar.  Bill Marler of Marler Clark should be a shoo-in for that. 

Chinese Cadavers - NY AG Cuomo scores another hit

New York Attorney General Andrew Cuomo, despite a few stumbles in his zealous probes, seems to have golden instincts about selecting the right targets.  The student loan expose was brilliant. 

Now it's those Chinese cadavers on exhibit that we all have been wondering/worrying about.  Human-rights activists, as well as plain-vanilla medical doctors, have been voicing concern about the origin of the dead bodies in the "Bodies" exhibit.  Too many of the bodies seems to be of youthful people.  Did the Chinese off them to make a buck?

Well, as John O'Brien reports in LEGAL NEWSLINE, "A settlement between New York Attorney General Andrew Cuomo will require an art exhibit promoter to show the cause of death and the origins of the cadavers used in one of its exhibits."

The timing couldn't be better.  In China those who lost loved ones, especially children trapped in badly constructed schools, in the earthquake seem to be launching a grassroots revolution against the Chinese powers-that-be.  Cuomo's investigation could piggyback on that outrage.  And with so much at stake in the Olympics, there might be changes in how the people of China are treated.

Merck Settlement - "The time was right to strike a deal," observes famous defense attorney

A famous defense attorney who sometimes handles BigPharma suits makes this observation about the Merck settlement, off the record:

 "I think the chap from Kirkland had it right (what a frightening utterance!). The time was right to strike a deal. 

"The transaction costs were enormous (if you only knew the total defense costs) and the possibility of just such reversals entered into the plaintiffs' agreement to settle.  We all knew that Judge Higbee's ridiculous rulings would not stand, and that uncertainty closed the settlement gap.  Further, the strain in time, resources, personnel and psychic and emotional energy was crippling the company.  They had to get it behind them and move on - straight into Vytorin as it turned out."

More on Merck - "We can always second-guess, but," opines brandname product liability attorney

A prominent product liability attorney weighs in on the Merck issue: Was the settlement premature. 

This lawyer opines, "One can always second-guess, but it was the uncertainty of those pending appeals that helped drive the settlement.  With reduced uncertainty, while the number might have been smaller, there's less likelihood that the plaintiffs would have taken it.  Take Mark Lanier, for example.  How do you think he feels after having been spanked by the Texas Court of Appeals like that?  Rather then settle, his ego might demand that he fight (that is, take another case to trial and ring the bell again) rather than accept a reduced settlement number."

Is this a replay of the seeming ego and bad judgment in the case depicted in book and movie "A Civil Action?"

Did Merck Cave Prematurely? - Vioxx Wins in TX, NJ

Forever we will be debating whether or not the defense in the Rhode Island lead paint public nuisance trial II should have rested without putting on a case.  Likewise we will be mulling over if Merck attorneys caved to a settlement prematurely on Vioxx.  At the time of the settlement it had had a string of victories in jury trials.  Well, the plot just got thicker.

The company has had two more wins.  In THE WALL STREET JOURNAL Heather Won Tesoriero reports, "Merck & Co. scored wins in two Vioxx cases as state appeals courts in Texas and New Jersey threw out multimillion-dollar awards to plaintiffs who claimed the painkiller had caused serious illness and death."

Ashby Jones at the WALL STREET JOURNAL Law Blog is among the Vioxx-litigation watchers who are exploring the issue of too-soon a settlement.  Jones interviewed product liability specialist David Bernick at Kirkland & Ellis.

Bernick opines that Merck was right on the money to settle at that time.  He notes, says Jones, "At that point, there was a shared incentive to reach a global deal.  For that reason, you can't look at the track record that precedes or follows a settlement because it doesn't capture the dynamic facing a company at that point, which is that it won't be able to defend itself" in all the cases which it faces.

RI Lead Paint Litigation - Where Abatement Process Is

During the Rhode Island Supreme Court oral arguments on the lead paint public nuisance appeal, a question was raised from the bench about the abatement process.  The Justice wanted to know if that was still going on, even though this appeal was taking place.  The plaintiff answered: Yes.

A well-placed source informs us that, right now in the abatement process, "The Co-Examiners are continuing to conduct interviews. There is no deadline for the Co-Examiners to report to the Court on the Attorney General's proposed abatement plan."