Law And More

Michelle: America's new pop-culture export

Forget agita about music and film as America's pop-culture exports.  We now have Michelle Obama.  This phenomenon could keep America Inc. humming for years. 

The only glitch could come from, ironically, her new hometown of Washington D.C.  The power conscious in both the Democratic and Republican parties could attempt to reign her in.  As an icon she's a threat to all of them.  That's because they might have to cave to her husband's agenda in order to preserve global political stability and get the world economy moving in the right direction again. Should Michelle get pregnant, her aura will explode.  Anticipate dirty tricks to undermine her as a leader, role model, wife and mother.

Breaking that $160+k - Allen Makins cuts 1st-yr associates/new hires back to $145k

This is historic.  It's the breaking of that $160+k which became standard salary for new hires in BigLaw.  Today, Allen Matkins announced it cut both first-year associates and new hires back to $145K.

Now that it's done, we can anticipate reading very soon on Abovethelaw.com about other top-tier law firms also reducing associate and new-hire compensation.  This gets them off-the-hook from paying those boom-day high salaries.  This move could even boost PPP.

Blowing Trials, Job Interviews? - Attend Open Alcoholics Anonymous Speaker Meetings

"We need to attend several Alcoholics Anonymous Speaker meetings. Open ones, and there are plenty of those."  Open AA meetings mean non-alcoholics can attend. 

That's what I tell lousy presenters who come to my communications boutique on their own or under duress from their employers/colleagues.  That's what I long to advise attorneys who are performing poorly in trial work as well as in job interviews.  Yeah, this is a digital age but most things come to us through how we put ourselves out there in the flesh.

Yes, I'm always on the money.  After about three or four speaker meetings, these under-achievers in public speaking not only get it but incorporate that it in their presentation strategies and tactics.

Here's the it:

• Speaking from the heart trumps everything else - research, credentials, network of contacts, and even charisma.

• Sharing experience, strength and hope trumps monologues about points of anything, including law. 

• Mirroring trumps standing out.  Every successful salesperson knows to enter the mindset, feelings, and mannerisms of the prospect.  This phenomenon now has a name: Mirror Neurons. Here and in the book "Mirroring People" by neuroscientist Marco Iacoboni you can settle any doubt you have about how we're wired - and that includes primates - to imitate each other.

• Wanting to be helpful trumps any other goal, such as winning a trial, getting a job/promotion, or closing a deal.  Everything in the oral address should be perceived by the audience as trying to be helpful to them.

The schedule of AA meetings is often listed online or you can contact your local AA office.  When you're at your first meeting you can pick up free a schedule book.  There is no cost for attending.   

Determination as Reckless - Lessons for unemployed lawyers from the Wittgenstein Family

Of those managing partners interviewed by CITI PRIVATE BANK LAW WATCH, 64% indicated things are going to get worse over the next six months and not recover any time soon.  Consultants on the legal industry predict that recovery will bring a very different kind of law business - downsized, less lucrative, managed for more cost-efficiency. 

Those changes, long overdue, are finally happening because, as Steve Lohr documents in THE NEW YORK TIMES - which itself isn't morphing fast enough - crisis "can serve to sharply accelerate trends already under way." Meanwhile the layoffs  continue.  Today they were announced at Reed Smith, Manatt and Stroock.

Yet, in the face of all this, too many unemployed lawyers remain determined to find a comparable job in the legal profession.  Under other circumstances that fierceness about a goal might be laudatory. But, given the pessimistic indicators on all fronts, that determination might be downright reckless. 

When the academic market for humanities professors collapsed in the early 1970s, those who remained determined wasted their best career-building years as gypsy scholars, in survival jobs to wait out the downturn in demand, and publishing dreary academic papers that, like Father McKenzie writing sermons, no one would hear.  After two years of determination, I experimented with other career paths, failed fast, and wound up in corporate speechwriting and ghostwriting. 

An excellent lesson on the perils of determination is writ large in the new book "The House of Wittenstein: A family at war" by Alexander Waugh.  This clan, which produced the breakthrough philosopher Ludwig, also generated multiple suicides, severe breakdowns, and unhappiness that tended to drag others down in its net.  The patriarch Karl, a prototype of business tycoon Joseph Kennedy, was hell-bent on his sons following him in commerce and the rest of the brood dancing to the tune of his values.  Those who didn't actually self-destruct, such as Ludwig, were preoccupied with checking out.

Can the intensity of determination be replaced with the passion for experimentation - at least in coming up with work that suits us and pays decently? No matter what our chronological age, our former or current career path, or our prospects, good or bad, we are being pushed to remake how we approach earning a living. At the very least, we will be working in more settings and for shorter periods of time than we anticipated.  We will have to leverage technology, which is mutating, for our employer's and client's advantage.  We could lose everything if our industry collapses.

Is the 21st century mindset trial and error?  Among survivors like Barack Obama, T. Boone Pickens and Arianna Huffington this seems the only way to see a career path.

Employee Rights - The French Way

Unlike American workers, French ones who perceive they're not getting a fair deal, don't sue.  They hold bosses hostage. 

The third recent incident of that, reports David Jolly at THE NEW YORK TIMES, occurred at the Caterpillar plant in the French Alps.  The dispute was over severance packages.  Worldwide Caterpillar had announced 22,000 layoffs. At that particular plant, about 733 workers will be cut.

This sort of performance art can be played out in Europe which is employee-protective.  In the more capitalistic U.S. we go the way of Ledbetter legislation and sue the bosses.    

RI Lead Paint - Defendant Reimbursement 2.0

That $240,000 which Rhode Island Superior Court Michael Silverstein ruled had to be reimbursed to the defendants in the RI lead paint trial is small potatoes.  That covers administrative costs incurred during the Abatement Co-Examiners Report.

The real money that those defendants, including Sherwin-Williams, want to be compensated for is those millions spent over nine years of litigation for sundry processing expenses such as transcripts and copying fees. A lot was processed.  As Associated Press writer Eric Tucker reports, the time has now come for the judge to "decide whether the state must reimburse the companies for the money they spent defending a lawsuit that accused them of making and selling a toxic product." Last July the RI Supreme Court overturned the verdict against the defendants Download Statev.LeadIndustriesAssoc.,Inc.

Of course, this push for reimbursement is a powerful deterrent.  Those considering this sort of lawsuit will now consider the double risk: Not only could they lose, they could wind up compensating the defendants for millions of dollars. 

But the issue that lead paint watchers are most interested in is:  Will the state of RI, as plaintiff, or will private law firm Motley Rice, as contingency attorney, wind up paying this money?   The state of RI, notes Tucker, "faces a roughly $360 million budget deficit for the fiscal year ending in June, which means there could be little money to spare for reimbursement."

So, eyes - gleefully - turn to Motley Rice. In the contract between the state of RI and Motley Rice, the latter agreed to bear "all costs and expenses of prosecuting" that litigation.  In exchange, the firm could receive about 17 percent of what money the plaintiff recovered if it won the case.  Motley Rice, through its attorney Jack McConnell, says Tucker, contends "We certainly never offered, intended or agreed to pay defense costs in the case."

Will Defendant Reimbursement 2.0, if the judge approves this second round, boil down to duking it out about contract law?  Those supporting the defendants have been going over the contract Motley Rice signed with a fine-tooth cone.  No surprise, contract law is one of the first things 1Ls learn in in law school.

Now it's Pistachio Products - 1 million pounds to be recalled

Even at his most intense, plaintiff attorney Bill Marler of Marler Clark couldn't have predicted yet another nut recall for suspected salmonella contamination - so soon after the peanut one.  This time it's pistachio products.  And this time, at least so far, 1 million pounds will be recalled.

In THE WALL STREET JOURNAL, Jane Zhang reports that the FDA instructed consumers not to eat products with pistachios.  Health authorities are investigating Setton Pistachio of Terra Inc., California.  According to FDA associate commissioner for foods David Acheson, this possible contamination is in no way way related to the one involving peanut butter paste made by the Peanut Corporation of America.

On his blog, Marler notes that several illnesses have been reported which may be linked to pistachios from Setton.  But that hasn't been confirmed. Marler will issue updates on this situation.  Likely, he will also present his thinking, as he did before Congress, on why these food-contamination outbreaks keep happening Download Testimonywaxmanfoodsafety.

Disclosure: Now and then I do digital editing for Marler Clark.

Law School - A lesson from Hyundai, JetBlue, Bank of America

Law school, as does all of higher education, pushes all the risk on consumers.  Yet, there's no labeling: This degree may not yield an ROI, ranging from securing a job to holding onto it to climbing the ladder. 

Maybe that should change. In their article in the April 15th edition of THE NEW REPUBLIC, Jacob S. Hacker and Elizabeth Jacobs praise  that Hyundai, JetBlue and Bank of America are sharing risk with consumers.  If the latter lose their full-time jobs, the companies will take back the car, refund the airline ticket, and hold off on the mortgage for up to a year.  Couldn't higher education do something similar to spread the risk involved in the enormous investment students and their families make in pursuing degrees?

Unemployed MBA Matthew Vultro muses in THE WALL STREET JOURNAL's "Laid Off and Looking," that he "can't help but feel like education is the biggest scam going."  He even hedged his bets by obtaining his degree at night while he worked full time.  Yet, he perceives no value derived from it.  As a swim coach, he advises youth to find something they love to do, do it, learn as much as they can, and probably degrees or the lack of them will prove irrelevant.

Perhaps the whole higher education industry, like banking, should be brought to the woodshed, spanked, and warned to be accountable in the future.  Better yet, maybe it should be restructured to facilitate apprentice programs.  That approach to learning the law worked just fine for Abe Lincoln.

Hacker and Jacobs observe, "We're not just facing a short-term financial crisis; we are facing a fundamental shift in our economy that has pushed more and more risk onto Americans' backs." Too many, including unemployed JDs with heavy debt from student loans, are breaking under that unfair burden.

Fried Frank Cuts 41 Associates - But that's no longer the story in Post-Wagoner Era

Abovethelaw.com reports that Fried Frank has cut 41 associates.  In addition, it reduced its summer program from 12 to 10 weeks and requested incoming associates to defer their start date to the fall of 2010.

But layoffs, individual or industry-wide, are no longer the story.  Not since GM Chief Executive Officer Rick Wagoner got his walking papers.  GM was The Establishment.  Now the story is: Who among The Establishment or What Establishment institution is next?  Heads of BigLaw and well as BigLaw as an entity can vanish.

Today, for example, NEW YORK Magazine speculates that The Next could be Citigroup's Vikram Pandit and Newser.com counts out the final days of Pinch and The New York Times Co.

Clearly, The Establishment became so established that it ossified.  The new economy, especially since it's increasingly driven by digital, has a speeded-up [read that: Hypomanic] metabolism.  No The Establishment figure has the game to think/act so wired.

"CA SC has clear precedent precluding govt hiring private attorneys on contingency," Inside Beltway Attorney

Contingency, as used by government entities, continues to grab U.S. law by the throat, on both the defense and plaintiff sides. Pending before the California Supreme Court is a review of that in the Santa Clara lead paint public nuisance case.  Last week defendants submitted their replies to the plaintiff briefs.

Here the Inside the Beltway attorney opines, off-the-record:

"Unlike Rhode Island (and note that its expression is, practically speaking, dictum), the California Supreme Court has clear precedent which precludes municipalities hiring private attorneys on contingency (or, for that matter, rewarding local enforcement official monetarily based on the number of citations issues, etc.) where public policy and the duty of prosecutorial neutrality is going to be inherently skewed by the profit motive.

"The issue is whether it is inclined to now change California law, and accept the appellate court's reasoning that the government's claim of sufficient control over the contingency lawyer mitigates this inherent (pecuniary interest) conflict, especially in light of the need to employ 'expert outside counsel' to protect the public interest.  (Expertise, in this context, translating into the ability to market your service to the government as a financial and political 'no lose' proposition, constitutional and rational public policy strictures aside.)"