Law And More

Kirkland & Ellis, et al. - Will Representing NRA and Other FIrearms Clients Make Them "Another Boies Schiller?"

As part of the NRA annual meeting in Houston, Texas, is a day-long legal seminar for lawyers associated with or who want to be associated with Second Amendment issues.

One presenter, reports Reuters Legal, has pulled out, without explanation. That's Kirkland & Ellis partner Kasdin Mitchell.

K&E has represented clients with firearms matters, including the NRA. One of its partners Paul Clement had argued before the US Supreme Court "New York State Rifle and Pistol Association v. Bruen."

As Law and More explains, that is about the right to carry a concealed weapon in NY state. The High Court has not yet issued its ruling. But few expect that to be delayed because of the mass murder in Uvalde. If there is a delay it will probably be to give time for the justices to insert a reference about Uvalde.

The reality that legal powerhouse K&E will not be participating in the NRA firearms seminar obviously raises this question: How much can defending clients with firearms legal matters impact reputational issues for law firms? That leads into the next question: How much could that hurt business?

It is impossible not to recall how Boies Schiller's representation of Harvey Weinstein threw the brand into chaos. The tipping point, of course, had been The New Yorker expose on how Boies Schiller was going about the defense. Next there was an outcry about how Boies Schiller co-founder David Boies was also representing startup Theranos. There may or may not be a correlation between those branding upheavals and the partner flight, along with the decline in revenue. Law and More covered how three more "stars" had left Boies Schiller.

The hits K&E and other law firms could take depend on the reach and influence of outrage about mass shootings. As Bloomberg Law documents, in 2022 alone there have been 213 of them. "Mass shooting" is defined as four or more injured or killed during such an incident. 

It is telling that K&E will not have an active role in the NRA legal seminar. It will also be interesting to follow the media reports on what lawyers do turn up at the seminar. In fact, that in itself could become a major media story in covering the NRA annual meeting.  Will the progressive media position and package the lawyers' entrance to the seminar as a kind of Walk of Shame? 

On the other hand, those with power might not be able to move the dial enough on outrage about Uvalde. Or, more to the point, not want to do that, not at all. Firearms are big business. The guns and ammo manufacturing industry in the US, IBIS documents, has a current market size of $19.5 billion.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

Trump's Power - Everyone Is Measuring It

"President Trump and the MAGA movement are showing signs of moving in different directions. By no stretch of the imagination is Trump’s base deserting him. But nor are those voters willing to simply do his bidding." - Niall Stanage, The Hill, May 23, 2022

The focus has long shifted from the real or alleged perils presented by Donald Trump to how much power does he still have. The answer is two-fold:  (1) He still has more power than his critics anticipated and (2) He is losing the ability to unilaterally control the MAGA movement.

That leaves progressives in an urgent state of coming up with strategies to create their own kinds of power. In that the Democratic Party seems to have defaulted to New York City Mayor Eric Adams. As Politico reported, he is the new messaging machine. 

At the Democratic Congressional Committee he advocated applying his own motto: Get Stuff Done. Yes, take action. He also was bullish on storytelling. Part of that was forcing the GOP to come to terms with their own conflicting stories. Yes, they are for law and order but they back off from adequate funding of law enforcement. 

The buzz is that Adams could put himself out there for US President in 2024. What operates against that is the escalating troubles in his own city. Violence is the dominant ethos. In addition, COVID has returned. Meanwhile, remote work has sent the commercial real estate industry reeling. 

Trump has established almost a mystical force field for his points of view. Traditional politicos don't know how to neutralize it.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

No, Karine Jean-Pierre - You Don't Read from a Script

"The confidence simply is not there, nor is the conviction." - Joe Concha, The Hill, May 22, 2022.

That's one assessment (damning) of the early performance of White House Press Secretary Karine Jean-Pierre. Concha sums that up as "amateur."

For example, she reads from a set script. Verbatim. That eliminates any attempt to engage with the media in the usual back-and-forth that generates insight about and maybe even fresh movement related to government mindsets and positioning on issues. Yes, what is being create is a closed system. Pull down the drawbridge and fill the moat with alligators. 

Eventually the media could decide to ditch those White House briefings and dig elsewhere for information and nuances. A sign of the disenchantment with Jean-Pierre would be the once-unthinkable: No journalist or blogger shows up the White House press whatevers. Instead there will be an email: Just send us the script.

The analogy is this: The rigid rhetoric and convoluted legalese which Big Law frequently leverages in its official communications and even on the law firm websites. That shuts down  any opportunity for a conversation. 

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

 

"Depp v Heard" - Not Since OJ Simpson Murder Trial Have Lawyers Been Such Celebrities + Have Down Cold Nuances of Defamation Law

Good luck marketing departments of law firms trying to get attention in the media. The dismissal of litigation the legal team might have obtained is likely not being noticed. Even if the head of the team is a brandname and the law firm is in the top 10. 

The preoccupation has been with the lawyers on both sides in "Depp v Heard." Yes, the focus on the lawyers' performance art has been as over-the-top, just as in the OJ Simpson murder trial. For decades there will be re-runs of that "Depp v Heard" courtroom theatre in thought leadership articles, documentaries, and more. For this version of a trial of a century there are streaming and social networks. 

For Johnny Depp the star players are Brown Rudnick's Benjamin Chew and Camille Vasquez. The latter, although an associate not a partner, has received more than 541.8 million page views on TikTok. As Law and More chronicles, the world has fallen in love with her aggressive objections and cross-examination. Chew, who had been with Big Law's Squire Patton Boggs, has developed a signature for his devotion to gummy bears.

For Amber Heard it's Woods Rogers' Benjamin Rottenborn. Previously with Kirkland & Ellis, Rottenborn has become infamous for screwing up. Insider gleefully notes:

" [Rottenborn] has struggled to win the popularity battle online. Early in the trial, Depp fans seized on an embarrassing slip-up that has since become the defining soundbite of the case: Rottenborn objecting to his own question while grilling Depp."

If juries are more influenced by likability versus evidence, Rottenborn might have done a disservice to this client. 

This trial has been set in play by Heard's 2018 The Washington Post Op-ed on being a survivor of domestic abuse. A warning to those who really don't understand the nuances of defamation law in that op-ed Heard never mentioned Depp by name. Also, it is reported that she did seek legal advice before publishing the personal essay. Yet here we are with the a trial that has sucked up all the oxygen in not only legal but also general media.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com.

"ESG" As the Second Language of Business, Politics, and Law

Job number-one in parachuting into a career or starting a new position is this: Picking up on the language. That is, acquiring linguistic literacy.

TALKING THE ESG TALK

As ESG (Environmental Social Governance) values dominate the business, political, and law-related conversation, it’s necessary to have the terminology down cold.

Law firm Paul Weiss provides a comprehensive free guide for every aspect of that. Here is that lexicon.

PAUL WEISS WALKS YOU THROUGH THE LANGUAGE OF ESG

And here are the major categories covered by Paul Weiss in its unique ESG lexicon:

ESG Terminology

Topics Commonly Covered

General Investment Considerations

Environmental Terms

Reporting on ESG Metrics

Financing

Legislative Initiatives

LEGAL SECTOR’S FIRST SUSTAINABILITY – ESG PRACTICE

Two-plus years ago Paul Weiss Chairperson Brad Karp envisioned the challenges business would have navigating ESG values. He became the early mover in designing a specialized law firm practice for that. That is Paul Weiss’ Sustainability & Environmental, Social and Governance Advisory Practice. Since then, as Law360 reports, other law firms have adopted that model.

HERE BUSINESS IS

It’s uncertainty which is among the major challenges for business in 2022. To inflation, surging labor costs, inability to raise prices enough to absorb expenses, stock price, and geopolitical tensions have been added ESG issues.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. Now and then she does freelance assignments for professional services firms such as Paul Weiss.

The Art of Non-Selling Sales: The Always Be There (second in a series)

Face it, the marketing-selling process consumes expensive resources. So, it’s no wonder that the brandname experts such as McKinsey & Company are full of systems how to approach that  more efficiently as well as effectively. Currently one system is about identifying where clients/customers are on their “purchasing journey,” then get right in there and sell when they’re in the “ready to spend” phase.

EXIT THE COMPETITION OF THE SELLING GAME

But that still gets you locked in the game of selling. For law firms, what we think of as “selling” is becoming increasingly competitive as demand normalizes, M&A is down, and IPOs remain stalled.

Isn’t it smarter to exit selling. Instead, try out non-selling sales. That is a great fit with the reality that Americans hate to be sold to.

THE ALWAYS BE THERE FUNDAMENTAL

This is the second Law and More article on non-selling sales. The first explained the non-selling sales secret of nurturing the strength of weak ties.

Here let’s focus on the second principle for non-selling sales. That’s The Always There Continuum. The Creative Resources Group points out that the traditional sales approach parachutes in most of the resources into the “ready to spend” phase. At the time, the Group hammers, “It may seem rational, but it’s hurting your business.” That’s because clients/customers “feel” the abrupt drop-off in attention. The solution” Establish a consistent level of attention. That is, Always Be There.

A MYSTICAL PULL FORCE

Here is the classic example of how that can play out:

“’I assume he doesn’t sleep,’ says the General Counsel [of a giant financial firm]. ‘Somehow, he’s always available when I call, and he has this great talent for making you feel like you’re the only client he’s working with.’” That’s a quote from SuperLawyers.

The “he” referred to is the iconic rainmaker Brad Karp, chairperson of Paul Weiss. Like former Disney CEO Bob Iger, Karp mystically creates a pull force. They listen. They withhold judgment. They help others to become smarter – or at least feel that way.

Essentially the business comes to them. Of course, there are some logistics. And afterward there is the hard work of delivering what clients/customers expect.

NON-SELLING SALES DURING 2008 -2009 CARNAGE

During the worst of times for law firms – 2008 -2009 – one business development tool which had been effective was directly from the non-selling sales playbooks. Chairpersons and partners picked up the phone. They reached out in a very human way. That was simply asking those on their networks how they were doing. No sneaking in sales pitches. What was palpable was their thereness.

CIRCLING BACK TO DALE CARNEGIE TEACHING AT THE YMCA

None of this is new. It’s been out there in America since Dale Carnegie began teaching a human-resources course at the New York City YMCA in 1912.. Then he packaged those fundamentals in a book: How to Win Friends and Influence People. When I left the Fortune 50 and hung out a shingle I enrolled in a introductory Dale Carnegie course with Michael Francoeur. That was to make the transition from being a corporate player to a human being who was there for others.

Connect with Editor-in-Chief Jane Genova at janegenova374@gmail.com. Now and then she does freelance assignments for professional service firms such as Paul Weiss. She had been a graduate assistant in Dale Carnegie Systems.

"Crossing the Line" in ESG Times - Disney's Chief Corporate Affairs Officer Geoff Morrell Steps Down After Less Than Four Months

"... Florida Republican Gov. Ron DeSantis attacked the company [Disney], saying it 'crossed the line' with its criticism [of 'Don't Say Gay’ legislative bill] ... if the past repeats itself, the bark will likely be worse than the bite." - Hannah Sampson, Yahoo, April 18, 2022. 

And things haven't calmed down since. 

THE “LINE” KEEPS CHANGING

But what had been that “line?” That’s the profound challenge business is encountering in navigating ESG.

The raw reality is that the line keeps changing. While that is in play so are careers. Disney announced late this week, reports Deadline, that the Chief Corporate Affairs Officer Geoff Morrell has stepped down from that position for personal reasons. Morell had been in that job less that four months. During those four months Disney has gone into upheaval and it remains reeling.

Initially progressives were the front lines pushing for ESG (Environmental Social Governance) values. Then onto the playing field ran conservatives - as well as shareholders and many more.

IN THE MOMENT …

Currently, the leadership at not only Disney but also Coca-Cola, Starbucks and a growing list of public corporations is coming undone in what might be described as "anguished confusion." What public stances should leaders take? What constitutes the line or line which shouldn't be crossed? So much of the interpretation of that depends on where power is most intense in that particular moment in time. 

The risk involves agitating, alienating, and/or generating organized opposition from myriad constituencies. They include government officials, the media, communities, employees, business partners, investors, universities, and recruits for jobs. 

IN-HOUSE LEGAL

Meanwhile, their in-house legal departments are also caught in the turmoil. Research by the Rock Center for Corporate Governance at Stanford University documented that the political and social positions taken by the chief executive officers are a major concern for the chief legal officer. Here is the analysis I published in O'Dwyer's Public Relations about that development. 

DECODING

Last January there had been a decoding of these forces in an article published in Corporate Counsel. That had been by law firm Paul Weiss.

Essentially the takeaway is: In-house legal has to create new mindsets and tools for identifying what constitutes the new lines being drawn. 

APPROACHING AND DOING LAW VERY DIFFERENTLY

Paul Weiss Chairperson Brad Karp and the law firm's Chief Sustainability-ESG Officer David Curran provided a 4-point guide for how in-house legal can get a handle on and actually manage the continually mutating issues. The 4 are:

Reinvent Playbooks. The conventional ways are no longer adequate. That is primarily because ESG issues spill over to multiple corporate departments and lines of business. 

They recommend:

"Legal teams must be involved with HR, investor relations, finance, and business units to encounter ESG issues. Lawyers are in an ideal position to coordinate disparate parts of an organization and fill important gaps."

Make Sure Department Members Understand the Unique Aspects of ESG. Because there are so many gray areas in ESG, traditional methods of conducting legal business have become anachronistic. Those old approaches, of course, are: researching precedent and applying law. What is needed is the ability to have an interdisciplinary mindset and experience leveraging that. Among other competences in-house lawyers need, hammer Karp and Curran are to:

" ... make sure public disclosures align with ESG goals, structure board committees to oversee ESG risks and opportunities, and develop systems for monitoring and measuring ESG progress."

Validate ESG Data. So much depends on that, ranging from conformance to ESG metrics to the criteria required for Sustainable Investments. The growth of that investment niche depends on how that data is configured.

 Karp and Curran posit: "Lawyers can pressure test their data using many of the same models and compliance frameworks developed to ensure that companies are in compliance with anti-corruption laws."

Be Aware of ESG Risks in Mergers and Acquisitions and IPOs. Much of ESG is still new to lawyers. Therefore, it is all too easy for them to "not look" where the risks can be to corporations in this new era of ESG values. They could miss what might not have been a red flag in pre-ESG times. Essentially, so much has changed. 

They warn:

"All it takes is one weak link in a supply-chain agreement or a board member's past bad behavior - to break the chain and put the company's reputation at risk."

CONVERSATION ISN’T ABOUT “ANOTHER COUNTERCULTURE”

So much of this comes down to talk. ESG is evolving into so many aberrant forms. No longer does the analogy of "Another Counterculture" apply. That has become downright misleading.

The language thought leaders use about ESG has to also change.

With a shift in language, soon enough will emerge the recognition that we may not know what we are dealing with in the moment. So, there will have to be fresh paradigms.

Over the years Jane Genova has covered major corporations. Now and then she does freelance communications assignments for Paul Weiss and a number of other law firms, both defense and plaintiff.

"The Good Wife" - Deposition as "talking"

In a brilliant move on "The Good Wife," the lawyer on Glenn Childs's team Wendy Scott-Carr conducts the deposition of Wyatt Stevens as "talking."  The opposition lawyers admit she's killing them.  This approach is right out of the pages of social media. 

In THE CLUETRAIN MANIFESTO by Doc Searls et al., "The Introduction" observes:

"Markets are conversations. Their members communicate in language that is natural, open, honest, direct, funny, and often shocking."

Smart lawyers always knew that no matter how wary those they depose or cross examine, the human connection or attempt to engage in a conversation can penetrate across the moat and through drawbridge.  I experienced that first hand when I was deposed by Cuban attorney Luis Manuel Alcalde in "Sherwin-Williams v. Motley Rice LLC, et al.," Case No. CV 09 689237, Court of Common Pleas, Cuyahoga County Ohio.

Alcade was representing defendant Motley Rice.  Of course, I had the moat filled with alligators and the drawbridge drawn up.  But he was able to pull me into a conversation with him that is normally a dry, hostile process known as the deposition.  No, there were no Perry Mason moments but there was a connection. 

Since there are fewer trials, instead of taking seminars on how to comport themselves in front of a jury, lawyers might enrol in seminars on the tone and content of social media. 

Dying for Attention: One theory about those offing themselves

We all know that lawyers have a significantly higher rate of suicide than the general population.  My theory has been that those who off themselves are, well, dying for attention.  They are making a public statement.  That statement could range from "You treated me badly" to "I'm a bad person."

Non-lawyer Mitchell Heisman brought that to the level of compelling performance art.  He offed himself on the Harvard University campus and posted online a 1900+ suicide note.

Since suicide activity has been documented to be contagious, including the how, we can expect more of the Heisman approach even in the staid field of law.  After all, he did get attention.

Lawyers getting $45/hr for doc reviews: That's classy compared to speechwriters offered UP TO $19/hr

Lawyers, you have no monopoly on denigration through low compensation for your special skills.  That $45 per hour for document reviews looks classy compared to the UP TO $19 PER HOUR for temporary work as a speechwriter in Washington DC.  Yes, Washington D.C., not a small city in Montana which has heard there are such entities called "speechwriters." 

Beacon Hill Staffing Group positions itself as setting "a new standard in search, career placement and flexible staffing."  It has posted an ad on Craigslist for a temporary hire who will "prepare speeches, remarks, bullet points, talking points, and press releases for Officers of the [trade association] and for the Vice President of Public Affairs."

The lucky professional who is hired, reads the ad, "will allow you to make money, use your skill sets, create relationships, take advantage of networking, and flexibility to continue a permanent job search!"  The exclamation point is theirs, honest.

That professional who is hired must have "2-3 years experience."

The last time there was a search for a speechwriter by a reputable headhunter firm in the New York Metro area the ballpark fee was about $90 an hour.  I usually bill that or $100 a minute for spoken text.

Incidentally, lawyers, Beacon Hill Staffing Group also has a branch: Beacon Hill Legal.  You can learn much more by visiting www.beaconhillsg.com.