Law And More

Coronavirus - Black Swan (that Citi Bank, et al. didn't factor in for legal industry in 2020)?

Darkness can fall fast.

And that can start with derailing the bull run of equities markets. From there it's no predicting how long it will take for civilization to again discern light.

Yes, the Coronavirus could be one of those Black Swans which Nassim Nicholas Taleb defined as unexpected developments which have unexpected major implications. The classic example is the internet. Time travel before that and there had been the Black Plague. 

All those expert organizations such as Citi Private Banking which analyze the legal sector usually don't speculate about a factor such as a Black Swan. The latest Citi survey did find increased pessimism among law-firm leaders about the global and U.S. economy. 

That decline in confidence in the business outlook could turn out to be a cartoonish understatement. A pandemic could put most commercial activities, including generating Profits Per Partner, on hold. A triage would take place, with only the humanitarian necessities being conducted.

That kind of what-if scenario isn't sci-fi. A society that is globally connected is uniquely positioned for Black Swans. The worldwide recession of 2008 wasn't classified as one because there had been precedent: The Great Depression. Also, it wasn't unexpected that the financial gameplayers could and would cause havoc. 

The World Health Organization is meeting tomorrow. It will assess if the coronavirus has already established a global emergency. 

Meanwhile, law firms have to consider how to protect their chief assets - the human lawyers - from a disease that is transmitted human to human. No coughing in the office? Postpone traveling to Asia to conduct business? Parachute back personnel in affected areas? And, revise 2020 and beyond anticipated PPP?

Here is a peek at the 2013 film "All Is Lost."

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Lawyers Replace Psychologists as High Priests - No, Harry Shouldn't be Analyzed

It had to come to this: Psychologists are analyzing Harry, who at this time is still a prince but maybe not for long. Here's an example from Daily Mail.

The story is too big - the biggest in the UK since the abdication of King Edward VIII - not to parachute in all forms of expertise. 

But the input from psychologists could be the weakest link in providing insight for the scope of this disruption. After all, the discipline of psychology as a form of treatment for distressed human beings has declined from the heyday of Freudianism.

The Ok, Boomer such as myself invested years, multiple times a week, seeking clarity and inner peace from psychotherapists like David W. Harder, Ph.D.

That was then. 

Now, in America the Litigious, we know we can turn to lawyers.

"Court TV" has tutored us in the language of law, the strongest points of law, and the rules of evidence.

We can belly up to the bar feeling confident about pitching our beef to a law firm to take on contingency.

 In addition to seeking justice, plaintiffs can enjoy a high profile in the media. The classic example is Gretchen Carlson who sued Fox News creator Roger Ailes personally.

Since legal action is a slow-mover, that spotlight can linger a long time.

Incidentally, Carlson continues to be covered by the media. Meanwhile, what a good feeling is correlated with seeking what's right via America's legal system.

Also, along the way came Prozac, et al. from BigPharma. There were also mindfulness, executive coaches, 12-step programs, and psychics. 

During that brief moment when psychologists made it their shot at fame to size up Donald Trump, so many smirked. Who really gave a damn (except the writers and producers of shows like "Criminal Minds") how those inner gears operated. What we paid attention to were what the lawyers were up to. This was so much so that some contend that triggered the surge of applications to law schools.  

Prediction: The lawyers on both sides of the ocean will provide the perspective on Megxit and its implications. 

 

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The Legal Sector & Wellness - 8 Alternates to Therapy In Boston and Around the World

Boston, the city of psychotherapists, is still stuck with the stigma against this formal mode of treatment for emotional distress and more.

In Boston Magazine, Tessa Yannone covers that.

That's unfortunate.

The Boston Metro area is also the setting for a top law school - Harvard. Throughout the student body of Harvard Law School, a recent survey documented, is essentially an epidemic of anxiety, depression, inability to get restful sleep, and excessive drinking.

In addition, the region houses successful legal practices. You can land a plum position in Boston or surrounding cities and suburbs.

Having on your "record" that you have been in psychotherapy can prove to be a flaming hoop you will have to jump through in order to be admitted to a state bar. There are initiatives against that but, currently, that's the way it is in too many states. 

In addition, although studies prove out that psychotherapy is effective, that doesn't mean it will be for you. There are so many variables at play.

I don't know if my three years of therapy, multiple times a week, and later on an intermittent basis with David W. Harder, Ph.D., based in Lincoln, Massachusetts, were or were not effective. Reconstructing the past is tricky business.

What I do know is that from the get-go, I should have demanded to have access to what he was putting in the clinical records. When I finally had a lawyer obtain those records I concluded, by the tone and content, we were not a good fit.

In therapy, as in just about every other aspect of life and work, fit is everything. If your insurance coverage involves managed care, you may have limited or no choice on the therapist you will be working with. You may or may not be able to interview, on a complimentary basis, several. 

Also, there's the cost of therapy. In law school, that could be absorbed in other prepaid fees. Once sprung into the real world of work, if your employer kicks in for your health insurance, the co-pay can eat into a budget. There even could be double-dipping. There could be a co-pay for the psychiatrist who's prescribing medication and also for the psychotherapist. No health insurance? A session could run three digits.

The good news is that there are no-cost or low-cost alternates to therapy. That doesn't mean they are appropriate for you at whatever phase of emotional distress you are at. If you feel you are becoming undone, those in the mental health field worth their salt mandate: Call 911.

But, if you have a hunch you can try other ways to navigate the whatevers, here are 8 tips.

Free, 24/7 confidential hotlines. Several of my clients who had lost jobs in the legal sector obtained immediate relief - and hope - by speaking with the trained human beings at the other end of the phone line at The Samaritans. In the U.S. the number is 212-673-3000. No, you don't have to be suicidal to contact those capable of deep listening. Sensing you are going through emotional distress is enough. Just let them know that's how you are feeling. Globally, through Befrienders Wordwide, there is also help.

Meditation. Research and experience indicate this is a useful way to calm the "monkey mind." Here is a free online video introduction to the basics by American Buddhist nun Pema Chodron. While meditating in a group can seem to increase its impact, there is no reason why a daily practice can't be done alone - any where - multiple times a day. Yes, before pitching to a key prospect, meditate. 

Exercise. Working out isn't just for body contours and a healthy heart. It's a natural remedy for clinical depression and anxiety. The trick is to incorporate it into a daily routine. Do that and the body will hunger for that kind of ritual.

A trusted friend 0r Fido. Those in the mental health field who understand healing will tell you that a close friend who knows how to listen and to maintain confidentiality can be SuperTherapist. The edge that person has is knowing what you're about. Other options can be the sponsor in a 12-step program, a stranger on the seat next to you during a plane flight/Amtrak trip, or your dog. Regarding the latter, because the four-leggers in your life are empathetic and non-judgmental, they can provide solid platforms back to hope.

Herbs et al. Bless the internet. You no longer need to purchase a book on what non-prescription substances can be effective. Here, for example, is a run-down of them. Some contend any effectiveness results from the placebo effect. The attitude of those who receive relief smirk and respond, "Bring it on." All forms of mental distress cause pain. Whatever reduces that could be worth experimenting with. Many of the natural treatments do not have the possible severe side effects of a number of prescription remedies.

Spirituality. Very different from formal kinds of religion, spirituality essentially entails a surrender to some force greater than yourself. That takes the burden off you for controlling every aspect of your life and work. You can get out of the driver's seat. No longer do you have to be hyperalert and compulsively focused on goals. Incidentally, this kind of "turning over" is the core of the Alcoholics Anonymous approach to sobriety. The joke there is: Being in charge of the universe is a big job and we're not getting paid for it. 

Psychics. Those with the powers to "read" a suffering human being are being embraced as the new therapists. Lawyers, listen up: To protect themselves from  lawsuits, most post the disclaimer that their services are for entertainment only. However, there is usually extreme earnestness in the encounters between them and those who reach out to them in-person, by phone, or through email. Their methodologies range from pure intuition to tarot cards to crystals. As with myriad other services, this field has its share of cons. It's necessary to ask around for a "legit." 

Coaches. More and more professionals are simply hiring coaches instead of interviewing therapists. Coaches are usually specialized. Those niches range from overall life to career. Most will provide short complimentary sessions for you to check out the chemistry. Since there is no stigma, this could be what to try first. Over the holidays, an underemployed 63-year-old lawyer came to me for help with getting more work. What we decided was her immediate need was for a life coach. 

What's labeled as "mental illness" could simply mean hitting the mid point of the continuum of stress. You could be heading toward impairment of the ability to function. So, if you perceive yourself as gravitating out of what's today's norm for stress, take action. That could be the now-traditional way of finding out what kind of therapy your medical insurance covers to lighting a candle and turning over your will to something bigger than you. Should you sense you are in crisis, call 911.

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Branded as Locations for Successful Suicide - Meme Contagion That Apparently Influenced Erin Pascal

Bridges in Manhattan

Roofs of some universities

A forest in Japan

And, now, a parking structure in Boston.

These have become branded as where suicides can be conducted in a successful manner. 

As Daily Mail tragically reports, on Christmas Erin Pascal apparently committed suicide by leaping off a parking facility in Boston. Before she took her own life, she is said to have tossed her two young children Alison and Andrew to their deaths. 

Pascal had been employed at Sanofi Genzyme in Cambridge, the powerhouse intellectual capital of the U.S. The media indicates that earlier she had had an argument with her husband.

There had been two other recent suicides, using that location. One had been in May. The other a few weeks ago.

In the legal sector, many recall the "cluster suicides" of middle aged lawyers in Kentucky. During a relatively short timeframe about a dozen lawyers took their own lives.

Researchers in Italy found that human beings influence each other, cell by cell. That's due to the dynamics of mirror neurons. 

That phenomenon could be the undertow which brings people out there where they decide to take their own lives - and maybe others too.

Johns Hopkins University professor Kay Jamison covers the phenomenon of the contagiousness of suicide in her book "Night Falls Fast."

Suicide can become, in a certain location or in certain circles, a meme with catches on. Then that spreads. 

The parking structure in Boston, owned by Northeastern University, could be doomed to be the designated setting for self-deliverance. Members of the legal sector in Boston who are experiencing emotional struggles should steer clear of it.

Meanwhile, The Samaritans provides a 24/7 free phone hotline for those in distress. That's 212-673-3000. No, the caller doesn't have to be contemplating suicide per se. It's okay to just really need another human being to reach out to. That might tame those "inner terrorists" for at least that day. 

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"Vickie Forrest et al. v. Johnson & Johnson et al." - Defendant Gets 8th Verdict in Talc in 2019

The jury in St. Louis Circuit Court ruled for the defense in "Vickie Forrest et al. v. Johnson & Johnson et al." 

As Bloomberg reports, members of the jury determined that Johnson & Johnson's talc product did not cause the plaintiff's ovarian cancer and the corporation did not fail to warn about any medical dangers.

Medical testimony showed no evidence of asbestos in Forrest's tissues. Her cancer could have been related to the medical condition of endometriosis. 

This was Johnson & Johnson's 8th win in talc cases in 2019. Earlier in the week it also had a win in Los Angeles Superior Court. In "Forrest," it had been represented by Skadden Arps and Nelson Mullins. 

However, there are still about 16,000 talc cases pending. 

The wins provide a solid opportunity to defend its brand in the court of public opinion. Part of that should be a campaign for tort reform. The message could be that it is all too easy to chase after a deep pocket like Johnson & Johnson in the court of law. Currently, for reasons ranging from pricing to the opioid epidemic, pharma has been positioned and packaged as the bad guy. 

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Post-Christianity - In Reason We Trust

Pope Francis leveraged his Christmas message to warn leadership in the Roman Catholic Church that, overall, the beliefs of Christianity are becoming increasingly irrelevant. 

Meanwhile, Gallup found that only about 50% of Americans are members of a formal religious organization. That's compared to 70% in 1999. 

Organizations such as the Secular Humanists of Western Lake Erie, led by Douglas Berger, are gaining traction, even in the states whose signature is evangelical Christianity. Here is my exclusive interview with Berger.

And, for the first time in what has turned out to be a very long life, I have stood my ground publicly: I stated I do not celebrate Christmas because I am not Christian. My current value system? Fluid.

The influence and power of Christianity had been profound. It underlies many religions, including, of course, Roman Catholicism. Businesspeople who have been through the ups and downs of their own professional life might put it this way: Christianity had a good run.

For more than 2,000 years, Christianity had been a dominant brand with large market share. In the communications industry, some might attribute that endurance to the platform of brilliant story-telling. The New Testament bears witness to the basic tenets of the teachings of Jesus Christ. As literary art, students of persuasion analyze the methodology.

How will the world of post-Christianity play out? No one knows.

Depending on the next election in the U.S., the evangelicals could begin to represent a fading ideology. Extreme conservatism could lose its hold throughout America. 

Parents would have to scramble to provide a fresh value system for their children.

Courts will have to pull down, finally, those backdrop signs of "In God We Trust." Trial lawyers will have to reframe opening and closing arguments which had been embedded with Christian assumptions about values.

And, those of us who have suffered as free thinkers could be left alone. Christians will lose the moral authority to pontificate what we ordinary human beings should do or not do.

Perhaps critical thinking can be taught in public high schools. That would negate the requirement of college to supposedly teach how to reason. 

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CBD Industry Encounters Regulatory, Litigation Headwinds

By 2022, forecasts Statista, sales in the CBD (cannabidiol) industry are projected to be at about $1.8 billion.

In 2018, they totaled only half a billion.

So, yes, growth is on a high upward trajectory.

But, as in the vaping industry, that can derail. Investors could get badly burned. Consumers could feel betrayed.

CBD is derived from the cannabis plant. It is being used as a form of alternate medicine.

Its best known for treating a rare form of epilepsy (Lennox-Gastaut syndrome). 

However, it's also promoted as a treatment for psoriasis, clinical depression, anxiety, general stress, and joint inflammation.

As even the mainstream becomes wary of the medical and pharma industries and there is concern about the side effects of prescription medications, America is experiencing an openness to trying out alternate medication.

However, rapidly, the industry has encountered headwinds, both regulatory from the FDA and in the form of class action lawsuits. That can impede the business possibilities. Eventually it could close off this form of alternate treatment.

In Bloomberg Law, the leadership at Perkins Coie law firm, including David T. Biderman, describes those developing obstacles. 

Because CBD is relatively new, the regulatory framework of the FDA is a work in progress. Currently, it has declared it illegal to add CBD to food per se or to nutritional supplements.

Essentially, some class action lawsuits have piggybacked on those mandates. Those reference the CBD ingredients. In addition, there are class action lawsuits from shareholders. Obviously, this is a gorwing niche for plaintiff lawyers. And they have the strong platform of FDA rulings to build their cases. In a sense, the plaintiff bar could determine the future of the CBD industry. The proliferation of jury nuclear verdicts demonstrates how effective plaintiff lawyers have become.

What Perkins Coie lawyers recommend to the industry is to be proactive amid the regulatory and litigation threats. That could include:

•  Paying lots of attention to labeling. Yes, it's increasingly easy to be caught in Failure To Warn legalities. 
•  Monitoring FDA regulations and conform the business to those changes. The situation is fluid.

Related to labeling, of course, is how those in the CBD loop promote their products in B2C.

Since I am in that loop as a content-provider, I am in the unpleasant position of warning website/blogging clients about what they are claiming about their products and the language they want to use. They face the same constraints as traditional pharma.

Reflection: The CBD industry can continue to take off or it could have the fate of "another vaping."

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Failure to Warn - The Cruel Illusion of Safety

She shouldn't have been walking alone near sundown in Manhattan.

Not a city girl, she shouldn't have enrolled in a college in an urban area.

She shouldn't have had such open body language, which invites attack.

Those are among The Lessons To Be Learned that some who love platitudes are likely mouthing off. 

Beyond those cliches is the reality that safety is no where.

Sure, there are relative degrees of that. There is the age-old advice of females never being alone in public places in cities. But, come on, my mother and younger sister were together outside their apartment in the New York Metro area and violently mugged. 

Safety is an abstraction, put together by those who make their living providing the illusion of no-risk to human beings who don't get it that life on planet earth is inherently dangerous.

That had been from the get-go.

In "Genesis," the brother Cain eaten up by jealousy offed his brother Abel.

Caveman could easily be murdered on the way home from hunting by another cave dweller or a bear who scored dinner.

English majors, in the days when those existed, found in the world view of William Shakespeare great darkness about what human beings do to each other.

Speed up time travel to 2019 and cars/planes/trains, taking selfies in high places, enraged/greedy lovers ("Dateline" made its brandname out of that), and domestic terrorists all can easily snuff out lives. 

In addition, there are what have been called The Inner Terrorists. Those are the intrusive thoughts which can propel human beings toward suicide.

Finally, it's out there how little science understands about that journey from hope to despair and then to taking one's own life.

The supposed classic on that "Night Falls Fast" by Johns Hopkins professor Kay Jamison raises so many questions. There are really no answers.

In the high-pressure legal sector, there had been lots of pontificating about what "killed" Sidley Austin partner Gabriel MacConaill. He had taken his own life. 

But, any lawyer with a scientific background would declare: Those cause-effect relationships being trotted out represent mere speculation. No one was in MacConaill's head when he decided to shoot himself or the months before that fatal act.

Come on, we don't know how to make ourselves safe from those inner terrorists, either. If we did, the global campaigns to prevent suicide would be more successful. 

A smart-ass could smirk: No one is going to get out of "all this" (i.e. life) alive. But that disrespect for conventional wisdom is about the only accurate observation regarding being able to keep alive a bit longer on planet earth.

The promise of safety should be made against the law. When iGens arrive at college, that laundry list of safety measures should contain a disclaimer that none of that is knife-proof, bullet-proof, or preventive of any versions of self-destruction. 

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AI as Recruiting Tool - Running into Government Scrutiny Headwinds

By now, it's fairly well known that AI, that is, artificial intelligence, is inherently biased.

After all, humans create the algorithms for AI and those humans use data which contain some or maybe a lot of bias. That's just the way it is.

One example of that had been the racial bias found in healthcare algorithms. U.S. senators such as Cory Booker are looking into those. 

So, the world should be appropriately skeptical of the use of AI in recruiting. So much is at stake in the hiring process, both for the individual and for the organization.

Recode published a major article on the advantages of AI in recruiting as well as the concerns of those in government, ranging from Congress and state legislatures to the EEOC, about what is called "automated decision making." That article is by Rebecca Heilweil. 

Those systems have become essentially end-to-end.

At the front end, they can determine where a help-wanted ad is placed. Already that has become controversial. It had been discovered that those placed on Facebook reflected bias against women and the aging. 

Next the algorithms can be used to choose the resumes which should be reviewed first - and those simply tossed.

Often now, the next step is an AI video interview in which factors ranging from language to facial expressions are assessed. Only at the very last phase of the recruiting process might there be an in-person interview. 

Along the way there might be AI personality assessment tilted toward predicting if this kind of professional will succeed at the organization, how long with that employee stay, and is he or she capable of being promoted. 

The criteria for those decisions usually have been derived from the databases at the organization. That is, historic information is being used to make current decisions. Of course, that immediately raises a red flag since everything keeps changing. 

According to LinkedIn, 67% of those in the recruiting loop find AI helpful. For any job opening thousands of resumes might come in. AI speeds up sorting through the first cut. In itself, that saves money. 

So, yes, this is an efficiency payoff front the get-go. But, some object that the sorting mechanisms could be unfairly knocking out of the box atypical applicants. 

Most of the major concerns about AI fall into three categories:

• Bias. It was found that an AI recruiting tool developed by Amazon (but not used) favored males over females. That was primarily because it had been developed from past employment data at Amazon. That had been compiled when the majority of employees were male.  
• Lack of transparency. Frequently the applicant being interviewed has not been informed that the process is using a video system, what is being assessed, and how will it be used. No consent might have been given. 
• No guarantee of accuracy. After all, hiring is a social process. AI, as it is now constituted, might not pick up nuance. 

Already, in Congress there has been introduced the Algorithm Accountability Act. There is a call for the FTC to review what's going on in the kinds of evaluations of applicants that are being made via video platforms such as HireVue's. 

The EEOC has received two complaints about facial analysis. 

In Illinois, soon to go into effect is the Artificial Intelligence Interview Act. Before the video is clicked on, there must be explicit notification of the process, consent given, and explanation about what is being focused on, evaluated, and interpreted. 

All of this is linked to the guidance established in 1978 by the Uniform Guidelines on Employee Section Procedures.  That has been the federal government's way to help organizations not have selection factors which negatively impact minority groups.

Among those protected groups is the older worker. Clearly, one has to ask: Can't the very existence of a video interview early in the process knock the over-50 job hunter out of the box? 

Full Disclosure: Over-50, I avoid all hiring processes for contract assignments and new client accounts which involve video. 

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NY State Bar Admission Application - Law School Deans Request Removal of Question 34

What does a bout of clinical depression when a college sophomore have to do with the ability to be admitted to the bar of New York state?

Well, currently, it could knock, temporarily or permanently, applicants to the bar out of the box. That's because Question 34 asks specifically about mental health. For that very reason, cautious future lawyers don't get treatment for mental illness. 

On two fronts this is being addressed.

As Law.com reports, 14 of out 15 deans of NY state law school have sent a letter to the Administrative Board of the Office of Court Administration. The request is to have Question 34 removed. Here is a copy of that letter.

In addition, NY state senator Brad Hoylman has introduced a bill to essentially accomplish the same thing. 

According to the National Alliance on Mental Illness, one in five experiences mental illness every year.

As is well known, globally, clinical depression has become as mainstream as the common cold.

Other more serious forms of mental illness, such as the bipolar condition, often can be managed with medication.

Usually the extreme forms, such as the delusions associated with mass shootings, impair the person in ways that rule out being able to attend and complete law school.

Incidentally, the prevalence of mental illness is not new.

Historically, so many just couldn't pull off that rite of passage from the cocoon of college to professional/graduate school, a real-world job, and/or marriage. One by one we members of the Class of 1967 "cracked up."

Sometimes it was a few months after graduation.

Other times it was during the competitive ordeal of advanced degrees. 

The irony is that stigma continues to be associated with psychiatric meltdowns and treatment. Shouldn't both be factored into living a life? 

In the novel "The Group," Mary McCarthy chronicled that brutal transition for females moving on from an elite all-women's college. The content still resonates. Although published way back in 1963, it still ranks relatively high on Amazon: 135,151.

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