Law And More

Jury Verdict in Derek Chauvin Trial Could Have Little Legal Impact - Appeal Strategically Planned Since Beginning

"The groundwork for appealing a possible conviction of Derek Chauvin, the former Minneapolis police officer accused of killing George Floyd, has been laid even before jurors weigh the charges." - Bloomberg Law, April 17, 2021.

The media outlets as well as law enforcement - city, state, federal - are geared up for the jury verdict in the Chauvin trial. Closing arguments are Monday.

But the expected response to the verdict - no matter what it is - could be just an unfortunate theatrical sideshow. That is, compared to the legal strategies which will probably be put in play soon after the verdict is delivered, if there is a conviction.

No, a conviction isn't in the bag. Juries tend to side with law enforcement. That could be even though the Minneapolis Chief of Police was probably the most important witness for the prosecution.

However, it there is a conviction, the real story in the ongoing Floyd tragedy will be the appeal. Not that the drama, which could become violent, will go away. Minneapolis and the rest of the United States should also be prepared for high-profile protests during the appeal. Actually that kind of questioning of the American legal system could spread globally.  

As for the planning for the appeal, the best defense is a proactive one. 

Bloomberg Law notes that from the beginning of the trial Chauvin's lawyer Eric Nelson has been strategically configuring the appeal. If Nelson is successful, there could be a new trial with a new jury. Delay is usually a plus for defendants. Emotions cool. Witnesses die or vanish. The media centers move onto another trial of the century. 

Obvious to even a second-year law student are the many grounds on which an appeal can be based.

They include:

• The video of the manner of the arrest of George Flyod essentially had almost universal viewing. Whether it influenced the jurors is a question.

 

• The settlement by Minneapolis with the family could have developed a mindset among some jurors that the city was essentially admitting a mistake had been made or even a crime had been committed.

 

• During the trial the jurors were not sequestered. That means they were aware of the Daunte Wright death. Also, they could have been aware daily of the tensions in the city about Floyd's death. Did some or all of that loop into their collective unconscious?

During the verdict, yes, the jurors will be sequestered. That, say experts, could speed up the decision-making.

But the verdict per se, if one of guilt, could be irrelevant to Nelson. He could have already moved on in his legal planning for an appeal. 

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Next Career Collapse: Scott Rudin

The emerging ethos - even in the highly competitive entertainment world - is: No one should have to take "this" to earn a living. The "this" is putting up with allegedly abusive behavior by the higher-ups or the powerful who loop in.

The latest career to collapse beccause of contentions about unacceptable conduct is that of Broadway and film producer Scott Rudin. 

As The Washington Post reports, Rudin is stepping down from his roles in the entertainment business. He has been accused of bullying and rages. Those have been said to include throwing objects at subordinates. 

Unlike others sidelined by the new demands for respectful treatment of employees, Rudin has done a mea culpa. Yes, he indicates he is going to work on himself.

On Broadway he produced the hit "To Kill a Mockingbird." In film, he gave us the provocative "No Country for Old Men."

The tipping point in the unraveling of Rudin's career probably had been Karen Olivio's refusing to continue with the musical "Moulin Rouge!" because of Rudin's behavior. 

In the UK, both at Deloitte and KPMG, executives have stepped down because of accusations of creating a "toxic" workplace. 

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MarketWatch As Dr. Phil - Lessons for Media Covering Legal

"My mother visited my sister, who didn’t give her breakfast or lunch. She makes $150K. Should I tell her to feed her guests?" - Quentin Fottrell, The Moneyist (reprinted by MarketWatch), March 30, 2021.

Is this the play-out of the old ratings game? The usual playbook is: The media outlet has to get outrageous to attract, hold and scale viewership or readers.

Some recall how the buttoned-down television star host Phil Donahue wore a dress on his talk show. More recently, the plot line of dark comedy on NBC "Good Girls" has become convoluted crime-driven.

The same phenomenon could be taking over the usually staid niche of advice about money. Increasingly, what is being posted as original or reprinted on MarketWatch mirrors the tone and content of an episode of the "Dr. Phil" show.

Much of that MarketWatch sensationalism loops into the kinds of interactional crisis situations psychologist Dr. Phil resolves on his iconic program. Those on MarketWatch range from stepchildren inheriting too much to the spendthrift spouse. 

The reality is that this kind of survival/scaling tactic isn't needed. Media players in the competitive legal niche are thriving just by presenting data-driven content not available elsewhere in an engaging way. It's boxed like storytelling. Those include Bloomberg Law and Law.com.

In contrast, Abovethelaw had drifted from unique to too-much. That included political ranting and predictable attacks on conservative organizations such as the Federalist Society. But, it pulled back in time to regain its clear identity as the advocate for law students and junior lawyers.

With so many regulatory issues emerging during the Biden Administration, media outlets that are not classified as legal are parachuting into coverage. They range from general business to political. Their challenge is to poach eyeballs from the legal media. Likely, to pull that off they could be tempted to go sensational. That is not recommended.

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Sheldon Whitehouse: A Master at Choosing the Right High-Profile Issues

The Editorial Board of The Wall Street Journal condemns U.S. Senator Sheldon Whitehouse's contention that the FBI investigation of Brett Kavanaugh was "fake." That allegedly occurred when Kavanaugh was nominated for the U.S. Supreme Court. Here is Whitehouse's letter to U.S. Attorney General Merrick Garland requesting a review.

But what isn't being adequately recognized is this: Whitehouse's accusation is getting him plenty of attention. And, attention is the currency of the 21st century.

 Whitehouse's core competence might just be that ability. Way back when he was a state attorney general in Rhode Island he conjured up the iconic lead paint class action public nuisance litigation. That helped create a national presence for him. Look where he is now and the power he has acquired in the U.S. Senate. 

It's irrelevant that eventually the state lost that lawsuit. What counts is that it was the right issue at the right time to be a platform for national office. It represented a fight for the health of children. 

Currently, he is a member of a number of powerful committees. They include the Judiciary, Budget and Finance. 

Increasingly, the power game mandates extreme skill in media relations. That can override anyone else's power strategies and tactics. Had journalist Hedrick Smith penned his book "The Power Game" right now he likely would have devoted the lion's share to managing media. 

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Robert Aaron Long - Unfortunately, Another Star May Have Been Born

There is that pull between a free press which is a competitive business and the need not to glamorize crime. 

The story will be published, likely in all its horrific detail. But there will be lip service paid to the concept of journalistic restraint. After all, no one wants to return to the era of "yellow journalism."

So, the story of alleged murderer Robert Aaron Long is and will be big news. 

It's crude but reality to position and package this as: A star has been born. Anyone who had watched enough episodes of "Criminal Minds" has a hunch that Long might be enjoying the attention he is getting. Indulging in psychobabble it could be conjected that gaining celebrity could have been an unconscious or conscious motive. 

No way would the media outlets be persuaded for the overall public good to not cover sensationalistic crimes of this type. In that coverage, the alleged miscreant would play a central role. Yes, the public has a right to know. And, business demands it. 

However, it's not unthinkable that in these violent times a new code of ethics could be negotiated between the media and law enforcement to limit coverage. A different type of sandbox could be created to play in. Perhaps through a lottery one media center would be assigned the entire story. Then the suspect's face would not, to use the cliche, be all over the news. 

Sure, experts in criminology and experts in mental illness could develop case studies. But the code of ethics would deter using the devices of what is called as "narrative nonfiction." The mission of science would be served. The objective could not be to create a best-seller.

Those who perceive themselves as having nothing to lose could connect the dots and decide they have an identity and fame to gain. All they gotta do is go out there and unleash carnage.

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Elizabeth Holmes Pregnant - Criminal Trial Delayed from July 2021 to Jury Selection on August 31, 2021

"Theranos founder Elizabeth Holmes’s criminal trial is being delayed again after her lawyers and prosecutors revealed in a Friday court filing that she is pregnant and due to give birth in July." - Sara Randazzo, The Wall Street Journal, March 12, 2021.

So, both sides have agreed that jury selection will start on August 31, 2021. 

This development is no surprise. At least to those who perceive Holmes as possibly quite skilled in manipulation. 

First of all, giving birth delays the trial. Delay is good for the defendant. Already former Theranos board member George P. Shultz has died. It was his grandson Tyler who had attempted to be the whistleblower about what was allegedly going on at that finger-prick blood-testing startup. 

With a mother who has given birth and a baby looping in, delay can go on much longer than the end of August. There could be physical or mental illness (.e.g. post-partum depression) for both mother and child. 

Secondly, from the get-go, the media outlets have to factor in this potential new life and the health of the woman carrying the fetus. Implicitly there could be an attempt to prevent unnecessary stress.

And, will the existence of a child become an issue in sentencing? Especially beneath the level of consciousess. Major emotional and social issues have been incarcerated mothere separated for long periods from their children.

No ambiguity: The Elizabeth Holmes saga has taken on a new dimension. 

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Bestseller Interrupted - Andrew Cuomo's "American Crisis: Leadership Lessons from the COVID-19 Pandemic"

"The publisher of Gov. Andrew M. Cuomo’s book on his leadership during the pandemic said it had stopped promoting the title because of an inquiry into the withholding of data on the deaths of nursing home residents." - David Goodman and Jesse McKinley, The New York Times, March 8, 2021.

That publisher is Crown Publishing Group, a division of Penguin Random House.

The book is "American Crisis: Leadership Lessons from the COVID-19 Pandemic." It was published in October 2020. And, it was positioned and packaged as Cuomo "in his own voice."

That voice no longer resonates as the sound of trusted leadership during upheaval - medical, economic, social and emotional. 

Crown has axed the plan for reprinting the book and issuing it in paperback.

It is unknown how much money Cuomo did earn from contracting to write the book. In addition to the money, though, he had the opportunity to do an apologia of his decision-making - some of it controversial even when his brand was riding high. 

But prior to the scandals sales began to decline because the pandemic fallout worsened in the state. As William Shakespeare hammered in his dramas: The crowd is fickle. Julius Caesar certainly experienced that. 

 Amazon has not yet registered the sales disaster. The book still ranks on Amazon at 14,522. Any author would kill for that kind of showing on Amazon. 

1,390 readers took the time to rate the book and comment on it. They gave it almost a "5" out of a possible "5." 

Given the art and science of reputation restoration in America, Cuomo can still land on his feet. Or if he is knocked off his feet, he can have a comeback. He had pulled one off in 2002. It was then that he said the wrong things and had to withdraw from the New York governor's race. 

Like his brand or actually a reminaged brand, his book can also be given a second chance. However, right now the situation can best be described as "Bestseller Interrupted."

Those observing this unraveling could take the zen stance: Clear thinking, don't know. 

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Joshua Schiller Arrest For Alleged Domestic Violence Triggers (voluntary) Internal Probe at Boies Schiller

""Boies Schiller Flexner has hired an outside lawyer [the firm is Perry Guha] to look into the domestic violence case against Joshua Schiller, the son of law firm cofounder Jonathan Schiller and one of the leaders of its California operations." - Bloomberg Law, March 3, 2021.

Boies Schiller wants to review underlining facts. At Law.com, Dylan Jackson reports:

" ... Joshua Schiller ... has continued working with clients despite a leave of absence the firm said he took after he was arrested following an alleged domestic violence incident ... according to three sources with knowledge of the firm. The firm 'rejects the claims' that he has not honored his leave of absence."

As many in the legal sector know, on January 14th, in Ross, California Josh had been arrested for alleged domestic violence. His wife Melissa Seibel Schiller had visible bruises. But they were not assessed as serious. 

For his own lawyer, Josh has retained Douglas Horngrad. His objective is to have the charges dropped.

Meanwhile this is more shade thrown on the beleagured Boies Schiller brand. To use the clicle, it's been a perfect storm of negative developments. Those range from partner flight to bad media about how David Boies, the firm's co-founder, represented convicted sex predator Harvey Weinstein.

More negative media coverage directed at David could be coming in July 2021. That's when "U.S. v. Elizabeth Holmes" goes on trial. David had been on Holmes' board of directors at Theranos and simultaneously had represented her as a client. In the book "Guilt by Accusation," lawyer Alan Dershowitz labeled that dual relationship as a conflict of interest. 

Given all the pent-up demand for a juicy trial, "U.S. v. Holmes" could catch world attention. An added attraction is that the defendant is a female. The last time the world came to a trial involving a female was when Ellen Pao had been in a gender bias lawsuit against her former employer Kleiner Perkins. That was "Pao v. Kleiner." Actually the case was weak but the attention was over the top. The defendants were totally acquitted. 

During the past few years the goings-on at and around Boies Schiller has provided absolute schadenfruede in myriad circles. Yes, many recall the BloombergBusinessWeek gush article about David back in 2015.

As poor Julius Caesar found out and William Shakespeare played out: The mob is fickle. 

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Being The Executor - Probably Not for Amateurs (including the theatre)

Old-line television shows like "Perry Mason" had scenes in which family members challenge the provisions of an estate. Soon enough a murder is committed. 

Well, that drama can play out. But it might not be all that typical. At least not with small estates, that is, those with few moving parts and not a lot of financial value.

Your aging sister might ask you to be what is called the "executor" of her final financial affairs. That entails everything from carrying out the provisions of the will to filing her last tax return.

There is an emotional component to this. No, she doesn't have much. Her assets consist of an investment fund of less than a $100k on which she designated her church as beneficiary. In her apartment - she had opeyed her financial planner and sold the house years ago - there isn't much of financial value. But the little she has she holds dear. She wants what follows her life to be as orderly as what went before. She trusts you.

It's hard to say "no." That's even though this MarketWatch article, derived from Nerd Wallet, warns of the perils of being an executor. With a small estate, even those cautions apply. With a large estate, the takeaway seems to be: Turn it over to the professionals.

MarketWatch points out pitfalls.

• Hours put in and the long period of time involved in executing last financial wishes. You could be investing 540 hours of your time. The average period to complete the transaction ranges from six to 12 months. Is there a provision in the legalese which provides payment for you to carry out this task?

• Difficulty locating financial assets. You may be only a bit aware that your sister owned part of a horse farm in New Mexico. The portion was small. But it has to be settled. So, you have to become a sleuth and hunt through the documents. Then make contacts. Then find out the next steps. Sell the small interest?

• Danger of being sued. You duty is called "fiducirary." You could be accused by those who want a piece of the pie or are simply wary of not carrying that out. The example MarketWatch provides is not securing the premises after death and items are stolen.

In short, whatever involves money and the law is serious business. Ask yourself: Do I want to deal with this business?

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Crisis Fatigue, Client Push-Back on "Windfall Profits" - The Machiavellianism of Law Firms in 2021

"Big Law had a (mostly) happy story in 2020. Firms and their staff rallied around a previously unimaginable crisis, using urgency and adrenaline to overcome adversity and produce a banner financial year. But how do firms deal with a potentially drained workforce and maintain that level of effort as the urgency wanes?" - Patrick Smith, Law.com, March 1, 2021.

Over the centuries Machiavellianism had taken on a bad rep. But, at its core, it represents enlightened self-interest, played out with skill. So much of law-firm life, at least in the big leagues, is about that. 

And, actually it probably was an Machaivellian ethos which was the underpinning of the extraordinary unified actions from the March dawn of the pandemic to the end of 2020.

Had not all members of the law firm pulled together myriad types of performance could have fallen off the cliff. Massive layoffs of lawyers, at all levels, could have happened. But they didn't.

Instead, the law firms proved Hugh Simmons wrong. He had predicted another 2008 - 2009 in terms of reductions in force of lawyers.

In 2016, Kathryn Rubino at Abovethelaw finally described what being  cast out from Eden had been like for thousands of those lawyers. Many never were able to make it back to practicing law. By time of the recovery, law firms recruited new graduates from law school and laterals with a book of business. No surprise, they were labeled The Last Generation.

But little was lost during the last crisis. In fact, the profit poured in. Many associates received off-season appreciation bonuses. Okay, staff got the boot. However, that was expected, given technology. Also WFH lawyers had to get the hang of fending for themselves in what previously had been administrative tasks. 

Also, along the way, there was a pulling together of myriad law firms to provide help to the victims of COVID-19. Brad Karp, chairman of Paul Weiss, led the unique COVID Relief Center. Other Paul Weiss pro bono initiatiaves were in racial and social justice. There is that old adage: Doing well from doing good. For 2020, Paul Weiss had double-digit growth in revenue.

If law-firm players are as shrewd in Machiavellianism as they should be, they recognize they will have to be even more of that in the transitional 2021. Things are different this year. Everything from firmwide exhaustion to client pushback on the "windfall profits" of 2020. New perspectives must be developed. New behaviors constructed. 

So jarring could that transition be that an out of the box associate might pen (anonymously) a 2021 version of "The Prince." So what if found out. Anonymous Lawyer Jeremy Blackman went on to an amazing new career path. Some might remember how he derided the partners' enthusiastic announcements that hot chocolate would be served on the worst of winter days. 

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