Law And More

Style - Will Public Weeping Become Symbol of Personal Depth? (remembering unfortunate Ed Muskie in New Hampshire)

"Biden cries during farewell address from Delaware ahead of inauguration, says 'we should be introducing' his late son Beau as president instead'" - Jake Lahut, BusinessInsider, January 19, 2021

Style keeps mutating. The latest introduction could be the accidental or planned flow of tears which signals great personal depth. The release sends the message that the person is a human being with plenty going on internally. 

Currently, President-elect Joe Biden is the one crying.

Obviously, optics have come a long way since Ed Muskie was knocked out of the race for U.S. President because of alleged tears in New Hampshire in 1972. Then, any display of tears (especially in the workplace) had been verboten.

Reflection: Seize changing stylistics to give your personal brand the edge.  

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Play-Out of Shakespearean Comedy: Rudy Giuliani Diagnosed with COVID-19, Taken to Hospital

Beneath the frothy plot lines, the comedies of William Shakespeare were dark.

Following them was the anticipation of a play-out of a tragedy. 

Today's developments mirrored that pattern.

The respected prosecutor, mayor and practicing lawyer Rudy Giuliani had become a kind of court jester in the Administration of Donald Trump.

His antics seemed to provide distraction from what that Administration was up to. 

During the COVID-19 panic, he took on the ridiculous role of going maskless. That fits with the Administration's ethos of supporting individual rights over society's need to protect itself from infection  from the virus through masks and social distance.

Well, as in the Shakespearean comedies, the fool gets his comeuppance. Mediaite reports that Giuliani has been diagnosed with COVID-19. He had been taken to Georgetown University Medical Center.

Reflection: How many of those in America send get-well wishes to Giuliani? At age 76, he is in a high-risk category. There is fear that he spread the virus to many others.

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Nicholas Gravante Jr. Leaves Boies Schiller for Cadwalader

"The law firm Boies Schiller Flexner LLP is losing one of its leaders, Nicholas Gravante Jr., less than a year after the firm tapped him and another lawyer to help build a future for the firm beyond its founder, famed litigator David Boies." - Sara Randazzo, The Wall Street Journal, December 2, 2020.

Gravante, along with three other Boies Schiller partners, are departing for Cadwalader. That brings to about 60, the number of partners who had left Boies Schiller in 2020.

Among the 60 had been another leader in the firm - Karen Dunn. She exited for Paul Weiss. Her new mission includes establishing a prominent footprint in Northern California for Paul Weiss' technology practice. Landing that lateral enhanced Paul Weiss chairman Brad Karp's aura as a dealmaker. 

In the court of public opinion it is a fundamental that everything sends a message. The departure of Gravante, who was designated to be Mr. Fixit, sends a whopper of one. The gallows humor, for those who enjoy platitudes, could be that the last partner to leave Boies Schiller should shut off the lights.

As recently as 2015, at BloombergBusinessWeek, Paul Barrett was falling over himself praising David Boies' skills both as a litigator and an entrepreneur. The latter is rare in the top rungs of the legal profession. Overall, lawyers tend to be risk-averse.

Then, Boies began making too many wrong moves, at least in the perception of a noisy public and media. Those ranged from how he represented Harvey Weinstein to the conflict of interest of being on Theranos' board of directors and simultaneously representing its founder Elizabeth Holmes. She will be on trial in March in the criminal case "U.S. v. Elizabeth Holmes."

Some will recall the it has been rumored that Boies Schiller is having cash flow problems. 

And, it's not only partners who seem to be unhappy. On Glassdoor, in reviews from lower level employees, the rating was 3.1 out of a possible 5. That tends to be lower than the Glassdoor rankings of other prominent law firms.

For the media, Boies Schiller obviously is the gift that keeps giving.

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The Politics of Thanksgiving in COVID Time - NY Gov Andrew Cuomo Takes Refuge in Protestant Ethic of Work

There were once English majors in America. Incidentally, the number of those majoring in English in college is down 25.5% since the Great Recession, according to the National Center for Educational Statistics. 

Back then, the meme we continually encountered in our research and for the literary magazine was the Protestant Ethic. Essentially that constituted the belief that both a life of satisfaction and redemption from sin come from work. Along the way the U.S. brand of capitalism would thrive. 

So many early primitive dramas in American culture ended with the miscreants going off to work, proclaiming great resolve to do things right this time. All's well that ends well. In early America, it was okay for the for the former sinner to become very wealthy.

So, it's predictable that the savvy Governor of New York Andrew Cuomo would announce he was working Thanksgiving. That represented a change of plans from hosting dinner that holiday with his mother and two of his daughters. 

As the Daily Mail reports, that schedule triggered a massive outcry. Cuomo was tarred and feathered in the court of public opinion for planning to do what he preached others shouldn't do: Have a family gathering as COVID-19 plays havoc in that state and across many of the other states. 

Yes, Thanksgiving has become politically weaponized. That's obvious.

What's also obvious, especially to us English majors who continue to be proud of our liberal arts backgrounds (and so is Bard President Leon Botstein as he indicated last night on PBS) is how fickle the crowd is. That is a sustained theme in the history plays of William Shakespeare. Throughout centuries the iconic line has been from "Henry IV" - Uneasy lies the head that wears the crown.

During most of the first round of the pandemic in NY, Cuomo was a kind of superhero. He made, at least according to the media, all the right moves. His pressers were hailed as the way to do things right. Crisis-management experts positioned and packaged their articles (and the topical reference got that commentary published in third-party media) on what other leaders can learn from Cuomo.

That was then.

Currently, again as English majors also studied, Cuomo would be wise to go on a journey to prepare himself for what is next. That's an archetype going all the way back to Ancient Greece. In 2020, that's called "Reputation Restoration." 

As we stumble through this era of such profound human tragedy, all generations in America can embrace the liberal arts. Harvard Business School can offer a free seminar online titled "Capitalism through the Arts." Law school applications, now surging, could go in reverse. Just as John F. Kennedy had, Joe Biden can invite a literary figure to read a poem during the Inauguration.

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Balancing Biden's Boring - Progressives Want More Aggressive U.S. Senate Leadership, Feinstein Steps Back

"Sen. Dianne Feinstein (D-Calif.) said she will not serve as chairman or top Democrat on the Senate Judiciary Committee next Congress." - Madison Adler, Bloomberg Law, November 23, 2020.

The reason is probably not her age - 87. In the U.S. Senate age can be an asset since during all those decades alliances had been formed, favors granted and enemies publicly punished. An insightful study of how Inside the Beltway operates is Hedrick Smith's "The Power Game."

According to Bloomberg Law what did in Feinstein was how she was perceived handling the confirmation hearings of Brett Kavanaugh and Amy Barrett. What was needed, some posit, was more aggressiveness. 

That will be especially needed to balance the Joe Biden persona of boring. Boring is a strategic personal branding after four years of the bombast from Donald Trump.

If it isn't balanced by more aggressiveness than the Feinstein type of liberal politico has demonstrated, Biden could wash out in the first all-important 100 days. He may not receive the usual honeymoon period. The nation remains deeply divided. Trump supporters could be major mischief-makers. Biden could be assessed as not able to bring that under control. That's a primary reason he requires seasoned street-fighters, metaphorically speaking, around him. 

The lesson here is that Feinstein did not change her own personal branding and political stylistics enough as times changed. All Democrats should be doing an audit of how they have positioned and packaged themselves and what in that still is a fit with crazy times. 

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"Montgomery v. Barr, D.D.C." - Lawyers' COVID Gets Woman on Death Row Delayed Date of Execution

The law and order Trump Administration, in which Bill Barr is U.S. Attorney General, wants Lisa Montgomery executed.

Montgomery is the first woman in years who has been on death row. But, in "Montgomery v. Barr, et al." her lawyers Kelley Henry and Amy Harwell had argued for clemency. Among the mitigating circumstances are that she had been brutally abused, including rape, and a victim of sex trafficking.

The date of execution had been scheduled for December 8th, but as Bloomberg Law reports, Judge Randolph Moss has ruled that can't happen before December 31st. He wants to give the two lawyers, who contacted COVID-19, time to continue to argue for clemency. Because they have been bed-ridden there has been a delay. 

Moss gives a cut-off day to their appeal. If they are unable to handle the whole thing themselves because of their illness, he advises them to put other lawyers on the case. 

The attention "Montgomery v. Barr, et al." has received showcases how criminality hasn't yet become a level playing field in terms of gender. 

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Suing Not So Sexy Any More - Influence More Fun, Faster, More Affordable

Dating back to the heyday of consumer advocate Ralph Nader, filing lawsuits was sexy. In fact, it was the signature of people alert to their rights and putting themselves through the ordeal of litigation for justice.

That was then.

Sure, folks are still suing. But the cool has been sucked out of it.

The influence game is more fun. It's faster. And for those who have down cold its dynamics, it's could even be free. Just invest some time and creativity.

The ways of influence are almost infinite.

There are:

Podcasts

Social networks ranging from LinkedIn to Instagram

Old-line blogging

YouTube

In-person theatre in the streets (protesting as during the counterculture)

Email/texting campaigns

Connecting with government officials

Paid newsletters such as Substack and Ghost

And, more to be developed.

Along with the shift away from litigation as a form of personal branding there is this: a recognition that maybe talking like a lawyer isn't all that effective. Better to first use soft skills or Emotional Intelligence. During the past five years of Perfect Storms, I have used both for everything from shaking loose payments from clients to getting out of leases with bad-actor landlords.

The common response when the talking like a lawyer card is played is that those at the other end simply shut down the game. They refuse to continue the conversation. That usually means we really will have to follow through and use legal means. Those can be expensive and slow-moving. In addition there is no guarantee of success.

On the other hand, when we do a Dale Carnegie - "How to Win Friends and Influence People" - the conversation can continue. Eventually both parties will wear out. We are ready for compromise. Likely we both get more of what we wanted than we had anticipated. In contrast, litigation is highly uncertain as to outcomes.

Applications to law schools are way up. But that has nothing to do with how we non-lawyers navigate our little lives, our obsessive feuds and our big causes. It might be downright smart to leave all the lawyer rhetoric to the lawyers. And, hey, maybe they should back off most of that. In my encounter with Heidrick & Struggles, the in-house legal department talked like lawyers. Here is a snippet from that story.

 

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Applications to Law Schools Soaring - Remembering the Counterculture

"Applicants to law school are up 32% thus far, which admissions experts attribute to everything from the death of Ruth Bader Ginsburg to the fact that would-be law students have more time on their hands.' - Karen Sloan, Law.com, November 17, 2020.

Of course, that doesn't mean that the lion's share of those applicants accepted will show up next fall to take a pricey seat in a law school. However, let the deans enjoy this development. 

The meme is: Law school is the hot ticket. 

The endless speculation of why this is happening is fun. And we will grab fun wherever we can find it. 

For Ok, Boomers this chase after the law degree brings back memories of the counterculture.

It was predictable that the protest against The Establishment Everything would wind up in the admissions office of law schools. Traditional middle class youth got it that they could scare the jesus out of the power structure. During the Eisenhower Administration they had been socialized to revere authority. 

Intoxicated with finding out the authority figures could be shaken to the core, they then often took the next logical step to keep acquiring influence over The System. That was becoming a lawyer. 

They had  the perfect lawyer model. The hero of one of the movements within counterculture  was lawyers Ralph Nader. His mission was getting a fair deal for consumers. Among the strategies for reform Nader used the courts. That was in addition to his books such as "Unsafe at Any Speed" and his youth movement Nader Raiders.

The ethos of the counterculture may have resurfaced because of the current era of extreme activism. Along with old-line theatre in the street, there are now the platforms of social networks and digital-native media outlets. Within minutes those protesting can find out how much reach their points of view have had. In counterculture days the wait was until the evening broadcast news. 

On campuses like the University of Michigan which were safe harbors for the front lines of the counterculture, law students were perceived as the good buys. M.B.A. students were scorned. They were headed, it was assumed, to fill the offices of GM - a main target of Nader's attackz. 

Like then, right now business could take it on the chin. Its shot at salvation could be to participate in reimaging capitalism. Nader brought about the concept of consumer protection. The new gen of activist lawyers could take on capitalism as it has functioned since Puritan times.

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Jones Day - Will Pennsylvania Be Tipping Point for Law Firm to Do a "Boies Schiller?"

"Lawyers in the Washington office of Jones Day voiced discontent as the firm held conference calls Friday to discuss its controversial role in an election-related lawsuit [in Pennsylvania]." - Bloomberg Law, November 13, 2020. 

There are about 200 lawyers in Jones Day's D.C. office.

At that office, the partner-in-charge Kevyn Orr defended the law firm's role in that lawsuit. He noted that Jones Day is not exiting it. Yesterday the other law firm in the loop of certifying the election results in Pennsylvania Porter Wright filed to withdraw from the case. In addition, Orr reported that Jones Day would not take on any more legal actions related to the 2020 Election.

In essence. through Orr, Jones Day sent the message that it wasn't going to be bullied and would continue to do its duty by its client. The tone was one of the devoted lawyer. That stance, of course, saved it from any kind of mea culpa.

Some in public relations would assess that as smart. 

But, whether it was really smart depends on if the protests against the role this law firm has embraced in Pennsylvania will escalate.

It could.

The People's Parity Project, for example, has joined the getting-longer-all-the-time conga line of those taking on Jones Day. The People's Parity Project, reports Abovethelaw, is circulating a petition among law students not to interview for work at Jones Day.

For Jones Day, in the worst-case scenario, clients could flee the firm and prospects would withdraw their request for a proposal.

In addition, there could be partner flight. That could be as severe as the one which overtook Boies Schiller. During the past year Brad Karp at Paul Weiss has been poaching key brandnames. They include Karen Dunn. Those lateral hires created an aura for both Karp and Paul Weiss.

The Boies Schiller downward trajectory kicked in when founder David Boies had been vilified in The New Yorker by Ronan Farrow for his overly aggressive tactics in representing Harvey Weinstein. 

Also, a stink Boies couldn't shake became his signature after he represented Theranos founder Elizabeth Holmes. Her criminal trial is scheduled for March 2021. In the book "Bad Blood," The Wall Street Journal reporter John Carreyrou detailed Boies' aggressive theatrics at that newspaper. They didn't work. WSJ broke the story that the Theranos supposed breakthrough technology didn't exist.

It is now rumored that Boies Schiller is having cash flow problems. 

The unthinkable is currently thinkable: Jones Day could be coming undone. The vulnerability is palpable. Competitors already could be moving in. 

Meanwhile, other law firms could also experience flashpoints because of the controversial client legal actions they represent. 

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Old Guard, Controversial Clients (e.g. Donald Trump), Millennial Values - The Talent Wars

"Lawyers have long prided themselves on the ability to separate their beliefs from the representation of their clients. But is an increasingly socially conscious young generation eroding those lines?" - Dylan Jackson, Law.com, November 10, 2020.

There has been extreme attention to Jones Day's role in filing lawsuits in Pennsylvania supporting Donald Trump's challenge to Election 2020 results. That focus ranged from media outlets to commentary on social networks such as LinkedIn. In addition, according to inside sources, it is preoccupying lawyers within the firm.

Not that this play-out should have been a surprise. After all, then Jones Day partner Don McGahn represented Make America Great Again in 2015.

Old souls in the legal sector stand with the commitment to the right of human beings to a defense - and the best possible. That's exactly what I argued in a blog post about a year ago when there had been protests about Paul Weiss' representation of Exxon. Not long ago, the protests resumed. Law students indicated that wouldn't apply to work for Paul Weiss given its representation of Exxon. Also, many are aware that Paul Weiss is the defense firm for McDonald's USA in the class action alleging bias against black franchisees. There it could be doing business very much near the third rail of current social consciousness.

It's the issue of recruiting young talent that could turn out to be the burr under the saddle of traditional (read that "older") chairpersons and managing directors of law firms. 

In terms of its track record on behalf of clients, Jones Day would be a wonderful law firm to be associated with. Nice first job on the resume. That's what they used to say about Boies Schiller Flexner before that law firm entered reputational hell.

However, will the top talent coming out of law school and young laterals turn their noses up at joining Jones Day? Worse damage to its brand could come from a settlement or negative verdict in class action gender bias lawsuit "Tolton et al. v. Jones Day." Even a head could roll - that of managing partner Stephen Brogan, who might be enjoying the ethos of the divine right of kings. Millennials also object to any human allegedly having that much power. 

Millennial lawyers can unleash unique kinds of value in law firms. They not only provide a very different perspective. In addition, they are digital natives. They can finger exactly what software packages would deliver the highest ROI when implemented. 

Reflection: Should law firms be getting more selective about the clients they represent? Or, is a buck a buck? 

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