Law And More

Certitude: Nothin' but savvy posturing

In THE ATLANTIC, Mickey Edwards has a good time observing how both the GOP and the Democrats are dead certain they will win on health care in the U.S. Senate.  Edwards notes, "both sides march forward with the confidence only certitude can bring."

Of course, certitude is nothing but savvy posturing.  Trial lawyers use it all the time.  "The jury was/are/had been with us."  I have heard that so many times, at least from the trial lawyers involved in a particular trial.  Speak to trial lawyers not involved in that particular trial and they will testify that there is no way to "read" a jury.  There are ways to convince oneself that the jury is tending to think X or Y way.  But over and over again juries have proved their readers wrong.

However, that tactic will be part of the high stakes melodrama of legislation and litigation for ever.  The only pitfall in leveraging it is when the audience is intelligent and experienced.  That audience will assume the creature who is so deeply certain is out of touch, insane, and just stupid.

Me?  I don't use it, at least not in selling or actually working with the client on a project.  Hard times have made them very smart.

War Tragedy Reaches Harvard Law Alumni

The tragedy of war is on everyone's minds.  There was the massacre at Fort Hood, which might have been terror-related.  Now, we hear that the war in Afghanistan claimed its second Harvard Law alumni.  The wife of both is Cynthia Tilda, who herself received a JD from Harvard Law School.  In 2003 she lost her husband Heige Boes.  On October 26th she lost her second husband Michael Weston.

The two heroes were friends, reports Jenna Greene in THE NATIONAL LAW JOURNAL.  Both had rosy career paths ahead.  But both felt the right thing to do at the time was serve their country.

This kind of selflessness is unusual, given the competitive ethos of Harvard in general and its professional schools in particular. 

Fort Hood - Will public opinion favoring death penalty surge?

"Anytime you have multiple victims it raises the specter of the death penalty."  That's what Cynthia Orr, president of the National Association of Criminal Defense Lawyers, tellsTHE WALL STREET JOURNAL.  That means that, if convicted, Major Nidal Malik Hasan could face a sentence of death.  And those normally opposed to the death penalty may support it in this situation, particularly if there can be proved an association with terrorism.

However, Hasan could cast himself as a martyr type and welcome this sort of penalty.  As yet, we have no insight into who this man is and what was his motivation. He is currently awake and can talk.

Law and More ranked selected by Online Universities for "50 Great Blogs For and By Law Professors"

We did it.  Thank you contributors, tipsters, readers, and especially critics.  Regarding the latter, negative feedback represents a gold mine of insight. 

Online Universities.com selected Law and More for the "50 Great Blogs For and By Law Professors."  

That means we're right up there with:

• The Harvard Law School Forum on Corporate Governance and Financial Regulation
• CrimProf Blog
• E-Commerce Law
• Sentencing Law and Policy, and the wildly popular
• Above the Law.

There are, of course, commercial implications of this honor.  The demand for social media experts with a track record is exploding.  That call for provocative, SEO-oriented strategy and content is finally also coming from large and midsized law firms.

Thank you Online Universities. Incidentally, the markeplace for contract work has turned hot.  Forget looking for traditional full-time employment with benefits.  I have to wonder if they even exist any more or if they show up in help-wanted to create the illusion that the employer is successful or embarked on a comeback.

Estates Nasty Business: Astor-like trial in Houston

What will forever be known as "The Astor Estate Battle" is having its first mutation in Houston.  The daughter of oil tycoon Alfred C. Glassell is accusing the attorneys at Vinson & Elkins Law Firm with coercing her father to leave the bulk of his estate to charity.  The daughter Curry Glassell received $10 million versus the estate's value of $100 million.

The trial is expected to last only two weeks, though, reports Zach Lowe of AM LAW.  The Astor criminal one went on for 20 weeks.  But the model has been established.  Estates have become nasty business and trials about them promise to involve juicy peeks into how the Upper Crust lives its dysfunctional life. They might have their idiosyncratic Texas quirks.

No slouch when it comes to good copy, I have a similar battle in my novel "The Fat Guy From Greenwich," which will be published early winter.  Here are the first two chapters of this comedy of manners Download FGFGchapters1,2.  You can eventually purchase it online on Amazon.com or online at Barnes & Noble.

That $1.26 B award against PepsiCo vacated

It seemed absurd.  And another judge agreed.  Remember how the plaintiffs in a misuse of trade secrets case were awarded by one judge $1.26 billion against Pepsico because the company never responded to the lawsuit.  The legal administrative assistant in North Carolina, where the company is incorporated, failed to pass on the notification of the suit to the lawyers. It was a hectic day. The company's headquarters is in Purchase, New York.  Based on both those reasons, Pepsico asked for a review of the award, now that it is aware of the suit.

Last Friday, reports Emily Fredrix of the AP, a judge in a Wisconsin court tossed that decision.  The plaintiffs requested a jury trial.  Pepsico says it looks forward to defending itself in court.

Top 250 down 5259 lawyers of 4% in '09 [Source: NLJ]

THE NATIONAL LAW JOURNAL presents the grim statistics of lawyer cuts in 2009.  With 4% or 5259 lawyers sent packing it's the worst year for this sort of thing since NLJ began tracking three decades ago.

There's no light at the end of the tunnel.  The industry is going through a paradigm shift which in itself will lessen demand for lawyers.  Throw in the impact of technology as well as in-house doing more complex work and outsourcing.  In addition, if this downsizing in legal follows the pattern of downsizing in corporate beginning in the early 1980s [think how Jack Welch eliminated 100,000 positions at GE], it will become an ongoing practice.  On a clear day, you can't see many humans working in the Fortune 1000.

Burn Bridges - or, jobless lawyers, you'll never work again

Those 5800 jobs lost in the legal sector in October [Source: BLS], are not coming back.  Even if some kind of Golden Age returns to the profession and business of law post-bubble burst, it will take place in a downsized industry.  The manpower demand, at least at the associate level, will never match that of the boom years.

So, that leaves jobless lawyers and those who have yet to laid off with the necessity of moving toward What Next.  Fortunately, there are plenty of precedents.  Generations of doctoral candidates sidelined from college teaching, dotcom entrepreneurs whose enterprises tanked, middle managers made redundant by technology, and journalists who couldn't afford to hang out around the ink showed the way of career change. 

The first step is both a mindset and behavioral one: Burn bridges.  What got us into those now-obsolete sandboxes and what gave us a shot at success are unlikely to help us making a living doing something else.  Those bridges include our mindsets or values, persona, decorum, and contacts.  Those will only hold us back as we struggle to penetrate new territory.  See, as W.B. Yeats put it, you can't separate the dancer from the dance.  The professional in X becomes X.  To make the leap into Y, X must be left behind.

For example, I could have had a smoother transition from academia to business had I burned bridges - just cut off all ties, be they emotional or human, to my former world.  It's tough enough to adjust - and expect it to be tough - without the baggage, in our heads, hearts and contacts, from the past.  The past won't earn a living in the present.

Here is an ebook on some of that Download SavingSoulsJaneGenova.  It's had more than a million downloads.

In Humor We Trust - Why the blogosphere decried "Jones v Minkin"

Okay, we all love the crowd at Abovethelaw.com.  And we will die at the stake for First Amendment rights.  But there was more than that - admittedly that was a lot - to why the blogosphere decried the lawsuit "Jones v Minkin."   

The litigation encroached on the boundaries of that broad umbrella concept "humor."  More specifically, it challenged the right to satirize.  And, in these jaded times, isn't it in humor that we trust - and only trust.

That's exactly why the public and the sponsors didn't turn on Dave Letterman in his Love Den crisis.  If we get rid of this Greek Chorus of the Top 10 ridiculous things, what do we have left?  The Sunday political talk shows?  Ever-earnest Oprah? Our president whose priority seems to be his own celebrity?  The economic insight of Larry Summers?

Humor has always been the voice of the outsider.  That's why we pay any attention to it.  And that's why Jews, the classic outsiders, have often dominated humor.  Rightly or wrongly, we see the scribes at Abovethelaw.com as outsiders on the legal scene.  Their added value comes from the fact that they were once insiders - or assumed they were.  The profession and business of law couldn't endure the current crisis w/o the blog's stick-it-the-establishment tone and content.

"Finding a new job is extremely difficult," David Leonhardt, THE NEW YORK TIMES

The jinx of joblessness is severe.  There's that Catch-22: Legal headhunters only will deal with the employed.  Skills atrophy.  Contacts fade.  Confidence, always an unstable entity, falls of the cliff.  David Leonhardt sums it up in THE NEW YORK TIMES: "Finding a new jobs is extremely difficult."

How to stop this spell cast on a career?  Often, the solution is radical.  That is, set up one's own enterprise practicing law or leveraging legal background in another way such as a web service or explore what other career path is a fit.  The latter requires extraordinary self-awareness and willingness to fail, many times.