November 18th, 2013

Abe Lincoln, Jack Kennedy and Lawyering

This is a big week for anniversaries. On Friday it is 50 years since John F. Kennedy was assassinated in Dallas. And tomorrow is 150 years since Abraham Lincoln delivered his two-minute long Gettysburg address, in a scant 270 words or so, which I wrote about three years ago.

Lincoln left behind on that Gettysburg battlefield some of the most memorable language that we have regarding the future of our democracy, “whether that nation, or any nation so conceived, and so dedicated, can long endure.” He thought it important for the nation to resolve “that government of the people, by the people, for the people, shall not perish from the earth.”

On the day Lincoln spoke for just a few minutes, so too did Edward Everett a noted politician of the day. He spoke for over two hours. Nobody quotes Everett.

One thing that Lincoln and Kennedy both left behind was the simple power of their words, in that they were able to enrich broader concepts. A simple search of quotes on Kennedy turns up these well-known words, and much more:

My fellow Americans, ask not what your country can do for you, ask what you can do for your country.
Let us not seek the Republican answer or the Democratic answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future.
Things do not happen. Things are made to happen.
Mankind must put an end to war before war puts an end to mankind.

This leaves us with a few questions:

What words are you using to communicate, and how many do you really need?
What are you doing today that will cause people to remember you after you’re gone?
What are other people doing in your name?

November 14th, 2013

Linda Greenhouse and Me

Linda Greenhouse via New York Times

Sometimes when I write things slightly out of my wheelhouse I get a bit concerned about mucking things up and making a fool of myself. This is especially true if I’m writing about the United States Supreme Court and noting something that others didn’t feel worthy of comment.

And today I got confirmation about whether I made myself a fool. I didn’t. And not only didn’t I muck it up, but New York Times columnist and Supreme Court diva Linda Greenhouse agrees with me. Whew.

Last week I noted a statement by Chief Justice John Roberts in the matter of Marek v. Lane, which was a class action settlement involving Facebook. Instead of settlement money going to Facebook users, it went into a new fund dedicated to educating people about privacy on the Internet. These are known as cy pres settlements, meaning that due to the problems of distributing funds, this arrangement is “as near as possible” to doing just that. That is the theory.

My point was that C.J. Roberts was being rather activist in his statement, as the questions he asked about these types of settlements are those best addressed by a legislature. Roberts, however, was asking litigants to bring him a case so that the court could address the issues that he identified.

And today Linda Greenhouse hits just that point, in a piece entitled “Bring Me A Case,” linking together several unrelated matters where various federal judges have all said, bring me a case.

With regards to Marek v. Lane, Greenhouse writes:

While this particular appeal presented too narrow a slice of the “more fundamental concerns” about this increasingly popular kind of settlement, the chief justice said, “in a suitable case, the court may need to clarify the limits on the use of such remedies.” Citing a law review article that criticized such settlements as among the “pathologies of the modern class action,” he posed six questions, ending with “and so on,” which implied that there was quite a bit more that he wanted to know.

Judicial activism can take many forms, and one way is to call for a particular kind of case in order to “feed the docket,” which I’m pretty sure is not what Roberts had in mind when he testified at his confirmation hearing that the justices were merely umpires in disputes — that they are there “to call balls and strikes and not to pitch or bat.”

As Greenhouse then writes:

[N]o one is accusing Chief Justice Roberts of any kind of ethical violation in issuing his invitation to bring the Supreme Court another challenge to the newfangled species of class-action settlement that he finds troubling. Nor am I suggesting that his statement was in any way improper. But it sheds light on an underappreciated aspect of the court’s institutional behavior, on what one might call the care and feeding of the docket.

…

The court is an active participant in shaping its own destiny through a continuing dialogue with a legal system attuned to its every nuance and primed to respond accordingly. The court’s role in this respect might be seen as closer to legislative than judicial; one federal judge I spoke with this week said the chief justice, with his list of questions about class-action remedies, sounded like the chairman of the Senate Judiciary Committee convening a hearing. (emphasis added)

Now I’m not so horribly vain as to think my little posting about this last week caught Greenhouse’s attention, even though I wrote language almost identical to her theme:

This call to action (‘Send me a good case so we can put our imprimatur on the issue!’), goes quite a ways away from merely umpiring for the people on different sides of an issue.

The fact is, my blog wasn’t mentioned anywhere, nor linked to, nor was the post even tweeted about. I simply published it and it died on the spot.

But I’m gratified to see that the issue is now front and center. The idea that Roberts espoused, that he is there merely as an umpire, is belied by his call for a case and the legislative-like questions that he both asked and wanted to answer in a subsequent opinion.

November 12th, 2013

Running, Lawyering and The Great Stage

I’m going to weave together six different stories today, some dealing with running, some with lawyering, but all leading to the same place. Trust me on this, I have a point to make.

We start on October 6th at the finish line of the Paine to Pain Trail Half Marathon, where Matt Collins — a person you’ve never heard of, and in a story that’s never appeared anyplace but a blog — stopped dead in his tracks just steps from the finish line. And he waited for #2 and #3 to pass him before he walked across the finish line. It seemed that the guy who ultimately won had taken a wrong turn in the woods and was followed by #2. Collins was 3rd at the time, called them back as he took the lead, and then waited at the finish for the other guys to finish ahead of him.

On a very popular running forum, Collins was excoriated by some for not having grabbed first place. But this is not a race with a cash prize; people run for fun, health and personal glory. He didn’t feel like he deserved it as he wasn’t the fastest runner that day, and that was good enough for him. While the stage was rather small given the number of onlookers, a few people appreciated this act of extraordinary sportsmanship.

Move on to story 2 and the NYC Marathon — a vastly bigger stage — and another runner you’ve have never heard of, Mike Cassidy. He’s what we call a “sub-elite.” He’ll blow the socks off you in any regional race, but isn’t Olympic caliber. He’s not the guy who gets the sponsorships. That would be a guy like his hero, Meb Keflezighi – 2004 Olympic silver medalist and 2009 winner of the NYC Marathon.

Meb — he’s always just Meb — was having an off day due to a series of injuries. And when elite athletes have an off day they usually just drop out so that they can come back sooner in another race and not risk further injury. But Meb kept going. And Cassidy caught up to his hero three miles before the dramatic Central Park finish.

Look at the picture to your left. As Cassidy recounts in extraordinary race report:

This is the type of moment you only dream about. The scene had played out in my mind countless times before: me, having the race of my life, gracefully passing Meb in Central Park en route to a stunning victory. It’s one of those wild fantasies that get you through the solitary 7 am 10 milers.

As I eased up on his shoulder, I looked over and said, “Let’s go Meb.”

He responded, promptly picking up his pace and we entered Central Park at 90^th Street, shoulder to shoulder. The next three miles were the most surreal I have ever experienced. “Let’s finish this together,” he said.

In recounting the experience of running with Meb through the closing miles, jammed with screaming fans, he said:

It was like getting to play basketball with Michael Jordan. Only it was Game 7 of the NBA Finals and he had just passed me the ball.

Why did Meb keep going? Once more from Cassidy’s amazing write-up:

It was readily apparent that all the stories I’d heard about Meb’s remarkable attitude were true.

As we entered Central Park at Columbus Circle, I turned to Meb and told him as much. “It’s an honor to run with you,” I said.

His response is something I’ll never forget.

“No,” he said. “Today is not about us. It’s about representing New York. It’s about representing Boston. It’s about representing the USA and doing something positive for our sport. We will finish this race holding hands.”

Meb knew. People were watching.

Now story 3, we turn to lawyering and back to the smaller stage. Last week I wrote about the death of the anonymous Editor of Blawg Review, who everyone knew simply as Ed. Ed. worked behind the scenes. He was known, at least in this digital incarnation, only to a group of law bloggers and some of their readers. But he influenced us and how we wrote, and created a forum in which to celebrate quality, and not the marketing pablum that some try to pass off as blogging. Ed. was respected for what he was doing in his Blawg Review project, as is evident from all the stories posthumously written about him. People were watching.

Now story 4: I wrote in unflattering terms the other day about the tactics a lawyer used when suing Red Bull for $85M, in a case dealing with the death of someone that drank the stuff while playing basketball. I was less than charmed about his decision to place a monetary amount in the complaint when that tactic is not permitted in New York. The headlines all dealt with the money, instead of dealing with the safety of the product. And when we talk about newspaper headlines, we are most assuredly back on the big stage. People were watching.

Story 5: It came across social media like so many other viral videos do, this one dealing with how children reacted to same-sex marriage, by having them watch various same-sex marriage proposals. Everyone wanted to see how kids react. It’s been viewed, so far, over seven million times.

But if you thought about it, it wasn’t really about the kids. It was about the parents, because kids mostly just mirror what the parental units do and say. If kids are accepting, you can bet the parents are also. If a kid is a raging bigot — regardless of whether it’s about sexual orientation, race or religion — you can place a pretty good bet where it came from. The stage inside your home is as small as it gets. But the kids are watching.

Story 6: I tried a case in September, and every so often a lawyer or two would filter in and out of the courtroom on unrelated business. Last week I got a call from one of them who’d seen one particular cross-exam, and he wanted a copy of the transcript to use to teach a class of students. An audience of one just grew. Someone was watching, other than those required to do so.

The Point: We don’t always know how big our audience is: It may be a few people standing around a finish line, or jammed sidewalks and national television for the NYC Marathon, or newspaper readers or “just” our kids. But people are always watching and listening (and I don’t just mean the NSA — “the only part of government that actually listens“).

When I select juries, I know that whatever opinions the 30 people sitting in the room are going to form about lawyers will be directly impacted by the few things they hear from us. In doing so, I am always confronted by the entrenched attitudes some folks have because of the conduct of lawyers and news stories that came before.

We cannot view our conduct in isolation as it oft times impacts others.

This is something to think about with each bit of marketing a lawyer does, with every interaction with a client or potential client, and any interaction with the press. People are watching. And listening. And it matters.

November 6th, 2013

Did CJ Roberts Trash His Role as “Umpire” In Facebook Cy Pres Case?

When Chief Justice John Roberts appeared before the Senate in 2005 for confirmation, he famously stated that his role as Chief Justice would be “to call balls and strikes and not to pitch or bat.”

He seems now to have fully discarded the umpire’s uniform in his pursuit of making policy.

On Monday the Court denied certiorari in Marek v. Lane, which was a cy press settlement matter. Cy pres is where class action settlement proceeds don’t go to the victims due to the difficulties or expense of distribution, but go instead to a charity of some kind as being “as near as” possible to getting the funds to the actual victims. This was, as per Adam Steinman (Civil Procedure and Federal Courts Blog):

a closely watched class action against Facebook. Four class members had objected to the settlement of that class action, which included as a cy pres remedy “the establishment of a new charitable foundation that would help fund organizations dedicated to educating the public about online privacy.” The settlement was approved by the district court and on appeal to the Ninth Circuit, prompting a petition for certiorari by one of the objectors.

But while the issue of whether it’s appropriate to send the funds to a charity is a hotly debated one, created in a legislative vacuum, neither its rightness or wrongness is the issue I want to address. (See Public Justice Foundation in favor and Ilya Shapiro at Cato for opposing view.)

Instead, I draw your attention to a statement issued by C.J. Roberts (via Overlawyered), accompanying the denial of certiorari, where he discusses his desire not to call the balls and strikes, but rather, to affirmatively make decisions about policy:

I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.

This call to action (‘Send me a good case so we can put our imprimatur on the issue!’), goes quite a ways away from merely umpiring for the people on different sides of an issue.

Roberts didn’t ask Congress to step up to the plate, he asked instead for a suitable case so that the judiciary can perform a legislative function.

In a blog post back in 2009, the Drug and Device Law Blog — very much a defense oriented blog — raised the same issue in excoriating the concept of cy pres. They wrote:

Under our tripartite system of government, the legislature is supposed to make the laws and the executive to enforce them. Where is the law or regulation allowing, as a consequence of some legal violation, one private person’s money to be taken away and given to some other private person(s) whom the violator didn’t injure? There isn’t any. If there were, there’d be no need to resort to cy pres, because the statute or rule (assuming it were constitutional – which is a stretch) itself would provide the distribution scheme, not some vague notion of “equity.” The government can impose civil or criminal fines for conduct that’s illegal, without regard to causation or damages, but the money in those situations goes to the government as the sovereign enforcer of the laws.

But while they argued there shouldn’t be any such thing as cy pres, C.J. Roberts isn’t suggesting that it be abolished (though he is certainly open to it). What he asks is that the judiciary regulate them, hence his conclusion that the Supreme Court “may need to clarify the limits on the use of such remedies.”

And you will not find any mention in his statement suggesting that Congress resolve the matter.

November 5th, 2013

Book Review: The Marble and the Sculptor

It isn’t until the end of the end of the book, in its summation, that I finally see the words: Carpe diem.

This is the theme, from beginning to end, that Keith Lee uses in his new book The Marble and the Sculptor. Lee, who writes the blog Associate’s Mind, takes readers in short blog-like chapters from law school, its dysfunctional neglect of teaching actual practice, through the struggles of surviving a quickly changing legal environment and places them, hopefully, on the road to succeess.

Given that Lee is himself a young lawyer, you wouldn’t expect such a how-to book. Such things usually come from the graybeards.

But Lee doesn’t just pull it off, he pulls it off well, based on the diversity of his experience before going to law school, and being smart enough to know what he doesn’t know. This is not a book written by some hubris-filled wannabe hot shot, but one written with a sharp observers’ eye to the environment around him.

Lee doesn’t care to hear anyone whine about the difficulties making it in a legal recession. Because all the belly achin’ in the entire world will not bring you to a successful legal practice. He teaches instead to go out and seek your opportunities, and this starts in law school.

See those schoolmates sitting near you in class? You are likely to know them for decades to come and they, in turn are likely to be a source of referral business to you if they believe you are competent. Will wearing a lampshade on your head at the local law school kegger affect how you’ll be viewed by this valuable source of contacts as you go though life?

Lee tackles not only the attorney incubator of law school but, more importantly, the often difficult years of being a young associate — when you know nothing about the practice of law. At that point, you don’t even know how much you don’t know. Or worse yet, you don’t have a job.

Associates, jobs, mentors, dealing with clients, writing, quality, time management, marketing, conducting yourself online and the relentless pursuit of improving your skills, even if you’ve been practicing law for decades, all this and more are covered by Lee.

And Lee tosses in some lessons from martial arts, in the form of Aikido. Just as I occassionaly draw parallels to running, Lee uses his experiences in martial arts to discuss the need to sharpen your skills. Lee, it seems, has spent more than his share of time being introspective, and uses it to full advantage here.

The essence of his book and arguments — although calling this advice on how to navigate the waters of the legal profession an “argument” may be a poor word choice — is that we are the masters of our own destiny, not slaves to the the current economic state of things.

Those who are wondering if they will succeed, or those battling for success, can do something about it. Lee provides some advice and blueprints on how to get there.

I’ve received many books to review that I simply never had the time to read. But I grabbed this one when it came in and I’m glad I did.

Carpe diem.