This just in. BigLaw firms can increase their standing among overworked associates by 1) raising associate pay and 2) letting associates know what’s going on. In a recent American Lawyer profile, Foley Hoag partners and associates talk about how “increased communication” is one reason the firm moved up 92 places in an annual
beauty pageant known as the associates survey. That, and “restoring” starting associate pay to $160,000. And moving other associate pay levels up to “market level.” With the pay bumps, American Lawyer offers up this startling conclusion: “[m]oney makes associates happy with their firms, too.”
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This just in. BigLaw firms can increase their standing among overworked associates by 1) raising associate pay and 2) letting associates know what’s going on. In a recent American Lawyer profile, Foley Hoag partners and associates talk about how “increased communication” is one reason the firm moved up 92 places in an annual
[Ed. Note: The following is a follow-up from “TexJudge,” the former Texas Court of Criminal Appeals judge who wrote the highly debated pieces “Are Law Schools Screwing Students?” and “Bitter Judge Strikes Again.”]
One of the more rewarding aspects of being an appellate court judge is the opportunity to select law clerks. During my six years on the bench, I selected four. I decided up front to base my selections using nontraditional criteria. I did not want to be like most of the federal appellate court judges and Supreme Court justices who largely limit their selectees to graduates of Ivy League law schools who were law review editors. I did not care whether or not a candidate went to a tier-one school (2 of my choices did; 2 did not).
I did view with favor candidates who, like myself, played sports in college and/or held a job while in college or law school. Such a background, I believe, is evidence of a good work ethic and the willingness to be a team player. It is easy to get good grades if someone is paying your bills and all you have to do is study.
Did I consider grades? Yes, but they were not the deciding factor. Each of my selectees did a good job and each has been successful in their careers, though none of them went to BigLaw. Most important, they were good people who you would want to have as friends. The rigid paper qualifications used by too many judges to select their clerks means a lot of really good people never get a shot, there is less diversity in backgrounds, and the law is poorer as a result.
The comments concerning my bitterness at the lack of Supreme Court justices from the South and from outside the Ivy League were interesting and largely missed the point I was trying to make. I do not want to re-fight the Civil War and did not suggest that Southerners are more qualified than “damnyankees” (only kidding; I went to law school up north, have dated ladies from up north and like Law Firm 10) for high judicial office. My point is that, due to the fact that the national media, the legal punditocracy and the law schools producing Supreme Court justices are all in or near New York City, Southerners are not only essentially excluded from consideration but that they are less likely to be confirmed. Having a law degree from Yale means you are automatically qualified; the presumption of qualification would not be extended to a graduate of LSU, Houston, Alabama or Florida.
The entertainment industry (TV and movies) almost always portrays Southerners as racists, sexists, bigots, homophobes and rednecks who can’t speak proper English and have sex with family members. One of the comments suggested that intelligence levels are higher in the north: Counselor, can you produce evidence of this that meets Daubert standards?
I do take serious offense at the comment that equated honorable men like Senator Cornyn (a former Texas Supreme Court Justice) and Cong. Gomert (a former Texas appellate judge) with racist thugs like Bull Connor and the young George Wallace. That would be like my equating liberals like Obama and Pelosi with radical liberals like Bill Ayers, Stalin and Hugo Chavez. Sir, you should be ashamed.
Finally, I would not vote to confirm Elena Kagan. My reasons are her lack of any experience in the private sector, her lack of legal articles and what appears to be strong evidence that she will be a judicial activist.
The following is a follow-up from “TexJudge,” the former Texas Court of Criminal Appeals judge who wrote the highly debated post, “Are Law Schools Screwing Students?”
I appreciate the comments from all those who responded to my recent article concerning law school tuition. My figures for 1977 lawyer salaries were based on starting pay and, if anything, I may have erred on the high side. I do recall that a large county in Texas at that time was paying first-year assistant DAs around $25K.
One reader does make a very good point that law school tuition inflation may be tied to ever-increasing amounts of federally provided student loans. This is a classic case of moral hazard: People will consume or use more of a product or service if someone else is paying the bill regardless of whether or not the service or product is good for the consumer or society in the short or long term. More loans for law students means more law students and more law schools. The recent takeover of student loans by the federal government (part of the health care bill) will likely make it worse both on the undergraduate and graduate levels.
Can the ABA prevent new law schools from opening? No, but it can certainly make the accreditation process more difficult. Although it will never happen, the folks now in charge of student loans could decide we do not need, say, another 30,000 new lawyers every year and only authorize, say, 15,000 loans per year for law students. The same restrictions should be applied to undergraduate students who want to major in such “useful” pursuits as 14th century French poetry and womens’ studies—ones that are unlikely to lead to jobs that pay enough to enable repayment of the loans.
It should be noted that California has more lawyers than Japan and France combined.
By the way, I do consider myself to be a Bitter Judge. Why? For one thing, I am a judge in the South, which means there is no way I could ever be on the Supreme Court. In the last 90 years, only one judge from Texas, Florida, Louisiana, Alabama, Mississippi and Georgia combined (Justice Tom Clark, Texas, nominated by Lyndon Johnson over 40 years ago) has served on our nation’s highest court. Has the South been redlined? Show me the evidence that lawyers who grew up within 300 miles of New York City or went to Ivy League law schools are more qualified than those who are from Houston, Dallas, Atlanta, Miami or Charlotte and attended excellent law schools like Texas or Duke. Yes, we like NASCAR and football and Law Firm 10, but we don’t put people into high office like Eliot Spitzer or allow unions to bankrupt our states like New York, New Jersey and California. Some of us may be rednecks, but we are not that dumb.
As a final point, BigLaw lawyers are no better in court than those who did not go to Ivy League schools or work in less-prestigious firms. If anything, juries are often turned off by BigLaw lawyers who may be technically brilliant and great at document review but lack the people skills needed to connect with the average juror.
Check out other Bitter Exclusives.
Bitter Lawyer just got classy. The following post is from a former Judge on the Texas Court of Criminal Appeals. We’re calling the judge “TexJudge.” Also read TexJudge’s response to this piece: Bitter Judge Strikes Again.
Y’all are great. Funny, informative and well-written. Many of the issues you cover need more attention than they have received, especially from the mainstream media.
I attended a top-25 law school (Boston University) and graduated in 1977. My third-year tuition was $7500, and most law jobs paid around $35-40000 per year at that time. BigLaw paid, if I recall, around $60000. Thirty years later, tuition is around $40000, roughly a 550% increase. BigLaw jobs now pay around $160000, a 250% increase, but most law jobs outside BigLaw, pay around $60000, a less than 75% increase.
Clearly, something is out of whack here. Tuition quintuples over 30 years at both top-tier and lesser-tier schools, but pay, for the 90% of grads who have no chance at a BigLaw job, has not even doubled. No wonder new law grads often have student loan debts well in excess of $100000 with little ability to pay them back—much less have enough left over for rent, food, etc.
Why are not law schools, or universities in general, criticized for their excessive prices? People go nuts if gas goes up 10%, but somehow law schools increase their tuition every year far in excess of inflation and totally avoid scrutiny from the media or the so-called consumer advocates. There are far too many law schools. I realize that folks who decide to go to law school need to do more due diligence to determine if it makes economic sense given the employment market for new lawyers (especially from lower-tier schools). However, don’t the schools themselves have some obligation to warn applicants that going to law school may be a very risky financial gamble? Should schools be required, perhaps as a requirement for their students to be eligible to receive government-backed student loans, to make true and accurate (under penalty of perjury) stats public regarding the employment rates of their graduates for the preceding five years?
Every summer there’s one phrase floating around law firms that causes a great deal of stress, confusion and annoyance for the horde of twentysomethings starting their first professional job. No, not “law firm hot”—I’m talking about “business casual.” Even for seasoned attorneys, its meaning can be harder to pin down than “substantive due process.”
Business casual causes so many problems because people want to define it in isolation. However, to truly understand this fashion limbo you have to think of it in relation to two other dress codes: Business formal and dressy casual.
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When you’re a busy professional, dating sucks. After enough first dates, you realize the process can be boiled down to something similar to a real estate transaction: Long, complicated and riddled with counter offers, deal breakers, inspections, third-parties, surprises and unforeseen expenses. Not to mention bidding wars on hot properties.
With toxic asset scrutiny all the rage these days, how can fledgling lawyers protect themselves from the mixed bag of toxic assets trolling the streets? Let’s break it down into semi-relatable terms. To avoid a dating cul-de-sac, follow this real estate checklist.
1. Be Pre-Approved
It makes no sense to be running to open houses and scanning the classifieds if you don’t even have loan approval. If you’re not honestly ready to start dating, why waste your time looking? You’re not seeking an investment property—you’re going to live in that relationship. So be serious.
Tip: Don’t be afraid to look at places over your budget– you never know what you can afford.
2. Beware of Preliminary Search and Realtor Syndrome
When you start telling people you’re single and “in the market,” suddenly everyone is your dating realtor. Mothers, cousins, co-workers, personal trainers, manicurists, store cashiers.Everyone is willing to comb through the current listings and analyze the comps. After all, big-ticket shopping for others is fun, and the possible commission of lifelong indebted gratitude for selling a property is empowering (until you break up with the person).
Tip: Avoid the short sale being offered by the firm secretary who works for the recently divorced junior partner. Even though she’s trying to sell him off as move-in ready, he’s really a total rehab project who’s just pissing her off by moping around and spending lots of extra hours in the office with no place to go. Trust me.
3. Location, Location, Location: AKA Feng Shui Your Dating Mo-Jo
Location is the fundamental tenet of real estate, as it should be of your dating life. When you’re home on your couch watching reruns of Murder She Wrote and George Lopez, you’re sitting on the wrong side of town. In fact, anywhere but there has better potential for finding your soul mate. I don’t care if you’re tired and stressed out. Get your ass to a happy hour, cocktail party, networking event, AA meeting or anyplace where groups of people exist. At least once a week. And look like an interested buyer while you’re there, for the love of cats.
Tip: It’s all about supply and demand, and regardless of market conditions, it can always feel like a seller’s market. However, when you look like you belong in the neighborhood and are wearing your “let’s make a deal” face (i.e. good hygiene, decent posture, confidence, no whiff of desperation), the tables can quickly turn and your prospects are far more motivated to sell.
4. Have a Wish List of Amenities & Deal Breakers, But Don’t be Wed to It
You’re a lawyer, so of course you pay attention to detail. And you know exactly what you want. That’s great. It’s important to be honest about what amenities or features you’re willing to live with—and what you’re absolutely not willing to accept. But keep an open mind. Often times the perfect place (or, in this case, mate) can feel so right even though it doesn’t include everything on your list. Follow your gut and accept compromise. Remember: No place has everything.
Obviously, all of this depends on the type of relationship you’re seeking. Only interested in a casual relationship? Think of suitors as a starter home that you know you’ll soon outgrow. A few perks like crown molding or a decent hairline will be enough to get you by. You’re just looking for someone who meets your needs in the short term—and will maybe even appreciate enough to turn a slight profit.
In the market for marriage material? Then you’ll need to find a place that you can see yourself retiring in. A place with a solid foundation in an established area that your agent would call “a smart buy.” It won’t be perfect, but you can make it your own and grow into it. Check the property’s history and inspect it carefully before taking the plunge. Make sure the title is free of liens and encumbrances—anything that “affects or limits” the viability of the relationship (like psycho ex-wives). And please be realistic about what you can and cannot change. Some new paint is one thing, but moving the garage to the other side of the house is another.
Tip: If what you’re looking at is too close to your future mother-in-law, you’ll want to consider that too.
5. Don’t be Fooled by Curb Appeal
Sometimes the properties that look incredibly charming from the street are ramshackle huts inside. Sometimes the ones that look lackluster from afar have the best bones (in more ways than one). Bottom line: Don’t dismiss or fall in love with anything too quickly. Give yourself a chance to really find out how the place is wired and how structurally sound it is.
Tip: Properties to avoid altogether:
- Money Pits who will suck up all your assets (e.g. men who wear anything bedazzled and call you “Babe” a lot; gold-digging skanks who are vajazzled and say things like “OMG, I love Dom Perignon, White Star has too many bubbles!”).
- Boilerplate Beaus who will quickly coerce you into a long and complicated adhesion contract (e.g. dull, formulaic people like CPAs and school teachers whose idea of commitment is shriveling up and dying together).
- “Caveat Emptor” Companions who are listed “as is.” Dating these people usually involves some kind of bogus disclaimer to absolve them of any lingering guarantees or warranties. Just as in real estate contracts, these statements attempt to minimize the responsibilities of the party once his or her “good looking enough” veneer rubs off and devaluing defects are detected. “I am who I am” is their mantra.
- Staging Stooges who disguise and arrange themselves to be exactly who you’re looking for. Just like realtors “stage” houses with furniture so you can envision the house as your own, these people have learned how to accentuate their best selling features too well.
6. Dating the ARM vs. the Traditional Mortgage
Dating an ARM, like its mortgage-based counterpart, involves risky, unpredictable people. Their behavior is erratic, but that’s what makes them so exciting. Even though you know it will end badly and foreclosure is imminent, you’re too emotionally wrapped up in the moment and proceed full steam ahead.
On the flip side, there’s the “nice guy,” or the traditional 30-year fixed, who’s the safe choice—consistent and steady over the long haul.
Tip: This doesn’t mean I’m suggesting you settle for “safe,” so simmer. Just avoid what’s unpredictable enough to potentially bankrupt you.
7. Avoid the Quicksand Effect
When you’re on a downward dating spiral, it feels like you’re in foreclosure and only sinking further and further in the abyss. You try quick fixes, like “pay day loans” and desperate make-up sex, but it’s a Band-Aid on a bullet hole.
If it’s really bad, you trigger an acceleration clause—the unspoken dating provision that presents the “shit or get off the pot” ultimatum. At that point you must decide: Go all in, or walk away losing everything.
After a while, delinquency sucks you under, and before you know it, you’re single, alone and without a home to keep your heart. You forgot to realize that the right time to get out was early.
Tip: If this last one seems depressing, it’s because IT IS! So steer clear.
Stick with me, and you’ll be well on your way to closing. Good luck!
Since I go to a TTT law school—fully knowing my non-top 10% grades would put me at a disadvantage in seeking summer employment—I hustled my butt off during the school year to find employment. I was finally able to secure a job as a legal assistant for a solo practitioner in January, and I have been working 30-hour weeks on top of juggling a full class schedule, which is in violation of the ABA 20-hour mandated work week for full-time students.
While I probably should begin this rant with a thoughtful caveat about how I mean no offense to anyone who “battles obesity,” I refuse. Even though I’m indifferent about people who choose to be overweight (or, in whatever rare instances, are genetically or medically dispositioned to bulking up), I need to express my feelings here. And in order for me to best express my feelings—you hear that? MY overlooked, size-proportionate feelings- I can’t commit to being inoffensive right now.
My bottled-up opinion is thus: If you work at a law firm, that’s what it is. A law firm. Not a Jenny Craig. It’s not a professional support group for those who eat their feelings. It’s not a place where you should be “held accountable” by your peers for what you put in your mouth or an inspirational forum for you to be celebrated if you power-walked in the mall the night before. It’s a law firm. You got that? A. Goddamn. Law. Firm.
Since January 2, a sizable (no pun intended) group people at my firm have been participating in a “Biggest Loser”-style competition, which is nothing more than a group diet. It’s organized each week by one the paralegals and was put together at the insistence of a group of women attorneys who, at some point last December, detached from blaming themselves for their own holiday weight gain and vowed to band together. In the new year, in the office.
It finally ends in 20 days. On June 1—after six months of incessant codependency—the final weigh in will take place. Though I’ve witnessed minimal results thus far, everyone insists they’re “in it to win it.”
To win what, you ask? Well, the “winner” of the eat-or-be-eaten challenge will take home $350 and an overhyped, non-cash prize they abusively call “bragging rights.” What a bunch of winners.
Since we’re now less than a month away, people are getting a little desperate, making it even worse around here. Last-minute diet fads. Juice cleanses. Jillian Michaels workout routines. And nonstop talk about The Biggest Loser.
A few weeks ago, I asked a group outside my office door to shut the hell up about it. Their response was indignant.
“What about Lost or 24? You always talk about those shows.”
Indeed I do. For about five minutes. Because those shows are amazing. But at no point do I ever suggest to the office that for the next 180 days we should all create parallel lives where we attempt to simultaneously exist in a universe where we never became lawyers. Or ask if anyone wants to join the firm chapter of the Jack Bauer fan club. No matter how much either of those things should exist.
The competition is comprised of 22 people, not including the receptionist who got fired for giving out client information over the phone and the secretary who moved back east last month. There’s a scale in one woman’s office where they all go on Monday mornings to “weigh in” and waste at least an hour of the workday. Then they spend the rest of the week making jokes about how nervous they are for next Monday’s weigh in. They insincerely cheer each other on, exchange recipes with various permutations of yogurt sauce, celebrate each other’s minimal progress and tell guilty eaters “It’s okay!” a lot.
The way they enable and justify each other’s excuses maddens me.
I have two kids and a mother with Alzheimer’s. I work 60 hours a week. I have a family to support. I have the same managing partner as the rest of you. I have real-life pressures and stressors. I love beer. I have a house filled with kids’ food. I have an unforgiving metabolism. I go to parties with end-to-end trays of artisan cheeses and gourmet cupcakes…
But guess what? I’m also over six feet tall, weigh 174 pounds and have a 34” waistline. Why? Because I watch what I eat, mind what time I eat it and get my tired ass up four days a week to go to the gym. I make time. And I do it all, mainly, so I never have to degrade myself by joining a Biggest Loser office pool.
Want to change your life and get on a healthy track? Wonderful. But do it on your own damn time. And guess what? Our insurance provider offers Weight Watchers and gym discounts. Read your plan! Then you can confess in those meetings about how hard it was to decline the homemade carrot cake brought in by Ruth from accounting, and you can bullshit in a locker room instead of a conference room about how sore you feel after spin class.
Finally, I know what you’re thinking. Isn’t this guy going to feel like an asshole when other people in his firm read this and figure out he wrote it? And the answer is no. In fact, I hope they do. I haven’t said anything here that I haven’t said to their faces, one way or another.
I’ve politely told all of them that I’m annoyed with their office challenge. And I’ve been called a bad sport and a “Debbie Downer” as a result. I’ve been looked at disapprovingly in the halls, and two women told me separately that I hurt their feelings.
Which only better proves my argument. If you’re dealing with a personal issue that you’re that sensitive and emotional about, don’t deal with it at the office!
What about my feelings, huh? My feelings of annoyance and intolerability. Anyone care about those? They’re just as real. Where’s the support group for those feelings?
Maybe if other people comment here and have the guts to admit that they too can no longer handle working in the middle of an over-obsessed weight loss contest, then they’ll finally get the hint. Help me out here. Who’s with me?
[Ed. Note: The following is from the mind of our good friend PhilaLawyer. It’s simply too amusing, intense and culturally relevant to just link to, so here it is in full. Don’t forget to buy his book: Happy Hour Is for Amateurs. A must-read for every Bitter Lawyer. And listen to his weekly radio show/podcast with Dr. Rob: Here’s What to Think.]
“It takes two to lie. One to lie and one to listen.” – Homer Simpson
Unless you’ve been in a coma, you’ve probably seen some snippet of the Senate grilling of Goldman Sachs’ executives. I won’t bother characterizing that embarrassment here.
My earlier post on Twitter suffices: ”The Goldman Senate Hearings. For the non-red light district crowd who’d otherwise never see a prostitute argue with a bookie.”
But while viewing that awful spectacle—watching a hopelessly out-of-her-depth lifetime government employee like Clare McCaskill attempt to cross examine a guy like Lloyd Blankfein on reconciliation of derivatives—an interesting question hit me.
Insider trading is rampant. Everyone knows that. A number of economists and policy wonks have suggested in the past the market might be more transparent if we admitted that fact and legalized the practice. In that same vein of thinking—in light of the obvious fact that humans will always commit frauds, more frequently the more money’s in play—I have to ask: Why not allow bankers to lie to one another?
Look at every disastrous policy or business decision creating the Great Recession, and you’ll find a common element: Lopsided informational asymmetries. The Goldman case is a perfect example. Paulson and Goldman knew something ACA probably didn’t. IKB apparently knew nothing and took what it heard from the other side of the deal as fact. That, or it thought it knew better than everyone else involved, and it couldn’t have been more incorrect.
Either way, the reason IKB got taken was a simple lack of due diligence. The company was lazy with its research—it assumed too much based on suspect sources or simply didn’t analyze enough. But how do you cure that problem? We can’t regulate companies to competence and legislate their managers to shrewdness. Vigilance is only enhanced by a known, increased exposure to risk. And how better to reach that goal, keeping every player on his toes, than to allow everyone to lie?
If every firm involved in the mortgage-backed securities mess assumed every other firm was utterly, completely full of shit, the “marks” would have all been raging skeptics. No one would have accepted the surface valuations. Those Germans would have done their homework. Everyone would have done more homework. Paulson and Goldman wouldn’t have attempted to hoodwink a buyer the way they did. The chance of success would be too low.
I know what a lot of you are thinking…
”Madness! This has to be the stupidest goddamned thing you’ve ever written! (And you’ve written many stupid things!) We can’t allow dishonesty as a standard business practice—have our markets balanced on millions of people engaged in efforts to defraud one another!
Really? Are you sure that could never work? Because that’s exactly how our legal system operates.
I’ve sketched the various forms of “soft lying” lawyers engage in under the banner of “advocacy” numerous times in the past. This description, a mock obituary for a litigator from a piece called “Witness Preparation,” codifies them best:
“[O]bituary writers can’t tell the truth. They can’t say that, among the many things [the litigator] might have been, he was undoubtedly a conniving, manipulative liar. If he wasn’t, he wouldn’t have been successful enough to warrant all that ink. “Lawyer” and “liar” aren’t mere sound-alikes – lying’s what we do. We just don’t call it that. We offer platitudes like, ‘There are three sides to any story – plaintiff’s, defendant’s, and the facts… by fighting, we ferret out the truth.’ That’s true, but it also means one side is lying all the time. Our lies, however, are never direct. Nobody counsels his client to bald-faced bullshit – that could cost you your license. We lie by omission, hide facts or hijack the focus, making the other side’s credibility the issue, obscuring the claims against our clients. We warp the language of an agreement into something its simple verbiage could never have intended. Most of us rationalize this by lying to ourselves – suspending disbelief and supporting our client’s most obscene prevarications. I’ve been dressed down several times by partners for merely joking in private that our client was lying.
‘The Judge will decide what’s true. You aren’t the Judge. You have a duty to your client. You’re an advocate, and that is all.’
Translation: ‘I know our client is lying. You know he’s lying. But we want his money.’
And those are just rationalizations for the neophytes and service partner shlubs. The big fish don’t need the justifications. They know that the trick to lying effectively is complete self-delusion. First, you have to make the facts your client gives you real in your mind, as though they actually happened exactly the way you’re going to tell them to the jury. Give them a history, some context, a back story. This sounds easy, but as the WMD debacle in Iraq eloquently illustrates, it’s actually hard as hell.
The real facts have a pesky habit of surfacing at the worst times, and this causes serious problems. You might mix up your client’s story with the true facts during a hearing or trial. If one real fact sneaks in, the rest have a tendency to flood in through that hole in the dyke. If you start thinking about the truth, your conscience might kick in subconsciously, leaving you a less-than-zealous advocate.
But how do you bridge the holes in your client’s fantastic story and bury the guilt of abetting his lies? With the second half of that self-delusion: The victim complex. Your client’s been screwed by his opponent before, so even if he’s wrong on this claim, he deserves to hit the bastard for some money. Your client did something wrong, but something we all do from time to time… Why should he lose a fortune due to some bad timing? It’s not lying; you’re righting a wrong – getting even for the aggrieved. And there’s no justice if you lose. Once a lawyer’s made the leap to this pedestal, the actual bullshitting’s easy.”
You might say that’s cynical. Most litigators with the capacity to honestly assess their trade would offer a different descriptive: Accurate. Call it whatever you like, “advocacy” is a form of spinning, misrepresentation by omission, and both are, well, lying. Unswayed? For context’s sake, consider some of our nation’s most illustrious litigators and trial lawyers, and a few stories about their work:
Bill Lerach: The dean of shareholder class action “strike” suits. Served two years in federal prison as part of a plea agreement arising from an investigation of his firm for alleged payment of illegal kickbacks to ‘professional’ class action plaintiffs.
The Pinnacle Corp. Billing Fraud Investigation: An associate at a multinational law firm took a partner to the state ethics board for fabricating 450 hours of work in a mere two month span.
Dick Scruggs: Mississippi trial lawyer famous for collecting billion dollar tobacco litigation fees. Now serving a seven-year sentence in federal prison for wire fraud and bribery related to an attempt to bribe a Mississippi judge.
The Ross Survey on Billing Fraud: Barely more than half of attorneys responding believed bill padding was unethical; nearly one third have engaged in it.
The Texas Asbestos and Silica Disease “Expert” Controversy: Judge finds thousands of reports submitted by experts on behalf of plaintiffs to have been fraudulent and fabricated by doctors who were paid in excess of a million dollars by mass tort lawyers.
The Lehman Bankruptcy Billing Controversy: Pay Czar Kenneth Feinberg was compelled to rein in counsel for running up $730 million in fees in less than two years.
But I haven’t come to bury Caesar. I’ve come to offer up litigators and trial lawyers as exemplars—to ask if what’s acceptable for them shouldn’t also be so among bankers. If an “adversarial system” where opponents spin and misrepresent facts to unsophisticated jurors is credible enough of a structure through which to find truth in an architecture where our liberty and property can be forfeit, why can’t a couple of equally sophisticated finance professionals bullshit one another? If justice emerges from attorneys weaseling one another in the litigation process, wouldn’t the most informed trades result from two parties openly trying to deceive each other, suspicious as lawyers, vetting every element of the opponent’s proposition?
Why do we preclude that in finance? Is it because the money the bankers are dealing with is so much greater than what’s at issue in the legal business?
Wall Street compensation pool (2009): $130 billion.
Amount the Fed earned on repayment of loans it made to big banks and mortgage-backed securities purchases (2009): $46.1 billion.
Economic costs of tort litigation (2008): $254.7 billion.
Legal fees paid to 100 biggest U.S firms (2009): $74 billion.
No. Can’t be that.
Is it possible the reason is emotional, or worse, political? Perhaps attorneys get a unique pass because, unlike bankers who have to buy the government’s cooperation, lawyers directly control the legislative and regulatory processes? (Need I cite figures comparing the number of JDs and MBAs working in the federal government? Didn’t think so.)
Maybe it’s as simple as political party. Democrats love lawyers. Can’t get enough of them. “We need to embrace complexity!” That was our law professor-cum-President’s charge. No problem in the world that can’t be solved with a new volume of rules. And no better source of campaign funding than the industry that makes its living navigating the effluent stream of rules, which Washington widens every day.
And Lord, do populists on the Left love their attorneys. Robin Hoods for the workingman! The little guy’s only chance against the monstrous, heartless corporations! And we are in populist times, with the Left, as always, playing for emotional votes…and demanding economic “fairness,” whatever that is.
Populists, however, are exceedingly simple creatures. They worship notions like consistency and howl at the suggestion of hypocrisy. If you let them run the asylum, some might soon start asking, “When we’re done fixing health care and cleaning up all these banks, should we clean up the Court system, too? Reform the legal industry people have been complaining about for decades?” They might ask the Democratic Congress to kill its golden goose.
Of course, that’s never going to happen. Neither party would ever give up the contributions it gets from lawyers. But in a better world—an intellectually honest, logical one—that lawyers are allowed to deceive while finance workers may not should at least give the banks some leverage, an argument against absurd regulation. If the legal system decides matters involving our core, essential rights, and if the process through which our system finds truth is an admitted competition of lies, why hold something as amoral as finance—trades among the most sophisticated of institutional investors, no less—to a higher standard?
Why should Goldman be flayed for pulling the wool over a bank’s eyes the exact same way “Philadelphia Lawyers” pull it over juries’ every day? And if the answer’s something incoherent—like “Because that’s just ‘the way it is,’ and lawyers are different than bankers”—then perhaps the Left-leaning populists backing Democrats should rethink their allegiance. In the sort of republic they favor, where fairness would be paramount, consistency the highest grace, how can a party, Congress, or an administration root out thieves and degenerates on Wall Street without first cleaning the rats out of its own basement?
That, or just let the bankers lie, too. Either approach would be more credible.
[Ed. Note: The following is again from Gianna Scatchell, the blogger behind LegallyNoted.com]
Listen up, single ladies in law-law land, wedding season is fast approaching, and here’s your wake-up call. As the current recipient of five—count ‘um five—nuptial invitations between June and August, the pressure is on.
As a result, I’ve been busting ass at the gym (thank God bikini and wedding season operate concurrently), practicing fake awe and scouring Gilt and HauteLook for discount designer fashions that are amped up enough to stand out, yet simple enough to not steal wedding-party thunder.
Regardless, nothing can change the fact that I’ll soon be facing everything in life that’s most dreadful…
Do you get a “plus one?” Will you bring someone? Will you hire someone majorly handsome to go with you? Will you be labeled as “single” and seated on the chart accordingly?
Not to mention, there’s the pressure of remaining intuitive enough to hit the ladies’ room just before the bouquet toss and the chicken dance—all whilst being surrounded by my best coping device: Free top-shelf liquor.
But, as we all know too well, every wedding has “the single drunk girl” who ruins it—or makes it memorable, depending on your attitude. And, at times, it’s easy to wallow in your pity-party-of-one enough to think, “Why not let it be me? I deserve to just blow off some steam.”
Then you see the following video footage, and you’re haunted for years to come. Reel yourself in. NO BUENO! This, ladies, is what happens when a single drunk girl attempts to use the wedding tent’s support beam as her personal stripper pole. Behold…
Who needs a record screech to signal disaster when someone invited her? There’s the bride’s busted lip and shattered fairytale. Guests army-crawling to safety. The dancer’s obnoxious asymmetrical hemline! All reasons to avoid the dance floor for eternity.
But somewhere in here is a legal lesson.
Let’s use this poor, scarlet-clad woman not only as a cautionary tale, but also as a learning opportunity. The Good Lord gave her lemons, and dammit, I’m going to make some lemonade.
The only way I’ll feel better and be able to assuredly prevent myself from ever indulging in such ruckus behavior—no matter how deathly single, hideously jealous, blissfully intoxicated or numbingly Alprazolam-ed I become—is to break this situation down into possible torts. (You got to know the time to avoid the crime.) So let’s study this social injustice, shall we?
• COULD THIS BE THE INTENTIONAL TORT OF TRESPASS TO CHATTELS?
Maybe there’s a tenuous argument that she trespassed on the pole because she didn’t have permission to use the pole as a dance prop. Thoughts?
• COULD THIS BE AN ACTION FOR CONVERSION?
The guest’s actions must have:
1) Interfered with bride’s right of possession in the chattel that is serious enough in nature to warrant that the guest pay the full value of the chattel;
2) Intent to perform the act that would interfere with the bride’s right of possession of the tent. (I think she intended to perform a stripper move on the pole, but I’m not sure if she meant to interfere with the possession or was just trying to snag a man);
3) Causation—AKA she did it!
• COULD THIS BE AN INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?
1) Her conduct was extreme and outrageous. (A stripper pole at a garden wedding—como?) There were flower girls and ringbearers present for Christ sake;
2) She intended to cause the bride to suffer severe emotional distress (toxic friends anyone?), OR her conduct was reckless (which, I think, goes without saying);
3) Causation: Because it was her!
4) Damages: Severe emotional distress. How distraught was the bride? Did she need psychological counseling following the event? (This argument will probably fail because IIED is an extremely hard threshold to overcome. So let’s look at negligent infliction of emotional distress!)
• COULD THIS BE A NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS?
Bride would have her best shot with this argument, since there’s no need to prove intent.
• COULD THIS BE NEGLIGENCE?
1) Did the guest have a duty to conform to a specific standard of conduct for the protection of the bride against unreasonable risk of injury? (Perhaps. She at least had a duty not to behave like trailer trash);
2) Breach of that duty. (She clearly contravened normal wedding etiquette with that spectacle!);
3) Causation: But for her actions, assuming the tent never would’ve collapsed. (Her inelegant dance moves were the proximate cause of the collapse because it was foreseeable that climbing on a support beam to spin like a bitch would cause it to collapse, no?)
4) Damages: Her actions ruined the wedding—plus economic damages? Special damages? General damages? A top plastic surgeon for that bride’s face?
• COULD THIS BE DEFENSES TO NEGATE INTENT?
Can you argue intoxication? Plead insanity? Plead desperation? (J/K—not really)
• THROW A BATTERY ARGUMENT IN HERE AS WELL… WHAT THE HELL!?
When you look at it this way, I hope you agree. Just remain single and ready to mingle…responsibly. Legally, that’s the only (well-flexed, clean-shaven, spray-tanned, expensively heeled) leg you have to stand on.
Go in peace. And serve the law Gods.
Read Gianna’s other posts, such as Dumped on Facebook; When Your Breakup Goes Law Firm Viral, Law School Exposé: How Leggings Made Me Fat, Ten Ways for Women NOT to Get Sex in Law School and Six Ways for Men NOT to Get Sex in Law School.