Vermont was the first state in the country to sue an alleged “patent troll” for consumer protection violations.

Vermont’s case against MPHJ Technology Investments, LLC (MPHJ) is now over two years old and virtually nothing has been decided.  No discovery has been done; no documents have been produced; and no depositions have been taken.  But much time has been spent; much ink has been spilled; many, many briefs have been filed; and much money has been spent.  In the two years, only a jurisdictional battle has been fought:  whether the case involves MPHJ’s patent rights, and therefore is governed by federal law, and therefore belongs in federal court – as MPHJ contends.  Or – as the Attorney General contends – whether it is merely about state law, i.e., whether MPHJ’s sending of patent infringement “cease and desist”-type letters to many Vermont companies, which letters the Vermont Attorney General contends contained false statements, violates Vermont consumer protection law, regardless of whether MPHJ’s patents are valid and enforceable, such that the case belongs in state court.  This is stuff only a legal wonk could love.

While all this jurisdictional back-and-forth has played out over the last two years, involving two appeals to higher federal courts, MPHJ has recently “upped the ante,” so to speak, by filing a separate lawsuit against Attorney General Sorrell, claiming that Vermont’s efforts to stop or restrict MPHJ’s activities in Vermont infringe MPHJ’s federal civil rights.

Thus, there are now two legal cases involving the alleged "patent troll" MPHJ and the Vermont Attorney General pending in Vermont.  In the second case, federal Judge William Sessions just issued an important decision.

But before turning to that decision, some background.  In the original case, State of Vermont v. MPHJ, the Vermont Attorney General sued MPHJ in Vermont state court, claiming that MPHJ's activities in sending threatening "cease and desist"-type letters to Vermont companies violates Vermont's consumer protection law.  As noted above, all of the activity in that case so far has involved whether the case belongs in state or federal court.  MPHJ has twice tried to "remove" the case to federal court on the grounds that no matter how Attorney General Sorrell frames his Complaint, it is fundamentally about MPHJ’s federal patent rights.  Federal Judge Sessions has twice ruled against MPHJ and "remanded" the case back to state court, finding that the case is not about the validity of MPHJ’s patents per se, but only about its allegedly fraudulent activity in sending threatening letters to Vermont companies, which is a matter of state consumer protection law, not patent law, and, hence, there is no federal jurisdiction.  The first time Judge Sessions remanded the case, MPHJ appealed the remand order but it was affirmed by the federal appeals court, confirming that there was no issue of federal law and that the case belongs in state court where the Attorney General had filed it.  In its second attempt at removal, MPHJ argued that an amendment to the Attorney General’s Complaint invoked Vermont’s brand new anti-troll act, 9 V.S.A. § 4195 (effective July 1, 2013), which gave MPHJ a new basis for seeking federal jurisdiction.   The Attorney General responded that the Amended Complaint does not in fact invoke the anti-troll act and that the suit against MPHJ in no way relies on the anti-troll act but rather only upon pre-existing consumer protection law.  Judge Sessions agreed with the Attorney General, again sending the case back to state court.  MPHJ is now appealing that second remand order.

In the second case, MPHJ v. Sorrell, filed in federal court and also before Judge Sessions, MPHJ is the plaintiff.  MPHJ alleges that the State of Vermont is violating MPHJ’s federal civil rights by interfering (supposedly) with MPHJ’s rights to enforce its patents by sending its "cease and desist" letters into Vermont.  In the latest activity in that case, Judge Sessions has just thrown out most of the MPHJ’s Complaint.  See Opinion and Order dated June 3, 2015.  The only claim that Judge Sessions has allowed to proceed, for the time being at least, is MPHJ’s challenge to the constitutionality of the new anti-troll act.  Although MPHJ is not currently being sued under that act, Judge Sessions found that MPHJ’s fear of future prosecution under that act is justified because MPHJ: a) says that it does plan to continue its practice of sending “cease and desist” letters to suspected Vermont infringers, and b) can reasonably fear that that activity will be prosecuted under the anti-troll act.  Thus, MPHJ will be allowed to challenge the constitutionality of that act.

Thus, both of the Vermont lawsuits involving MPHJ and its alleged “patent trolling” activities will continue to grind away. 

There will surely be more to come.


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What follows is a blog post by me on June 25, 2009.  I can't resist reposting it because the 2015 Insurance Bad Faith and Extra-Contractual Liability Seminar is nine days away.  The Program Chair this year is the below-mentioned Chris Martin.  And the below-mentioned Bill Kobokovich will hold forth on "Handling Multi-Claimant and Multi-Insured Bad Faith Exposures."  (And, of course, Tony Zelle succeded me as Chair of the Insurance Law Committee.)  What is old is new again.  And I predict another synergistic and dynamic experience.  I'll see you there.  Meanwhile, here's that blog post, vintage 2009:   

"Were you at the bad faith seminar in Boston last week? Wasn’t it great? Historically, the Insurance Law Committee has done this program every other year. People who do bad faith litigation, or handle that kind of claim, really look forward to it. In my opinion, there was no disappointment this year. Congratulations to the program chair and vice chair, Tony Zelle and Bill Kobokovich.

There were many high points of the seminar. One of the best was a panel discussion on litigating “institutional bad faith.” The panel consisted of the aforementioned Bill Kobokovich (Travelers), Chris Martin (Martin Disiere, et al) and Richard Fabian (RiverStone). A lot of people told me how much they learned from the panel. The really cool part was that Chris had just gotten a defense verdict, in an institutional bad faith case against Bill’s company, the week before. And, get this; the senior partner of the plaintiff law firm that lost the case was in the audience there in Boston. I don’t believe he submitted any questions to the panel. : )

In any event, I felt the whole program had an outstanding “vibe.” The education, networking and collegiality were synergistic, creating a dynamic atmosphere. Did you feel the same way? To me, the atmosphere in a seminar can make all the difference in the world.

I don’t see how anyone who handles bad faith matters can miss the Insurance Law Committee’s semi-annual seminar." Click here to register for the DRI Insurance Bad Faith and Extra-Contractual Liability Seminar in Chicago, June 17–19. 

 

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Insurance for Lawyers

Posted on June 2, 2015 03:57 by Steve Crislip

We advise, defend, and prosecute insurance-related claims regularly. Lawyers sometimes do not pay close enough attention to their own coverages, however.  You should have a basic system to review and check all your coverages on a regular basis.  We were trained as lawyers, not business owners.

Recently an Illinois Supreme Court case (Ill. State Bar Ass’n Mutual Ins. Co. v. Law Office of Tyzzolino & Terpinas, 2015 BL 44614, Ill. 117096, 2/20/15, released 3/31/15) invalidated the firm’s professional liability policy for all the lawyers when one of the lawyers falsely denied knowing of any circumstances that might led to a malpractice claim. The court took away the coverage of the other lawyers and denied them the “innocent insured” doctrine.  Frequently claims against a firm arise out of the acts of a “lone wolf” doing things unknown to the others.  Here, the application process was flawed by just one lawyer not being truthful.  I have often said in law practice, you really do become your brother’s and sister’s keeper.

To maintain a modern practice, you should protect yourself with coverage. Often without regard to facts or legal basis, claims get made.  Of course, mistakes often happen.  You do not want to risk your likelihood and your assets by not having adequate coverage, whether it is general liability, employment practices, errors and omissions, or cyber insurance.

With regard to the legal malpractice coverage part, speakers at the National Legal Malpractice Conference in Washington, D.C. recently emphasized that timing is everything.  With claims made and reported coverage, the covered act needs to have occurred during the policy period and the claim reported within the period.  So, you need to know if a “claim” has been made to one of your lawyers and need to know how and when to report it.  You need to see your policy and make sure you have timely reported, with the required specificity.  In my view, that requires some looking and asking in a firm and the establishment of a culture where concealment is not tolerated.

I can see staff, or your outside agents or brokers, handling some of your insurance requirements.  With the important professional liability coverage, I suggest you need knowledgeable lawyers and a required overview of the other lawyers.  I find lawyers to be an independent lot who often chaff at oversight of them.  The issues are too important to leave to a laissez faire approach. You really need a strong loss prevention culture in your firm, regardless of its size.  Part of that is the oversight on coverage and the individual accountability of reporting a claim to others in the firm.  The individual lawyers who gloss over a claim feeling there was no merit to it, or hope it will go away can bring down the house of others. As they said at the end of the annual conference, “Communicate with your carrier and report everything.”  Expensive coverage is better than no insurance.”

This blog was originally posted on Lawyering for Lawyers blog on June 1. Click here to read the original entry. 

 

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On Wednesday, the Seventh Circuit held that officers who detained a police sergeant without a warrant were entitled to qualified immunity. In Mucha v. Jackson, No. 14-3619, 2015 WL 3397026 (7th Cir. May 27, 2015), at the request of a public retirement system, a psychiatrist examined a police sergeant who had not reported to duty for seven months. In a report three weeks later, the psychiatrist stated that the sergeant was threatening to shoot police commanders and could not be sent back to work. The police department received the report a couple weeks after that. Two officers then went to the sergeant’s home, handcuffed him without an arrest warrant, drove him to a mental health facility, and signed an emergency detention form. The facility held the sergeant for three days. 

The sergeant sued, alleging in part that two officers who detained him did so without warrant or other justification in violation of the Fourth Amendment. The district court denied these officers’ motion for judgment on the pleadings with respect to their claim for qualified immunity but the Seventh Circuit reversed. It dismissed the two officers, finding they were not violating clearly established law. 

The Seventh Circuit held that a state law cannot preempt the Fourth Amendment, but it can establish a standard of conduct consistent with the amendment but particularized to a specific situation. The sergeant’s statements to the psychiatrist, the psychiatrist’s report, and the sergeant’s access to guns gave the arresting officers probable cause to believe he was mentally ill and posed a danger to himself and other officers, consistent with their state’s emergency detention statute. And though the sergeant had made these statements to the psychiatrist a month before the police acted, they were recent enough for the statute’s requirement of showing recent threats or attempts. The Seventh Circuit did not decide whether the police would have been deemed reasonable without the state detention statute, but, it wrote, “we imagine that they would have been.”

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I recently read an announcement by a top U.S. law firm congratulating itself on its accomplishments based on a recent Law 360 survey regarding law firm diversity. The firm reported great pride in its placement, issued appropriate kudos and congratulated the firm’s ongoing commitment to supporting minorities in the firm. The problem, however, is that when you speak with African American attorneys who work at major law firms there is often a disconnect between what firms are reporting and what these attorneys are experiencing. 

Some surveys that look at the best firms for minorities in general may overlook important issues affecting African Americans specifically and, as a result, firms may be lulled into the complacent view that things are going well for all minorities when in fact the statistics may be skewed in favor of a particular group (or groups), especially in certain parts of the country where certain minority groups are more heavily represented. A recent article looking at African Americans in law firms reported that African Americans are among the most poorly represented minority groups consisting on average of 3.5 percent of non- partners and a mere 1.6 percent of partners.   

In addition, some of the numbers being reported simply do not convey the full experience of African Americans who are trying to make a long term go at “Big Firm." Over the years I have watched some of most pedigreed and qualified African American attorneys leave big firms. With the number of African Americans going to law school dwindling, this does not bode well for the future of African Americans at Big Firm.  This is an issue that is of some importance to African Americans today and it is one at which firms should take a closer look rather than touting positions on the latest diversity chart.  If the numbers and underlying experience at firms nationwide are issues, comparing one underperforming firm to its underperforming peers does little to move the ball forward.  Perhaps those doing the surveys of Big Firm should place greater emphasis on the overall experiences and longevity of attorneys within these firms.  This may help firms to understand what is needed to ensure the long term success of African Americans in the law firm environment. If not, African American lawyers will continue their exodus to more fertile and inclusive ground. 

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In 2010, the Supreme Court held that courts should employ a presumption against the extraterritorial application of federal statutes absent an “affirmative intention of the Congress clearly expressed” indicating otherwise.  Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 255 (2010) (quotations and citation omitted).  Post-Morrison, federal courts have summarily applied this presumption to cases alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), but differed on how to limit its extraterritorial reach—typically limiting extraterritorial application to cases involving domestic conduct amounting to a pattern of racketeering or domestic enterprises.  See, e.g., United States v. Xu, 706 F.3d 965, 979 (9th Cir. 2013) (focus on the pattern of racketeering); Chevron Corp. v. Donziger, 817 F. Supp. 2d 229, 245 (S.D. N.Y. 2012) (same); United States v. Philip Morris USA, Inc., 783 F. Supp. 2d 23, 29 (D.D.C. 2011) (same); see also Cedeno v. Intech Grp., Inc., 733 F. Supp. 2d 471, 474 (S.D. N.Y. 2010) (focus on the enterprise); Sorota v. Sosa, 842 F. Supp. 2d 1345, 1350 (S.D. Fla. 2012) (same).  In 2014, the Second Circuit added yet another option: applying RICO extraterritorially when the predicate act statute expressly extends to foreign conduct.  Eur. Cmty. v. RJR Nabisco, Inc., 764 F.3d 129, 136 (2d Cir. 2014) [“RJR Nabisco II”].  And this past April, the Second Circuit denied RJR Nabisco’s request for rehearing en banc, thereby leaving RJR Nabisco II to serve as precedent.  Eur. Cmty. V. RJR Nabisco, Inc., No. 11-2475 (2d Cir. April 13, 2015) [“RJR Nabisco III”].  Perhaps more telling than the actual denial, five judges wrote separate opinions to accompany the disposition, illustrating the Second Circuit’s internal disagreement over RICO’s extraterritorial scope.

The RJR Nabisco II decision vacated the district court’s dismissal of plaintiffs’ RICO claims.  764 F.3d at 142-43, 149.  Initially, plaintiffs had filed suit in the Eastern District of New York alleging RICO violations arising from a money-laundering scheme orchestrated by RJR Nabisco, pervading the United States as well as countries in Europe, Central America, and South America.  Eur. Cmty. V. RJR Nabisco, Inc., No. 02-CV-5771, 2011 WL 843957 at 1-2 (E.D. N.Y. March 8, 2011).  The district court dismissed these claims, concluding that RICO’s extraterritorial application focused on the enterprise and plaintiffs had failed to allege RJR Nabisco controlled the money laundering scheme.  Id. at 7.  On appeal, the Second Circuit disagreed, holding that RICO applies to foreign conduct when the relevant predicate statute unambiguously applies extraterritorially and concluding plaintiffs sufficiently pleaded domestic conduct amounting to predicate acts, the statutes of which extended expressly to foreign conduct.  RJR Nabisco II, 764 F.3d at 139, 140-42.  

The dissonance in RJR Nabisco III rests on the apparent discord between RJR Nabisco II and the Second Circuit’s holding in Norex Petroleum Limited v. Access Industries, Inc..  631 F.3d 29 (2d Cir. 2010).  In Norex, the court held Morrison foreclosed any argument that (1) RICO’s general reference to “foreign commerce” demonstrates Congress’s intent to apply RICO extraterritorially; (2) because certain RICO predicate act statutes extend extraterritorially, RICO extends the same; and (3) vague allegations stating “defendants committed numerous acts in the United States” supports a claim for RICO to apply to these domestic acts.  Id. at 31, 33.  Like the divergent outcomes in Norex and RJR Nabisco II, the Second Circuit judges retain a similar division in their of analyses regarding whether these opinions can be read harmoniously or if they inevitably conflict.

While Judge Hall’s concurring opinion posits that RJR Nabisco II can be read in coherence with Morrison and Norex, the four dissents forecast confusion and inconsistency among courts moving forward.  Judge Hall, a member of the RJR Nabisco II panel, expands on the panel’s reasoning.  In addition to the extraterritorial application of the case’s relevant predicate acts, Judge Hall emphasizes that the post-9/11 addition of multiple predicate act statutes with similar scopes from the Patriot Act indicates Congress’s intent for RICO to span to international conduct when parties allege such predicate acts.  RJR Nabisco III, at 1-3 (Hall, J., concurring).  Moreover, he distinguishes Norex, noting that plaintiffs in that case had attempted to argue that RICO always applies to foreign conduct simply because some of the predicate act statutes apply to foreign conduct.  Id. at 5.  Unlike Norex, the RJR Nabisco II decision limits RICO’s extraterritorial application to instances in which the predicate racketeering acts expressly allow for it.  Id. at 5-6.

The subsequent dissents point to observed discrepancies between the two opinions and raise questions left open by allowing both decisions to remain as precedent.  Judge Jacobs’ dissent outlines these general concerns while Judge Cabranes also comments on the risk of inviting RICO claims derived from conduct occurring “anywhere in the world.”  Id. at 1-2 (Jacobs, J., dissenting); id. at 3 (Cabranes, J., dissenting).  The most divisive dissent, however, was Judge Raggi’s opinion, criticizing RJR Nabisco II for deviating from RICO precedent and stating that a rehearing should have been granted to consider whether and when RICO applies extraterritorially.  Id. at 3-4 (Raggi, J., dissenting).  She notes the contrast between other statutes’ language expressly providing for extraterritorial applications with the noticeable absence of any such provision in RICO.  Id. at 6, n. 4.  Moreover, her dissent points to the factual similarities between Norex and RJR Nabisco II despite their dissimilar results.  Id. at 12.  And like the other dissents, Judge Raggi voices concern over the panel’s choice to ground its analysis in RICO’s predicate acts rather than the enterprise or pattern of racketeering activity, opining that the panel failed to identify any “focus” as prescribed by Morrison.  Id. at 18-19, 22-23.  

To round out the dissenting opinions, Judge Lynch offers a new perspective by supporting the adoption of the panel’s reasoning.  Id. at 1 (Lynch, J., dissenting).  While Judge Lynch believes a rehearing en banc should have been granted to resolve tensions between Norex and RJR Nabisco II, he disagrees with the other dissents to the extent they suggest RICO can never apply to foreign enterprises or patterns or predicate crimes implicating statutes with extraterritorial reach.  Id. at 6. 

Ultimately, the Second Circuit’s disposition retains RJR Nabisco II as good law.  Yet these varying opinions expose the incongruity among the Circuit and reflect the broader division across jurisdictions concerning RICO’s extraterritorial application.  Thus, practitioners should be aware that the question regarding RICO’s focus for determining its extraterritorial reach remains unresolved among, and seemingly within, certain circuit courts.  


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As an Asian American lawyer, I have found that DRI provides the resources to aid diverse lawyers to become successful in their practice.  My DRI membership has been a source of personal satisfaction and continues to contribute toward my professional growth. And, as I look around, I find the same has happened to other Asian American lawyers who chose to make the most of their membership.  One such shining example is Melissa Lin who is a partner at Righi Fitch Law Group in Phoenix, Arizona. Her practice includes the representation of individuals, contractors, businesses, and municipalities in tort and contract litigation, primarily in the areas of general liability, construction defect litigation, complex litigation, personal injury, and product liability.  Melissa was honored as a 2012 through 2015 Southwest Super Lawyers Rising Star. She was named to Lawyers of Color’s 2013 Inaugural Hot List for the Western Region, and was also named as one of the top valley attorneys by North Valley magazine in 2013

Melissa has been a DRI member since 2007 and has been actively involved in various DRI committees, including Women in the Law, Diversity, and Construction Law. She currently serves as the Membership Chair of the DRI Construction Law Committee and the 2015 Diversity Seminar Vice-Chair and Expo Chair.  When I asked Melissa about her experience with DRI, she told me, “DRI is one of the most rewarding legal organizations to belong to and get involved with. In addition to providing writing, leadership, and speaking opportunities to a national audience, DRI provides diverse attorneys like me an opportunity to meet and interview with corporate counsel through the DRI Diversity Expo. I have also made great connections and friendships with other attorneys from around the country who I can call with questions at any time.” Examples of some of the great opportunities Melissa had through DRI include speaking engagements at the 2014 Construction Law Seminar and the 2013 and 2014 Diversity Seminars. In addition, she has published articles for the DRI - The Voice of the Defense Bar newsletter.  Melissa is definitely a rising star within DRI. Melissa has also served in leadership roles with the Construction Law Section of the Maricopa County Bar Association, the Arizona Asian American Bar Association, the Women’s Metropolitan Arts Council of the Phoenix Art Museum, and the Young Lawyers Division of the Arizona State Bar and Arizona Association of Defense Counsel. Melissa believes that DRI has been one of the most instrumental and helpful organizations to her career. 

Melissa is the daughter of Taiwanese immigrants. She grew up in Tucson, Arizona where her parents have owned and operated a small business for over thirty-six years. Although her father was initially opposed to the idea of law school for Melissa because they had no connections in the legal community and didn’t know any lawyers, Melissa followed her dream of becoming a lawyer.  Through her hard work, enthusiasm, and commitment to her clients, Melissa has shown that success can come to those who seize the opportunities presented to them.  It is my hope that other Asian American lawyers can draw inspiration from Melissa’s success story and leverage all that a DRI membership offers.


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In what can only be considered another positive step for the construction industry, according to the United States Labor Department, construction firms added 45,000 jobs in April eradicating a surprising loss for March. Construction jobs are now at a six year high according to the Labor Department.

With business trending upward in many geographical areas throughout the country, 2015 looks to be a promising year for the construction industry.

Unfortunately, because of the economic downturn over the last few years and with an aging demographic, finding experienced workers might prove to be difficult as construction firms ramp up.

Firms, technical schools and colleges will need to do a better job to recruit skilled labor into the job market as without skilled labor, projects could be delayed or worse yet, shuttered because there are not enough people to perform the work.

Hopefully that does not happen.


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We have all seen the statistics: only 17 percent of equity partners in the nation’s largest 200 firms are women, only 2 percent of equity partners in the largest 100 firms are female minorities, and women make up the largest percentage of staff attorneys.  These trends prevail even though women have continued to enter the practice of law for the past three decades at a rate of at least 40 percent of law school graduates every year. The recent “2015 Glass Ceiling Report” published by Law360 just last month acknowledged that “Women continue to be dramatically underrepresented at every attorney level in the U.S. legal industry, and firms made negligible progress toward gender equality in 2014.”  

Where does one begin to make a lasting, positive difference for women lawyers?  That is the question Beth Fitch and I answered when we co-founded the “Ladder Down” program in Arizona with the help of the Arizona Association of Defense Counsel. 

In January 2013, we launched a powerful year-long pilot program for women lawyers built on three pillars: leadership, business development, and mentoring. Beth and I wanted to give women practical, tangible tools for succeeding in the legal profession that they can begin implementing in their practice right away. We were driven to empower women through a new type of training that marries instruction with accountability.  After all, one cannot have sustained change unless the actions become a habit, and habits take time to develop. For more information about our program, check out our website at www.ladderdown.org. The program is now in its third year and has proven to be pivotal in changing the professional lives of its 80 participants for the better. The Ladder Down program has been so impactful that it is now being used as a model across the country, with similar programs underway in Seattle and New York. The reason for the interest in Ladder Down is simple: our structure works. The evidence of the empowerment is overwhelming. 

After completing the one-year course, our Ladder Down graduates report measurable improvements: promotions to partnership, new clients, expanded business networks, robust referrals, substantial raises, firm transitions, and a universal increase in community involvement. Participants negotiated their salaries (some for the first time), developed formal business plans, and gained speaking and publishing opportunities. They landed positions on boards, obtained origination credit, and learned to state their accomplishments. In addition to these “external” changes, they saw internal changes: increased confidence at networking events, a new ability to resolve conflict, a commitment to prioritizing business development, and a better understanding of their own strengths. Every one of them benefitted from taking risks they would not otherwise have taken. 

When Beth and I first launched Ladder Down we had several conversations about which organization would make the best partner. Beth had served as President of the Arizona Association of Defense Counsel several years earlier, as had my father Doug Christian, and I am still an active member of the AADC Board of Directors. We both had such wonderful experiences and built lasting relationships through the AADC that our natural inclination was to start there. I pitched the Ladder Down idea to the AADC Board during our 2012 fall retreat and was met with an incredibly warm reception. The Board was excited about this new endeavor, which was unlike anything that the AADC – or any other SLDO to our knowledge – had ever undertaken. 

As with any program, the first questions surrounded expenses. What would the pilot program cost and how did Beth and I intend to pay for it? We approached our faculty (by far our largest expense) and were able to negotiate “pilot program” rates for the inaugural 2013 Ladder Down program. Once we had their rates confirmed, we were able to set a target goal for fundraising. We explained to the AADC that our goal was to find law firms interested in sponsoring at the $1,000 level; in exchange for that $1,000 the firm would be guaranteed a space for a participant of its choice in the 2013 program. We asked the AADC to match our $1,000 sponsorships (up to a certain cap) until we reached our target amount. The AADC agreed with that strategy and we were approved to start fundraising in the fall of 2012. Several Board members even committed their firms to the $1,000 sponsorship right there on the spot. When I called Beth after that meeting, the first words out of my mouth were “It’s alive!” 

The relationship between Ladder Down and the AADC was mutually beneficial from the start. The AADC was instrumental in helping Beth and I spread the word about our new program. They helped advertise the launch to the AADC members, and the firms represented on the Board were eager to sponsor our pilot program and send their attorneys to Ladder Down. We also had a home for Ladder Down rooted in Arizona’s defense community and could run the financial component of the program without having to start our own 501(c)(6). Because participation in the first and second year classes was restricted to AADC members, AADC membership increased. In fact, each year we saw several women lawyers join the AADC specifically to participate in Ladder Down. And in 2013, during the pilot program’s first year, DRI recognized the AADC with the DRI Diversity Award. This award is given to the SLDO that demonstrates a commitment to diversity and it was an incredible honor for the AADC. It is not hard to see how this relationship between an SLDO and Ladder Down can be win-win!

Our mission going forward to is to bring Ladder Down to other SLDOs interested in making a positive difference for their women lawyers. The staggering statistics that we continue to see reported are not going to shift unless there is a more intentional effort to bring about change. The good news is that the leg work for “Ladder Down” has already been done. We have the structure and agenda for the year-long program in place; we have faculty with demonstrated results; we have brochures, applications, evaluations, and CLE certificates already created; and we have leaders from the Arizona program who are able to share their experiences. The next steps are to find champions in other cities who can partner with their SLDOs to launch this fantastic program. I encourage you to reach out to me about how you can start a Ladder Down program in your area.  


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Lawyers Need to Adapt Faster to Change

Posted on May 4, 2015 09:33 by Steve Crislip

As they say, the only constant is change.  We see it all around us and expect it as a matter of course.  Much we deem for the better, but some changes with technology or social conventions are unliked, but here. By way of example there were about 200 buildings on the 1,300-acre campus of Eastman Kodak’s business park in Rochester, but now 80 have been demolished and 59 sold off says the New York Times.  Changes in film use put them into bankruptcy in 2013.  Radio Shack, the go to electronics consumer place in the 1970-2000 era, filed for bankruptcy in February of 2015.  Our needs, and our ability to obtain a unique needed item, have just changed.  I can just order a needed item online and it often even comes with free shipping.

Both the Washington Post and the New York Times have written about the deaths of the indoor malls that exist in most all towns of any size.  Replacing them is a new style mall called an Outdoor Shopping District which is often like a small village or town with outdoor space and access.  Wait, that is just like the old downtowns destroyed by the then new concept of “The Mall.”

Lawyers, in a profession steeped in tradition and the idea of following old precedents, are in my opinion too slow to adapt to these changes happening in society that are being rapidly applied to the business of the practice of law. I suspect many of professional legal changes following the 2008-10 financial crises will continue, despite the improved economy.  I sense there is less litigation, with more disputes being resolved by the companies or their carriers outside the traditional legal system.  Use of outsourcing by businesses will likely continue to affect the legal profession.

So, we know change now comes fast to the legal profession and we need to expect it and embrace it.  Most firms are not big enough to have staff devoted to certain areas of developing change strategy, but everyone can do a division of labor and assign people to look after things like:

-Electronic discovery changes.

-Social media for the firm and resulting delivery methods.

-Use of technology to increase productivity.

-Meeting new client demands and expectations.

Deborah Epstein Henry in Law and Reorder: Legal Industry Solutions for Restructure, Retention, Promotion and Work/Life Balance, mentions law practice changes in the move away from the traditional billable hour, career and lifestyle changes, and new models for delivery of legal services.

I believe it fair to say the current change/shift has put the client, rather than the firms, in the center and also in the lead with regard to implementing or demanding change. Clients are expecting lawyers to do more, with less, and at a lower cost.  See generally Altman Weil, Law Firms in Transition Study 2014.

I would be foolhardy to predict the coming changes in the legal profession.  But, it is clear that the successful lawyers will be those who adapt now and begin to develop a change mentality.  I venture a guess that good, reliable and dependable service relations with the client will still deliver the work, but it has to be done in a more efficient and cost effective manner for the client.  That requires a change in thinking and practice sooner than later before your firm becomes a Radio Shack or a Kodak, or gets sidelined by an Uber-type technology servicing your good clients.  It happened rapidly for taxi companies, and who could say if a tech driven legal services Uber might radically alter the legal world.

This blog was originally posted in Lawyering for Lawyers blog on May 4. Click here to read the original entry. 


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