Tag Archives: Above The Law

Hilarious Cease And Desist Letter (& Lessons For Lawyers)

Who knew cease and desist (C&D) letters could be so much fun. Above The Law blog did. In fact, they often publish amusing C&D letters. But, this particular one is good for more than just legal satire.

“Teaser: Biglaw smackdown! Snarky footnotes! Spice Girls references! Lollipops!

The American Bankers Association (i.e., that other ABA), through an entity called Accuity, publishes a book called the ABA Key to Routing Numbers of the American Bankers Association (affiliate link). The book is a directory of all the Routing Numbers assigned to banks. Greg Thatcher has a website that takes Routing Numbers and publishes them in an easily searchable form online.”

What do we learn first? Footnotes are useful vesicles of sidebar information.

“Even that we have trouble buying.[7] There isn’t any copyright notice on the download. And you must be aware that information itself isn’t copyrightable. It just isn’t.[8] In fact, there was a case this real important Court decided back in the early ’90s that was about telephone numbers.[9] In that case, a company just took a local phone book and copied it exactly. The publisher of the phone book knew that the company had copied it because the publisher had popped some phony names in there. No kidding, right? And so the publisher sued the thieving company it caught red-handed. And the thieving company won because it was just information.[10]

[7] And we went to law school, which just illustrates how gullible we are.
[8] No matter how much one might want it to be. Even if one wants it like the Spice Girls want a “zigazig ha.”
[9] Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
[10] I know, right? I remember reading this case and being all like, No way!

Obviously this letter is looking to amuse, but—notice—footnotes carry a different tone than text in the body of the document.

Nevertheless, even this farcical letter isn’t bottom-heavy. Don’t overuse legal footnotes. This letter carries as much weight without the footnotes (although it would definitely be slightly less comical).

For more information about the footnote ratio “rule” (they say it’s 2:1) read this article in the Journal of Legal Education.

Next, this C&D letter reminds us about the 1909 Copyright Act.

“Under the 1909 Act, copyright protection only attaches to published works with a notice of copyright attached.[11]

[11] Stewart v. Abend, 495 U.S. 207, 233 (1990) (“Under the 1909 Act, it was necessary to publish the work with proper notice to obtain copyright.”).”

These days we’re so fixed on potential violations of copyright that we often don’t bother to check too see if there was explicit notice of copyright at all. Law firm professionals should pay attention to detail and always go back to the basics.

Have your clients appropriately copyrighted information? Has your firm?

Circulate these ten facts about copyright to clients. And, quiz the associates in your IP practice every once in awhile, just to be sure those legal education loans aren’t for nothing.

“We know that you don’t really have much to gain from intimidating our client and you will probably leave him alone, which would be a wise choice. The public will see you and your client as big bullies if you pursue action against Greg,” continues the letter.

“…if you do file a complaint an send someone over with a summons, please have them wear something with a bit of purple… we all like purple.”

Law firms, and their big business clients, are frequently seen as bullies. Partly because of the confusing and threatening language they use, and partly because of errors in their public relations management.

Don’t be afraid to hire PR consultants to turn around the image of your firm. Maybe it’s the way your associates draft their briefs. Perhaps it’s the attitude of your lawyers. Or, it could be the way your website is laid out.

In 2013, a study found only one in five Americans believed lawyers contributed to society. Are lawyers the most hated profession, or is it a PR problem?

In the end, your firm has a lot to gain from maintaining a positive reputation, like, for instance, not having your C&D letters become the next victim of Above The Law blog’s public flogging.

Ultimately, this funny C&D letter gets to the point without any anger, threats, or questionable language. Because there’s no reason—especially in law—to forget commonplace courtesy and, of course, a sense of humor.

To read the full C&D letter, go here.



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What The French Can Teach Us About Slander, Gossip, And Airport Conversations By Newbie Law Students

When you reflect on stereotypes about the French culture, you might consider behavior to include sarcastic greetings by French waitstaff, over-confident glimmers in an eye glance, or various non-verbal cues that signal the French people just know something you don’t.

These verbal and non-verbal gestures and secret meanings may have something to do with the seriousness with which the French treat slander violations.

Only last week, Former French Prime Minister Dominique de Villepin was acquitted by an appeals court of charges accusing him of taking part in a slanderous smear campaign against his archrival, President Nicolas Sarkozy.

The case involved a mysterious list, which surfaced in the hands of de Villepin and named prominent clients with secret, suspicious accounts at a Luxembourg clearing house. Sarkozy was one of the clients named, and associated with the crooked accounts purportedly holding dubious income and bribe money.

Villepin asked a retired general to investigate the origin of the list, which was later deemed phony, but his indictment claimed de Villepin should have alerted judicial authorities earlier. He was accused of slander.

But, the French courts sided with de Villepin last week—confirming his innocence.

“After six years of unprecedented fighting tooth and nail, after six years of difficulties for my family, the justice system has recognized my innocence for a second time,” the Former French Primer Minster told journalists outside the courtroom (via The Washington Examiner).

The French court systems can teach us a lot about slander, gossip litigation, and verbal and non-verbal statements.

And, these lessons would have been especially important for a few nameless law students at the University of Virginia (UVA).

According to premier law-gossip site Above The Law, an anonymous tipper overheard a group of gossipy UVA Law students on their way back to Charlottesville from New York City. While waiting on their flight out of LaGuardia, the group started talking about how their callback interviews went.

The tipper wrote to ATL, “One particular student mentioned interviewing at a firm, and specifically named a ‘screener’ at said firm. His description of the individual and his interaction with him was less than flattering…”

Although it is natural for law students to discuss their callback interviews, discussing any sort of sensitive case- or work-related information in public spaces is inappropriate. Unfortunately, students are not the only ones victim to this type of behavior.

Law firm employees can get equally carried away discussing case information or criticizing a supervisor to a colleague. However, remember that not only is it impossible to predict who will be in the vicinity of your conversation, but it is also impossible to retract the conversation once it is overhead.

In the case of the UVA Law students, not only were they called out via online forums, they will most like suffer consequences in terms of a future (or lack thereof) with the firm in question.

Above The Law blogger Elie Mystal responds to the incident frankly, “Why are these kids talking crap about any hiring partner at all in this economy? And having that conversation in an airport would be the dumbest thing ever, except they also decided to refer to this guy by name. Absolute, total, idiots.”

As a firm, it’s never redundant or too late to remind your employees (and potential candidates for employment) about the importance of decorum, confidentiality, and appropriate professional conduct and conversation, both at and outside the firm.

If it doesn’t get through the first time, feel free to use UVA Law students as a contrast example for best practices. The French also serve as a warning for the seriousness of slander as a crime.


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Successfully Managing Your Workload Means Impressing Equity Partners

You know what summer means. School is out, sales are here, and the weather has finally turned warm. Summers mean pool parties, beach vacations, longer sunshiny days… that is, for everyone who didn’t earn a J.D.

For those who did, including law school students aiming for a degree, only the latter is true (assuming you have a windowed office). Long, summer days for lawyers and law students means hard work and competition among associates and interns.

Especially for those recent graduates in a downturn economy, it’s important to stand out (in a positive way) in front of your employer. But, impressing the equity partner doesn’t necessarily mean accepting every assignment that comes your way.

In fact, according to Above The Law and its article on Lateral Link’s Frank Kimball, who is a former Biglaw hiring partner, one of the most difficult challenges faced by young lawyers at new firms is being able to manage their workload.

So, before you accept a big caseload—and the sleepless night it entails—be sure to consider the following three bits of legal advice (which, you know, is rarely free):

1.  Know your deadline and billable hours.

When bringing a yellow legal pad into a meeting, don’t forget to jot down the timeframe for the assignment. Key questions like, “how many hours are budgeted for this task?” or “when do you need this by?” will be both pertinent and welcome by the managing attorney.

Firstly, a deadline allows you to correctly budget your time, including the time it will take to complete or shuffle around the myriad other assignments you’ve been working on.

Secondly, it’s embarrassing to have your hours slashed by the name partners after they realize you’ve over billed the client for a task. By asking deadline and billing questions, you will earn bonus points for the respect shown to the client’s pocketbook and his case.   

2.  Know your limitations.

The first mistake often made by new associates is to accept too many assignments. More senior attorneys will be eager to use and abuse summer associates and interns by offloading work.

At the same time, an overabundance of tasks is the only way new associates accelerate through the steep law firm learning curve. Take advantage.

It’s important to appear motivated, but not immortal. When you’ve reached your maximum (save at least 4-5 hours for sleep), prioritize your caseload and ask a more senior attorney how to reassign the remainder. Where necessary, help to reshuffle the assignments to another associate.

Rushing through a brief, handing over sloppy work, or missing a court deadline is far worse than the appearance of laziness.  

3.  Know your resources.

Do you have the login information and passwords for Lexis? Do you know (and have a good relationship) with your legal assistant? Who is the senior attorney on the case, and can they serve as a mentor? These questions should be running through your head as soon as you’re assigned casework.

If you don’t know the answers, then you will face larger problems than pulling an all-nighter at the office. Take advantage of the resources around you. This means knowing where the library is (and using it), trusting your paralegal’s years of experience, and not being afraid to seek mentorship by a more senior lawyer.

Everybody at the firm has once been in your shoes. The first step in making a good impression is successfully managing what you can, and making alternative arrangements for anything you can’t.


For more information, attend C4CM’s course, “Time Management: Tackling Work Flow Chaos, Email Overload, and Office Interruptions.”

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Misrepresenting Employment Statistics Gets Law Schools (And Firms) In Trouble

Usually the words “misrepresentation” and “San Diego” are linked in the context of real estate fraud, mortgage scams, and—at worst—bad pick-up lines by marine Staff Sergeants at a seaside bar.

This summer, however, these words have been more frequently coupled in reference to a class-action suit filed against the San Diego-based Thomas Jefferson School of Law (TJSL). Anna Alaburda, a 2008 honors graduate, alleges that the law school commits fraud by producing deliberately misleading post-graduation employment and salary data to attract new students.

“It’s not about winning or losing; it’s about raising awareness of the disingenuous way law schools go about filling up their classes,” writes Elie Mystal for Above The Law.

Because the legal job search has been stymied by an economic recession for a large portion of law school graduates, the TJSL suit has garnered much attention. Without the typical $150,000 annual salary of biglaw, graduates are regretting the $150,000 they’ve amassed in loans.

Although, until recently, most assumed the lawsuit stood on more ethical grounds than legal ones.

The complaint contends, “At the end of the day, TJSL is more concerned with raking in millions of dollars in tuition and fees than educating and training its students. The disservice TJSL is doing to its students and society generally is readily apparent. Many TJSL graduates will never be offered work as attorneys or otherwise be in a position to profit from their law school education. And they will be forced to repay hundreds of thousands of dollars in school loans that are nearly impossible to discharge, even in bankruptcy.”

The complaint cites the following as its second cause of action:

“The False Advertising Act makes it is unlawful to ‘make or disseminate or cause to be made or disseminated before the public [a statement] which is untrue or misleading, and which is known… to be untrue or misleading’ with the intent to ‘induce the public to enter into any obligation relating thereto.’Such statements include statements made through ‘any advertising device,” including “over the Internet.’

TJSL violated Business & Professions Code section 17500 et seq. by making or disseminating or causing to be made or disseminated false and misleading statements in U.S. News & World Report’s ‘Best Graduate Schools’ publication, on its website, and in its marketing brochures.”

No longer the underdog, however, recent literature seems to support Alaburda’s claim that this is a legitimate legal dispute as opposed to a purely moral one. In fact, University of California, Davis School of Law graduate Joel Murray wrote a paper unveiling surprising industry support for the suit.

“Paul Campos, a professor at the University of Colorado School of Law who recently wrote an article for The New Republic highly critical of the law school job reporting system, agreed that law schools have opened themselves to litigation.

‘I’m not an expert on consumer fraud, but I have looked at the general question of whether there is some potential for legal liability for law schools, and the answer is yes,’ he said.”

Reading this story, firm administrators or hiring partners may develop sympathy for recent law school graduates (especially those at TJSL), but, more importantly, it should convince them to operate their firm’s own advertising with more prudence and due diligence.

Law schools are not the only institutions on the hook for producing misleading hiring or employment statistics.

Law firms often cite salary statistics or report benefit packages for first-year associates on its website or marketing materials. In addition, firms are now interviewing candidates for 2013 job openings. It’s uncertain whether or not these firms already know that these positions are tenuous, with the possibility of turning from deferral to denial as they did last year.

With the TJSL suit pending, it’s time law firms take a second look at what information they’re promulgating to future candidates and new attorneys.

“‘Another potential source of liability under federal statute is that schools are, essentially, lying to the federal government for the purposes of getting benefits of some sort,’ Campos said. ‘Law schools get federal subsidies, most notably in the form of federally guaranteed loans, and that could open them up to litigation.’”

So, it’s time to check, is there liability in your promotional materials?


For more information, attend C4CM’s course, “Writing Accurate and Defensible Job Descriptions that Comply with the ADA and FLSA.”

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Challenging Biglaw: How Small Firms Attract Talent On A Tight Budget

The image of David versus Goliath is frequently evoked in legal arguments. This metaphor is used in the first line of a suit against McDonalds, in the tag line for the Institute of Justice, and in myriad legal publications, such as Jewell v. NBC and the Basics of Defamacast in Georgia. The same image that is used to describe court cases is also used to describe the firms defending them, specifically large corporate law practices. Nowadays, there’s conflict between those who see big as bad and others who view big as better.    

Such is the subject in of an article in Above The Law, featuring Steven Harper, a Kirkland & Ellis partner who teaches a Northwestern University class titled “American Lawyers—Demystifying the Profession.” In his class, as in his numerous publications, Harper analyzes attorney unhappiness and law students’ unhealthy obsession with large firms. Decidedly not Texan, both Harper and the Above The Law author seem to agree that Biglaw is the root of much associate unhappiness—high billable hours and low compensation in terms of the number of attorneys made partner.  

At the end, the article issues a challenge to small firms across the nation. It asks, “What options are there for promising graduates other than Biglaw? What advantages do you offer to talented attorneys?” A portion of the answer is listed below.  

Flexible Working Hours. Offering flexible schedules or telecommuting options is a cost-free benefit for firms and has been shown to increase productivity. With fewer associate timesheets to keep track of, small firms excel at offering unique working hours for attorneys with young families, long commutes, or simply a green state of mind (see Apple Not Green, But You Can Be). Biglaw outshines its competition in terms of mass training, office policies, standards, and consistency. One thing it finds difficult to offer, however, is an exception.  

Location. Smaller-sized firms require smaller-sized offices. This flexibility in location options often leads to lower rent and sometimes a more unique space. For example, a small firm can take advantage of the building or office for rent at the base of a ski slope or next to an urban park. It can situate itself in the center of a city, instead of the suburb. When first-years spend over 2,000 hours each year in the office, it’s not surprising that location plays an important role in their decision of choosing a law firm.  

Youth. A large firm typically indicates a long history. The experience of older attorneys is certainly valuable, but small firms have the drive and of enthusiasm of youth on its side. Younger firms are more open to risk and thus more motivated to succeed. When you know the intimate details of each employee’s family background, financial history, and future plans, winning attorneys fees in a court case suddenly becomes personal. Additionally, younger firms are more familiar with the new technology vital to the modernizing industry of litigation. For the best and brightest law firm graduates, enthusiasm, gadgets, and a general openness to fresh ideas are more attractive than grey-haired men in last-year’s suits.  

Profit-Sharing Programs. If all else fails, money talks. While larger firms are stuck fighting internal red tape, smaller firms are giving attorneys a stake in the business. Not only is this an added draw to the firm, but studies show profit-sharing programs (like the one at Google) incentivize employees to be more efficient with their time and more productive in their work. 

Training Opportunities. Finally, small firms can spend one-on-one mentorship time with every new associate. For the eager law school graduate who earned top grades, professional development, high-level responsibility, and courtroom experience during his or her first five years is a dream come true. So, when compared to the excessive doc review at Biglaw, a job with a small firm suddenly looks like the more promising career path.

The question of whether or not big is better will continue to be asked. And the answer, for each attorney, will continue to differ.



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