litigation

Gender Bias And Legal Careers

/ Jack Marshall / 54 Comments

Studies show that although women have been entering the law in equal numbers to men for more than a decade, they make up just 23 percent of partners and 19 percent of equity partners. Why do so many women  leave the legal profession at what should be the height of their careers? Last month, more than 160 lawyers gathered at Harvard Law School in November for the ABA National Summit on Achieving Long-Term Careers for Women in Law to identify answers and plot a course to change the trends.

Sharon Rowen, a lawyer from Atlanta,  said her research showed three reasons women leave the practice of law: work/life balance, unconscious bias, and the pay gap. I wish I could have attended the discussion. I hope someone pointed out that seeking work/life balance is the major reason for the pay gap, and that it is not unreasonable to view that as a trade-off that is both fair and reasonable.  Rowan’s list also leaves off conscious bias that pervades society and clients regarding female lawyers, as well as law firm partners.

Iris Bohnet, professor of public policy at Harvard Kennedy School, said some women suffer from “success fatigue,” and leave “because of a work culture that forces them to minimize important parts of their lives.” They ask themselves, “Can I bring my whole self to work?” and “Is this a place where I can thrive?” What she is saying is that a lot of women don’t find the law enjoyable, and that its stresses, patterns and requirements are more accommodating to men than women. In other words, law isn’t fun for a lot of women, while men, because of the nature of males, are more tolerant of it than women tend to be. I wonder if any panelist had the guts to come right out and say that? I doubt it. I bet most of them would deny it, because it’s politically incorrect to admit any gender differences, unless they involve female superiority.
Continue reading →

Ethics Dunce: Federal Judge Gary Feinerman

/ Jack Marshall / 34 Comments

(I am going to eschew cheese jokes in this post, and I expect some credit for it.)

We recently learned that grated parmesan cheese often contains  cellulose powder.  This icky fact spawned dozens of lawsuits against Kraft, Heinz, Walmart, Target, Albertsons, Publix, and others, alleging consumer fraud by selling products with labels claiming that the contents were “100% grated parmesan cheese,” or words to that effect.

Since the  lawsuits all made the same claims, they were consolidated into one multi-district litigation overseen by a federal judge Gary Feinerman in Illinois. Judge Feinerman dismissed the litigation last week, ruling that “100% grated parmesan cheese” is an ambiguous statement that is open to multiple interpretations.

Judge Feinerman doesn’t understand deceit.

“Although ‘100% grated parmesan cheese’ might be interpreted as saying that the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated,”he wrote in his ruling. “Reasonable consumers would thus need more information before concluding that the labels promised only cheese and nothing more, and they would know exactly where to look to investigate — the ingredient list. Doing so would inform them that the product contained non-cheese ingredients.”

Each of the products involved, the judge noted, listed cellulose and the other ingredients on the label, along with the fact that the cellulose is added ‘to prevent caking.’”

“100% Grated Parmesan Cheese” might also mean “I did not have sex with that woman,” I guess. The companies didn’t put that legend on the packages to let consumers know that the cheese is “100% grated.” They put it there to mislead consumers, and try to ensure that they didn’t read that there were wood chips in their cheese. This is classic deceit, and the judge is letting companies get away with it.

The judge smugly asserts that a reasonable consumer would know that pure cheese is not shelf-stable at room temperature and couldn’t sit in sealed packaging in a grocery store for long periods of time. “Cheese is a dairy product, after all, and reasonable consumers are well aware that pure dairy products spoil, grow blue, green, or black fuzz, or otherwise become inedible if left refrigerated for an extended period of time,” he writes, and thus “would still suspect that something other than cheese might be in the container, and so would turn it around, enabling them to learn the truth from a quick skim of the ingredient label.”

Except that the labeling was designed to hide the truth, mislead buyers, and gull them into believing that it was “100% grated parmesan cheese,” like  the package said.

The judge is coming perilously closed to the old, discredited “let the buyer beware” standard that opened the door for outrageous and often dangerous consumer fraud.  I guess the judge is saying I’m an idiot: when I saw a label that said “100% grated parmesan cheese,” I didn’t assume that it mean “8% other crap.”  I assumed that it meant “100% grated parmesan cheese.”

I always wondered how that Kraft box stayed in my mother’s cupboard so long, though. But my mom also kept catsup, mustard and other condiments for decades.

We used to get sick a lot, now that I think about it…

The ruling isn’t a breach of judicial ethics, just a bad ruling that encourages deception by excusing deceit.

Update On “The Worst Aunt Ever” Debate

/ Jack Marshall / 6 Comments
Auntie Maim and Nephew Maimer...

Auntie Maim and Nephew Maimer…

Remember the Ethics Alarms post about the favorite aunt who sued her 12-year old nephew for damages based on her injury when he jumped into her arms at his birthday party when he was 8? Remember the indignant plaintiffs lawyer who couldn’t get his mind around the fact that normal people don’t (ande shouldn’t) always see right and wrong like lawyers do, or that “it’s done all the time” (that is, The Golden Rationalization, #1 on the Rationalizations list, “Everybody does it”) and “there are worse lawsuits” ( or the worst of all rationalizations, #22, “Comparative Virtue” or “Its not the worst thing”) are not sufficient ethical defenses of a woman who voluntarily traumatizes a child who trusts her and who just lost his mother?

The Weekly Standard looks at the episode from some different angles, and writer Charlotte Allen does an excellent job providing a balanced analysis of the case (which I am now using in my ethics seminars to explain to lawyers how legal ethics alone is often not enough to make lawyers ethical). I am awash with regret that I didn’t think of the gag  “Auntie Maim” in the original post, which admittedly went a bit overboard in its condemnation as it was. Mostly, however, I am gratified that I was quoted in the piece after a well-handled interview with Charlotte, and indeed that she used my perspective to sum up the significance of the episode.

You can read it all here.

My Reply To Eric Turkewitz’s Criticism Regarding “The Worst Aunt Ever”

/ Jack Marshall / 71 Comments
This guy would have given The Bad Aunt the right advice...

This guy would have given The Bad Aunt the right advice…

Eric Turkewitz is a New York trial attorney, by all accounts a terrific lawyer, by the evidence of his writing an ethical and astute one, in our brief encounters a very nice guy, and the proprietor of “The New York Personal Injury Law Blog.” In a recent post, he defends the decision of Jennifer Connell to sue her young nephew for a four-year old injury she received when he hugged her too enthusiastically at her birthday party. He notes, correctly, that the decision to sue was based on the client accepting a “bad call” by her lawyer. He also includes a lot of information not mentioned in the early posts on the matter, including mine. Still, he defends Connell. He also specifically criticizes my post. Eric writes,

And this is from Jack Marshall, who says he actually teaches ethics and has a blog called Ethics Alarms (coded “no follow“):

“What’s going on is that Aunt Jennifer is pure hellspawn, a mysteriously animated pile of human excrement that embodies the worst of humanity.”

This is what happens when people elect to post stuff on the web based on an initial news report that was, shall we say, very selective on what it chose to report. This site is getting quite a bit of traffic, most likely from many who never knew it existed. So let me answer a question some of you may have: Yes, I know what it’s like to be on the receiving end of lawsuits, and they weren’t nearly as benign as this run-of-the-mill kind: On Suing and Being Sued.

Yes, I “actually teach ethics,” and I could, in fact, teach Eric some things that he would find useful and enlightening. I’m not going to get in a pissing match with him, in part because, as I learned from another tiff four years ago (in which I was wrong, and duly apologized), he has some very, very nasty pals, and I don’t want to throw blood in the water. This is, however, an excellent example of how lawyers often end up seeing the world, and in fact I may use his post, unattributed, in seminars to show where legal ethics and ethics diverge. It is wise for lawyers to be atuned to both.

Here was the response I made to Eric on his blog: Continue reading →

Abraham Lincoln: Good Lawyer, Bad Lawyer, Conflicted Lawyer

/ Jack Marshall / 3 Comments

Lincoln in trialI recently quoted a fairly well-known section from some notes Abe Lincoln made for a lecture he was to present to young lawyers in 1850. Some of you asked if would post the whole document, which I am happy to do. Here it is:

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated, — ordinary collection cases, foreclosures, partitions, and the like, — make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, saves your labor when once done, performs the labor out of court when you have leisure, rather than in court when you have not. Extemporaneous speaking should be practised and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech. And yet there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance.

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

The matter of fees is important, far beyond the mere question of bread and butter involved. Properly attended to, fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case the job will very likely lack skill and diligence in the performance. Settle the amount of fee and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee note — at least not before the consideration service is performed. It leads to negligence and dishonesty — negligence by losing interest in the case, and dishonesty in refusing to refund when you have allowed the consideration to fail.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief — resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

This is uniformly excellent, and justly cited to show Lincoln’s high ideals as a man and a professional. This quote, however, is also cited for that purpose, and I am not so fond of it. Since it comes to us second-hand, a.k.a as hearsay, from Lincoln’s law partner, friend and biographer William Herndon, I hesitate to hold it against him too much, for it may be a misrepresentation. I am more concerned with the fact that what follows is sometimes packaged with the notes above, as if they are equally worthy of emulation. No, they are not. Continue reading →

What’s The Ethical Response To Giving Birth To A Mixed-Race Child You Didn’t Bargain For? If Only Abe Lincoln Was The Lawyer…

/ Jack Marshall / 28 Comments
What does Abe have to do with a sperm bank mix-up in 2014? Read on...

What does Abe have to do with a sperm bank mix-up in 2014? Read on…

I can certainly sympathize with the plight of Jennifer Cramblett, the birthing half of a loving, and white, same-sex couple who sought the assistance of a sperm bank to conceive a child, and who ended up giving birth to a mixed-race baby girl because of the kind of clerical error that sets up movie comedies starring Adam Sandler or Cedric the Entertainer. This is like what happened to Chevy Chase in “Vacation,” when he ordered one car and had a different one arrive at the dealer’s months later. Well, the car was a lot worse, because it was ugly, but it drove fine. Well, let me think about that: lots of babies, even babies sired the usual way by attractive parents without alien sperm, are ugly. This baby wasn’t ugly: Cramblett says she’s beautiful. Has all ten fingers and toes. No apparent deformities.

Hmmm.

Maybe this situation is more like the cherry red Nova that got delivered as my first car, when I had ordered something else. I got a discount for going ahead and taking the Nova, and never regretted it: best, most reliable car I ever had, and I had it in the days when I was still having fun in cars.

Come to think of it, what’s Cramblett so upset about? She has a healthy, lovely child and a stable family. OK, that sperm bank owes her a refund, and maybe some “I’m sorry you got the wrong color” money. But would I not only sue the sperm bank for the lifetime of pain it had supposedly subjected me to by causing me to have a mixed race child, but also use the law suit to garner media fame? Of course not. There is no way to simultaneously claim that having a mixed-race daughter is a hardship worthy of substantial damages, and to argue that the race of her daughter doesn’t matter, because she is unconditionally loved.

The couple’s lawsuit against the sperm bank screams “Hey! This could be a jackpot for us!”  The couple’s lawsuit explains that Jennifer Cramblett was raised to accept stereotypical beliefs about blacks. It says she is culturally unprepared to raise a mixed-race child. It argues that their community is, in effect, bigoted, and that—get this—it’s hard to get their daughter’s curly hair cut. In other words, it’s just hell having a mixed-race daughter, but they love her very much and would never trade her for anything in the world.* Got that? Continue reading →

“How Dare Universities Charge Such High Tuition?” KABOOM!* #1: Georgetown University Law Center

/ Jack Marshall / 3 Comments
headexplode

Kaboom.

James Feinerman, the James M. Morita Professor of Asian Legal Studies at Georgetown University Law Center, who also serves as its associate dean for transnational programs, was hired by the U.S. government as an expert witness  to bolster the prosecution in a spying case, and apparently plagiarized a substantial potion of the report submitted to the court from <sigh–there goes that value of THAT degree> Wikipedia.The defense picked up on the uncited cribbing and the federal court is now examining whether the sources used by Wikipedia are reliable enough for his report to be accorded any validity. The Government, meanwhile, represented by assistant U.S. attorneys Peter Axelrod and John Hemann, is stuck with making desperate “ahumunahumuna” sounds like Ralph Kramden used to do on “The Honeymooners” when he was caught looking stupid and spouting lame arguments in court filings about how Feinerman “utilized language from Wikipedia as a concise English-language summary of his opinions on certain topics.”

Riiiight. Continue reading →

Welcome To The World Of “Expert Witnesses”

/ Jack Marshall / 10 Comments

Then there’s the arrow that reads, “Willingness to say what we need to win the case.”

It doesn’t happen often, but it does pay well and can be interesting: occasionally I accept an engagement as a testifying ethics expert in a law suit. I have a rule, however, that surprisingly (or not) seems to come as a shock to many potential clients. They may be buying my opinion, but they are not necessarily buying the opinion they want. After I review the facts, documents and issues involved, I will render my opinion, but no promises. I won’t take a case unless I generally agree that the theory of the side hiring me is plausible, but after all the facts are in and I’ve done my analysis, if the case of the client whose lawyer hired me is weak, I will say so.

Strangely, some lawyers seem to have a problem with this, even when the expert insisting on integrity is an ethics expert. I am currently in settlement mode with a law firm that hired me to render my opinion regarding the billing submitted by another firm to the law firm’s client. Part of their argument, in claiming malpractice against the billing firm, was that its billing was excessive, unreasonable and inflated, a violation of  Rule 1.5 of the Rules of Professional Conduct governing lawyers. I reviewed the billing statements, and they could have been inflated—some of the methods of stating who did what work was vague, and there sure was a lot of work billed on the matter, by an astounding number of lawyers—-but I could only assess that to a level of certainty sufficient to be certain in my own mind, much less state it under oath, if I could examine what all that work produced. This the law firm that hired me refused to produce, perhaps because the time it would have taken me to review it thoroughly would have been very expensive. But how could I decide whether the amount of money billed for a product was unreasonable without being able to determine what the product was? I couldn’t. Thus my written opinion stated what I could say honestly and with authority: based on the billing statements and the materials I was allowed to review,  I could only speculate on whether the billing was proper or not. It was possible. More than that, I could not say.

The law firm was not happy, although they never spoke to me about it. The firm just settled the case, and never paid me. (My very reasonable fee for services was $6,000, and if you’ve ever spent much time reviewing legal billing statements, you would know that they got off cheap.) You see, it didn’t really want an ethics expert, or an independent expert, or an honest, informed, professional analysis. They wanted a pre-determined opinion, bought with cash, delivered to specifications. Well, they won’t get that from me.

Welcome to the world of “expert witnesses.”

 

When Does A Nasty E-Mail Exchange Constitute Punishable Unethical Conduct?

/ Jack Marshall / 1 Comment

Now we know—at least when Florida lawyers are concerned.

Tampa lawyer Nicholas F. Mooney  and Palmetto lawyer Kurt D. Mitchell received suspensions from the Florida Bar and the Florida Supreme Court after an escalating e-mail exchange that  continued over six months.

A lack of civility is considered a breach of professionalism in all jurisdictions, but not an ethical violation calling into question fitness to practice law—the standard for bar discipline—unless it is extreme, and usually not until there have been warnings issued. Apparently this particular spat was just too much for the Bar to take, perhaps because it reflects badly on the entire profession. Continue reading →

The Ethics Of Using A Facebook Mole

/ Jack Marshall / 9 Comments

A lawyer wants to get access to an adversary witness’s Facebook page so he can use information he finds there to impeach her testimony at trial. But even though she accepts virtually anyone who asks to be her “friend” whether she knows them or not, he worries that she wouldn’t accept his request if she recognized his name and face from her deposition, which might prompt her to guess his intent. So the lawyer asks an office paralegal to send her a “friend request” instead. Sure enough, she accepts, and soon the paralegal is gathering all sorts of dirt on the witness and passing it on to the lawyer.

Is this an ethical plan for the lawyer, or not? Earlier this year, the Philadelphia Bar Association’s Ethics Committee issued a legal ethics opinion that concluded it was not: the paralegal was acting for the lawyer, who was using subterfuge and misrepresentation to gain the witness’s consent to explore her private (or semi-private) Facebook information. The Committee said that it didn’t matter that the witness was careless with granting access, or that she gave consent to other “friends” that she barely knew: Continue reading →