The Young Texas Lawyer

Fortune online has a great article about advice that most influenced some very accomplished individuals’ lives. As they put it, “in a world of uncertainty, we could all use a little advice.” Some are mere cliches, but they make for a good read and provide some invaluable information.

As the Texas Bar Blog writes, three Texas law school deans were present for a discussion on the future of legal education last Thursday at the State Bar of Texas’ Annual Meeting. Texas deans Larry Sager from The University of Texas Law School, John Attanasio of Southern Methodist University, and Brad Toben of Baylor Law School joined Ken Starr of Pepperdine Law School. The biggest topic was skyrocketing tuition and all agreed that it is too high. Toben mentioned that “too much money is being spent to get better [U.S. News & World Report] rankings,” and Sager joined in blaming some of the problem on the current rankings system.

To all the young lawyers in the Houston area, I say this: Rick Casey is giving us all a bad name. In his June 23 column, No defense: ‘My lawyer said I could,’ he takes Harris County district clerk Charles Bacarisse to task for the sin of having consulted an attorney.

The implication of Mr. Casey’s article is that lawyers are an unethical bunch who aren’t fit to give anyone advice on the “right thing”. As evidence of his proposition, he cites the “recent survey” canard familiar to all lawyers and law students.

“The last poll I saw showed them ranking barely above car salesmen and journalists in public esteem.”

Look, most lawyers have met ne’er-do-well lawyers during the course of practicing, but ours is a noble and ethical profession. Lawyers have more ethical rules and guidelines than nearly any other profession, and unlike many professions, our livelihoods are directly related to how ethical we are. Don’t believe me? Take a look in the back of the bar journal, and read the list of former lawyers who didn’t act ethically.

That insult aside, Mr. Bacarisse sought a legal opinion from the County Attorney regarding the effect of the ethics ordinance – a law – before engaging in activity that he thought might run afoul of the law or the city’s ethics rules. For that, Mr. Bacarisse ought to be praised, not vilified.

It’s no wonder Mr. Casey’s poll found journalists are held in lower esteem than lawyers.

Written by YTL Contributing Author Eric Hudson

The Young Texas Lawyer has finally joined the Twitter revolution and will begin Tweeting as of today. All new blog posts will be synchronized with the youngTXlawyer Twitter page. This will be a much more interactive forum for young attorneys to begin sharing information and experiences.

Be sure to follow us and stay active!

Back in November 2008 we discussed how to “Take Control of Student Loans” and one of the programs discussed was the upcoming federal loan forgiveness and income based repayment programs. Starting July 1, they will both be in full effect. The College Cost Reduction & Access Act, the new federal program, will cap monthly loan payments according to the borrowers income and will even forgive student debt balances after a pre-determined number of years. Those who want to have long-term public interest or government careers will benefit the most, but even those with relatively low incomes and high debts will get some relief by lowering monthly payments. The National Law Journal has a great article on the plan and an example scenario from that article is below.

As more people begin posting personal information on sites such as Facebook, Twitter, and Myspace, lawyers are beginning to realize that access to such sites can become a big advantage. These pages contain a variety of personal facts, pictures, videos, and sometimes even a user’s state of mind. Utilizing proper discovery is essential to uncovering this evidence for both civil and criminal matters. Each site carries its own privacy features, therefore formal discovery is necessary to remain ethical in gaining full access. Some courts have even gone as far as issuing a subpoena to site administrators in order to obtain all previous versions of the pages stored on remote servers in case the user deletes or changes information. Information on these sites can give you insight on your opponent as well as some ammunition to attack witness credibility.

Dr. Robert Lindeman and his attorney found out about this the hard way in May of 2007. Lindeman was blogging under the alias “Flea” about his experience as a medical malpractice defendant during the trial. The plaintiff’s attorney discovered his true identity and exposed the blog on the witness stand, the case immediately settled.

After conducting extensive due diligence on opposing parties, follow up by clearing up any questions during depositions to prevent an ambush at trial. It’s also fair to assume that your opponent will be conducting a similar search of your client’s online presence. Make sure you ask your clients about all of their online activity and conduct a thorough review prior to filing any type of legal action. Risk management of such pages becomes an important issue the more readily personal information becomes available on these sites.

Important evidence can be found on social networking sites, but make sure you ask properly. There are some very serious ethical concerns and consequences regarding the use of these sites by attorneys. Preparation and awareness about these sites is an absolute must for both your client’s sake and the case.

Anthony H. Lowenberg writes an informative article on the ins and outs of the commonly used ‘fishing expedition’ objection. Essentially this objection is made when an overly broad discovery request is made for information or documents that are not reasonably calculated to lead to the discovery of admissible evidence. When a request is so broad that opposing counsel cannot state exactly what they are looking for then this type of request should be objected to on the above grounds. The article is a good read for any young attorney and references some important case law clarifying the rule.

Joel Rose of the The Legal Intelligencer writes that “failure to train younger lawyers as managers in both the business and the practice of law can have disastrous results.” His article goes on to discuss how firms can better train their young attorneys, but only briefly touches on why it can be “disastrous.”

One of the main reasons that the same old trial lawyers continue to get huge “bet the farm” cases from big corporations is because the current generation of attorneys have never had the chance to learn their trade on smaller cases, so when the big ones come calling no one is willing to trust them. Experience, above all else, is the most major factor in making for a great lawyer. The more experience you have, the more things become second nature. There is a saying amongst Surgeons at teaching hospitals, regarding the different procedures they perform, that goes “learn one, do one, then teach one.” Lawyers should live by the same mantra. Although no matter is always the same, you should learn it, do it, teach it, and then work on getting better at it.

Another problem firms that don’t effectively groom young lawyers will find themselves with is retention of talent. Hungry young minds need to be fed. The only ones that will sit idly by and merely do as their told are the lawyers that don’t want to learn and see their careers as just jobs. These employees are there strictly for the pay check and are generally the type that you don’t want around. Eventually, your real talent leaves to go learn their trade and you’re left with the ones that can only do the cookie cutter work you’ve been doling out over the years.

As a young attorney it is your job to make sure that you are learning as well as working. You can’t do that if you aren’t willing to speak up and take on some more responsibility. At some jobs this is easy and at others its hard. If they make it too hard, then you probably should start looking elsewhere.

UPDATE: Firm starts apprenticeship for first years.

Ari Kaplan, author of The Opportunity Marker: Strategies for Inspiring Your Legal Career Through Creative Networking and Business Development, has written a fantastic article on leveraging the millennial generation’s knowledge of technology. Some of Mr. Kaplan’s suggestions include having partners and associates sit down together and discuss Web 2.0 and social networking sites, such as LinkedIn and Facebook. As we have written before, regardless of your age or inexperience, young attorneys have something to offer those with more legal experience. The hardest part is usually trying to convince each generation that the other knows more than them about something.

Former Texas supreme court chief justice Thomas Phillips sat down with The Blog of Legal Times and discussed the recent Caperton ruling in which the U.S. Supreme Court, by a 5-4 vote, said the constitutional right to due process sometimes may require an elected judge to recuse in a case involving a campaign benefactor. The ruling could create a myriad of problems if not narrowly interpreted.

In the opinion, written by Justice Kennedy, the court concluded that, given the “serious risk of actual bias,” the Due Process Clause required the recusal of Judge Brent Benjamin. Case background and amicus briefs on the merits can be found at the Brennan Center For Justice. Below is the BLT Q&A with Phillips:

Q: What do you think is the main significance of Caperton?

Phillips: “Caperton established a principle that is really important: There are constitutional concerns with a judge sitting in judgment of a case where a party is a significant donor. At some point, the support becomes so substantial and so overwhelming that due process requires the judge to step aside, even if neither the donor not the judge did anything illegal or even unethical. Until now, that was an unanswered issue. That’s the most important thing in the case.”

Q: What are the misperceptions about the ruling?

Phillips: “Some have suggested that judges can never rule in any case where parties to a case or their attorneys are donors. It does no such thing. The holding, as I read it, is that due process is only violated when ‘[1] a person [2] with a personal stake in a particular case [3] had a significant [4] and disproportionate influence [5] in placing the judge on the case . . . [6] when the case was pending or imminent.’ Given how narrow that holding is, I’m not sure Caperton will ever be direct precedent for another recusal.”

Q: Why would the case not be a precedent?

Phillips: “There just aren’t a lot of cases where a large contribution can be attributed to a desire to affect the outcome of a particular case. Even the trial lawyers or the Chamber of Commerce spend millions of dollars in trying to influence the outcome of judicial races in a particular state, they are most likely spending money donated by a large number of individuals who are broadly interested in judicial philosophy. Not all of the donors will be trying to secure a particular outcome in a particular case. And unless they are, Caperton will not apply.”

Q: So when Chief Justice Roberts, in his dissent, worries about “Caperton motions” being filed in every case to recuse a judge, you don’t share that concern?

Phillips: “As the majority pointed out, past constitutional recusal cases have not spawned a lot of motions. The majority opinion recognized, even urges, states to pass recusal rules that are more rigorous than the due process floor in order to ensure the appearance and reality of impartial judges. The Caperton case may cause more of those rules-based motions to be filed, and state courts may have to grapple with the types of problems that the Chief Justice raised. And, on the whole, it will be good for these rather murky questions to be fleshed out. And, moreover, it will be good to have a heightened interest in what is required to have fair and impartial justices on the bench.”

Q: What could that heightened interest lead to?

Phillips: “I hope this decision will spur states to focus on whether our 19th century method of selecting judges works well in the 21st century. The old friends and neighbors method of selecting a judge has been replaced by the need for expensive media campaigns to explain who the candidates are, and the vast amounts of money at stake in the civil justice system has attracted these huge independent attack ads that so damage the credibility of our justice system. Now, more than ever, states need to scrap partisan contestable elections for the courts.”

Q: What does the decision say about the difference between judicial elections and other elections?

Phillips: “That’s another important principle in the case. No one would say that a Senator couldn’t vote on armed services appropriations merely because the defense industry had spent large sums in connection with the senator’s campaign. And yet that is precisely what the Court held with respect to a state judge. The opinion affirmed that, even if judges are selected in precisely the same as political officials, they have a fundamentally different role in government that raises concerns that are of constitutional magnitude.”