But you quickly realize that although for the moment knowledge of the dispute is restricted to people in the company, it will only be a short time before it gets out to the customers, suppliers, banks and others with whom the company does business, threatening the existence of the company.

You should consider recommending the factions mediate the dispute, if possible before litigation is filed.

Advantages of Mediation

Some advantages of mediation are:

No Publicity. No lawsuit is filed. The situation can be kept as confidential as the parties want.

Speed. Trial, or even a hearing for significant injunctive relief, will take months, if not years. And as soon as customers hear there is an internal dispute — and they will — they will take their business elsewhere, to a “stable” competitor. And this risk increases significantly if a lawsuit is filed. A mediation can begin immediately.

Possible Quick Reduction in Ill-Will. The early part of most mediations give the parties the opportunity to vent, and then to be brought by the mediation format to look for rational resolutions. The mediator could, for example, hold an immediate mediation session, not necessarily to reach resolution immediately but as a way to begin gathering information. But another objective would be to reduce the ill-will between the factions, pending one or more future sessions to be held a short time later. During the following interim, they would likely work better together, and the company’s employees will understand that they have begun to work out their problems.

Better Resolutions than are Available in Litigation. In most business divorce situations, the court at best has very limited options for resolution, usually being able only to dissolve the company and distribute the assets. The parties in mediation, on the other hand, have unlimited possibilities to resolve the dispute. The easy ones come readily to mind: one faction buys out the other, perhaps on a “push-pull” basis. Frequently a company has two or more lines of business, and different factions can take different lines into separate companies.

And courts, with crowded dockets and lack of expertise in complicated corporate structure, with tax and very complicated technical issues arising from the nature of each unique business line (hence the Business Judgment Rule), frequently make mistakes in their attempts at resolution, mistakes which the parties with their lawyers, advisors and a mediator are unlikely to make.

Complicated Issues Must be Resolved

The company’s lawyer, and the lawyers for the disputing factions, must be versed in those issues in deciding whether to go to mediation, and indeed, in choosing a mediator. And they and the mediator must be familiar with them in the mediation process.

Some of those issues are, to name a few:

Valuation (virtually all such cases require valuation of the business as a whole, and valuation of its lines, its hard assets, value claimed by each faction for work and assets previously contributed without compensation, etc.);

Possible legal restrictions on settlement by the statutes, the articles of incorporation and bylaws (or the articles of organization and operating agreements of LLCs) (e.g., companies may not purchase their own stock if it will “impair capital”; there may be shareholders who are not in the disputing factions whose rights must be preserved; labor laws may set requirements on treatment of employees in any settlement);

Rights of third parties (e.g., creditors and third parties to the company’s contracts may have guarantees and other rights from the disputing principals that must be accommodated);

Regulatory issues (e.g., brokerage firms, bars/restaurants and other businesses are frequently required to have licenses the continuation of which requires persons with certain qualification stay in management);

Tax issues (e.g., some flow-through entities incur serious consequences if the ownership of more than 50% of their equity changes).

But underlying the parties’ negotiation positions will always be their (and their attorneys’) beliefs about how favorable a resolution they would get if they filed and completed litigation. So the mediator must also be familiar with the complexities and vagaries of litigation: the remedies available, (partition? injunctive relief vs. mandamus?), motion practice, what evidence would be admissible in trial, the level of understanding of most judges with complicated business law issues, and others.

Mediation, Even Prior to Filing, is Usually the Best Decision

My experience as a transactional attorneyand a business litigator and arbitrator is that seeking to settle as quickly as possible, even before filing litigation or arbitration, has historically improved the outcomes for both (or all) disputing factions. Admittedly, business people as a class are strong-willed and aggressive, and often want to “win.” But they are also business people who regularly evaluate risk and prospective benefit, and negotiate to “deals.” With that mindset on the part of the disputing factions, the probability of a mediated settlement is greater among business persons than among most other groups. And even if the mediation does not resolve the dispute, it usually improves the tone and quality of outcomes in litigation that follows.

 Posted by Attorney Joseph R. Soraghan. Soraghan practices in legal matters pertaining to business operations and growth. He guides businesses in financing, contracts, acquisitions, mergers, and sales. Soraghan frequently resolves commercial disputes as an arbitrator or mediator, or through litigation.

This Acts amend the Securities Act of 1933 to essentially allow “general solicitation,” heretofore illegal, in small offerings of investments if they meet numerous other restrictions. The Acts allows an issuing company to offer and sell securities, without regard to the general solicitation–type methods of promotion used, to an unlimited number of purchasers, so long as no purchaser is allowed to spend more than the lesser of $10,000.00 or 10% of his or her net worth, and the total amount of securities purchased within any 12 month period is no greater than one million dollars. And purchasers need not be “accredited” (usually meaning having a net worth of no less than one million dollars or annual income of $200,000.00 or $300,000.00 if purchasing jointly with a spouse). (And, if the issuer provides potential investors with audited financial statements, the offering may be as much as two million dollars. This may be particularly important in light of the ease of auditing a newly formed issuer with no history of operations and earnings).

Also, the Acts allow entrepreneur issuers to utilize “intermediaries,” who need not be registered as broker-dealers with the SEC, to assist in finding investors. This is a significant change from the present law, albeit with many restrictions on the use of the intermediary.

This is a “sea change” in the law of private placements. Perhaps its greatest significance is the new ability of such issuers to use the internet in private offerings. Also, it allows many potential investors, not sufficiently affluent to be “accredited,” to participate in an admittedly limited method in the growth of entrepreneurial companies. And, of course, it opens to entrepreneurial companies’ access to a body of investors hereto for prohibited to them.

However, some of the “restrictions” on crowdfunding should cause some companies to select other methods of private placement, particularly those who can attract sufficient accredited investors. These negative factors should also cause the Senate, in its considerations, to consider improving this new exemption.

Under pressure from state regulators, who believe that the $10,000.00/10% of net worth restrictions are too high and still allow purchases by unsuitable (i.e. non-affluent) prospective investors, it is likely that the Senate versions and eventually the House versions, if adopted at all, will decrease the minimum investment allowed by each investor. Even without such reduction, the amount that most persons will invest will be significantly smaller than that of average private placements under present law. This will result in there being many more investors–many more holders of interests in the entrepreneur’s business–than in traditional private offerings, increasing the cost of administering investor relations. And precise administration of investor relations is crucial to an entrepreneurial business’s ability to get future financing from venture capitalists or to achieve an exit event such as a purchase by a larger company.

Perhaps worse, the presence of many persons with the right to vote on whether to go forward with future financings or exit/liquidity events, perhaps requiring giving significant pre-emptive voting or other rights to venture capitalists, may also hinder such future financings. For this reason, crowdfunding, if it ever becomes law, may better be used for debt or other investments which do not include voting rights.

Also, the House bills require that the issuing company engage a “qualified third-party custodian, such as a broker or dealer registered” with the SEC or an “insured depository institution” to handle its “cash-management functions.” The bills do not define “cash–management” functions, and the issuer may have difficulty retaining a custodian, at least until prospective “cash managers” receive some assurances that they do not face the same problems which cause registered broker-dealers to avoid involvement with entrepreneurial issuers.

Crowdfunding, should it become law, will significantly improve the fundraising opportunities for some companies. However, it will not be best for all companies and will prove complicated and problematic even for those companies it benefits.

Posted by Attorney Joseph R. Soraghan. Soraghan practices in legal matters pertaining to business operations and growth. He guides businesses in financing, contracts, acquisitions, mergers, and sales. Soraghan frequently resolves commercial disputes as an arbitrator or mediator, or through litigation. He is past president of the Missouri Venture Forum.

Reprinted with permission by the Missouri Venture Forum, Enterprise, December 2011 issue.

This is a major change from prior law. Historically, the exclusive remedy for an employee with any employment-related injury – whether acute or gradual in onset – was to pursue a claim in the workers’ compensation forum. This is a system that clearly benefits employers (as well as third-party workers’ compensation insurers).

There are two types of employers in the workers’ compensation context: those who carry insurance policies issued by third-party insurance companies, and those who self-insure – that is, who create and pay into their own private workers’ compensation insurance policies. In every work-injury case, there are three benefits to which an injured employee is presumptively entitled: medical costs, lost wages, and permanent disability.

Two Scenarios

Consider the difference between the likely cost of a workers’ compensation claim versus the possible cost of a civil lawsuit with regard to: (1) a Missouri business with a workers’ compensation insurance policy issued by a third-party insurance carrier; and (2) a Missouri business that self-insures.

1.      Missouri business with a third-party policy.

Workers’ Compensation Claim

The only substantial cost the employer incurs as a result of a work injury is the increase in monthly premium that results from the “exposure” of the injury. The insurance carrier pays all claim-related costs for medical treatment, lost wages, and permanent disability. The insurance carrier also pays all attorneys’ fees associated with defending the claim, if necessary.

Civil Lawsuit

It is possible, depending on the terms and language contained in the employer’s workers’ compensation insurance policy, that the workers’ compensation insurance will not cover the company’s liability because the injury is not a “workers’ compensation” injury. If this is the case, the employer will be liable for all injury-related costs, including medical treatment, lost wages, permanent disability, and attorneys’ fees.

The good news for employers is that, in the civil realm, the employee will have to prove that the injury was caused by the employer’s negligence. Contrast this with the workers’ compensation system, in which the employer and its insurance company are strictly liable (i.e. liable without evidence of fault) for all injuries as long as the employee proves that the injury was caused by his work activities. Clearly, the evidentiary standard is harder on the employee in a civil lawsuit than in the workers’ compensation forum.

Still, if the employee is able to prove employer negligence, the employer will face costs dramatically higher than the increased insurance premium it would face in the workers’ compensation system. Plus, regardless of whether the employer wins or loses a civil case, it will be responsible for attorneys’ fees with the workers’ compensation insurer out of the picture.

2.     Employer that self-insures.

Workers’ Compensation Claim

The maximum cost to the employer is still relatively low. The maximum number of weeks a claimant can possibly obtain in permanent disability is 400, and the maximum rate per week is currently $811.73 (for permanent total disability). That caps the possible cost to the employer for permanent disability at $324,692. And note that in order to be entitled 400 weeks of disability, the employee essentially has to have died as a result of the injury.

With regard to medical costs, the self-insured employer has the right to direct and control medical treatment. With that right comes substantially depressed medical costs due to state-regulated re-pricing of medical billing.

Civil Lawsuit

Again, the injured employee has to prove employer negligence. This is not a simple task, but assume that the employer accomplishes it. $342,692 may seem like a high cost. However, consider the possible liability in a civil jury trial where, depending on the circumstances, an employer could face a punitive damages award that could reach $500,000.

In addition, in a civil case, the employer no longer is afforded the right to direct medical treatment, as it would in a workers compensation case. The employee can treat wherever he wants. And without directing treatment, the employer loses the benefit of re-priced (i.e. lowered) medical costs and selecting treatment providers with whom it has established client relationships. Under Missouri law, it is possible for injured claimants in a civil trial to obtain more money for medical costs than their insurance provider actually paid for their medical care. As a result, the workers’ compensation forum is unquestionably preferable for the self-insured employer.

What This Means for Missouri Employers

Most “occupational disease” claims involve “repetitive use” injuries, such as carpal tunnel syndrome (wrists/hands) and epicondylitis (elbows). It is yet to be seen whether or not Missouri courts will allow pursuit of these sorts of claims in the civil forum as well. However, it seems clear that KCP & L would permit an injured employee to pursue a repetitive use claim in civil court.

Still, this does not mean that most – or even many – employees will do so. Repetitive use injuries like carpal tunnel syndrome are caused by repetitive use. Plain and simple. It is hard to believe an employee would be able to prove that his employer’s negligence caused this sort of injury. To prove negligence, an employee must prove that the employer knew or should have known that a harmful condition existed and that its employees were at risk as a result. If the employee cannot prove negligence, it would be foolish for his attorney to file a civil lawsuit rather than a workers’ compensation claim.

“Injuries” such as mesothelioma, which results from years of exposure to asbestos, are do not commonly result from employment. However, Missouri employers need to ensure that they are not subjecting their employees to hazards – like asbestos – that can cause disease. Employers should also ensure that there is no way an employee can show that the employer’s negligence caused him to develop a repetitive use injury. How can employers do this? Ensure that:

• Machines work as they should. This includes making sure that machines are routinely maintained.
• Employees are educated and trained in the proper manner of using machines, tools, and other devices used in the course and scope of their job activities.
• Employees use safe/proper techniques in performing their job activities, and employees who do not are reprimanded.
• Employees are instructed to immediately report any acute injury. (This will help prevent acute injuries from becoming, arguably, repetitive-use/occupational disease injuries.)
• At least one administrative employee has the job function of monitoring employee activities and machine performance.

The more employers use their imaginations with regard to how they could possibly be viewed as negligent with regard to employee safety, the better they will be insulated against civil claims for “occupational disease” claims.

Employers should act accordingly to reduce “occupational disease” risk to their employees and protect their business from civil claims beyond the scope of workers’ compensation.

Posted by Attorney Christopher D. Vanderbeek. Vanderbeek is involved in the evaluation and defense of workers’ compensation and other insurance claims, protecting the interests of employers and insurers. 

As people in the industry know all too well, different forms of collateral require different procedures to properly perfect their security interests. Real property, for example, is relatively straight forward; a secured party in Missouri records a properly executed deed of trust with the recorder of deeds office in the county in which the property is located. Investment property (stocks, bonds, mutual funds, brokerage accounts, etc.) are a different animal altogether. Under the Uniform Commercial Code (the “UCC”), a securities account is classified as investment property (UCC § 9-102(a)(49)). Most investors do not maintain physical possession of their certified securities (stock certificates or bonds); rather, these are held by their financial intermediaries. Understanding that your borrower will not have the ability to hand you its certified security for this reason, a creditor wishing to obtain its highest priority should perfect its security interest in investment property by control (UCC § 9-314(a)).

The secured party gains control over the securities account when the owner of the account instructs the securities intermediary, after the secured party has rights in the account, that the intermediary shall comply with the secured party’s orders without consent of the owner.

Put more simply, for a lender to perfect its security interest in a securities account two steps are required: (1) execute a written security agreement whereby the borrower acknowledges its pledge of the account (rights to the account); and (2) enter into a written three-party agreement among the lender, borrower, and financial intermediary (borrower’s instructions to the intermediary).

The most efficient method of gaining control in a securities account is by use of a control agreement (alternatively, the borrower may agree to have the securities titled in lender’s name). Most control agreements start with the secured intermediary’s, e.g. a securities or brokerage firm, standard control agreement form. The financial intermediary has two primary goals with this document: (1) accommodate its client so that the borrower may use its account as collateral for a loan; and (2) limit its own liability for entering into this transaction. When representing a secured party, this leaves significant room for improvement from the bank’s attorney’s perspective.

Aside from the typical concerns in a contract – jurisdiction, venue, notice provisions, etc. – below are a few issues a secured party should consider when taking a securities account as collateral:

1. Is the securities account properly identified? Here, the name of the borrower, the financial intermediary, and the secured party, in addition to the account number, should all be clearly identified.
2. Does the financial intermediary agree to comply with instructions from the secured party, even if it is to the borrower’s detriment?
3. What representations and warranties does the intermediary provide? The intermediary should, at a minimum, represent and warrant that: (a) it will provide copies of all statements and trade confirmations to lender; (b) notify lender if anyone makes a claim to the account, and that there are no current claims to the account other than those of lender and the financial intermediary; (c) the account is held in borrower’s name; (d) the statement provided to lender is accurate at the time the control agreement becomes effective; (e) the account does not contain any financial asset registered in borrower’s name, payable to borrower’s order, or specifically endorsed to borrower, which has not been endorsed to the intermediary, lender, or in blank; and (f) neither borrower nor the intermediary shall terminate the account.
4. Who has priority as between the financial intermediary and lender? The lender should insist the intermediary subordinate its set-off rights in the account to the rights of lender.
5. What is the current value of the account? Lender may require borrower’s account maintain a minimum value.

Understanding that a secured party’s highest form of priority is for a secured lender to take control is the first step properly securing such an account. Realizing that you are not relegated to using a broker’s pre-printed control agreement enables the lender to further enhance its position.

Posted by Attorney James M. Heffner. Heffner practices in corporate and real estate law. He is experienced in the purchase, sale, financing, and leasing of real estate, as well as the creating and negotiation of construction documents. In corporate matters, he supports business owners in structuring entities, shareholder disputes, mergers, and stock purchases/redemptions.

With seven hundred and fifty million people actively using Facebook, there is a significant chance that a post about working conditions, compensation or other issues related to their employment will spark a conversation with an employee’s colleagues, and such conversations may constitute concerted activity under the National Labor Relations Act.

The question remains, if your employees say something negative on Facebook about your company, their fellow employees or their supervisors, can you terminate without running afoul of the National Labor Relations Act?

The answer depends on the facts surrounding the post(s). The test is whether the employee is engaging in activity solely for himself or on behalf of other employees.

Individual social media griping activity that is the “logical outgrowth of concerns expressed by the employees collectively” are considered “concerted” and protected under Section 8(a)(1) of the the National Labor Relations Act (“Act”). “Concerted activity includes ‘circumstances where individual employees seek to initiate or to induce or to prepare for group action’ and where individual employees bring ‘truly group complaints’ to management’s attention.” Meyers Industries, 281 NLRB 882, 885 (1986)

The following factors should be considered:

1. Is the post concerted activity?
2. Is the post directed at other employees?
3. Does the post suggest that the employees take some action?
4. Is the employee posting a Spokesperson for Common Concerns?
5. Does the post arise out of a previous union or employee group?

What this means is that not all online posts are protected. Two Advice Memorandums issued this July by the National Labor Relations Board, Office of The General Counsel regarding non-union companies provide guidance. In JT’s Porch Saloon & Eatery, Ltd., the NLRB found no concerted activity when a bartender complained to his step-sister on Facebook that he had not received a raise in five years, he was performing waiter’s work without tips, the Company’s customers were “rednecks” and he hoped the customers choked on glass as they drove home drunk. The Board found that the termination was not in violation of the Act because the post was not discussed with any other employees, before or after he wrote it and there had been no employee meetings or attempt to initiate group action regarding the tipping policy.

Similarly, in Wal-Mart, the NLRB found no concerted activity when a customer service employee, after an interaction with the Assistant Manager, posted the following comment on his Facebook page: “Wuck Falmart! I swear if this tyranny doesn’t end in this store they are about to get a wakeup call because lots are about to quit.” The Facebook friend responses were mixed with some friends responding favorably and others not. The customer service employee responded further by making negative comments regarding his supervisor, using profanity and claiming false advertisement on behalf of Walmart. Of course, a co- worker “friend” gave a copy of the post to the supervisor at issue and the supervisor required him to take down the post, suspended him for a “decision day,” and prepared a discipline report.

In defense, Walmart claimed that the postings were not concerted activity for mutual aid or protection, and even assuming so, the Charging Party’s use of profanity was so “opprobrious” as to deprive him of the Act’s protection. The Advice Memorandum found the customer service employee’s comments were solely about him and were “mere griping.” The comments did not look toward group action.

In contrast, the National Labor Relations Board issued a complaint alleging that the Hispanics United of Buffalo unlawfully discharged five employees because they took to Facebook to criticize working conditions, including work load and staffing issues. In this case, an employee, in advance of a meeting with management regarding working conditions, posted an allegation that employees did not do enough to help the organization’s clients. Five employees responded and defended citing work loads and staffing issues. The organization terminated the five defending employees because their defense constituted harassment of the employee originally mentioned in the post. The National Labor Relations Board Complaint claims that the Facebook discussion was protected concerted activity. Outcome of this complaint is not known at time of this post.

Social Media has been likened to a “loaded gun.” For all its benefits, it can be quite dangerous to the employer as well as the employees if it is not used appropriately. It is in the employer’s best interest to establish legal social media policies and train employees on the ramifications of their social media use as it relates to their employment.

However, employers should not impair an employee’s ability to act in concert or to effect some change in the terms and conditions of the workplace.

Just as employees should think before posting on Facebook, employers should think carefully before disciplining employees to avoid running afoul of the National Labor Relations Act. As unwise as it may be to complain about one’s employer on Facebook, it may be unlawful for an employer to discipline an employee for voicing such a complaint.

For more information and guidance, please check out the National Labor Relations Board Acting General Counsel Report on Social Media Cases.

Posted by Attorney Ruth A. Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.

In comparing the success of our country and culture, we frequently cite the “rule of law” as basis for our economic success over the last two centuries. We often hear from other cultures that the inviolability of property and contract rights in our legal system is what instills the confidence in our system that encourages individuals to take the economic risk that causes our economy to thrive.

However, if “rule of law” is the structural “foundation” of our society, it might be time we grabbed a flashlight and headed into the basement. Every property owner in or around St. Louis knows that this foundation, like those in our homes, requires constant vigilance for cracks and leaks. Unfortunately, the bad news that property owners often learn is that even with constant vigilance, the early discovery of a tiny trickle of water in a well designed and maintained basement can result in significant and expensive repair costs. 

As lawyers, we are explicitly the guardians of our society’s rule of law foundation, so even with the queasy horror of substantial sacrifice on the horizon; I think we must continuously inspect the rule of law to ensure it is watertight.  This seems a particularly appropriate analogy given the alarming mortgage crisis that has predicated our current national recession. 

Initially, the home loans and foreclosure did not seem to implicate the rule of law: we all heard stories about improper, impatient, and immoral activity by big banks and lenders that snowballed into disaster. The banking industry had thrown its political weight around to generate laws that allowed a lot of people to get into homes they could not realistically afford. Initial blame was focused on lending behemoths, who with the help of their Wall Street brethren, had effectively destroyed our economy with a legal but complex version of the classic scam, Three Card Monte. This scam was accomplished by using classic huckster techniques of misdirection and fast talk.  They repeatedly sliced and recombined bad loans until they convinced everyone that worthless paper was worth buying. This was offensive, unethical, and irresponsible, but for the most part, legal. 

Now, in the wake of the toxic-asset crisis, we have come to realize it predicated the current foreclosure crisis.  But there is a big difference between creation and manipulation of a hazy set of laws, and the outright decision to put an American citizen out of his home based on less than absolute certainty that she has benefited from full due process. 

This year, as the summer turned into fall, our general population began to learn more and more about the internal workings of foreclosures by large institutional lenders or those that bought the debt from them. We heard anecdotal revelations that foreclosures and evictions had proceeded against families that had paid their mortgage, tried to pay their mortgage, and in at least one case against a family that were free and clear fee simple owners, when their legal description accidentally ended up on someone else’s loan documents. 

We began to understand that these problems resulted, in part, from something the media dubbed “robosigners.” Robosigners are not actually mechanical automatons, but low-wage employees who presumably took these jobs in order to pay their own mortgages. Large banks and institutions hired such people to execute legal documents, including affidavits, required for the foreclosure process.  Most robosigners were not only improperly trained to understand the documents they were executing but were assigned so many documents on a daily basis that the clear expectation of their employers’ was that such documents be executed without any inquiry to the facts of any individual case. 

To me the phrase “robosigner” is merely a polite euphemism that we adopted for these employees, which might just as accurately be “perjurers.”  My suggestion of this more accurate term is not meant to cast blame strictly on the many employees in many areas of the country for many different employers who ascribed their names on false affidavits. Instead, I selected this term because it allows me to make my next logical step from the perjurers to those who suborned perjury from them.

In this case, those who suborned perjury wield substantially more power than the perjurers. These institutions have the assets necessary to hire public relations consultants and lawyers. They also have a history of making political contributions that give them access to governmental decision makers. So upon discovery of this crisis they were able to proffer and “spin” their answers to give them a solid air of credibility.

Indeed, these banks and related institutions were able to exploit the vast schism of disagreement between right and left that polarizes our current political landscape. We have grown accustomed to any and all controversies being cast in the light of fundamental, diametric divergent views.  When we learned that in some cases the intuitions had acted contrary to the rule of law on a broad scale, to me, as an attorney, this matter took on substantially more importance than a mere political football in an endless, dispiriting contest.

When I heard that hucksters had warned against genuine correction if the problem, using excuses about the potential for substantial negative economic consequence, I was unconvinced. Substantial negative economic consequence does not, in my opinion, provide a valid reason for taking action divergent from the rule of law, like executing a false affidavit.

These talking points are then filtered through to us by the media’s “master logicians” — the same talking heads that present every unseasonably cold day or surprise snowstorm as irrefutable evidence to undermine the global warming phenomenon. Nevertheless, in reporting on this crisis they somehow discovered that there was something wrong with “anecdotal evidence.” This led many of these unqualified squawk-boxes to report and endorse the lenders’ position that the overwhelming majority of foreclosures were against people who had not paid their mortgages. I assume that this position was an attempt to convince the public that if lenders’ had bothered with such niceties as “due process” they would have almost always reached the same conclusion, foreclosure. Unfortunately, there is more wrong here than the mere hypocrisy of shouting “anecdotal evidence!” at your opponents while using inconclusive evidence in other contexts to further your own aims. This approach to the foreclosure issue overlooks the fundamental questions at stake.

In making policy decisions we recognize that our efforts to benefit the most people invariably have a negative impact on a few people. That’s just the way life works. However, as lawyers, we also recognize that there are some actions that despite some benefit to the majority, so disadvantage the minority that they cannot be permitted.  Often we find such rules in the philosophical underpinnings of our normal laws that are inscribed in our Constitution. For this reason, even though there is merely anecdotal evidence of a very small number of people being evicted from their property without due process of law, that is an adequate basis for us to act. 

In elementary school civics we learned that our criminal justice system was based on the maxim that it is better for ten innocent people to be set free than for a single person to be wrongly punished.  Later in law school, we learned how criminal procedure was modeled around this concept, including most importantly the burden of proof we describe as “beyond a reasonable doubt.” I am not suggesting that lenders be subject to a higher burden of proof in order to proceed with foreclosures. Instead I am suggesting that constitutional questions of due process in this civil setting are just as crucial to our system as criminal cases.  And it is not a tremendous leap for anyone who completed a Constitutional Law Class to recognize that the drafters of our Constitution also saw property rights as pretty important.

As a result, I feel that more than mere outcome-based analysis is required for the foreclosure crisis. In the last two years I have grudgingly acknowledged that there are some constitutions in our country that from a macro-economic prospective are “too big to be allowed to fail.”  But we cannot accept that there are any entities that are too big — or too important — to follow the rule of law.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

The jargon we use for starting a new law practice is “hanging out a shingle.” That phrase evokes the image of a 19th century lawyer opening his (and it would have been a “he”) retail law practice on the courthouse square. In the closing years of the twentieth century, when I left the St. Louis County Probate Court to start my own practice, I rented office space just blocks from the courthouse, like the classic courthouse square model.

Unfortunately, my first office was on the fifth floor of a high rise and the landlord had rules that prohibited me from nailing up a handcrafted shingle in the hall outside my office. Moreover, no one would have seen it. So instead, one of the first things I did in planning my departure was the modern analog of “hanging out a shingle” – I created and published a web page. This was such a high priority that I began work on the page in the evenings before I left my prior employment at the St. Louis County Probate Court.

The lessons to be learned from legal marketing in 1999 were, believe it or not, only slightly more relevant than those from legal marketing in 1972. In the last 11 years, things have changed radically. In 1999, however, we did already have Google and other search engines. I’m kind of a geek, and I had worked with computers, so I had a basic understanding of how the search engines worked. I designed my web page to have large amounts of substantive information to gain the attention of the search engine index algorithms. In the years that followed, this practice would come to be called “Search Engine Optimization.” Search engine optimization has continued to be the crucial concept of legal marketing on the Internet for the last decade, but I believe that will change shortly.

In 1999, I began to get cold calls from people who had seen my web page. That was good news – I would indeed market my services on the Internet. Unfortunately, many of these were from businesses attempting to “upgrade” my site by formatting it as a sort of prefabricated “tombstone” style web page. I thanked them politely and moved on. Within a few years, these sorts of callers began to try to induce me to purchase a listing on their site, because they claimed to “need lawyers like me to take all the referrals they had for my zip code.” When I told them my office was in one of a few downtown St. Louis zip codes, they replied by saying they earnestly believed that by purchasing the rights on their list to both the 63101 and 63102 zip codes, I would be substantively enhancing my practice – notwithstanding the fact that at the time, the residential population of downtown was truly minuscule. These services were not much more than basic lists. At the time, they knew less about Search Engine Optimization than me, and frankly, I was often getting more hits than they were. Moreover, they had little knowledge of legal marketing, and even less about the greater St. Louis market. So, again, I politely said no thank you.

Knowledge of search engine optimization soon spread to the cold-callers, sellers, and spammers who eagerly offered to help me optimize my web page to get higher on the search-results lists. They rarely did an actual search before calling, so they usually did not know that I was already listed highly on web search results – a product of work I had done years ago.

Now, I am once again getting solicitations to be listed on various sites. Recently I attended an American Bar Association (ABA) Annual Meeting in San Francisco. San Francisco is a pricey town and I needed gifts for my eight and five-year-old sons. I knew that I could get a wide variety of over-priced flashlights, pens, notepads, and carrying cases embossed with “San Francisco” or an image of the Golden Gate Bridge by visiting the trinket stores in Chinatown. But instead, I chose to get them similar trinkets embossed with the names of various exhibitors at the “ABA Expo.”

As you can imagine, the ABA Expo is a large convention hall given over to vendors seeking to sell their law-related and sometimes not so-law-related services to conventioneers. As I entered, I ran into a Missouri judge who bemoaned the fact that convention logistics were intentionally planned so you had to run the gauntlet of exhibitors to get to the registration desk for the conference. But I was there for the sponsors’ trinkets so, to my way of thinking, I was obligated to politely listen to their sales pitches. I left with a bag full of toys for my boys (I know – it was a cheap move, but the kids just ADORED the swag), but I was also struck by the large number of people selling the same space on their Internet-based lists of lawyers that I had encountered ten years before.

The big difference between these lists and the ones that had cold-called me six or seven years before, though, was that the current crop of web-sales people had not merely constructed web pages that I could have done myself and then hired telemarketers to sell them to attorneys throughout the country. These people had spent thousands of dollars to rent a booth from the ABA, fly their personnel across the country, set up a swanky display booth, and offer free trinkets (which would wind up in the hands of my young children). The marketers of legal marketing had discovered that they, too, needed fancier marketing techniques.

There is another big difference between these web pages and the lists of the ancient past, from the time when lawyers had to carry both a mobile telephone and a separate personal digital assistant. (Remember then?) These modern marketers were not twenty-somethings making cold calls from their moms’ basements about the great new websites they had just created. Instead, access to these new web lists were being sold by names I recognized, such as West, Lexis, and other big national companies. These companies have not read a book on search engine optimization to get the alleged inside dope on how the author believed they might attempt to manipulate the Google-bots and crawlers into listing their page. No, these people had paid thousands of additional dollars to advertise with search engines.

Unlike the search engine optimization technical trickery believed to achieve high rankings in the past, these corporations have contracts with the search engine companies specifying their precise level of visibility. It’s a whole new ball game, and it has been, of course, for sometime now I have come to feel the same sort of loss of control of the marketing of legal services that a 19th century lawyer, whose only advertising was a hand painted shingle, might have felt if he suddenly was transported to the age of the Yellow Pages. In today’s world of Internet marketing, there are well-financed listing services that have spent substantial capital on web-page development to produce better web pages which will get more hits then I anything I could create on my own. And they have won in another way, too: people are increasingly approaching the Internet through “filter pages.” Now, potential clients recognize that Google results can be manipulated or bought, so instead of using Google to search for a lawyer, they use Google to search for another web site that will, in turn, help them search for a lawyer.

As these noteworthy changes in Internet marketing happened, my practice has changed as well. I’m now at law firm with 30 lawyers. Unlike my first several days in private practice, I actually have clients to work for (On the rare occasion that BAMSL activities allow time for legal practice. Ahem.), and I no longer maintain my own web page – nor feel that intense pressure to make sure it gets noticed. It’s a different story for today’s young lawyer in independent practice. The capitol required to gain the necessary training and ad placement makes my own early approach – looking back 11 years to that veritable Pleistocene Era of primitive web development – untenable for a new lawyer today. In San Francisco I didn’t bite on any of these many sales pitches, but it is seems increasingly inevitable that the legal profession will become reliant on non-lawyer contractors to market our practice.

Which brings me back to the image of that 19th century lawyer hanging his hand-painted shingle over his door on the courthouse square. You may have heard that several years later another lawyer came and opened his office just down the way on the same square. This second lawyer had a brother-in-law who was a painter, and he got him to make a professional sign painted not on a shingle, but on a fancier piece of finished wood. After that, no lawyer in that town literally ever hung out a shingle again.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

An MLP brings together health care and legal professionals who share a common goal: to promote the well-being of their patients and clients. These partnerships leverage the resources and expertise of two knowledgeable service professions in order to alleviate the social and environmental stressors that affect the health of our nation’s neediest individuals and families.

By working together to improve their patients and clients’ health, doctors and lawyers benefit communities in many ways. For example, keeping children healthy reduces school absences and reduces the amount of time employed parents spend taking their child to a doctor.

How do MLPs help? The concept of a Medical-Legal Partnership (MLP) is the brainchild of Barry Zuckerman, M.D., Chief of Pediatrics at Boston Medical Center. He came up with the concept after repeatedly seeing patients who failed to recover from ear infections because their apartments lacked heat, and patients who were unable to control their asthma because their residences contained mold. In working with these patients, Zuckerman came to understand that legal remedies can be used to lessen or even prevent his patients’ need for health care. Putting his idea into action, Zuckerman founded the Medical-Legal Partnership for Children at Boston Medical Center in 1993, and subsequently created the National Center for Medical-Legal Partnership. Over the past 17 years, MLPs have moved beyond Boston. They now exist in 37 of the 50 states and account for more than 80 programs at just over 180 sites across the country. All of the MLPs bring lawyers into the health care setting to help patients and their families navigate through the maze of regulations involving such health-related concerns as food-stamp eligibility, utility shutoffs, mold removal, and landlord-tenant issues.

An MLP is a health and legal services delivery model which recognizes that the legal system already holds solutions for many problems associated with social determinants of health. By integrating legal assistance into the medical setting, an MLP helps underserved communities.

Health care reform has been a primary topic of political discussion for the last year. But over the last few decades, we have adopted laws that provide access to health care, adequate nutrition, safe housing, and other basic needs to millions of low income Americans. As recent and historic efforts reflect, legislatures, health care providers, and advocates increasingly recognize that social factors have a significant influence on health and well-being and that medicine alone cannot solve the health problems of those who struggle daily with hunger, safety, and other material hardships.

Medical schools teach doctors to heal, not for the most part to address social issues. As a result, doctors may not be equipped with the skill set useful for solving health problems that poor housing conditions, food and energy insecurity, and educational and employment factors cause or exacerbate. MLPs enable doctors to refer their patients with those and other social stressors to a legal advocate, who can provide the “preventative medicine” needed to avoid potential health problems. For example, a child with asthma living in a moldy apartment will never breathe symptom-free, no matter how much medicine is administered. But, with the assistance of a lawyer, the child’s parents can compel either the government or their landlord to remove the mold.

A variety of government programs are designed to address situations that can lead to health problems. However, many low-income individuals and families across the country continue to lack practical knowledge and, thus, access to the benefits these programs afford.

Traditional medicine and law have treated vulnerable populations in isolation, despite the strong links between certain social situations and health. Studies have shown that adverse social conditions, such as substandard housing and insufficient heat, make people vulnerable to poor health. At the same time, research also reveals that poor health makes people vulnerable to adverse social conditions. This “cycle of vulnerability” often consigns our nation’s most disadvantaged households to a lifetime of poverty, poor health, and other negative conditions.

An MLP can break this cycle. It recognizes the inextricable link between unmet basic needs and health, and it gives individuals and families the tools needed to address the factors that perpetuate poor health in underserved communities. MLPs are founded on the principle that early legal intervention can prevent social stressors from exacerbating health problems in the same way that a transactional legal practice prevents litigation. By bringing doctors, lawyers and other professionals together, an MLP helps patients and their families escape the cycle of vulnerability and put them on a track toward better health and well-being.

The MLP works to improve the health and well-being of vulnerable populations, in part, by shifting the service-delivery model of both law and health care. Traditional legal aid operates in an “emergency room” model, providing crisis-driven service to clients who are able to both identify their needs as having legal remedies and connect with a local legal services agency. By the time someone reaches legal aid, she is likely to have an urgent legal need, such as an eviction. An MLP engages and trains health care providers to recognize and refer these problems earlier so that legal staff can intervene in a preventive, “primary care” model.

Traditional health care acknowledges the effect of social stressors on patient health, but stops short of recognizing the role legal remedies play in curbing poor health. Identified social problems are referred to other professionals and advocacy is considered secondary to the practice of medicine. An MLP not only emphasizes the role legal intervention can play in promoting better health, it also helps to re-orient health care providers to view advocacy as a key component in the delivery of health care.

An MLP program known as Children’s Health Advocacy Project or CHAP has been established in St. Louis. CHAP is a partnership between Legal Services of Eastern Missouri, Grace Hill Neighborhood Health Center, SSM Cardinal Glennon Children’s Medical Center, St. Louis Children’s Hospital, Saint Louis University School of Law, local pro bono attorneys, and the Missouri Foundation for Health. The CHAP program follows the national model by addressing the issues on three fronts. First, CHAP engages in direct legal representation of patient and client. The program’s attorneys seek legal solutions for barriers to health such as inadequate housing, inaccessibility to public benefits and special education services, and family instability. Second, CHAP is integrated with the residency programs at Saint Louis University School of Medicine and Washington University School of Medicine. These training sessions teach health care providers to spot legal issues, become better advocates, and understand the basics of the law. Finally, CHAP partners with health care providers to identify and address systemic, recurring legal barriers to health through litigation.

I would be remiss in discussing MLPs in St. Louis without acknowledging Missouri’s “first family” of medical-legal partnership. Dr. Patricia B. Wolff practices pediatric medicine locally with the Forest Park Pediatrics. She is an active participant in CHAP and has literally saved lives via the program. She has also traveled to Haiti to treat children regularly since 1988, and, more recently, proactively addressed some of the nutritional and economic issues in that country. Dr. Wolff is married to Missouri Supreme Court Judge Michael A. Wolff. Judge Wolff is a former attorney for multiple legal aid organizations. In addition to his many law-related activities, he also served on the faculty of the Department of Community Medicine, Saint Louis University School of Medicine, and the School of Public Health, Saint Louis University. Locally and nationally, MLPs highlight the exceptional difference that lawyers and doctors can make in the lives of their patients/clients and for society as a whole. I encourage every person who reads this article to consider helping CHAP or another medical-legal partnership by talking about the concept with the doctors you know. Together, we can make a difference.

This article originally appeared in the St Louis Bar Journal and is reprinted with permission.

The use of the term “conflict-resolution specialist” is not just careful lawyer-talk designed to convey a totally true statement without providing the information sought, it also happens to be an apt description of our profession. Whether we are seeking to solve problems through litigation, prevent them through transactional work, or just guide a client through an uncontested court process like Probate or Bankruptcy, we are all conflict-resolution specialists.

The better lawyers amongst us have learned that the most aggressive approach to a solution is only occasionally the best approach. A transactional lawyer can easily draft a highly biased document that creates a very lopsided power balance in favor of her client at the expense of the other party. But, this hyper-aggressive approach renders no benefit if it causes the other party to walk away from the transaction or, worse still, to regret signing the contract and thereby prevent the business relationship from thriving.

Similarly, any litigator that needs a document from an opposing counsel knows how to draft discovery requests and eventually obtain an order to compel. When the two lawyers have an adversarial relationship, that process typically takes at least ninety days and probably requires at least five hours of attorney time. The client is almost always better served by a lawyer that maintains a professional, collegial relationship with opposing counsel so he can place a six minute telephone call to opposing counsel and obtain the same document in a day or two. Certainly there are circumstances when we have to do things the hard way, but I would suggest that the ability and effort expended to avoid the hard way, through conflict resolution, often provides the client the best possible service.

The reason most successful law practices use this approach is because there are at least two sides to every story in real life. In fiction, on the other hand, we regularly encounter “bad guys” that act in evil ways because they are inherently evil. Those people are rare or perhaps even nonexistent in the real world. Most of us do what we think is “right” – or at least justifiable – even if our decision leaves others at a disadvantage. While all experienced lawyers know this, many non-lawyers do not think this way. The natural human reaction seems to be to vilify our perceived adversaries.

As lawyers, we see our clients react this way all the time. Initially, our clients come to us about a disagreement with another person. But, in time, that disagreement often leads to frustration with the perceived flaws of the other person. If litigation ensues, the cost to the client and increased level of frustration results in a growing dislike not only of the opposing party but also of the opposing counsel. Skilled professionals recognize the need to overcome this frustration and the resulting bitterness in order to provide some line of communication and to make progress toward resolution of the disagreement. Even when disputes between bitter, diametrically opposed parties must be resolved by a neutral third party’s decision, a lawyer’s ability to focus on actual issues allows for eventual conflict resolution.

My concern is the vast number of individuals currently involved in politics and policy making in our country who fail to recognize these basic principles of conflict resolution. The level of political discourse has become tremendously bitter and nasty because these individuals have been conditioned to vilify their perceived adversaries as if they were fictional “bad guys.” People that are skilled at manipulating rhetoric, including politicians and political commentators of all view-points, exploit this conditioning. When combined with our competitive two-party system, these rhetoricians treat political discourse like a spectator sport. We seem to make policy choices based on the personalities of the people proposing or opposing those choices rather than on the merits of the policy.

In their zeal to win the political game, these people have lost sight of the fact that political discourse is not about winning or losing but about setting goals and crafting policies to achieve those goals. Some partisans have ceased to recognize that those who disagree with them politically share their selfless motivation to do what they think is right for society. When we define our political adversaries as evil and their goals as the product of evil, compromise becomes impossible. Then, supporters of a rejected goal or policy see themselves as subject to evil rulers and the process of political discourse has failed. The government would be in a much better position to set goals and craft policies if politicians and political activists toned down their rhetoric and distanced their policymaking roles from the aggressive means used to acquire those roles.

Past bar leaders have encouraged lawyers to seek elected office in an attempt to achieve the goal of greater civility in the political process. I wholeheartedly support that effort. Of course, I would be naive to pretend that some politically active lawyers did not contribute to the hateful decline of public policy discourse. Instead of utilizing their problem solving skills to resolve conflicts and craft policy, some lawyers-turned-politicians utilize another legal skill: the ability to persuasively manipulate rhetoric to drive the opinions of others, in exactly the way I discussed above. So, I support the efforts of other bar leaders to encourage increased political participation by lawyers in order to enhance civil discourse, but recognize that there are also lawyers that exacerbate the problem.

The fairly extreme effort of changing your career path from lawyer to elected leader might be laudable, but isn’t really necessary for us to bring more civility to political discourse. Our professional position and legal knowledge makes us leaders in our community without election. When we discuss politics with others we have an obligation to do so with our legal reasoning and conflict resolution skills in place. If you believe that a particular policy proposal is flawed, consider stating your specific problems with that policy and avoiding the temptation to insult or demonize anybody who disagrees. You could even take civility a step further. For example, before stating your position, you could acknowledge that people who disagree with your policies or even your goals are still doing what they think is right.

Additionally, you could encourage people in political discussion not to reduce their complex opinions to sound bites and name calling, but instead to ferret out their beliefs and positions that underlie the sound bites and names. The media customs of the last few decades forced politicians to reduce their ideas to sound bites and thirty-second commercials, but most political discourse can and should occur at a substantially more relaxed and contemplative pace. We do not have to cede our democracy to shallow media types that seem incapable of complex thought and serious analysis.

Under the current scorched-earth model of political discourse, there is no attempt to achieve consensus. Instead, people force others to take unyielding positions, even though agreement could be reached on some of the underlying issues. In this model, the decision to make a statement is based entirely on the emotional impact of that statement without any real concern as to the truth of the statement.

Lawyers should not adopt that model, but should alter their political discourse to the sort of discourse we engage in with each other for the benefit of our clients. In this alternate conflict resolving model, the truth of your statements is paramount and the practical ramifications of decisions are more important than the emotional and rhetorical impact of those statements. Finally, we all recognize that scorched earth tactics result in, well-scorched earth. That is of no value to anyone in the future and inhibits the mutual respect needed to advance society and to address other problems side-by-side with those whom we have disagreed in the past.

If you are reading this article, then you have probably voluntarily chosen to join the Bar Association of Metropolitan St. Louis because it offers the opportunity to become a better conflict-resolution specialist and to provide better service to your clients in this and other ways. Membership is a hallmark that can communicate to the world that you value professionalism. Thank you and congratulations on your decision to follow the professional traditions recognized by our association since U.S. Grant was president.

If you are reading this and are not a BAMSL member, but you value the professionalism that membership represents and desire the opportunity to better serve your clients, please consider joining. You can easily join online at http://www.bamsl.org/. Please be aware, however, that online membership to BAMSL was not available until sometime after U.S. Grant left the White House.

If you are not a member of BAMSL and think I’m a crazy caitiff for not realizing that the best way to practice law is always maximum aggressiveness, I still hope you will consider joining or at least coming to an event or two. You will not only be in a better position to serve your clients by offering alternatives to the “scorched-earth” method, but you may find you are in a position to enhance your own quality of life and level of professional satisfaction. At the very least, you may accidentally enhance the quality of life and professional satisfaction of your opposing counsels.

This article originally appeared in St Louis Lawyer and is reprinted with permission.

Over the course of the last 94 years the Court’s composition has slowly, but methodically gained diversity in the sense of race, religion, gender, and national origin. As a result, Elena Kagan won’t be the first, or even the only, person with any of her immutable characteristics to sit on the highest court. She will, however, add to the Court’s diversity in the broader sense.

For starters, her employment path differs substantially from that of the current Justices. Early commentators, focusing her lack of judicial experience, opined that she was ill prepared to be a Justice. Unlike those commentators, I have the privilege of writing to an audience of lawyers who know that the appellate practice of a United States Solicitor General is excellent preparation for service on the United States Supreme Court. In many ways, being a Solicitor General provides just as valuable an experience as being a Federal District court judge; probably even more valuable in terms of appellate experience. For this reason, the office of Solicitor General was for many years the “on deck circle” for the Supreme Court. Now that the tradition of appointing the Solicitor General to the Court has faded, the appointment of one will certainly bring a measure of diversity to the current Court.

On first blush, Kagan’s experience at the Harvard School of Law does not seem to immediately bring anything new to the Roberts Court. A large number of legal academics have served on the high court. But, only three of the current members of the current court have legal academic experience (not coincidentally, all three were appointed by Presidents with experience in academia) and none of them as extensive Kagan’s. Certainly there are no other former deans. So, in this way, Kagan also brings a slightly different perspective to the Court.

One item that jumps out from Elena Kagan’s job as Law School Dean was her refusal to allow military recruitment on the law school’s campus. She didn’t really cut any bold new ground with this action. She merely revived a policy that had been a touch point for controversy since the adoption of the “Don’t Ask, Don’t Tell” policy nearly ten years earlier; a policy that had been litigated and legislated multiple times in the intervening ten years. However, I would suggested that in today’s world where “advise and consent of the Senate” has come to mean “a media frenzy comparable to a political election,” the fact that she has taken a political stand on any issue, much less a relatively unpopular stand, brings another note of diversity to the Court.

The most popular way to compare any United States Supreme Court nominee to the sitting Justices is to examine the nominee’s perceived political bent. I say, “perceived” because of the recurring examples of a President that falls on one side of the political spectrum appointing a Justice whose later decisions fall on the other side of the political spectrum. The most relevant example here is Justice John Paul Stevens, whose seat Kagan is nominated to fill. Stevens was appointed by Republican President Gerald Ford but there is substantial agreement in the many retrospectives, which have recently marked his retirement that he has served as a liberal vote on the Court. As a result I preface any discussion of any individual’s beliefs with the caveat that the politics of an individual are a subjective label applied by someone else to them. In this instance that someone else. Is her appointer, President Barack Obama.

I’ll let other commentators dissect the exact political beliefs of each member of the Supreme Court and where Elena Kagan might fit in with them. It’s a certainty that the President’s belief is that her views are similar to his or at least to those he aspires to and that those views are left of center (exactly how far left of center is another matter I’ll leave to those smarter than me; although everyone that seems to take on the task in the popular media does not strike me as particularly bright). Certainly there is no shortage of critics of the President’s politics who will argue that Kagan will not represent their political or judicial philosophy. Of course she won’t.

The United States Supreme Court is not a representative part of the democracy. And the politics of the last nominee, this nominee and any other nominee between now and January 2013 will not be based on the views of the citizenry at the time of the appointment. Instead they are based on what the views of the citizenry were in November 2008 when we elected our President. As lawyers we can debate endlessly the meaning of “advice and consent”. But, it’s hard to come away from any reading of Article II, section 2, clause 2 of the Constitution with a belief that anybody but the President gets to take the driver’s seat in the appointment of a Supreme Court Justice. In accordance with the

Constitution, we elected a liberal president and his choices will likely reflect his politics. So, while leaving aside the full analysis of Kagan’s politics, in the broader sense, there is little doubt that her politics diverge from several the politics of other members of the court.

I would like to examine whether her views of the law represents any measure of diversity. But, I can’t because we don’t know much about her views. Moreover, we won’t know them even after the Senate questions her. In fact, we won’t know them until she has been appointed and written several opinions. The reason for this great secret is because the appointment process has become so political and media driven. Ronald Reagan introduced the concept of a litmus test for Supreme Court Justices, which was a bit of a surprise and Presidents since have refined that test. As a result, candidates not only have to have certain views but their track record must be totally bereft of any evidence of those views in order to assure maximum potential for appointment without unnecessary expenditure of the President’s political capital. Thus, I have little to no ability to actually determine the way Kagan thinks about the law.

Instead, I am forced to conclude my observations on the ways Elena Kagan might impact the court with an examination of her own views of diversity. First, we know that despite her declared liberalism, she intentionally set about recruiting conservative faculty members for the Harvard Law faculty. She contends that while her politics differed from them she felt that the best education resulted from exposure of the students to a broad diversity of perspectives. This is of course precisely the sentiment applied to legal education that Ruth applies to our law firm and society frequently applies to issues relating to protected classes.

It is also the philosophy that I have about BAMSL. BAMSL has long striven to overcome a shameful, though now distant, history of exclusivity based on race, religion, gender and other immutable characteristics. But, if we are to initiate and achieve the sustained growth of membership I hope, BAMSL must also maintain a broader sort of diversity. One where we pay attention to even more about our members and strive to balance our ranks based on other attributes, like the size of the group with which they practice, the area of law they practice, whether they are in private practice, and whether they practice in an urban, suburban or exurban setting. This I think is the way to build a strong Supreme Court, Law firm or Bar association.

This article originally appeared in St Louis Lawyer and is reprinted with permission.