Trials And Tribulations

// burning-money-100s It’s always been tough trying to climb the partnership track or advance in an in-house legal department. And I think it’s about to get even tougher as employers take a harder look at whom to retain and whom to jettison. How to determine who makes the cut? A legal version of “The Squid Game,” perhaps, but performance evaluations are now going to be front and center and not for the first time. The firms say it’s a matter of “right-sizing,” that the rush to hire during the pandemic may have prompted the hiring of less-than-stellar candidates. Now, not wanting to use the term “layoff,” firms are turning the screws on associates by ratcheting down on performance issues. However, some associates are assets, rather than liabilities.

I have written about the uselessness of performance evaluations before, especially when bad reviews come as a complete shock to the person being reviewed. No warning lights, no heads-up that something bad may be coming, the employee goes along thinking that she is performing to expectations or even exceeding them and then the evaluation grenade is thrown. Using performance evaluations as the way to “right-size” instead of saying what it truly is, a “layoff,” is disingenuous. Of course, firms don’t want to be known for laying off employees, so they facilely say that the decision to terminate an employee was “performance related,” thus skirting past the term “layoff.” You can put lipstick on a pig, but it’s still a pig.

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Two trials are making headlines these days: one found defendant Samuel Bankman-Fried guilty as charged on all seven criminal fraud counts. If you had responsibility for billions and billions of dollars, wouldn’t you pay attention to that much money slipping from your fingers into the crypto netherworld? Wouldn’t you make sure that someone in your company knows how to track those cryptocurrencies so that they don’t just — Poof! — disappear?

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Obviously, SBF didn’t think that was important, so he’s facing some serious time (as much as 115 years). It took the jury four hours to return its verdicts. Sometimes juries decide very quickly but want a defendant to sweat it out before returning to the courtroom. This jury had a meal first before getting to the business at hand that didn’t take very long.

Do you remember the cryptocurrency ads that aired on the Super Bowl in 2022, especially the one with Larry David? In hindsight, it’s hilarious, except for those who invested in FTX. Ironically, in the commercial, David refuses to invest in FTX. Prescient?

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The other trial is that of the Trump family and its businesses. After a certain point in Trump’s testimony, the court decided that it was better to let Trump’s speechifying roll on, without bowing to the normal courtroom procedures of questions asked (perhaps objected to) and answers provided in response to the questions asked. But then sometimes it’s better to let the defendant’s words hang him; give him enough rope to do so. It’s the old story of when you are standing in the hole you’re digging, to stop digging. Did the court hand Trump a shovel in this court trial?

Despite persistent bad news surrounding us, it’s time for an “I am not making this up” story. Delaware taxpayers are on the hook for $50K because some state troopers were pissed when a citizen argued his constitutional rights were violated. He held up a sign warning motorists about a speed trap and flipped off those troopers. Claiming that the troopers did their best to harass and inconvenience him, he had the last laugh to the tune of $50,000. But it’s the state’s taxpayers who are inconvenienced. What about them?

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Here’s just the first of many AI-related claims of ineffective assistance of counsel that are sure to come. California attorney David Kenner, who represents a number of hip hop clients, represented Fugees rapper Pras Michel, convicted in April on a number of federal charges. Michel’s new defense team, in its motion for new trial, contends that Kenner used AI to help craft his closing argument and that, according to the new defense team, the AI used didn’t do a particularly good job. Does the AI used in this IAC (ineffective assistance of counsel) argument, have malpractice coverage? What’s the likelihood of that argument prevailing in the motion for new trial?

How can I resist another judicial faux pas arising, of course, from the use, or should I say, misuse of social media? The Ohio State Bar Association has initiated disciplinary proceedings against a probate judge for violation of state judicial conduct rules. He posted on Facebook in response to comments made by a family member in a case that the judge presided over. The judge thought “whoops,” and deleted his comments shortly thereafter, (good that he recognized the error of his ways quickly) but it was TLTL. Isn’t it always?

And lastly, for all those who play Jeopardy, I have a final Jeopardy answer: Nixon Peabody. What is the final Jeopardy question? And, no, the final Jeopardy question is not “WTF?”

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

Trials And Tribulations

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