Happy Thanksgiving, Indeed!

http://blogs.wsj.com/law/2008/11/26/more-legal-work-moves-to-india-including-sexy-stuff/#comment-359178

Preservation of Error, Sandoval, and T.O.D. Motions

In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court's decision appears to raise as many questions as it answers.

The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when . . . a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court's ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.

CPL 470.05 was changed to its current form to do away with overly technical preservation requirements that served to bar appellate courts from hearing substantive issues. (See Practice Commentary to CPL 470.05 [1994 Main Volume] ["The last sentence, moreover, dispenses with the necessity of any specific protest where a ruling or instruction is sought and not given as requested. In short, a defendant who, for example, fruitlessly requests the court to instruct the jury to disregard a certain item of evidence has, by the very request, adequately raised a question of law for appeals purposes regardless of whether he subsequently registers an exception or other protest to the court's failure to give the instruction."].)

Thus, one might reasonably have thought that there is no longer a preservation requirement in New York law that an attorney take exception upon the denial of requested relief. One would be wrong. Despite counsel having requested in pre-trial motions that the People be prohibited from cross-examining defendant regarding prior convictions and bad acts, the Court of Appeals ruled in Hawkins that "defendant's Sandoval objection is unpreserved, as defendant made no objection to the court's ruling." This ruling permitted the People to cross-examine Mr. Hawkins with respect to the existence, but not the underlying facts, of two of his four prior burglary convictions. Counsel did not take exception to this ruling which was different than the relief he had requested.

The Hawkins Court neither cited CPL 470.05 nor explained how to reconcile this holding with that statute. It is now clear than an exception is required for preservation for review of a so-called Sandoval compromise ruling, even when that was not the relief requested by counsel.

The Sandoval ruling was not the primary preservation issue before the Court in Hawkins. Rather as previously discussed here the issues that divided the Fourth Department in Hawkins was what language is required, pursuant to People v Gray (86 NY2d 10), in a T.O.D. motion to raise and preserve a claim that the People's proof was legally insufficient.

The Court held that when Hawkins' counsel objected that the People "failed to prove that Mr. Hawkins acted with Depraved Indifference Murder,"

that motion did little more than argue that the People failed to prove the essential elements of depraved indifference murder. The objection could have been directed at either the reckless mens rea element, or at the objective circumstances evincing a wanton, depraved indifference to human life, and did not alert the trial court to the argument now being advanced: that defendant acted intentionally, not recklessly, in killing the victim. Defendant did not preserve that legal question for our review.

If the proof was legally insufficient and Gray clearly requires more than what was done, was counsel ineffective for not preserving the issue? Clearly there could be no tactical nor strategic reason for such failure.

$500 an hour!

The WSJ reported earlier this week that certain plaintiffs' firms have been billing us out at over $500 an hour! And they say they can't afford to kick us over a measly health insurance contribution, or they can't find the funds necessary to house us in a halfway decent working environment. Pathetic.

"After a big class-action settlement, how much should a plaintiffs’ firm be allowed to recover for its use of temporary lawyers? As much as $100 per hour? $200 per hour? More?

The issue recently came up in a class-action settlement involving a $750 million settlement with Xerox and its former auditor, KPMG. According to the story, from Forbes.com, a fee request pending in a Connecticut district court suggests that the lawyers who negotiated the deal want to take home roughly $83 million in fees for the temp lawyers, who only cost the firm an estimated $11 million in the first place. The $83 million sum reportedly represents more than half of the $150 million the lawyers want to take home for their trouble.

According to the story, Stephen Vasil, a Yale Law School graduate, and Andrew Gilman, a New York University law grad, were hired through a temp agency to work on the Xerox case. Vasil says they often performed work that didn’t exactly require their pricey law degrees, including reviewing electronic documents to identify their author and destination. Vasil was paid $35 an hour, Gilman, $40. Yet the law firms in the case are asking for roughly $500 an hour for their services.

'We joked we could hire a bunch of 10-year-olds to do it for us,' says Vasil, 34."

http://blogs.wsj.com/law/2008/11/24/in-xerox-class-action-fees-for-temp-lawyers-take-center-stage/

DiscoverReady

"Hear Sean/Shawn Treadwell is staffing through Strategic. It's for 'DiscoverReady' -- Quick look at their website reveals that they are big into 'offshoring' document review.

Hello India, goodbye USA!

If you wind up working there, heads up! They confiscate cell phones, and some lady with blonde hair stares at you all day from within a glass cage."

D.C. Friday Afternoon Mini-Massacre: Debevoise Axes 40 Contract Attorneys

"We were then told by the Firm's contract attorney supervisor (Greg) within the last few days that the hours for next week would be shortened to 45 hours, but that this was still a long term project. See how many changes have been made already? People started getting antsy...So here's the "guts" of the story: Today (Friday), we're on the review, and the LegaleStaffing supervisors are both there. In fact, one of them was nice enough to bring us all bagels and muffins from Corner Bakery. In fact, they told us that they were planning on this being a 9 month - 1 year project. In fact, a couple of the supervising attorneys from the firm were roaming the space and answering spot questions.

Then, at 4:15 PM this afternoon, there was some mysterious shuffling by the LegaleStaffing supervisors. And then they mysteriously called about 10 people out of the room one at a time. And that's when the rumor mill started going that they were letting some people go from the project. We all figured that those people who they took out of the room were let go... We couldn't have been more wrong. Instead, THE REST OF US WERE BEING LET GO and we were told by LegaleStaffing that the project was immediately being reduced from 50 to 10 attorneys, and that we had to sign out, effectively at 5 PM today (November 21)... Now recall, the firm had scaled this project up by 30 attorneys in the last 3 days, and now, they were effectively telling all of us to get the hell out, on a Friday Afternoon. Apparently, the case seemed to take a new direction... or something..... but even the Staffing Agency was in the dark.

People were in a state of disbelief. We all turned in our case binders and time sheets, and then exited into the cold air of a November day in Washington, D.C.

Guess people will think twice before working for D&P in the future... I don't blame LegaleStaffing... it sounded like they were kept in the dark as much as we were...

Just disgraceful behavior by D&P, letting 40 contract attorneys go with absolutely no warning on a Friday afternoon, the week before thanksgiving.

Hope this makes it to your page. Heartless bastards. I hope they all rot."

Yolanda Young

Yolanda Young has launched a blog. http://www.onbeingablacklawyer.com You might remember her as the former Covington & Burling staff attorney who chronicled her experience as a minority attorney there in the Huffington Post piece, “Law Firm Segregation Reminiscent of Jim Crow.” http://www.huffingtonpost.com/yolanda-young/law-firm-segregation-remi_b_91881.html

Young recalls, “I was surprised and disheartened by the intensely negative comments that followed on blogs like Above The Law. Even after Covington issued a statement that was basically conciliatory and in no way a denial of my accusations, those commenting refused to focus on some of the easily verifiable facts in the piece. They chose instead to make personal attacks on me and reduce the discussion to one that centered on anti-affirmative action rhetoric.”

There was, however, a silver lining. Young discovered a large number of attorneys who were sympathetic to her position but didn’t want to post their comments on websites that were generally hostile to minorities. This group instead sent Young personal emails.

Says Young, “I realized there was a real need for a place where African American attorneys and law students could gather to network, disseminate information and poke fun."

Sullivan & Cromwell Update

The economy is bad, so that means that down here at S&C, the clients are starting to dwindle, and the ones the firm has are having trouble paying their legal bills. New cases aren't starting, which means that associates and litigation analysts don't have anything to do. That means they're starting to get the work that contract attorneys usually get.

This means that even "lifer" temps who have been working at S&C are being summarily dismissed, usually with little to no notice that we could lose the steady source of income that we'd come to expect. No notice, no severance. Your last day of earning is today. If you discuss this with lawyers not trapped in the temp system, or with basically anybody not on the inside, the situation smacks of outrageous and patent injustice.

Here's my question: what's the point of having a blogroll of people devoted to complaining about the life of a contract attorney if that position isn't being used to do some good? Sure, it's cathartic to bash on "biglaw" and the parasitic temp agencies, but at the end of the day, it's not helping anybody out in any real way.

So maybe the most obvious thing to wonder is why we aren't trying to unionize. A friend of mine who is a biglaw associate recently asked me this. And I struggled to come up with a good answer. I guess what people think is that people would cross the lines, because we're all so desperate for money, what with bills and loans. And that's a valid concern. But isn't that the case with all industries that have unionized? Sure, it's true that the temp factories are filled with people who will work under any condition, endure any injustice or humiliation. What I've found is that more and more, temp attorneys are immigrants who scraped by at Joe's #1 Law School and got the lowest passing score on the 5th try at taking the bar. And in any other situation, their resume wouldn't be considered next to that of somebody who went to a top tier law school and graduated near the top of the class. But here, where speed is the only criterion for job success, everybody who can click quickly and keep their mouth shut is equal.

I think it's about time. The economy is tanking, and attorneys all over the place are being let go. It's only going to get worse unless the people who do this job day in and day out start doing something to demand better treatment.

So what I propose is that you, along with the other temp attorney bloggers who may have some kind of audience, start to use this position as a means to start organizing. Here's a very interesting link to a page that describes how to unionize a workplace: http://incolor.inebraska.com/uswa286/howtounionize.html.

I hope you will post this and get people thinking about it.

Thanks