Lawyers 101

By James Bowden

Working long hours sometimes is less than ideal – you can get to the point where all you feel like you do is work and sleep. Working long hours, though, is sort of a part of the shared experience of the law. At my firm we have all sorts of amenities on site that make working long hours easier, from an exercise room with showers to team dinners when things heat up to a service that can run errands for attorneys when we don’t have time to take care of things ourselves. But I do really like to sleep in my own bed.

Per this ABA journal article, some of the firms in the magic circle in London are so over the whole “attorneys going home to sleep” trend and accordingly are now offering accommodations – in the form of those funny little cubbyhole beds made famous by hotels in Tokyo, Japan. I have to say I am not a fan, and hope that this trend stays on the other side of the Atlantic. And, if such a thing does become common practice, I hope they find a way to make the sleeping pods look a little bit less like ovens.

By James Bowden

That’s Mark Hays, General Counsel for the Arkansas Municipal League, reacting to an ordinance passed by the City Council of Gould, Arkansas setting forth with the (supposed) force of law that “No new organizations shall be allowed to exist in the City of Gould without approval from a majority of the City Council” as reported in this New York Times article. This passage of this ordinance is a sort of First Amendment Violation Hat Trick for the Gould City Town Counsel, having recently passed an ordinance requiring that the Gould Citizens Advisory Counsel, a political group based in Gould that seeks to influence how the town is governed, cease to exist, and another prohibiting the mayor from meeting with “any organization in any location inside or outside Gould city limits.” Holy Schnikes.

To be fair, Ms. Sonya Farley, a Gould city councilwoman, has admitted that the ordinance was “worded wrong” and was passed “to treat everybody fairly.” So I’m guessing the offending ordinance will be reworded to somehow do right by the whole “Congress [extended to all state actors, including city councils, by the 14th Amendment] shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” language of the First Amendment. I expect that the Gould City Council’s attorneys will be scratching their head on the work around long into the wee hours of every night, until the end of time.

The plaintiffs in the Dukes case are three female former employees of Wal-Mart purporting to represent as many as 1.5 million other women who are current and former employees of Wal-Mart, alleging that Wal-Mart has discriminated against them on the basis of their sex. The numbers are staggering, and not just the number of potential plaintiffs: women represent a full 70% of the hourly wage earners employed by Wal-Mart, but only 33% of management, and statistics show female employees as being paid less than men in every region, with the salary gap widening over the course of employment even for men and women hired to perform the same job at the same time. Wal-Mart has an anti-discrimination policy but gives relatively broad latitude to local managers as far as promotion and raises. The plaintiffs claim that the statistical evidence produced indicates that the system of delegated discretion runs afoul of Title VII of the Civil Rights Act of 1964 which bans, among other things, employment discrimination based on sex.

Interestingly, the majority opinion written by Justice Scalia and joined by Chief Justice Roberts and Justices Kennedy, Alito, and Thomas and the dissent written by Justice Ginsburg and joined by Justices Stevens, Sotomayor, and Kagan draw heavily from the life work of Vanderbilt’s own Professor Richard Nagareda, and come to different conclusions. The core holding of the majority opinion reverses the opinion of the District Court, upheld by the Ninth Circuit Court of Appeals, that the plaintiffs did not meet the requirement that their grievance share commonality as required by Rule 23(a) essentially because their expert witness could not confirm whether 0.5% or 95 percent of the employment decisions at Wal-Mart were the product of stereotyped thinking – and essentially holds that even though some or many of the individual decisions resulting in the disparities noted may be the product of discrimination, some may not, so the commonality of the class is insufficient for certification under Rule 23. The dissent, which is styled as a concurrence but refuses to join the essential holding, briefly points out that the majority opinion substantially limits the “disparate impact” approach to Title VII claims. It really is an opinion worth reading.

By James Bowden

It sounds like there may have been much ado about nothing over the weekend over the way that the Tennessee bar exam will be graded. I’m not sure what happened, but it sounds like some folks felt like they had the rug pulled out from under them – and taking the bar is stressful enough. So, in the interest of providing perspective, here are a few historical examples of folks finding out at the last minute that things were not going to go as planned, in much more spectacular fashion than this weekend’s events: Early reports say that you’ve just won the presidency, beating an unpopular incumbent. The papers are even reporting that you whipped him. No, wait …the other guy is still president and you’re still just some guy. You’ve convinced a major network to axe a popular late night television show host so that you can take his place. You’re a star of late night comedy, so of course you’ll be an instant hit!  Wait, what did you say my ratings are? You’ve just forced the other team’s quarterback to fumble and recovered the ball in the last seconds of the AFC Championship Game, and now you can kneel on the ball. Next stop, Super Bowl! No, wait …What the heck is the Tuck Rule?!! You’ve caught the British off guard in New Orleans, and your army takes the opportunity to rout them. Hurray! Your military exploits will have won the war for America! Wait, what? The war is already over? The mail sure is slow in the nineteenth century. Where is Ghent, anyways? You declare that your Soviet Union will bury the west’s weak, piddling “democracy” and “freedom.” Wait, not so much. In all seriousness, good luck on the bar exam for everyone who is taking it. It might be difficult, but you will be glad you did it. And it will be over before you know it.

By James Bowden

Forget Black’s Law Dictionary; practitioners before the U.S. Supreme Court should stack their office shelves with every dictionary they can get their hands on, starting with a few published in 1789, according to this article by Adam Liptak. For those attorneys who don’t know who Adam Liptak is, you should learn – he writes for the New York Times on the Supreme Court, and does a fine job of it (he also has a special place in my heart for decrying the trend in SCOTUS opinions of great length that succeed only in their failure to clarify what the law is, which I think probably makes all of Justice John Marshall’s descendents cry).

The take away from the article is that, despite a good bit of academic and professional criticism, the Justices are turning more and more to the OED for legal guidance. Being a corporate attorney, however, instead of planning my next oral argument (tentatively scheduled for never) to begin with “The Oxford English Dictionary defines innocence as …” I’ve decided that perhaps the highest court in the land may appreciate it if I tinkered with the boilerplate defined terms that I use daily in transactional documents. Here goes nothing:

“Agreement” means this Purchase Agreement as from time to time amended, modified or supplemented in accordance with its terms, including the Exhibits and Schedules attached hereto.an arrangement that is accepted by all parties to a transaction.

“Contract” means any agreement, lease, sublease, license, sublicense, promissory note, evidence of indebtedness, or other contract to which any party is a party or which otherwise relates primarily to the Business as of the Closing:an agreement between two or more parties for the doing or not doing of something specified.

“Knowledge” means as to a particular matter, the actual knowledge of any Person on the date hereof after reasonable inquiry by such Person of officers, directors, employees of agents of the Parties or of any Affiliate of any Party with respect to the matters at hand.acquaintance with facts, truths, or principles, as from study or investigation; general erudition: e.g., knowledge of many things.

“Permits” means all licenses, permits, franchises, rights, registrations, approvals, authorizations, consents, waivers, exemptions, releases, certificates of need, variances or orders of, or filings with, or otherwise issued by, any Governmental Authority.an authoritative or official certificate of permission; license: i.e., a fishing permit.

“Returns” means all reports, estimates, declarations, disclosures, information statements, claims for refunds and returns relating to, or required to be filed in connection with, any Taxes, including any schedules or attachments thereto, and including any amendments thereto.the act or fact of returning as by going or coming back or bringing, sending, or giving back: i.e., We should appreciate your return of the book immediately.

On second thought, maybe not.

Here are some suggestions to help you file a return that won’t raise any audit eyebrows at the IRS.

There is no surefire way to audit-proof your tax return. Nevertheless, there are numerous steps you can take to reduce your audit risk:

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What you need to know to file and pay your taxes.

With the possible exception of accountants, nobody likes taxes. But most of us recognize that our taxes are necessary to keep the country running, and pay for necessities like national security, infrastructure, education, food and drug safety, Social Security, Medicare, and so on.

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“Wrongful termination” or “wrongful discharge” covers employee actions alleging that the employer wrongfully fired the employee. Wrongful termination can be based on several theories, including breach of an employment contract and constructive discharge, as well as the protection given by the Whistleblower Protection Act of 1989 and comparable state laws to an employee who reports wrongdoing. Please read on to find a wrongful termination lawyer, attorney or to learn more about wrongful termination law.

Tax attorneys are lawyers who specialize in the complex and technical field of tax law. Tax attorneys are best for handling complex, technical, and legal issues.

You definitely need a tax attorney if:

• You have a taxable estate, need to make complex estate planning strategies, or need to file an estate tax return.
• You are starting a business and need legal counsel about the structure and tax treatment of your company.
• You are engaging in international business and need help with contracts, tax treatment, and other legal matters.
• You plan to bring a suit against the IRS.
• You plan to seek independent review of your case before the US Tax Court.
• You are under criminal investigation by the IRS.
• You have committed tax fraud (such as claiming false deductions and credits) and need the protection of privilege.

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When a taxpayer has problems with the Internal Revenue Service, or the state department of revenue, he may be able to solve it himself. However, with the intricacies of U.S. tax law being what they are, the taxpayer may find himself better served in hiring a tax attorney.

A tax attorney specializes in working with taxpayers to solve their problems with the IRS or state revenue department. In fact, they generally focus only on tax issues and relief. A tax attorney can help a taxpayer in trouble make it through an audit, have fines reduced, liens removed, and can navigate through the minefield of small business and self-employment tax issues.
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