Legal Pad

Former Partner's Filing Fries Fish Firm

Scott Harris is filleting his former firm, Fish & Richardson. The IP lawyer, who was asked to resign from Fish last month after some of his own patents supposedly came into conflict with firm clients, has filed a counterclaim in the firm’s suit against him in a federal court in Chicago.

He’s accusing the firm of defamation and saying most of the things he told Callaw, including that he didn’t do his own patents on firm time. Other Fish partners, he contends, did spend a lot of time on side projects while working at Fish.

“Mr. Harris is aware of numerous examples, including that of Mr. [John] Phillips, the Managing Partner of the San Diego office, who is co-owner of MercExchange. Other examples include:

• (1) Steve Stodgill, an attorney in the Dallas office who purportedly has a number of outside business deals, some with noted entrepreneur Mark Cuban;
• (2) John Schnurer, an attorney in the San Diego office, who purportedly crafted, and personally benefited from, several non-firm real estate deals; and
• (3) Charles Heiken, an attorney with significant business relationships with Bose corporation.”

Makes you wonder how they bill any hours over there. Here’s the funny thing: Harris actually says in his counterclaim that Fish lawyers don’t bill that much. According to the counterclaim, Harris “routinely billed 1,900 to 2,000 hours per year. In a firm where many attorneys did not meet their billing goals, this often placed Mr. Harris in the top 25% highest billers at Fish.”

Legal Pad wishes Harris would detail why his former colleagues are missing their targets. But we suppose he’s got bigger Fish to fry.

—  Zusha Elinson

Lawyer Perks Up Over Supreme Court Review

Maybe it was a caffeine buzz.

Whatever, San Rafael lawyer Colin Claxon went wild Wednesday afternoon, whooping and hollering upon hearing the California Supreme Court had taken up his case against coffee giant Nestle USA Inc.

The sounds on Claxon’s end of the telephone were of sheer, spontaneous joy. He was bouncing off the walls.

Claxon represents Russell Christoff, a former model who was awarded $330,000 in damages and more than $15 million in profits in 2005 after Los Angeles jurors found that Nestle had used his image on Taster’s Choice instant coffee labels without paying him or getting his consent.

Christoff had posed gazing at a cup of coffee for Nestle Canada in 1986 and was paid $250. The ensuing label was designed for a brick of coffee, with Christoff’s contract asserting that any other use would require further negotiations.

So imagine Christoff’s surprise when he found his face on a Taster’s Choice container 16 years later while shopping in a Rite-Aid store. As it turned out, his image had been used on Taster’s Choice labels since 1998.

Is BigLaw Ready for Outsourcing to India?

Billing rate for a typical U.S. associate doing document review: $200 an hour.

Billing rate for a contract attorney doing the same work: $70 an hour.

Billing rate for a lawyer in India doing that work: $25, maybe $35 an hour.

That’s what SQ Global Solutions, a New York-based company that outsources legal work to India, is marketing to law firms eager to bring down the cost of work such as document review.

Alan Gershowitz, a former Skadden attorney now leading the company, says they count among their clients several firms in the Am Law top 50.

Filling the Cheap Seats McDermott, Will & Emory plans to hire a permanent staff of lower-paid attorneys, off the associates’ partnership track, to handle more mundane tasks at lower prices. Is it a fluke, or a trend in the offing? See the story on CalLaw.

“They’re using the Indian attorneys the same way they’d use a temp attorney on a  large litigation project with hundreds of thousands of documents to review,” he said.  “It’s becoming a replacement for temp attorneys.”

Susan Hackett, the general counsel of the Association of Corporate Counsel, said the tide is changing when it comes to in-house attorneys looking into this option.

“A lot of people are interested in exploring it,” she said. “About a year ago if you asked, people would have said, ‘we need more assurances,’” she said.  “I think there’s much more of a sense this is a legit option to pursue."

Crime Still Doesn't Pay for Scott Peterson

What a fitting day to give death row inmate Scott Peterson a trick and not a treat.

Earlier today, Fresno’s Fifth District Court of Appeal rejected Peterson’s horrifying claim to $250,000 from a life insurance policy he took out on his pregnant wife Laci before her death. The court ruled unanimously that Peterson wasn’t entitled to the insurance windfall because — guess why — he killed his wife. Imagine that!

Apple Lawyers Make Third-Grader Cry

All 9-year-old Shea O'Gorman wanted to do was help make her beloved iPod Nano an even better product.  So she wrote a letter to Apple CEO Steve Jobs with all kinds of cool ideas.  Three months later, she gets a note back.  From an Apple lawyer, telling her, basically, to shut up. And, according to the Sacramento CBS affiliate that reported the story, to read the damned legal policy on Apple's Web site to figure out why.

Sure, the company's lawyers are paid to be risk-averse, and perhaps they fear that if people start sending in great ideas that their own developers happen to be incorporating into the next product iteration, they're liable to file suit claiming their (freely given) ideas were "stolen."  That's why no one in Hollywood will read my amazing "Die Hard Vs. Aliens" spec script. But is that really the tack you take with a wide-eyed schoolgirl? Granted, the company that remotely destroys customers' $600 iPhones when they customize them can be expected to enjoy a little overkill, but did we mention Shea is an adorable 9-year-old schoolgirl?  Did the letter end, "P.S., Yes, Shea, there is a Santa Claus ... and he's doing 20-to-life in San Quentin for downloading unauthorized ringtones"? 

I'm sure that Apple lawyers join the tech giant with lots of great legal experience on their resume, or perhaps straight out of a top-flight law school.  But if CBS13 has the story right, I'm also thinking that sensitivity — to say nothing of the concept of public relations — really doesn't come up in the hiring interview.

—  Brian McDonough

Prozac, Bitchiness ... and a J.D.?

Here’s something a law firm doesn’t have to deal with every day — the quasi-celebrity law student.  The New York Times offers a profile of author Elizabeth Wurtzel, who was something of a literary sensation just over a decade ago.

Her extremely revealing memoirs, “Prozac Nation: Young and Depressed in America,” “Bitch: In Praise of Difficult Women,” and “More, Now, Again: A Memoir of Addiction,” helped her get into Yale’s law school with a sub-median 163 on the LSAT, but they’ve proven quite the negative in getting a job. “One person I interviewed with said, ‘How can we overcome everything we know about you and come to hire you?’” she tells the Times.

It’s an interesting story, especially since, while few law students have done speaking tours to discuss their coke habits, an awful lot of the Young Folk Today have blogs and MySpace pages and whatnot, putting a remarkable cross-section of their youthful indiscretions smack in Google’s sights.

As the 40-year-old nears graduation, though, she’s turned a summer internship into an offer from WilmerHale, which she has about three more weeks to decide on. We hope she lands a good gig, if only to keep “JD'pressed: Middle-Aged, Difficult, and Saddled With Law-School Debt” off the bookshelves.

—  Brian McDonough

Litigator/Ex-Reporter to Blog on S.F. Courts

Former Recorder reporter (and current S.F. Deputy City Attorney) David Newdorf has launched a blog dedicated to the lawyers, judges, clients and cases that he says make San Francisco an unrivaled venue for courtroom drama.

San Francisco, Newdorf writes, "incubated the Gold Rush and the dot-com bust, the gay marriage cases and the Twinkie defense. The generation that nurtured the Summer of Love gave us 40 years later the summer of back-dated stock options. On good days, I am proud to call myself a San Francisco trial lawyer. On other days, I know we can do better. But rare is the day that I wished I had just stayed home."

The site includes litigation tips (this week: preparing the client mentally and emotionally for trial), a quiz (match prominent California jurists with their legal role models) and Newdorf's take on Alex Kozinski and Stephen Reinhardt's latest judicial road show.

—  Scott Graham

Privilege Claim Can't Derail Irell Malpractice Case

Just because a law firm yells attorney-client privilege doesn’t mean it can automatically escape a malpractice claim.

Too bad for Irell & Manella. Looks like that firm will have to endure a $150 million malpractice action a while longer, because today Santa Ana U.S. District Judge Andrew Guilford rejected the firm’s motion to dismiss a complaint brought by Charter Communications Inc.

Case law does not “require dismissal whenever a law firm defendant suggests that client confidences are threatened,” Guilford wrote (.pdf). “Instead, they require a showing that the case can be tried fairly only by revealing client confidences.”

Which Irell has yet to demonstrate, the judge ruled.

 

Bolstering Bay Area Benches

When the Legislature was doling out 50 new judgeships last year, the slower-growing Bay Area didn't fare too well. In fact, the only regional trial court that gets a new black robe is Contra Costa County, and the governor filled that spot recently.

Well buck up, Bay Area judicial wannabes. Thanks to a lesser-known provision in recent legislation, the Judicial Council will be converting up to 16 subordinate judicial officer positions (SJO) into full-fledged judgeships by next June. And of the first seven conversions (.pdf), four will go to Bay Area courts — three in Contra Costa County and one in San Francisco. Los Angeles will also get two and San Luis Obispo, one.

The law says that only vacant commissioner or referee slots can be converted to judgeships — so there's no kicking out actively serving SJOs. But San Francisco and Contra Costa were lucky enough to have four current vacancies or pending retirements in subordinate bench positions, which put them in front of the line for conversions. Gov. Arnold Schwarzenegger will go through the usual appointment process to fill the newly elevated offices.

As for the other counties, there are still nine judgeships up for grabs and Judicial Council staff will be back in February to fill them. If you want to be a judge in the Bay Area, maybe now's the time to talk to your local court commissioner about the wonders of retirement — or private practice.

—  Cheryl Miller

JDS Trial Reveals Truth About Consultants!

Our favorite moment during Day Two of the JDS Uniphase securities class action trial came when Heller Ehrman partner Michael Shepard used a do-nothing consulting agreement as part of his explanation why his client, former CEO Kevin Kalkhoven, couldn’t be liable for deceiving investors and improperly selling millions worth of stock.

Kalkhoven retired in May 2000, just weeks into the class action period, Shepard said during a well-focused opening statement Wednesday. After that he just worked as a consultant. But Shepard told the jury Kalkhoven didn’t actually do anything as a consultant. He just got paid.

“Is that one of the ways corporate executives make a lot of money? Maybe,” Shepard said. “Is that securities fraud? No.”

Companies pay executives as consultants so they won’t compete at another outfit, Shepard said. And because of this cushy inactivity, Kalkhoven didn’t get any information that the company was going to do badly. So his stock sales in August 2000 are kosher, Shepard said.

Other highlights from Wednesday’s proceedings after the jump.