Tuesday, August 15, 2006


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A Better Test for Proving Pretext?
For employment lawyers, the test for establishing pretext in discrimination cases can be elusive, to say the least. At Jottings By An Employer's Lawyer, Michael W. Fox likes the test set out last week by the 7th U.S. Circuit Court of Appeals in Yindee v. CCH Inc. As Fox quotes the opinion:

"[O]nce a non-retaliatory explanation has been articulated, the plaintiff must show that this explanation is a pretext for discrimination. To do this the employee must establish that the explanation is a lie, which permits a jury to infer that the tale has been concocted to conceal an unlawful truth. ... It is not enough to demonstrate that the employer was mistaken, inconsiderate, short-fused, or otherwise benighted; none of those possibilities violates federal law. ... Poor personnel management receives its comeuppance in the market rather than the courts."

The emphasis in that quote comes not from the court but from Fox, who comments: "The direct language of Judge Easterbrook set out in bold above, is, or should be, at the heart of any motion where pretext is an issue -- did the employer lie?"

Posted by Robert J. Ambrogi on August 14, 2006 at 02:13 PM | Permalink

Letters Debate E-Discovery Snafu
Monica Bay continues to cover the e-discovery snafu that may have compromised electronic discovery in the Enron litigation, as first reported last week by Ben Hallman in The American Lawyer. On Friday, Bay posted a letter responding to the article from Scott Nagel, vice president and managing director of LexisNexis Applied Discovery, the company at the center of the report. In it, Nagel addresses what he sees as factual errors in the original report. For one,  he says, the so-called bug in Microsoft Outlook 2003 did not erase anything.

"No data was lost as a result of this bug. It did not erase anything but simply caused the text of e-mails to not be displayed. The data is present and can be viewed by applying Microsoft's patch to address the error."

The problem, Nagel adds, affected less than .01 percent of Enron e-mails.

Bay also conveys further thoughts from EDD consultant Craig Ball -- who was quoted in the original article -- in the form of his letter to Marc Osborn, a member of the LexisNexis PR staff. In response to a LexisNexis statement suggesting that Microsoft did not patch the Outlook bug until the September 2005 release of Service Pack 2, Ball writes:

"In fact, the Microsoft Outlook Hotfix to resolve this issue was (per Microsoft's website) released on January 7, 2004 and the issue involving blank Outlook e-mails was also addressed by a patch in the July 27, 2004 MS Office 2003 Service Pack 1. ...

"It's no doubt technically accurate to say that the fix was also carried forward into Service Pack 2 in 2005, but don't you want to be forthcoming about the two prior patches that would have solved the problem, perhaps as much as eighteen months earlier?"

Time will tell whether this problem could easily have been avoided, says legal technology consultant Ron Friedmann, but in the meantime, "it's a good lesson that litigators and lit supp managers should make sure the tools they use work appropriately."

Posted by Robert J. Ambrogi on August 14, 2006 at 02:12 PM | Permalink

Is Legal Tech a Two-Edged Sword?
Two of the nation's most highly regarded legal technology consultants discuss the double-edged sword of legal technology on this week's Coast to Coast, the legal-affairs podcast cohosted by J. Craig Williams and me. Our guests this week are:

Download or listen to this week's show by following this link.

Posted by Robert J. Ambrogi on August 14, 2006 at 02:08 PM | Permalink

Blawg Review Goes Back to School
For parents, it is the most wonderful time of the year. And for blawgers, it is Blawg Review #70, the back-to-school edition, where, for a mere two cents, you can find everything you need in supplies for legal learning. Hosted by law student and Renaissance man David Gulbransen of the blog Preaching to the Perverted, this week's Blawg Review not only recaps the best of the legal blogs but also sets a new standard for Blawg Review page design.

Posted by Robert J. Ambrogi on August 14, 2006 at 02:06 PM | Permalink

Instruction Book for Managing Partners
Congratulations! Your firm has voted you managing partner. As the initial elation dies down, you face the inevitable question: Now what do I do?

You turn, of course, to the instruction book "First 100 Days: Transitioning a New Managing Partner." According to its author, Patrick J. McKenna, this free e-book "provides prescriptive counsel to new firm leaders on what actions they might consider as they begin undertaking their initial responsibilities." Some of the advice offered in this book may strike you as obvious. For example:

  • "Build a working relationship with the departing Managing Partner."
  • "Create constructive dialogue with key thought leaders and power brokers within your firm."
  • And my favorite: "Figure out what you need to know and learn it as rapidly as you can."

But, as the book reminds, a new leader's honeymoon is brief. While some of the advice in this book may seem obvious, the book's first half offers a useful checklist for new managers as they plan their initial and longer-term actions.

Of greater interest is the book's second half, "Voices of Experience." It compiles the thoughts and advice of those who know of what they speak -- the managing partners of leading law firms such as Baker Donelson, Baker & McKenzie, Crowell & Moring, Ice Miller, McCarter & English, Morgan Lewis, Patton Boggs and Ropes & Gray.

The book is earning kudos from legal bloggers. Bruce McEwen at Adam Smith, Esq. calls it "both short, and terrific -- an easy on line read in one sitting." Ernest Svenson at Ernie the Attorney says McKenna offers "useful observations about law firm management." David Maister relates that even clients outside the legal profession "agreed that it's incredibly useful and well-written."

Posted by Robert J. Ambrogi on August 14, 2006 at 02:04 PM | Permalink