Law Practice


Former Judge Mark Painter takes legal writing seriously (and you'd be advised to do the same, Counselor!).

Former Judge Mark Painter takes legal writing seriously (and you’d be advised to do the same, Counselor!).

In honor of Change of Venue Friday, how would you like to be beat about the head for your legal writing failures?

I didn’t think so. Writing is hard, and unnecessarily harsh criticism (and a beating) does not make the task any easier.

But a recent story out of Ohio tells me that our approach to better legal writing—cajoling and education, plus a little humor—may be the best course. To see what I mean, read Susie Salmon’s terrific recent column here.

Meanwhile, a former Ohio judge named Mark Painter penned his own legal-writing column in a bar magazine. (Sound familiar?) But things took a turn for the worse. Let me have a Cincinnati paper describe it:

“Former Judge Mark Painter never has been at a loss for words, especially when it comes to singling out lousy writing by his fellow lawyers.”

“But for the first time in years, his criticism has been silenced. Sort of.”

“The Cincinnati Bar Association recently refused to print Painter’s column on legal writing in its monthly magazine, prompting Painter to quit the association and take out a big ad in The Enquirer on Wednesday complaining about the decision. The problem, the association’s leadership told Painter, was that his critiques of local judges sometimes were not all that collegial.”

“In other words, he’s too mean.”

“Painter, who enjoys a good fight almost as much as good writing, said the real problem is censorship and wasted no time Wednesday making his case. He said his columns in the CBA Report were intended to educate, not embarrass, and the bar association went overboard by censoring him.”

“‘You’ve got a bureaucratic mindset, a don’t-rock-the-boat mindset,’ Painter said of the bar association. ‘It’s ridiculous. Mine is an opinion column. It’s amazing how thin-skinned people are.’”

“Officials at the bar association, the region’s largest organization for lawyers, declined comment on their decision, other than to say they appreciate Painter’s contributions over the years and regret his decision to drop his membership.”

You could—and really should—read the whole story here. And thank you to Brad Carr for alerting me to a story about mean judges and the sentences they loathe!

When does a writing-teacher's stern reproof become mean?

When does a writing-teacher’s stern reproof become mean?

And, so you can get the whole picture, why don’t you read the judge’s column here.

I have to admit I’m conflicted about this. Sure, columnists should have a tone that is unique to them. But is a writing column truly an opinion column? Well, it definitely should be opinionated. But if the opinion of the author is that other people are morons, is that an opinion we’d publish?

But I honestly have a hard time thinking of a column that could grate so badly that I would decline to publish. Compelling (even if stern) analysis might put asses in the seats. And engagement is (ideally) part if every publication’s strategy.

Just seeing a bar association irked that a writer was “too mean” is worth the price of admission, either way!

But maybe saying it was "mean" is malarkey. After all, there's no crying in baseball or legal writing. Time to put on your big-writer pantaloons.

But maybe saying it was “mean” is malarkey. After all, there’s no crying in baseball … or legal writing. Time to put on your big-writer pantaloons.

However you feel, try to have a great—and grammatically correct—weekend. And try not to be overly judgmental of others.

LawyersWithoutRights logo cover Holocaust

A few days ago, I wrote about a State Bar program that will be held on Thursday, April 16—National Holocaust Remembrance Day. You can read about it here.

In that post, I also mentioned a related exhibit that is worth your time. Since then, I read even more deeply about it, and saw what’s been installed, and I urge you all over again to stop by the Bar building in Phoenix if you can. It will be displayed until 3:00 pm on Thursday, April 16.

Here is some background from the Bar:

“In addition to offering the ‘Lessons from the Holocaust’ CLE program, the State Bar has partnered with the American Bar Association (ABA) and the German Federal Bar to showcase the highly acclaimed international exhibit ‘Lawyers Without Rights: Jewish Lawyers in Germany under the Third Reich,’ from April 13 through 16, 2015.”

“According to the ABA and the German Federal Bar, ‘Lawyers Without Rights is an exhibition that speaks for itself. Its message resonates with all persons who understand and appreciate the concepts and ideals of a just role of law. It is a commentary and a lesson for all people everywhere about the dangers when lawyers or minorities are attacked or the law itself is unjustly applied.’ The exhibit showcases a series of stories that illustrate the Nazi mistreatment of German lawyers who happened to be Jewish.”

“The exhibit at the State Bar of Arizona is an exact replica of the full exhibit that has been shown in several cities in Germany and throughout the world. It will be open to the public from 9 a.m. to 5 p.m. on April 13-16, 2015.”

“Both the CLE and exhibition will be held at the State Bar of Arizona located at 4201 N. 24th St. in Phoenix. For more information contact Sarah Fluke at 602.340.7317.”

The exhibit wisely and hauntingly tells particular, personal stories of German lawyers who were Jewish and whose lives were irrevocably altered—or ended—by the Holocaust.

Also to be displayed, in the Bar lobby, will be 10 six-foot banners with pictures and text. They will be displayed from Wednesday afternoon until Thursday afternoon. Below is a photo of those posters when they were at Southwestern Law School in Los Angeles.

Lawyers Without Rights display in Los Angeles

Lawyers Without Rights display in Los Angeles.

If you can’t make it, that’s OK. The website dedicated to those stories is terrific and offers a similar yet even deeper experience.

Here is a video about Lawyers Without Rights:

Hardly giving the exhibit justice, here is my Vine scanning the room it’s in.

And in case you were wondering:

“The German Federal Bar, known as the Bundesrechtsanwaltskammer, is the national bar of the Republic of Germany and based in Berlin. Membership is approximately 166,000 lawyers and is required of all licensed lawyers in Germany.”

Ariz. Vice Chief Justice John Pelander

Ariz. Vice Chief Justice John Pelander

An event this Saturday, April 18, brings together legal leaders and others to assess the experiences of the most recent Arizona county to use the judicial merit-selection system.

Pinal County is the place, and the event will be held at the Holiday Inn in Casa Grande, Ariz.

The speakers will include retired Ariz. Chief Justice Ruth McGregor and State Bar President Richard Platt. Lunchtime remarks will be delivered by Vice Chief Justice John Pelander.

The event runs from 8:00 am to 3:30 pm, and it’s free. Breakfast and lunch will be served. But registration is required, which you can do here.

That page also includes the complete program and list of speakers.

It is sponsored by numerous groups, including the State Bar of ArizonaArizona Advocacy Network and Justice at Stake. The organizers clearly want the conversation to range beyond the county line; they indicate the day’s dialogue will include “Pinal County’s judicial system, AZ’s Merit Selection System and national cases impacting Fair and Impartial Courts.”

My understanding is that the Court and the State Bar have had a difficult time encouraging attorneys to forward their names to be considered for the judicial nominating commission in Pinal County. The system has been used in other counties for a long time, but it may be getting its sea legs in Pinal. Perhaps forums like this will spread the word about merit selection’s value.

Drone unmanned aerial device These little devices are increasingly airborne. But what questions do they raise?

These little devices are increasingly airborne. But what questions do they raise?

We have covered drones before, in print and online. And a recent event I attended in which the skies above contained a whirring sound renewed my interest in them.

I was attending the groundbreaking for a condo project called Portland on the Park near downtown Phoenix. A downtown booster, I was there to applaud the creation of what looks to be a terrific structure.

Soon after the speeches were done, though, I gazed upward at what sounded like a lawnmower above our heads. But what I saw was a drone, hovering, zigging, and zagging. I realized we were being taped.

Just yesterday, via Facebook and Youtube, I got to view the fruits of the drone’s labors. You can see it below.

The view is great (even if the song choice is odd). I have to admit it gives you a new way to see things. But I wondered: Were there permits? Flight plans? Local or regional officials alerted?

Don’t misunderstand: I don’t insist all of that should be required if someone wants to view a simple groundbreaking or their kid’s T-ball game. But I had to wonder.

And so I wonder again, do any of our readers’ practice area involve the laws surrounding unmanned aerial devices? Do drones affect your day job? If so, write to me at arizona.attorney@azbar.org

No. Just no. End stop. 2 spaces after a period. make it stop_opt

No. Just no. End stop.

Today I share a tale of periods, questions marks and other punctuation poorly served by those who come after.

If you are tired of the national dialogue about the number of spaces that must follow an end punctuation, I urge you to walk away from today’s Change of Venue Friday post. But I warn you: You may be part of the problem.

Others have spoken far more eloquently than I about the evils inherent in a two-space world. I heartily advocate that you read the essays on the topic by Jennifer Gonzalez and by Farhad Manjoo.

What brought the topic to my front burner was our own writing-columnist, Susie Salmon, penning a piece on the space issue in the March 2015 Arizona Attorney Magazine.

Susie’s piece, as always, was well written and in need of zero editing (o’ course). And I was pleased to see she was attacking the scourge afflicting our nation.

Until I got to her second graf. That’s where she reported:

“I remain agnostic … when it comes to what may be the biggest punctuation controversy of the modern era: how many spaces to insert after the punctuation at the end of the sentence. When I present to groups of attorneys, paralegals, or secretaries, I can be certain that at least one person will ask about the issue and that several people in the audience will have strong opinions one way or the other. Because I do not believe that the number of spaces after a period materially affects the accuracy or clarity of my written work, my personal rule is simple: Pick one option and be consistent.”

I must admit: I gulped deeply when I read that. Had my unfettered support for the First Amendment run its course? Could I—would I—strike the offending language and urge a better course of action upon readers?

Well, if you read the published magazine, you’ll see that I did not impose my own position on Susie’s column. But I was nervous: Were we encouraging a randomness among readers that would lead to sentential chaos? (Yes, I made up that word.)

This week, I saw that my worries were well grounded.

Outside the work space of a Bar colleague, a page from the magazine was posted proudly. Always pleased to see magazine content shared and touted, I strolled over to Sarah Fluke’s desk—and promptly gulped again. You can see it posted below (click to biggify.)

March 2015 Legal Word spaces after commas_opt

There, in the upper-right corner, Sarah had encouraged a vote on the 1-space/2-space question. Look at it; I mean, LOOK at it!

March 2015 Legal Word spaces after commas cropped_opt

Friends don’t let friends vote for 2 spaces. Just sayin’.

Dangerous democracy, I thought. But then I spied the emerging ballot results. As of yesterday, I am sorry to report, the votes rested at 9 to 7—in favor of two spaces.

Sarah is a wonderful colleague and is adept at delivering terrific continuing legal education. But here, in black and white, I thought I spied an abdication of her educative goals.

She, of course, is having none of my 21st-century nonsense and believes two spaces are absolutely fine. As I expressed my dismay, the conversation devolved into something along the lines of “Go away.   Move away from my desk.   Stop looking at my things.” (Vast and ridiculous amounts of space added in Sarah’s honor.)

My CLE colleagues may disappoint, and so I turn to you, my progressive readers. Please put aside your past experiences and your memory of my sad but true interactions at the Bar. Read the simple query below, and vote. The future of our nation hangs in the balance.

Have a wonderful—and space-conserving—weekend.

Attorney-author Gary Fry (photo by Karen Shell)

Attorney-author Gary Fry (photo by Karen Shell)

What appears on the back page of your favorite magazines?

The reason I ask is that a publication’s final page is routinely ranked as one of the “most-read” pages of a magazine. So editor-types tend to put a lot of thought into that content.

Our own last page has included written columns, photos, and even quizzes. Over the past few years we have engaged readers with “The Last Word,” columns by regularly recurring authors.

After a while, though, it occurred to us that someone may have an idea or two that they want to share, even if they do not commit to a nearly monthly writing regimen. And so we devised “My Last Word,” for those more sporadic and yet still compelling notions.

The April issue of Arizona Attorney contains one of my favorites.

I have always enjoyed the writing of attorney Gary Fry, and you may agree. He prevailed in our Poetry category for our arts competitions in 2007 and 2013.

And here he is again writing, this time on the life of a retired, rural lawyer. His essay opens:

“I am a shepherd tending his flocks, four rescue mutts and two elfin Cornish Rex kittens in one, seven medicinals in the other—hawked on TV with taglines like, ‘Ask your doctor if Cymbalta is right for you.’ One flock is messy but brings me joy. The other protects me from messes I am prey to in my eighth decade.”

 “I am also a retired lawyer: Bar number 001880 (circa 1966). After a brief go as a courtroom lawyer—going nowhere fast—I turned to real estate law, paid to mine dense legal text and define ‘acts of god’ in elegant stacks of paper. But the emotional return on documenting a complex financial transaction could never match helping some poor soul out of a jam.”

Please read his whole piece here. (And the image of his back-page column is below.)

My Last Word by Gary Fry, Arizona Attorney Magazine, April 2015

My Last Word by Gary Fry, Arizona Attorney Magazine, April 2015

Dr. David Weil, Director of the Wage & Hour Division of the U.S. Department of Labor, speaks at the University of Arizona Medical School, Phoenix, April 1, 2015. On stage are Wage and Hour Division Phoenix District Director Eric Murray (at left) and Attorney Matt Meaker, who was also the event coordinator (Photo courtesy of the DOL Wage and Hour Division.)

Dr. David Weil, Director of the Wage & Hour Division of the U.S. Department of Labor, speaks at the University of Arizona Medical School, Phoenix, April 1, 2015. On stage are Wage and Hour Division Phoenix District Director Eric Murray (at left) and Attorney Matt Meaker, who was also the event coordinator (Photo courtesy of the DOL Wage and Hour Division.)

A recent visit to Arizona by a federal official was made possible by attorneys and others concerned about employee misclassification. The result was a day of speaking events and community meetings for Dr. David Weil, Director of the Wage & Hour Division of the U.S. Department of Labor.

It’s hard to overestimate the economic and other problems that misclassification causes.

At an April 1 event, Wage and Hour Division Phoenix District Director Eric Murray said that fully one-half of his office’s time is taken up with the issue. It affects: individual workers who may be underpaid, state and other agencies that get artificially lower revenue because of the errors, and businesses that may be forced into difficult decisions regarding compliance.

Wage and Hour Division Phoenix District Director Eric Murray speaks at employee misclassification event, April 1, 2015.

Wage and Hour Division Phoenix District Director Eric Murray speaks at employee misclassification event, April 1, 2015.

That constellation of problems led lawyers like Matt Meaker to form the Employee Misclassification Compliance Assistance Program (EMCAP) Working Group. He is the group’s Chair, and he took the lead on bringing the issue to the attention of the federal agency.

The subject generates much passion, Meaker said at the April 1 event. But it is not an easy subject to confront.

“Good guys want to compete on a level playing field,” Meaker told a roomful of employment lawyers, contractors and their representatives, and others. “They want to be good stewards of industry.”

Attorney Matt Meaker speaks at employee misclassification event, April 1, 2015.

Attorney Matt Meaker speaks at employee misclassification event, April 1, 2015.

And so a working group created a pilot program that became EMCAP. It allows “candid talks about business decisions, not just legal issues.”

The keynote speaker at the University of Arizona auditorium in downtown Phoenix was Dr. David Weil. In public remarks and a half-hour interview afterward, he explored the landscape of misclassification, its roots and future possible solutions.

Highlighting the politically fraught nature of his position, Weil was the first Senate-confirmed Wage and Hour Administrator in a decade. As he did in his confirmation hearings (introduced by Sen. Elizabeth Warren), he spoke in Phoenix at length on misclassification.

A portion of his confirmation hearing is below; his remarks on misclassification begin at 2:40 (though Senator Warren’s intro is worth watching too):

Given that political landscape, it’s not surprising that Weil comes from a business school (at Boston University). In Phoenix, he described his business bona fides and said he was “proud of his decades in a business school.” And he described the mission of the Department of Labor as twofold: to understand that business is a fundamental part of our economy, and to protect workers.

But on the elevator-pitch version of the DOL’s mission, Weil is crystal-clear: “Our job is to make sure people get a fair day’s pay for a fair day’s work.”

The reality of the department’s resources complicates that vision considerably. Weil discussed the strategic thinking that must go into enforcement decisions. As DOL staffers gaze at a landscape with 7.3 million workplaces, they have become adept at reviewing data to identify red flags. They also look closely at industries that have had traditional problems with misclassification—construction, janitorial, hospitals, restaurants, and logistics, to name a few.

Weil used the title of his book The Fissured Workplace to explain more deeply the challenging predicaments presented by an evolving economy. As companies have decided to focus on “core competencies” and shed “ancillary” activities, efficiencies have increased, even as the number of people on the payroll has decreased.

But what happens to those ancillary functions and all the people who used to do them? Often, they remain, but are now employed by a third-party entity, ostensibly more adept at that particular function.

That kind of outsourcing and subcontracting is not new, Weil admits. But what is new is the stringent and detailed standards that the large brands impose on those third-party firms and their many employees. The larger companies need to ensure a consistent delivery of all their brand elements, and so they often control non-employees’ work lives down to the granular level. And they have new and developing technologies that allow the larger brands to monitor every moment in the lives of their products and the workers.

So … are those workers employees, or not? Often, the larger brands rely on a strategy that says “not.”

Weil and we may sympathize with the challenge faced by those companies. A branded cellphone must work exactly the same, wherever it was manufactured. A person checking into a chain hotel expects a nearly identical level of customer experience, whether they are in Dubuque or Dallas. But some companies may be crossing the misclassification line.

The challenge may be just as great for companies that are not in violation. As they view their industry’s landscape, what if they find they cannot compete without certain questionable strategies?

That, said Weil, is where groups like EMCAP come in. Yes, DOL enforcement must be vigorous, and collaborations with state departments of labor must be robust. But business buy-in and self-regulation are vital.

Wage and Hour Division Administrator Dr. David Weil speaking with American Subcontractors Association of Arizona CEO Carol Floco (at left) and Attorney Julie Pace. (Photo courtesy Wage and Hour Division.)

Wage and Hour Division Administrator Dr. David Weil speaking with American Subcontractors Association of Arizona CEO Carol Floco (at left) and Attorney Julie Pace. (Photo courtesy Wage and Hour Division.)

Via EMCAP and similar approaches nationwide, employers may gather and use dialogue and other methods to curtail bad practices.

“When you hear from a peer, a fellow employer,” said Weil, “that is incredibly powerful.”

He cites the Florida citrus industry as an example of successful self-policing. He said that when the DOL shared data about which subcontractors were regularly violative in misclassification and in regard to worker rights, larger producers asked for a copy of their maps. Pointing to the red dots indicating poor performers, some industry leaders said, “We don’t want to do business with the red bubbles.”

And that altered toolbox of strategies is just fine with the Wage & Hour Director.

“We’re not into a game of gotcha,” said Weil, “but compliance.”

Though enforcement is still a tool, he said, the primary focus must be “thinking creatively about changing business decisions.”

My unedited follow-up interview with Dr. David Weil is here:

 

And more background on EMCAP is here. We may follow up with Matt Meaker and his partner Helen Holden on the committee’s progress.

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