Under Analysis: Making America litigious again

Mark Levison, The Levison Group

Seasonal out of town visitors have gone home. Lawyers’ holiday parties are over. The digital calendars in my cars and on my cell phone, tablet and laptop have “flipped” again. It doesn’t seem like it should happen that fast, but it does. Years pass. Kids have kids. Some things remain the same. Many do not.

The Christmas bonuses paid to associates these days are higher than they were when I became a lawyer, but then so are the hourly fees lawyers charge to clients. The legal profession, along with everything else, was injured during the Great Recession, but appears to be doing alright now. Lawyers who graduated during the tough times are starting to think they might even get jobs. National figures, who were admired from a distance, based upon images which may or may not have been accurate, receive headlines and accolades with their passing. Local lawyers who were admired from up close, based upon reputations we personally knew to be true, passed on, too. 2016 seemed to extract a bigger share than earlier years. Probably as each year goes by, the numbers leaving will seem larger to us who remain – a by-product of getting older.

With 2016 plainly visible in the rear-view mirror, the year’s two most dominant issues were clearly politics and technology. Both topics come with their own conundrums. The technology that made life so much easier in 2016, and seemed so “futuristic,” causes lawyers to be on guard. For example, this Christmas my wife Cheryl gave me a Google gadget that listens and takes orders from me – which she does not. It is the latest competitor in the combination computer/remote control/ music play market pioneered by Amazon’s Echo. They say these gadgets are your friends. Today’s voice recognition technology, whether it is Amazon’s Alexa, Apple’s Siri, Microsoft desktop’s Cortana, the Google Home or others, have made significant “advances.” It is claimed that their listening abilities and memory skills are more accurate than jurors. Well, based upon my last trial, I believe that. The devices have the ability to store data about us that their companies can turn into commercial advantage, and our police may be able to use for their own purposes.

Recently James A. Bates, of Bentonville, Arkansas, called 911 to report he found his friend face down in his hot tub. The police believe Alexa, Amazon Echo’s friendly oral facilitator – apparently a first cousin to the Google Home my wife gave me – may have stored information without Mr. Bates’ knowledge. It might end up convicting him of murder – not so friendly.

I have certainly been surprised when my phone seemed to know where I was going, where I had been, and where I should be. At times, Cheryl is able to track exactly where I am. Maybe that’s good, maybe not. I haven’t decided yet. In general, most of these devices gather data once they are summoned to do so most often by an “activation phrase.” Nevertheless, because of a word spoken – in a context not intended to make a phone call or activate an electronic function – data may be gathered which we were not aware of and did not intend. Just ask Mr. Bates.

Amazon is currently refusing to comply with a warrant in the Bates case. We’ll see what happens. Court cases have held that in some instances police don’t need warrants to access files from a third party like they would need to search our homes. The question for all of us is how big a leap is it from these devices listening to us after we intentionally activate them, to them listening to us after being triggered by a police/governmental command. Welcome to George Orwell’s world.

The current voicemail on my work phone asks callers to leave a message or send me an email, but warns I have reason to believe the Russians are trying to hack me. I was left a voicemail last week by a man with what seemed to be a very strong Russian accent. In fact, he claimed to be Vladimir Putin himself and said he intended to have a word with me. It got my attention. When I called the number back, it was not the KGB, but rather opposing counsel in a current case who probably, like Putin, wanted to take advantage of me. The call from the pseudo Russian Premier leads me to the second factor dominating 2016: politics.

2016 was nothing if not politically surprising. In presidential politics, an upstart staged an unanticipated victory over a well-known lawyer. We know lawyers often fill political positions, and opponents campaigning against them often rely upon anti-lawyer rhetoric to fuel their campaigns. Most lawyers generally are on the side of lawyers running for office. Elephants hang out with elephants. Lions hang out with lions. It’s probably the natural course of things.

I’m not sure how many lawyers in my firm were enthusiastic about Hillary, but I am sure not many voted for Donald Trump. It is my perception that countrywide most lawyers, be they Republicans or Democrats, were not Trump supporters. I may, or may not, be right about that, since for the last year it’s been hard for anybody to be right about Donald Trump. Unlike traditional outsiders, this year’s political renegade, Mr. Trump, was different. Bashing lawyers wasn’t on his fix-it agenda. In fact, he loves lawyers, and seems to rely upon them to enhance his vision and version of a great America. His go-to position, when challenged, is “Talk to my lawyer.” He and his businesses have purported been involved in over 4,000 lawsuits with probably 75 still open today! That’s a lot of billable hours.

Neither Cheryl nor I were Trump supporters. Forget the Democrat/Republican thing. Forget the border wall, Wall Street, torture, or imprisoning Hillary. In fact, forget any political position, or an inclination to waffle on political positions. For me, the foremost issue was a thin-skin on top of a big nuclear button – still, he won.

By nature, I am an optimist; Cheryl, not so much. She has made it clear that despite the election results, the Donald is not her president and never will be. She believed it was important to elect a woman president, not only for her, but for our children. She now believes she may never see a woman president, and she is ticked off. I, on the other hand, despite the aforementioned misgivings about a thin-skinned president, ascribe to my long held belief that the politicians we support never prove to be as good as we had hoped, and politicians we oppose never prove to be as bad as we had feared. I am trying to keep a positive attitude, and the president-elect is doing his best to help me and my fellow lawyers out.

In fact, rather than scapegoating lawyers, the president-elect’s targets are generally individuals that will need to employ lawyers. Attempts to deport millions of individuals will surely result in work for lawyers. To the extent any minorities feel their rights are being infringed, they likely will turn to lawyers in droves. Whether it’s tweets about returning to banned interrogation “techniques,” or comments about dealing with females, the result is likely to be more work for lawyers. Some of the law work generated by the new administration should benefit smaller firms and/or lawyers whose practice is the defense of individual rights. However, if Mr. Trump’s anti-Wall Street rhetoric is followed by explicit actions, the large silk stocking law firms will have plenty of work to do as well. In fact, the potential list of legal work resulting from the incoming administration seems endless. Consider work to be generated for constitutional law experts, merger and acquisition lawyers, antitrust lawyers, securities lawyers or labor lawyers. The comments and potential actions of a Trump administration appear to be the equivalent of a full employment act for the legal profession. So, in my never-ending attempt to look at the positive side of things, I have decided that even if the majority of lawyers were not originally Trump supporters, in the end, they just may become enthusiastic supporters of his method and means for “making America great again.”

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Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.
© 2016 Under Analysis LLC

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