You’re Invited!! Come To The Above The Law Holiday Party

dance-dancing-holiday-party-Christmas-parties-300x160.jpgThe holiday season is nearly upon us, and it’s never too early to start making plans. We hope Above the Law will be the first ones on your list when you schedule your party destination plans! This year’s fête is at Axiom’s loft in SoHo.

Here are all of the details:

When: Thursday, December 7, 2017

Where: Axiom, 295 Lafayette St, New York, NY 10012

Time: 6 p.m. – 9 p.m.

Space is limited, so make sure you RSVP. The whole Above the Law gang will be there… probably drunk before the thing even starts! You may also spy some of our finest columnists if you’re lucky. It’s a grand time every year, and we look forward to partying with you.

You know you want to come. Again, you can RSVP here to join in all the fun. We look forward to seeing you there!


Justice Is Investigating Harvard For Affirmative Action? Bruh, Bring It On!


Black people are ready for you, Attorney General.

I can’t speak for every African-American Harvard student or alum. But speaking just for myself (and, pretty much, every Ivy League black person I know), I’m unconcerned that Department of Justice is investigating Harvard University over its affirmative-action policies. If Attorney General Jeff Sessions is looking for some black people to kick around, PLEASE bring that mess to me and all my friends. We are smart. We are strong. We can defend ourselves from state-sponsored racism. I WELCOME the opportunity to deal with this Confederate chieftain posing as law enforcement, within the walls of our well-defended ivory tower.

African-American Harvard students are fully ready to stand on our “merits.” In fact, we’ve yearned and strived to be judged on our merits our whole lives. We’re not necessarily thrilled to be judged on merits according to the white man, as strained through the racially biased lens of his standardized testing. But if that’s the unrealistic standard, we’re ready for that battle too. Harvard blacks standardize test pretty well.

Seriously. Bring it the F on. Here’s every affirmative-action conversation I’ve had with a mediocre white man:

White guy: “You know, I probably could have gotten into Harvard too. But I guess I just wasn’t diverse enough.”
Me: “Yeah, well, uhh, there are lots of good schools. Where did you end up going?”
White guy: “SUNY Albany.”
Me: “Bruh, you need to get the F**K out of my face with that, before I apply the Second Law of Thermodynamics to your organic chemistry.”

Understand, nothing pisses off elite African-Americans more than this LUDICROUS argument from these intellectually weak white people that their lives would be better if they had just been born black. The constant, inane, prattle of mediocre whites screws some black people up for life.

Look, you can’t UNDERSTAND Clarence Thomas without understanding that he’s been told he’s only where he is because of his race for his whole life. That… damaged Negro has been so turned around by constant racial prejudice that at this point he’d rather make all black people fight in a cage so that the ONE who survived would be judged “worthy” by White America. Clarence Thomas is the tragedy of thinking that there is some way to earn the respect of the white man. He’ll die begging for something he should have been given at birth.

But most black people have made their peace with the fact that whites will always denigrate their credentials. Jeff Sessions can’t hurt me. I went to freaking HARVARD. Twice. I am UNASSAILABLE by the petty racism of a Klan sympathizer. Any cop can cut me right back down to a condition of a fugitive slave, but Jeff Session can’t do s**t to me.

And if I hadn’t gotten into Harvard, I’d still be here. Like most African-Americans who go to elite institutions, my parents sacrificed too goddamn much for me to be anything less than what I am. At the point where I had the educational background and training to even be competitive at a school like Harvard, my parents had done all the work necessary to put me in a position to succeed in life.

Black Harvard students are ready to compete on the global educational stage. Are white guys? Because if you really want to break elite college admissions down to test scores and GPAs, the people who are about to get crowded out aren’t people like me, it’s white people, particularly white women, who are about to lose. First Harvard will have to admit ALL the high-achieving Asians. Then all the high-achieving Jews (who tend to get screwed when schools look at geographic diversity). THEN Harvard will start admitting more international students: kids from Hong Kong and South Africa and India. Affirmative-action or no, Harvard is going to get its “diversity.”

I think sometimes white Americans forget that American high school education IS A JOKE on the international stage. Honestly, you think being the valedictorian from your public high school in Tennessee prepares you for Harvard? ARE YOU NUTS? Let me tell you something, out-competing QB1 in English Lit isn’t as impressive as you think.

There is a black girl right now in Johannesburg studying her way out of the slums, while your parents worry if you’re being given “too much homework.” YOU’VE GOT NOTHING ON HER, if we really want to make this all about the “merits.”

Yeah, African-Americans get the worst of what our bad educational system has to offer, so some of us will also lose out. If the Obama era proved one thing, it’s that white people would rather not have something than share it with minorities.

But let’s say Sessions boots out half of the African-Americans who would have gotten into Harvard. It’s not like those smart and high achieving black people will just recede in the ghetto. “I didn’t get into Harvard so now I sell crack” — said no one. If Jeff Sessions makes it harder for the bottom of Harvard University’s African-American class to get in… WE’LL JUST GO TO COLUMBIA.

Fools. You can’t STOP US.

I don’t care about affirmative-action for me. Clearly, I’d have been alright. And I don’t care about it for my kids. You’ll note that the Sessions Justice Department is apparently NOT investigating Harvard’s legacy admissions. What’s really going to bake the white man’s noodle later is when he realizes that Harvard has been admitting enough black people for long enough that second and even third generation “black Harvard” kids are starting to apply. MY black-ass kids are going to get in anyway. YOUR blonde-haired, blue-eyed dauphin will still be wondering “why does Hamlet have so many clichés?”

No, I care about affirmative-action because of this girl I knew from around the way. We grew up in the same town, she was smart and charismatic and a hard worker. But I had the blessing of a relatively stable two-working-parent household, while she grew up in foster care. I had any hint of my “lawn GUY-land” accent beaten out of me, she talked like Rosie Perez. I got a mediocre score on a practice standardized test when I was a sophomore in high school, and my parents reacted like I had been stricken with Morgellons Disease and sent me to the best “specialists” they could afford. She got the same mediocre score on the test years later, and her people reacted like she won the lotto. She went to community college (it was free!), I went to Harvard College (it was not). I went onto Harvard Law School, she went onto Touro Law School.

Last I heard, she was struggling it out, trying to pay off debts while working as a contract attorney. And I wonder, if she had gotten a little bit of affirmative-action help, if she had gotten into… Albany Law School instead of Touro, would her life be different? Would she be my key source at the ACLU right now, as opposed to somebody I’ve lost touch with?

Affirmative-action isn’t FOR me. It isn’t for Malia Obama. It’s for that minority who just needs a little bit of help, a little bit of a break, to help them overcome structural hurdles arrayed in front of her long before she was born. That is why affirmative-action has been the most effective social policy we’ve probably ever implemented.

Jeff Sessions wants to tear that all down, because helping black people is not his thing. I get that. But I’m happy that if he’s going to bring this fight, he’s bringing it to people like me and not people like my old friend. I’m ready for his ass. Black Harvard students are ready for his ass.

Keep your focus on us, Attorney General, and we’ll gladly shield who we can for as long as we can.

The Justice Department Is Investigating Harvard’s Admissions Practices

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at He will resist.

4 Ways to Maximize the Value of Reviewing Documents

Document-Retrieval-300x179.pngI spent last week in my former hometown of Milwaukee, Wisconsin at the Wisconsin Law & Technology Conference. An attendee at one of my panel discussions asked me how we conducted reviews. She is a government attorney and their resources to review documents provided by opposing parties is limited. That’s a problem that everyone faces, not just government attorneys.

In response to her question, I mapped out the process that we follow — one that allows clients to get the most value out of the review dollars they spend, but is very different than the standard first and second pass review. For those of you looking to shake it up, here are my four tips to maximize the value of your review:

  1.  Organize the review by issue instead of by batch. Traditionally, reviews are batched out sequentially as in 1-500, 501-1000, etc. Instead, gain a firm understanding of the issues in the case, create a tagging structure for the various issues with sub-items under each issue, and then bulk tag by issue using search terms, doc types, and other variables that allow you to sort. It won’t be perfect — meaning that you won’t get all of the docs batched by issue, but you’ll allow your teams to help educate you on the search terms and types of docs that define the issue. And then your review team can provide you a summary of the issue in addition to you having documents tagged for relevance, privilege and issues. Yes, it takes longer, and yes, you need reviewers with subject matter expertise. Both are doable.
  2. Hire great reviewers and train, train, train them in the substantive matters of the case. If you want to batch and review by issue, your review team has to understand the issues in depth. Talk to your review provider and get the best reviewers with knowledge of the subject matter. Pro tip — the best reviewers are not the one with the fastest per doc review rate. If that’s what you want, stick with the standard first pass review. Once you have a team, provide a written document of custodians with a general description of those custodians, then outline issues and the tagging structure with definitions so that it provides real guidance for them to tag. Hold a more in-depth training than the standard 1 hour “get started” meeting. Have a few hours, do it by video or in-person and really talk to them and answer questions. Then be available to answer questions for the first day or two, and meet with your QC folks to see where the problems are coming up so you can clarify with the team. As the attorney, you know what the strategy for the case is — get the most out of your review by keeping them focused on what you want to know.
  3. Have the review team communicate during the review, and be a part of it. Your reviewers are lawyers and they are there to help you. Let them ask questions, clarify tags and issues and tell you what they are seeing. We use instant messaging and both our QC and Project Manager are on it. Use software that allows for tagging people (so the team can direct a question to the PM or QC Manager). We find that the IM tool can refocus our review very quickly by identifying additional bulk tags for issues and then we can re-run sets for review on the fly. It also speeds up the process.
  4. Have your Issue Teams draft memos on what they are seeing as they review to give you a complete picture of an issue. There’s no sense in letting all the knowledge gained from reviewing documents go down the drain, but that’s what we do with a lot of first pass review. Instead, have those lawyers be lawyers and help you put together an overview of the issue. The memo should be shared among the team (you can use Office 365, Google Docs, or some other doc sharing service) and everyone should add to the same document. Have them do it stream of conscious — some use bullet points as they go, some write paragraphs at the end of a day. I ask our teams to stop one hour before ending for the day. They take the 45 minutes and summarize what they are seeing. It will end up being issue specific, but it will also give you insights into the data and how you can better refine the review for the next day. Then we spend the last 15 minutes on a group call reviewing stats for the day and answering any questions. The team feels like a team, and we get great information and much more in the results column for our clients.

Review isn’t going away, even with the advent of Computer Assisted Review or Technology Assisted Review. Judgment is made by lawyers and clients want that judgment at a price they can afford. These steps can help you achieve both.

To close, I want to wish each of you a fabulous and relaxing holiday this week. May you be surrounded by people you love and end the week renewed to come out and finish 2017 strong.  Happy Thanksgiving to all!

Kelly-Twigger-300x450.jpgKelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant— an online research and eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at or on Twitter: @kellytwigger.

Cali Bar Exam Results Aren’t As Rosy As They Seem — See Also

GettyImages-183327413-1-300x200.jpgSure, It’s Better Than Last Year: If you use interesting math, the California bar passage rate is up, but that’s still not great.

When You Absolutely, Positively Must Respond To A Dumb Letter: Let this be your inspiration.

You Must Read This Judge’s Awful, TMI Facebook Post: Be warned — it’ll make you angry.

The Trump Bump Is Real: And law schools are pretty happy about that.

Does It Matter If A Trump Judicial Nominee Lied To The Senate? Probably not.

Come Hang Out With Us: Time for the annual Above the Law holiday party!

Non-Sequiturs: 11.17.17

Federalist-Society-logo-Fed-Soc.jpg* The Federalist Society is proposing a court-packing scheme because that’s what the Founders would have, you know, never wanted.

* A deep dive into Justice Kennedy’s likely role in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

* New York may not be having a constitutional convention, but that’s not going to stop the state’s chief judge from reforming its “byzantine” court system.

* Frugal or a failure to launch? You be the judge.

* One of the finest sentences of the week: “a free-speech advisory group at Ohio University ‘discussed the critical importance of transparency’ — and then unanimously voted to close its meetings to the public.”

* There really is nothing like Above the Law out there.

* Savoring the small moments that bring joy to a lawyer. We all need to find what keeps us happy and grounded. For me, it’s Trent Garmon’s writing.

Predicting Biglaw Bonuses — See Also

associate-money-300x200.jpgIt’s Nearly Bonus Season: What kind of a payday do you think Biglaw will leave in the stockings of high-billing associates this year? Cast your vote now!

Everything You Need To Know About 401(k)s At Small Law Firms: Joe Patrice breaks down the numbers so you don’t have to.

Texas Plaintiffs’ Lawyer Dies: His family confirmed he committed suicide on Wednesday.

Holiday Parties Aren’t All Fun And Games: You actually do have to behave appropriately.

Forecasting Lateral Partner Moves: What will 2018 hold?