Thinking Like a Lawyer - Above the Law

Awards For The Lawyer In Your Life

Joe and Elie nominate, debate, and pick winners for a slew of end-of-year awards. The prize money is in the mail. By check. Subject to shipping and handling.

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Above the Law – Thinking Like a Lawyer

Awards For The Lawyer In Your Life

12/30/2016

Intro: Welcome to ‘Thinking Like a Lawyer’ with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice: Welcome to first annual ‘Thinking Like a Lawyer’s end of the years awards gala. We are together here; I’m Joe Patrice from Above the Law. My colleague Elie Mystal, we are both in our tuxes for this grand event.

Elie Mystal: I’m still alive, I’m still alive.

Joe Patrice: Yes, can you feel the excitement in the air tonight like the red carpet filled with so many embarrassing lawyers that we’re going to talk about. It’s just – it’s my favorite event of the year.

Elie Mystal: 2016, is the year that needs to die.

Joe Patrice: Well right. Okay, so you’re not paying attention to anything that’s actually happening in this podcast. You’re just kind of like ranting on your own, which actually makes some sense, so we’ll go to the –

Elie Mystal: I am in a tux; I mean what do you want from me?

Joe Patrice: Yeah, fair enough.

Elie Mystal: You know I am happy.

Joe Patrice: Yeah, so let’s begin as we usually do with Elie complaining about something before we get into the sweet, sweet awards gala.

Elie Mystal: So my 2016 ended with me getting death threats from the Breitbart/Gravis, which — all right, so here’s what the actual thing that’s pissing me off, right, besides the fear and the anxiety of people threatening to hang you from a tree. It’s that if you think about it legally, there’s not a lot that I can do legally to protect myself or my family when this happens.

Like you need a — the kinds of threats that I was getting over email and Facebook and Facebook Messenger and Twitter and Instagram, they’re not the kind of specificity that the law requires. Having been through this actually once before in 2014, I know a little bit about like what you need to have in order to go to the cops or go to the FBI to protect yourself.

And the difference is that, if I go to the cops and I say like, all these people are threatening to lynch me, they’re like, whatever bro, maybe you shouldn’t be on Facebook so much. I have to be able to go to cops and say, Peter is threatening to lynch me and he made that threat in some kind of specific like I am going to come to your house at X time and go to your ginkgo tree and string you up from that.

Like, if I have that, then I can go to the cops, then I can get some protection. But anything less than that and it’s like it’s my fault for daring to be a Black man who spoke on Facebook or Twitter.

Joe Patrice: Okay, yeah.

Elie Mystal: That didn’t piss you off or you are just cool with that?

Joe Patrice: I mean I don’t know, I went to law school, I understand that threats have to be specific in order to involve law enforcement in them, like that’s true, it is unfortunate but that is in fact the way the law works, it is unfortunate.

But, I mean if you wanted to give the cops way more money so they can chase down everything, I mean, I think that strikes me as though that could be dangerous.

Elie Mystal: I mean look, given what I write about, the cops will be the last people I would go to anyway.

Joe Patrice: Right. So, here you are.

Elie Mystal: They would be the least likely people to protect me.

Joe Patrice: Right. So at that point what was the point of your grind?

Elie Mystal: I didn’t want to go to the FBI.

Joe Patrice: Yeah well, I mean I guess, I am not altogether sure, I mean having interface with the FBI a lot through my time as a white color lawyer. I’m not so confident in their — let’s put it this way, there are far fewer Mulder and Scully’s than there are rank-and-file folks, but you know, sure, put your faith in them.

Elie Mystal: I got to put my faith somewhere. All right, let’s get to some awards.

Joe Patrice: So let’s get to the actual thing that we were talking about. Yeah, so we are doing our end-of-the-year extravaganza where we’ve decided to offer some awards in the Thinking Like a Lawyer fashion to the various people who made this year, oh, oh, such a great year for making fun of things. Not such a great year for everything else, but a great year for making fun of stuff.

So without further ado where should we begin?

Elie Mystal: Well, there was a point during this year where I thought that the person who should win this next category was going to be the biggest story of the year. So let’s start with non-judge of the year.

Joe Patrice: Drum roll, the non-judge of the year. This year’s non judges, the nominee is; Angela Stokes that is the Cleveland area judge who because of a series of ethical allegations against them had to leave their job and now currently works at a Chick-Fil-A in the area.

Elie Mystal: Yummy.

(00:05:00)

Joe Patrice: Rhonda Crawford, yeah, Rhonda Crawford who is the law clerk who — her judge allowed her to just put on her robe and resolve cases for her, even though she wasn’t actually a judge.

Elie Mystal: Now, it’s come out that her judge might have had — might be suffering from Alzheimer’s.

Joe Patrice: All right, yeah and as soon as I heard this story I thought that was quite possibly what it was. And the final nominee for non-judge of the year, Merrick Garland, it’s obvious.

Elie Mystal: How in the hell did this happen? I remember sitting here at this very desk, February 2016, the news comes in on a Saturday that Scalia has passed away and my wife has gotten like we have two small children, my wife is taking a nap on a Saturday and I go and I wake her up and she literally says, there better be a fire or Obama better be dead for you to be waking me up. And I say, pretty close.

Joe Patrice: Wait, why was she being woken up, it was in the late afternoon?

Elie Mystal: She was taking a nap dude.

Joe Patrice: Okay.

Elie Mystal: Two kids, naps are harder to come by.

Joe Patrice: Fair enough.

Elie Mystal: So I wake her up, I wake her up and Scalia is dead and for good two or three weeks, Liberals thought that things were going to get better in this goddamn country, not how it turned out, was it?

Joe Patrice: Okay. And so wins the non-judge of the year, I don’t know, what are you thinking?

Elie Mystal: Oh that wasn’t my description in the nominee; that was my vote for the winner.

Joe Patrice: Oh interesting.

Elie Mystal: Merrick Garland obviously is the non-judge of the year.

Joe Patrice: Interesting. I mean I can see that, I don’t know, working at a Chick-Fil-A man, that’s bold, but I will consent to this what I think that you make a compelling case, Merrick Garland for his non completion of his duties as a judge for the entire year, not necessarily by his choice.

So there we have our first winner. Next, up by — let’s get this rolling with some classic ATL logic, let’s go with the practice pointers of the year award. This is a trophy that we give annually to the lawyer who best shows innovative practice points in performing the duties of the profession.

This year’s nominee is very, very esteemed group, we begin with Jessica Mishali, who is a lawyer who allegedly –

Elie Mystal: A poor defender.

Joe Patrice: No, just a well-sorted like she was defending an indigenous client, I should say. A lawyer in Florida who was caught and this is the quote of the guard who caught her, she denies these allegations, but caught according to the guards report, “bent over a table apparently having sex with an inmate”.

Elie Mystal: Boom!

Joe Patrice: Certainly an unorthodox interview style to say the least, but it’s something we learned this year. Secondly, we have Bradley Shafer. This is a lawyer who was involved in a case about unpaid wages for strippers. His dog died which made him very upset and led to him write a brief that includes the following line, “if you all do not resolve this at mediation…I am going to literally F**K them so far up their a**es with the IRS that my d**k is going to come out their noses.” That line by the way was then accompanied by a footnote. He actually footnoted this, felt like there was a need for a citation after this line.

And finally, Chad Flores who was a –

Elie Mystal: I am not familiar with Chad, what did Chad do this year?

Joe Patrice: Chad opened up his Fifth Circuit brief with a hypothetical conversation between him and his client that kind of went roughly along the lines of client, why did we lose this case? Lawyer, well sometimes judges do the wrong thing, but thankfully the Fifth Circuit is smart and we’ll figure this out, yadi-yadi-yada.

The judges responded to this with their own hypothetical conversation where all three of them agreed that this was stupid.

Elie Mystal: Well, I am going to give Chad a pass then, because it seems like you tried some performance art in a brief. Sometimes those things stick and sometimes they don’t, but I’m going to give him a pass for trying to be creative.

I don’t feel – I don’t want to award Jessica, because it feels slightly sexist to be all up in her business with her clients and interview.

Joe Patrice: I agree, and it’s also important to note that she denies these allegations, so it’s not nearly as cut-and-dry.

Elie Mystal: Exactly. We don’t know what the corrections officer actually saw. So I don’t want to totally burn her up. Shafer, I mean he is talking about d**k noses, like that’s a problem.

(00:10:00)

Joe Patrice: Yeah. I think that’s our obvious winner. Congratulations to Bradley Shafer on winning the practice pointer of the year award. We’re just — we’re having a good time here. I thought about and I didn’t actually end up doing this because I didn’t have time. I thought about it maybe for next year’s awards gala. We got to do this right like any real Awards Show and have in memoriam with some sad piece in the middle. I didn’t have time to go through it and do all that, but yeah, well something to look forward to for next year.

Elie Mystal: I’ll pull out my tenor saxophone. Let’s finish our insertion categories.

Joe Patrice: Okay. All right, so this is the award named after us. This is the Thinking Like a Lawyer Trophy for outstandingly inappropriate insertion of the law into non-legal settings. All right!

Elie Mystal: I know who I think should win, so you read the nominees I know — I got my winner.

Joe Patrice: Okay. The first nominee is an unnamed couple, so we’re just going to call them unnamed 11:00. These are a lawyer couple who wrote a long, long incredibly detailed and quasi threatening letter to their daughter’s teacher, chastising the teacher for scolding their daughter. As one would imagine, it involves invoking the fact that they are in fact lawyers multiple times, its classic.

Secondly we have Dwain Downing, a Texas lawyer who wrote a speaking of threatening demands. He wrote a demand letter to a restaurant for not giving him $2.25 worth of soup. And finally, Terry Crouppen who paid the big bucks in St. Louis to take out a Super Bowl ad to air locally during the Super Bowl to trash the Rams for moving to LA. That’s Thinking Like a Lawyer using your legal skills for useless stuff.

Elie Mystal: Now obviously I think parents chastising their school teachers is ridiculous and that’s not even funny, that’s just why America fails. I’m going to defend Dwain Downing for a second here, because I too have been in a New England Clam Chowder Shop, ordered a bowl of clam chowder, got a cup of clam chowder was charged for a bowl of clam chowder and felt like justice had not been served, and was forced to have quite a long conversation with the waitress about this injustice.

So I think the clear winner is Terry Crouppen who went all out over a crappy football team moving away from a crappy city back to the city where they deserved to have a football team.

Joe Patrice: Well, all right. I’m agreeing with your final ending. I also defend Dwain Downing. I actually wrote an article and I covered this at the time and I defended Downing when everyone else in the world was jumping down his throat. I’m like, you

Know, hey, you put out a menu, it says you can get the soup, you don’t give it to him. It’s not like he actually sued them, he just sent a letter asserting his rights and you know, good for him and good not only for him, but for all the other customers who might come in looking for a deal on that day and get the shaft. So I defended him, he was standing up for the little person.

I’m with you on Terry Crouppen. I don’t necessarily think that LA deserves a team because there’s a reason they’ve run every team that’s ever been there out of town, but, you know, come on.

Elie Mystal: You don’t think the largest media market in the country deserves a football team? I mean to the extent — to the extent that we can use the word desert and football team in the same sentence, which I agree is a stretch, but to the extent that we’re going to use that in the same sentence. How does Los Angeles not deserve a football team?

Joe Patrice: I mean, scoreboard, it’s just they’ve had over the course of the years, they’ve had three football franchises and they have run every single one of them out of town. Now they’ve gotten one of them back and they will inevitably not care about them either.

Elie Mystal: Look, you and I are on the same page about how awful stadium deals are for cities, and to me the best thing about LA having a football team is that now not every football team can use LA as the hot ex-girlfriend to hold their city’s hostage.

Joe Patrice: That’s fair, that’s fair.

Elie Mystal: Like, LA needs to be off the table for this charade that NFL team owners run. So that’s my big reason for LA deserving a team.

Joe Patrice: That is a much better argument in my mind and I can get onboard with that. All right! Well, let’s go to —

Elie Mystal: Do we have an award here that’s called the Golden Anal Beads Trophy?

Joe Patrice: We sure do. In honor of the classic story of a — I believe Drexel Law professor few years ago sending around to all of her students say, what she thought was an attachment for some assignment, but it was in fact her Internet search for anal beads.

(00:15:08)

So we’re calling the dignified professor of the year award, the Golden Anal Beads Trophy. This year we have four nominees – well, three nominees, there’s co-producers and stuff.

So first up, we have Steven Winter who teaches in Michigan and he wrote an e-mail to all of his students blaming them for skipping his con law class to finish their legal writing papers and made a string of ridiculously overblown statements about how con law is the most important thing to know for the bar exam and how 30%

of the Michigan bar exam is about standing which seems like they —

Elie Mystal: Untrue.

Joe Patrice: It’s either untrue or Michigan has a really poorly balanced bar exam. Next up, we have Randy Barnett and Nick Rosenkranz the conservative-leaning Georgetown law professors who turned into whining babies demanding a safe space when everyone started making fun of them for trying to honor Scalia after he died. Somebody thinks that he may not have been the best thing ever, well, cry about it. And finally, Nancy Shurtz, the Oregon law professor who was just disciplined yesterday I think or yesterday or the day before over her incident which was going to a Halloween party in black face.

Elie Mystal: To make a statement though.

Joe Patrice: Oh yes, yes, to make a reference to a book that she read I guess.

Elie Mystal: Right. Black Doctor in a White Coat is the book or something like that?

Joe Patrice: Yes.

Elie Mystal: So she what, as she put herself in black face and a white coat which kind of went over the heads of everybody.

Joe Patrice: Yes, one would imagine.

Elie Mystal: Who’s your pick here, I think they’re all jerks.

Joe Patrice: I mean I don’t want to go after winter, I think that I understand the frustration of people skipping your classes, especially to skip it to work on a project that is generally not graded. So I think that — I kind of side with him even though he may have gotten a little out of hand with the things he said. This is a tough one between the other two though, because Nancy obviously is the most ridiculous and offensive act of a professor this year, but she’s a lower profile professor than say Barnett and Rosenkranz, who spend so much of their effort whining and complaining about how college kids these days in their safe spaces and wusses and then as soon as the tables were turned, they reveal themselves to be bigger babies than all of them. So I think I’m going with them.

Elie Mystal: The hypocrisy of Barnett and Rosenkranz I think has to win the day.

Joe Patrice: Okay, good. We’re on the same page.

Elie Mystal: So we’re on the same page, but, so we kind of agree on number one, but we diverge on number two, because in a normal year I would pick winter, because I have a real thing over professors who get pissy when kids don’t want to go to their class. Like, maybe it’s because I write on the Internet, maybe because I know that part of my job is to compete with the professor for the eyeballs of the students in their class. But you know, be more interesting. Like, if you are a more interesting professor kids would not skip your class, period, end of story.

If kids are skipping your class, it’s because you’re not very interesting or they don’t think your class is very important, which is on you as the professor to school them otherwise.

Joe Patrice: Interesting. Now, I mean, that’s a compelling argument.

Elie Mystal: But yeah, I think the hypocrisy that Barnett and Rosenkranz win the day.

Joe Patrice: All right, so, and the Beads go to Barnett and Rosenkranz. This is their first win, first nomination. That’s going to be the best part about doing this on an annual basis is when people get repeats that we could have that little voiceover, the second nomination.

All right! So let’s go to what I like to call the professionalism award. This is just a general award for professional behavior, for just, not even making fun of folks so much as some of these have been more sarcastic. This is, some of these are like real heroes to us. So number one, I have an unnamed associate. We didn’t divulge the identity of this one, but unnamed associate who wrote in their departure memo to their partner who had asked them to follow up on a few things on their last day, “Do them Your Fucking Self!” A proud moment in Johnny Paycheck Lure.

Elie Mystal: Classic.

Joe Patrice: We also have an unnamed summer associate who at a summer event slapped an associate according to reports, just hauled off and smacked an associate not because he says he did anything inappropriate. It wasn’t that kind of a story, it was just like bam, so there we go.

Elie Mystal: Random acts of violence.

Joe Patrice: Law firms need more of that. We have Duncan Lloyd this is a someone you are very familiar with recently.

(00:20:07)

Elie Mystal: Duncan Lloyd is a city attorney in Philadelphia and he scrawled “F— Trump,” graffiti on the sides of a fresh grocer which is like the Philadelphia equivalent for whole foods and got in a bit of hot water for his sad display of protest.

Joe Patrice: Yeah, and what was he wearing while he did this protest?

Elie Mystal: He was wearing a blazer and an ascot and holding a glass of wine, while he – he didn’t spray the graffiti, he filmed his friends spraying the graffiti, so he could have his other hand. So he had one hand on this camera phone and the other hand on his glass of wine wearing his blazer and ascot while the crime went down.

Joe Patrice: Amazing. I didn’t know that ascots were a thing people wore outside of Hanna-Barbera cartoons, but here we are. And finally, we have our fourth nominee in this category, which is Judge Bryant Durham, who is the judge in the famous Denver Allen transcript which made a lot of news throughout the year. It eventually got turned into a Rick and Morty adaptation where the judge and the defendant on trial started screaming at each other and it got real. We will put up the video of this event when we post this so that people can see it.

Elie Mystal: So, I have to say this about the Duncan Lloyd story just in point of fact, I’ve been writing for ATL for eight years. I’ve written some great stories. Duncan Lloyd is my most traffic story ever by a long way and that was just a sad guy in an ascot scrawling graffiti. So it’s kind of has to be my winner, but I am biased.

Joe Patrice: I hear you. I certainly like him, I really do. It is hard to get over that Denver Allen transcript though. That was just the height of professionalism for me was that back-and-forth with the judge eventually started demanding that Denver Allen masturbate in the courtroom in front of him, you know, things like that. I thought that was really the height of professionalism.

Elie Mystal: I can’t disagree with you, but I got to go with my boy, he’s dancing with 22:19 that brung ya. So we have a disagreement here.

Joe Patrice: All right. The Denver Allen transcript is going to become every award show needs at least one horrible crime, you know, but somebody who got robbed. Let’s go ahead and we will give this award to Duncan Lloyd and everyone can complain for years about how Brian Durham is like the ET of this award show.

Elie Mystal: I agree, I was going to call him the Pulp Fiction, whereas Duncan Lloyd is definitely the Forrest Gump.

Joe Patrice: Yeah, absolutely yes. Wow! I mean it’s been an amazing night, just seeing all the celebrities out in the crowds.

Elie Mystal: Our evening is coming to an end, Ricky Gervais is already drunk.

Joe Patrice: Yeah, I mean he started the night drunk, but, he was going to fill in for you until he got a little tipsy. So, we end with the, what we like to call the big award, this is our version of best-picture, this is the Dewey & LeBoeuf Memorial Law Firm of the Year Award. So, soak that in. All right. The Law Firm of the Year, our nominees are, I’ll do these in a different order than I have them written here, Harder Mirell & Abrams. You may remember them for their efforts in helping Peter Thiel by free speech away from the people who had it.

Elie Mystal: Which used to be us.

Joe Patrice: Yeah, the Hulk Hogan lawyers. Jones Day, the venerable law firm who is making America great again as pretty much their entire arsenal of lawyers has been working overtime to help out Donald Trump and are now forming large swaths of his legal team in his cabinet. And finally Cravath, the perennial champion of law firms. Cravath, for raising everyone’s salary in the middle of the year and trying to force a bunch of dumb mid-tier firms out of business for following them.

Elie Mystal: In a normal year Carvath wins this walking away, right?

Joe Patrice: I think they still bite.

Elie Mystal: They hadn’t had a salary raise since 2007, Carvath did it, everybody else followed. Carvath has now set us up for the next great lawyer recession which will be great for ALT’s traffic. In a normal year Carvath wins walking away. But Jones Day has turned itself into the legal shock troops for fascist administration. I don’t know how you can beat that. I don’t know who has a more ATL law firm of the year here than Jones Day becoming completely co-opted by a fascist regime, that’s amazing.

Joe Patrice: Oh, I don’t see any of that. No, I’m absolutely doubling down on Carvath. Carvath actually is the most ATL of the years. It changed the economics of the entire industry, it finally gave associates money that — what are ATL’s basic watchwords? There are the embarrassing stories like the practice pointer stories that we had. There is paying associates and there’s messing with mid-tier and less prestigious firms. Those are like the three pillars of our organization and two of them are fulfilled by Carvath here. I think this is a no-brainer.

Elie Mystal: Let’s look at this from a kind of an NVP Analysis, right? If you take the guy off the team what happens, right? If Carvath doesn’t raise salaries then no one does. Don’t you think Sullivan & Cromwell does? Don’t you think that eventually SS&C gets there, versus if you take Jones Day away from Donald Trump, does he even win the nomination?

Joe Patrice: Yes. That’s the thing like they’ve certainly helped him do a bunch of stuff, but like, nom he was still going to win. Yeah, I think your NVP analysis proves my point. I think he was still going to win, he would have hired other lawyers, he would have hired Paul Clement to do stuff for him, who knows. But Carvath, no one in this industry moves without Carvath giving them permission, that’s how bonuses work in, I believe, nine out of the last 11 years. Carvath does something first, everyone else follows. Salary increases, they were going to do it. I understand that there was a — the previous salary increase wasn’t really driven by them, but –

Elie Mystal: It was driven by Simpson.

Joe Patrice: Yes, that is the one instance where that didn’t happen. Before that any salary increases were either driven by tech firms or Carvath, and I just think that you’ve got to give it took Carvath for changing the game, that’s what they did here, they changed the game.

Elie Mystal: You know what, I’m going to agree with you just because of this.

Joe Patrice: Right, okay good.

Elie Mystal: Just because of, as you just put it, if Jones Day hadn’t done what they did, some other firm would have stepped up to the plate, right? And so by denying Jones Day this prestigious award, what I’m basically saying is Jones Day is no better than Bendini Lambert & Locke in the book, ‘The Firm,’ right?

Joe Patrice: Yeah, I almost named this category after that firm.

Elie Mystal: Right, because like if the mobsters can’t launder their money through Bendini Lambert & Locke, they’re going to find some other law firm do it. And Mitch McDeere says, well, that’s your problem FBI, I got mine. Jones Day, you’re just the Bendini Lambert & Locke of the Trump administration, and if you weren’t around Trump would find somebody else to carry the water for them. So, all right Carvath, good job.

Joe Patrice: Yeah, I’m glad that this worked out, because if had you not come around I was going to have to pull a Kanye and say, I’ve let you finish, but Carvath had the best year of any law firm. So that’s it for our categories this year. Now in future years maybe we’ll think of some other categories, maybe we’ll have a more formalized process, maybe we’ll hire Ernst & Young to actually watch our balloting, who knows? Well, this is an experiment but I thought this went well.

Elie Mystal: Can I get out of the tux now?

Joe Patrice: Uh absolutely, I –

Elie Mystal: Do you go cummerbund or no cummerbund?

Joe Patrice: You know, it’s interesting, I actually don’t mind the cummerbund, I tend to go no cummerbund, but I don’t mind when I do.

Elie Mystal: I went cummerbund when I was thinner, now it’s just — now it’s like a lap-band. So, you know, I can’t rock that anymore.

Joe Patrice: So you are vest all the way now.

Elie Mystal: Yeah, no, absolutely.

Joe Patrice: Yeah interesting. I’ve gone both ways, you know, cummerbund is classic. All right, so I think we’ve prattled on long enough. Thanks everyone for listening throughout the year. If you haven’t been listening throughout the year, you should. You can go on to any other various places where podcasts live and listen to the archives. And then you can subscribe, so you hear all the future ones and we’ll find out what 2017 has in store for the legal world of joking around.

Elie Mystal: Can’t be worse.

Joe Patrice: Yeah, right. So you got to give us reviews and subscribe to the Legal Talk Network app and listen to all the other offerings of Legal Talk Network, all those good things, read about the law, we are there, you know, follow us on Twitter et cetera. That’s it, thanks everybody.

Elie Mystal: Have a nice New Year.

Joe Patrice: Yeah, I’m rushing through this because we just got a word that we’ve gone long into the evening news, and we got to get out. So, bye everybody.

[Music]

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