The Law, The Law! It’s Chock Full Of Clowns. Dubious Lawsuits Up And Productivity’s Down!

Episode Notes

Transcript

[Music]

Joe Patrice: Welcome to another edition of Thinking Like a Lawyer. Yep. This is Joe Patrice.

Kathryn Rubino: Hi, Joe Patrice

Joe Patrice: Those were those were your co-hosts, Kathryn Rubino and Chris Williams. We’re from Above the Law. We are here as — we are every week, to do a quick recap of some of the big stories in law from the week that was. You know, that’s are —

Kathryn Rubino: That’s what we do here.

Joe Patrice: That’s what we do. Yeah.

Kathryn Rubino: That’s what we do here. You probably know that if you’re listening to the podcast.

Joe Patrice: you’d think, except I constantly get emails from people saying — I have a guest available to you. And it’s like, we don’t have like — that’s not the format of this show anymore. I mean, in fairness, it was for several years.

Kathryn Rubino: Sure. We’ve moved beyond that into a much more —

Joe Patrice: That was like six or seven years ago.

Kathryn Rubino: Much more streamlined version of the show.

Joe Patrice: Yeah. Anyway, well, now we can begin the segment of the show that’s everyone’s favorite.

Kathryn Rubino: Everyone’s favorite.

Joe Patrice: Yeah.

Kathryn Rubino: Small Talk.

[Music]

Joe Patrice: All right, so Small Talk. So I was out last week as everybody else.

Kathryn Rubino: Yeah. How were things in the wide world of legal tech?

Joe Patrice: The wide world of legal tech is fun. I was at the International Legal Technology Association Convention.

Chris Williams: Did they have pancakes?

Joe Patrice: I did not have pancakes. Pancakes were around at various points.

Chris Williams: Really? Okay.

Joe Patrice: I think I had a Danish. Anyway, —

Kathryn Rubino: I’m glad to know that. I’m glad. I think everyone was very glad to know that.

Joe Patrice: Yeah. Well, I mean, the pancakes came up.

Kathryn Rubino: You can use.

Joe Patrice: I mean, look, pancakes came up. I had to answer, no, but largely —

Kathryn Rubino: It was an IHOP reference but, you know, international house of pancakes. International.

Chris Williams: That one gets me.

Kathryn Rubino: That was the reference. That was definitely the reference. I’m not supporting it. I’m just saying that was definitely the reference.

Joe Patrice: So your position is that everything international involves pancakes? Because I feel like that’s reductionist?

Kathryn Rubino: I mean that would be great, though, if that were true.

Chris Williams: Well, when in my Small Talk.

Joe Patrice: That’s a version of American exceptionalism. I was not prepared for it. What happens outside of the US. I don’t know. Pancakes.

Chris Williams: See, this is why you always bring up IHOP whenever international is mentioned. It just leads to great, genuine conversation.

Kathryn Rubino: I do love a pancake.

Joe Patrice: Yeah.

Kathryn Rubino: I do enjoy a pancake.

Chris Williams: Anyway, legal tech, that’s why people are here.

Joe Patrice: Wait, so under this model, does this make Belgium a rogue state because they insist on waffles?

Kathryn Rubino: Get the waffles!

Joe Patrice: The axis of waffles. Yes.

Kathryn Rubino: I could get behind this worldview.

Chris Williams: I would like to apologize to all listeners.

Kathryn Rubino: I mean, French toast. What happens there?

Joe Patrice: Oh, well, actually, there they call it toast.

Chris Williams: Yeah.

Kathryn Rubino: No, they don’t.

Joe Patrice: I guess I already blew this by saying I had a Danish. That was all — yeah.

Kathryn Rubino: I don’t know why this tickles me so much, but I am —

Joe Patrice: It shouldn’t. It should not. Yeah. So it was very good. I saw a lot of cool stuff. Talked to a lot of the vendors about what they’re looking at and what’s going forward. There’s this thing called AI.

Kathryn Rubino: No way!

Joe Patrice: It came up in conversation a few times. Yeah.

Chris Williams: They mentioned Allen Iverson.

Joe Patrice: Yeah. Even though it was not a game.

Kathryn Rubino: It was not a game it was not a practice.

Joe Patrice: It was interesting because — AI actually thought that my most — my number one take away from it was that there’s actually kind of a push and pull happening in legal tech that I didn’t expect. I expected the vendors and the tech people to be kind of on the cutting edge about AI and think that there’s a lot of applications for it and the law firms and partners being people who refuse to take a step into that world for a variety of both good and bad reasons. And there is definitely some of that.

But the parallel takeaway I got was that for some of these legal tech people, they’re a little frustrated because the lawyers are excited about AI in ways they’ve not been about tech in the past and in dumb ways, saying things like, go out and get me some AI. What’s our AI strategy? How are we integrating AI into this product? And the answer to in some of these instances is we aren’t, because that would be a recipe for getting disbarred.

So it’s an interesting push/pull. And by that I mean there’s just certain tasks that don’t lend themselves to AI like managing your documents, you could search functions and stuff like that. AI. Is very helpful, but forensic e-discovery, it becomes a little bit tougher. I mean, there are use cases that I can think of in that field, but not ones you necessarily want to rush into lest you end up with fake evidence. And that never ends up well.

(00:05:06)

Kathryn Rubino: Yeah. This is a pretty serious conversation, though. This is more serious than our last —

Joe Patrice: Most Small Talk?

Kathryn Rubino: Well, last week we talked a lot about Pokémon, so that’s what you missed.

Joe Patrice: I mean half this conversation has been about pancakes. I want you to understand.

Kathryn Rubino: Can we go back to that part?

Chris Williams: Yeah.

Kathryn Rubino: Can we get a chocolate chip pancake?

Chris Williams: And at one point, I think it was like international, like treaties and stuff, and there was a war reference. So some complicated pancakes.

Joe Patrice: What is Denny’s strategy for integrating generative AI into the pancake process?

Kathryn Rubino: Moons Over My Hammy is going to be their counteroffensive for those who appreciate a salty breakfast option.

Joe Patrice: Wow.

Chris Williams: Now this is not the first time I’ve heard a salty response from Kathryn, but it has to be the, ooh.

Kathryn Rubino: Let’s see what Ron DeSantis thinks about the Moon Over My Hammy is offensive.

[Music]

Joe Patrice: I’m calling it.

Chris Williams: Wait, no. I wanted to say one thing and then we can do our jobs or whatever.

Joe Patrice: Okay, go ahead.

Chris Williams: One of the reasons that IHOP was on my mind not because of the pancakes, kind of I’m rewatching The Good Place, which is a really good show.

Joe Patrice: Yeah.

Kathryn Rubino: It is a good show.

Chris Williams: And there’s a section with the International Hole of Pancakes. I think it’s Interdimensional Hole Of Pancakes or something like that. But yeah, for those that haven’t watched it, it’s great. There’s this moment where Chidi sees the time knife. That’s all I’ll say, because I don’t want to have any spoilers but that’s all.

Joe Patrice: You’re guarding spoilers for a show that went off the air a few years ago.

Chris Williams: Hey, look, people are still getting spoilers about — people were mad about getting spoilers for The Passion of the Christ.

Joe Patrice: I mean, I saw people mad about spoilers for Oppenheimer, and that was real life.

Kathryn Rubino: It happened.

Joe Patrice: Yeah.

Chris Williams: Yeah.

Joe Patrice: They’re going to make the bomb. Anyway, so with all of that done now, so now we can move on. What are we going to talk about today, Kathryn?

Kathryn Rubino: We can talk about a bunch of different things, but the first one is Big Law Productivity. It’s down, you guys. It’s way down to historically low levels. Yeah. There was a survey conducted by the Wells Fargo Legal Specialty Group, as they want to do, and get us all sort of the nitty gritty about what’s going on on the ground in Big Law. They found a couple of things. First is that there’s a bunch of lawyers at Big Law, but they’re not super busy. The amortized kind of billable hours per lawyer is hovering around 1,538 hours, and that is a historic low. The 2021 mid-year report said that the average billable hours would be 1,688, which was the high water mark. But even the couple of years before the pandemic, in 2019, 2018, we saw numbers around 1,631. So it’s about 100 hours fewer than where we would expect the billable hours to be.

Joe Patrice: Okay, so a couple of observations about this having not been here for this report. So now when you say historic low, but when did they start doing this report? Do we know? Because there are some reports historically that the billable calendar has jacked up a lot over the decades that when we hear partners say, “You know, back in my day, I did XYZ.” In reality, in the 80s, they were working like, 300 hours less on average.

Kathryn Rubino: Sure.

Joe Patrice: So by historic —

Kathryn Rubino: This is when the start of the Wells Fargo Legal Specialty Groups.

Joe Patrice: Right. Which sounds like it probably has been within the last 15-20 years. So there is that to keep that in a little bit of perspective. I mean, look, they’re billing less time. Is that the end of the world? So where is — does it break it down by practice area?

Kathryn Rubino: It does not. That’s just sort of the average number that they’re seeing. But it is a little disturbing, I think, because there already are folks that are making cuts. If you’ve been laid off, you’re not included in that number, right?

Joe Patrice: Right.

Kathryn Rubino: So this is already taking into account the layoffs, the deferrals that we’ve already seen. If people haven’t started their Big law job yet, they’re not included, obviously, in this number. And I think the other part of what’s interesting about this report is what people are planning on doing about this. People are not billing as much. What does that mean? Will we see more layoffs? Maybe, but probably not, I think is what the report says is that most firms are in a position of just trying to wait it out. Let’s kind of take the hits. If we have to take the hit for a year or so and see where we are in a year thinking that this will be cyclical, we’re going to see an increase in demand sooner rather than later, and we’ll kind of figure it out then.

(00:09:50)

Joe Patrice: Yeah, I mean, we’ve already seen some good demand numbers over the last couple of quarters and then we have I think a lot of us believe that deal activity is going to kick up in the second half of the year, so that would theoretically kick up those transactional numbers. I would be very interested to see some breakdown between practice area and maybe even firms. There are firms who are really heavy with certain clients who are suffering more than others that would bring down that number obviously. You know, from a tech perspective, there’s obviously some degree of the hours will go down as efficiency goes up.

Kathryn Rubino: Sure.

Joe Patrice: I don’t think that’s really what this is.

Kathryn Rubino: But the other thing that I want to talk about is the Big Law’s response, seeing this sort of decrease in demand for billable. The reaction has been to wait and see, and I think that’s in large part a reaction to what happened in 2009, 2010 during the Great Recession. During that era, firms were very quick to start cutting associate jobs, and what happened was they didn’t have bodies in place when demand picked up and all of a sudden had missing classes worth of partners and senior associates that should have been in place if they hadn’t done these massive layoffs in 09. And I think that they were caught sort of with their pants down during that era and they want to make sure they’re not put in that unfortunate position again.

Joe Patrice: Yeah, I keep saying that the firms that are making these cuts, they have to think through the long term effects of it because, yeah, it sucks to pay big lost salaries and not get tons of production out of them for six months. But if you think things are turning around in six months, paying them that without necessarily getting the hours in return is a small price to pay for not having to start over from scratch when everyone’s lateraled out at your firm later.

Kathryn Rubino: I think that’s also why we see firms being a lot more upfront about the cuts too. So there’s not sort of bad blood between the firms and the folks that they’re letting go, which opens up the door for them to be rehired and they’re not being sort of bad feelings about it the way there was in 2010 when you couldn’t pay me enough to go back to certain firms. And I think a lot of people felt similarly who were impacted by those layoffs.

Joe Patrice: I think that’s right.

Chris Williams: Even if this is because of work shortages, do you think that remote work is going to get scapegoated as a reason for this?

Kathryn Rubino: Absolutely.

Joe Patrice: Yeah, I think that’s actually a great point. I do think that they’re going to scapegoat remote work, even though it’s probably not the case. In fact, if anything, remote work is probably driving up these numbers a little bit more than otherwise, because people can bill their commute because they don’t have to spend an hour driving back and forth every day. But no, that is definitely true. They’ll force everyone back into the office and nothing will change, or something will, and it’ll be completely exogenous, and they’ll attribute it.

Kathryn Rubino: They’ll still give themselves a gold star for forcing everybody back to the office.

Joe Patrice: Yeah.

[Music]

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Kathryn Rubino: So Big Law diversity efforts are currently under attack. Fresh off of the victory.

Joe Patrice: That’s so weird? It’s weird because when the Supreme Court did that case and struck down affirmative action at the colleges, when people said, hey, they are striking down affirmative action, a bunch of people from the Federalist Society assured me this was a very limited opinion and it would not in any way spill over. And it was unfair and potentially slanderous to be calling it the end of affirmative action. So you’re saying?

Kathryn Rubino: Yeah, it’s going to be bigger. Edward Blum, who founded Students for Fair Admission, who were the plaintiffs in the case that you’re talking about, also founded the American Alliance for Equal Rights. And that group has sued two different Big Law firms because they have fellowship programs that are DEI focused. So Perkins Coie was sued in the northern district of Texas and Mo Fo, Morrison Foerster, was sued in the southern district of Florida because of their diversity fellowships.

(00:15:03)

And Blum has said things like that it’s rank discrimination and how dare these firms think that this is acceptable? That kind, you know, general attitude about it.

Joe Patrice: I don’t think there’s much surprise that Perkins Coie is the first one that they attack. This is the Democratic Party’s longtime law firm.

Kathryn Rubino: Although Marc Elias is no longer —

Joe Patrice: Marc Elias is no longer there. But the Democratic Party doesn’t use Elias anymore anyway. So the Perkins Coie is like a longtime Dem firm, and so of course they would go after that. I don’t quite — I can’t quite tell off top of my head why they would target Morrison Foerster, because it’s not like these are the only two who —

Kathryn Rubino: No. Well, okay. I think that a couple of things. They have diversity fellowships that are specific to bringing one and two L students from underrepresented backgrounds to the firms. But I think also, Mo Fo recently opened up their Florida office, and I think that having a Florida district court judge and going through that circuit court process is going to be more favorable than if they were starting the litigation in New York.

Joe Patrice: Oh, right. The forum shopping aspect of all of this. Great.

Kathryn Rubino: Yeah. I mean, listen, it’s not a coincidence that these cases are in Texas and Florida.

Joe Patrice: Right.

Chris Williams: That is a much higher brow assumption on why that was the case. I just assumed somebody said we need to get these Mo Fos than more —

Kathryn Rubino: I mean, it helps.

Joe Patrice: But no, that’s a great point, that there’s a bit of forum shopping when you can make sure that you’re going to end up in the 5th and 11th Circuits respectively.

Kathryn Rubino: Which, listen, it’s probably going to go to the Supreme Court regardless, but it’s better to be wanting to affirm the circuit court’s decision than trying to overturn it.

Joe Patrice: And that’s a good point. And then once it gets to the Supreme Court, all those people who told me that original opinion was very, very limited, the court will never go further. Okay.

Chris Williams: They’ll never acknowledge it happened.

Joe Patrice: Yeah.

[Music]

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[Music]

Joe Patrice: Okay, we’re back. I think the last story is an evolving story that is coming out of one of our favorite law schools. We’re talking about ASS Law the Antonin Scalia Law School of Law.

Kathryn Rubino: Law school now, but yes.

Joe Patrice: Well, no, they’re trying to they created that in an attempt to make us forget that it’s ASS Law.

Kathryn Rubino: Sure.

Joe Patrice: So it’s evolving story to catch up Former Federal Trade Commission Commissioner Joshua Wright, who’s been a professor at George Mason Law School, he recently announced that he was happy to announce that he was moving to the private sector and leaving academia. That prompted another law professor at Cleveland State to point out that she had a skeevy experience with him where he was the head of hiring for the law school at George Mason and dangled job prospect in front of her to get her to go to dinner with him and then he propositioned her.

Kathryn Rubino: She’s right.

Joe Patrice: She later found out that the job never really existed from another professor that she trusted. So that was in the annals of sexual harassment. That is not the worst, but it’s not great. That went viral. And that was followed up by a pair of senior lawyers, now partner and of counsel at two Big Law firms, pointing out that when they were one Ls, they got propositioned by him and then ultimately engaged in years long sexual relationships with him.

So as a professor, he was picking up one Ls. They told this to Law 360, who published an article about it, and then he has now sued them for $108,000,000 of defamation because he says they’ve ruined his business and his professional contracts, and his reputation in professional circles is down and yada yada. He claims they were trying to extort money from him by asking for millions of dollars to not go forward with their story. That’s at least what he said. So that’s where we are.

Kathryn Rubino: Okay, that’s been a journey.

(00:19:59)

Joe Patrice: It has been bit of a journey. So his complaint exists. I’ve read it so that you all don’t have to.

Kathryn Rubino: What’s your take on that complaint?

Joe Patrice: Yeah, it’s a fascinating complaint. I actually think it’s really fun as a complaint to see somebody not understand what is going on, because this is a guy who’s — so his complaint is, they’ve ruined my reputation. But he begins from the premise of they’ve ruined my reputation. They consented to all of this. So there was nothing wrong. And it kind of glosses over the way in which maybe in 2023 his reputation is being harmed more from he was a 40 something professor picking up his one Ls than it was any kind of coercion sort of thing. So he writes this long diatribe about that there’s some fascinating allegations parts where he says, “Oh, you know, one of them is just jealous because she knew that I had started sleeping with another law student that was her rival.”

Kathryn Rubino: So he’s bringing more weirdness into it.

Joe Patrice: Well, that’s the thing, because he doesn’t say it’s the other one in the suit, which seems to suggest that we now have three one Ls that he was sleeping with at one time.

Kathryn Rubino: Yes.

Joe Patrice: Yeah. So he’s saying that in his complaint. Usually people don’t write complaints that make them sound worse just as a general rule. Tactically, that’s a bad move. It’s a fascinating one. He talks about how they made this demand to extort him for millions of dollars, but he says that happened after they destroyed his reputation professionally. So I don’t quite understand how that extortion scheme works because you lose a lot of the leverage after you’ve already done the damage. It’s crazy. It does read like someone who didn’t understand the assignment, which he’s represented by folks from the Bernard Law Group, which is one of the Trump Land regulars involved in all of the election stuff there. Unsurprisingly, perhaps, and that’s where we sit with this case so far.

Kathryn Rubino: I feel like this is going to continue to be a source of stories for you, Joe.

Joe Patrice: It could well continue to be a source of stories for me.

Chris Williams: I was going to say, what’s the over under and it’s getting worse.

Joe Patrice: Yeah, I don’t know. It’s going to be. Yeah, I really don’t understand. Having read it, I’m not positive where he thinks he’s going to gain traction. I mean, he makes a lot of very hyper technical arguments in the complaint. Like, technically, I didn’t have to disclose these relationships under university policy at the time. And I’m like, “Yeah, but do you think the reason your reputation is suffering is because you didn’t disclose them.” I think it’s probably not. He talks about, “Oh, you know, they agreed to carry on this fair. I didn’t really pressure them.” And I’m like putting aside the questions of whether or not a professor who’s been a federal government official and a one L whether or not there’s some sort of a power dynamic thing there. Putting that aside, also not altogether sure that’s all that relevant. It’s not as though the —

Kathryn Rubino: Sure, if he’d have been alleged that they’d been coerced, that would have been worse, but it’s not good. What he admits to isn’t good for his reputation.

Joe Patrice: Yeah. In the women’s accounts they talk about, they found themselves in a situation where they felt professionally, they couldn’t say no. And he’s like, “Well, I never physically coerced them or anything.” And I’m like, I don’t think they’re saying you did.

Kathryn Rubino: Yeah.

Joe Patrice: So it really interesting. I’m kind of shocked that the complaint got this far. I don’t really know what he’s hoping to get other than, you know, kind of the slap suit approach of just hoping to send a case, hit them with a case that’s annoying enough and expensive enough that they drop it.

Kathryn Rubino: Well, good thing that he’s suing lawyers then, because, you know.

Joe Patrice: Yeah. I’m like, the famously impoverished Kirkland & Ellis Partners. I don’t know what he thinks he’s going to accomplish here.

Chris Williams: So are we pretending the 108,000,000 is a legitimate amount?

Joe Patrice: No, it’s ridiculous. It’s an absolutely ridiculous.

Chris Williams: I just don’t know where that number came from.

Joe Patrice: So it’s interesting because he does, in the complaint, make allegations of several million dollars’ worth of business that he’s losing. I assume he’s doing the thing where he’s multiplying that out for the rest of his working life and saying the fact that he’s missing out on, like, one and a half million dollars a year from XYZ client means.

(00:24:58)

Chris Williams: But no. Is he, like, trying to finesse some antitrust thing and make this trouble damages? Like, he’s not cashed up like that. He doesn’t have that much going for him, I’m assuming.

Joe Patrice: Yeah. The reason Chris throws antitrust in there because it seems like it was a little bit out of left field. This is an antitrust law expert, and actually all the people involved are antitrust law experts, but the case itself is not.

Chris Williams: And also trouble damages. You get three times more.

Joe Patrice: Well, right, but there’s plenty of different things that go there. But I think he’s just trying to say that the lifetime of his career is missing, but I don’t know. I also don’t know how troubled his career will actually be. The kinds of clients that he probably enjoys are not likely people who worry about this sort of allegation. Anyway, so that’s that story. I think that’s everything for the week, is that right?

Kathryn Rubino: Yeah.

Joe Patrice: All right, so we’re a little bit short today, but that’s good. We’ll get you back on your day. You can start billing and being a lot more productive because you need to be.

Kathryn Rubino: See I’m helping.

Joe Patrice: We are helping.

Kathryn Rubino: I’m helping. The bigger problem here.

Chris Williams: You’re welcome.

Joe Patrice: Yeah. So you should be subscribed to the show so you get new episodes when they come out, leave reviews, stars, write something. Always helps. You should be reading Above the Law. You should be following us on social media. It’s @atlblog at various places. I’m @JosephPatrice on X, I suppose and I’m Joe Patrice on Bluesky. Kathryn is Kathryn1 at both places. Chris is WritesForRent on the formerly known as Twitter’s and what on Bluesky or whatever?

Chris Williams: To be determined. And that’s not the name it’s just —

Joe Patrice: Yeah, you haven’t done. All right. Okay. Fair. You should be listening to other podcasts. Kathryn is the host of The Jabot. I’m a guest on the Legal Tech Week Journalist Roundtable. There’s a bunch of shows on the Legal Talk Network worth checking out. And with all of that, I think we’re done. And we’ll talk to you next week.

Kathryn Rubino: Peace.

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