I Screwed Up Basic Trial Procedure And All I Got Was This Lousy Swimsuit: The Alina Habba Story

Episode Notes

Transcript

Joe Patrice:

Welcome back.

Kathryn Rubino:

Hey,

Joe Patrice:

This is another edition of Thinking Like. A Lawyer on Joe Patrice from Above the Law. That’s Kathryn Rubino

Kathryn Rubino:

Also. Hi, Joe Patrice. How are you?

Joe Patrice:

I’m good, I’m good. I’m good. We are editors at blah blah, and we do this show every week to give a rundown of some of the big stories that were of the week.

Kathryn Rubino:

That was the legal week. That was, yeah.

Joe Patrice:

Yeah. No, I know. I can do my own little catch phrase.

Kathryn Rubino:

Well, you’re a little boring, so I’m trying to zing it up a bit for you. You’re welcome.

Joe Patrice:

Super. We’re obviously in the midst of legal week here in

Kathryn Rubino:

New York, obviously, who doesn’t have that marked on their calendar already.

Joe Patrice:

I mean, it is a fairly big deal, especially for those of us who care about legal tech, which I know is most of this audience,

Kathryn Rubino:

Not the majority of our audience. I’m willing to wage your guess.

Joe Patrice:

No false. Everybody loves legal tech, so we’re in legal week, so we’re kind of all over the place. Chris isn’t here, but Kathryn and I are able to have a brief conversation about some things. We wanted to do that, but first we’ll have a little small talk.

Kathryn Rubino:

Small

Joe Patrice:

Talk. Yeah. I don’t have any soundboards that said so small

Kathryn Rubino:

Talk. It’s literally dialing it in this week, huh?

Joe Patrice:

That’s how this works. So yeah, small talk. How are you?

Kathryn Rubino:

I am fantastic. How about you?

Joe Patrice:

I am super great. I’ve been always nice to be able to spend some extended time at a conference. I get to see all of my conference friends again, which is always

Kathryn Rubino:

Nice. You just said the word drinking buddy is a funny way. Yeah,

Joe Patrice:

That’s fair. So yeah, no, it’s a good time being had by all. We’re actually, this is

Kathryn Rubino:

Not small talk. Small talk’s supposed to be something that isn’t work related. Right.

Joe Patrice:

It’s not that it’s not work related, it’s that it’s not one of the stories of the week.

Kathryn Rubino:

No. It’s supposed to be like, oh look, it we’re people we’re not just AI generated legal news generators.

Joe Patrice:

Well, I was going to transition to another topic, but you’re going to get mad at me about that too. Did you happen to catch Saturday Night Live this weekend?

Kathryn Rubino:

Okay. That actually counts. Okay. I’ll give you that. Alright.

Joe Patrice:

For anybody who didn’t catch Saturday Night Live this weekend, there is a new character on Saturday Night Live played by Keenan Thompson, and it’s our own Thinking Like A Lawyer former host. Elie Mystal is now a pretty

Kathryn Rubino:

I’ve left the era of my life where I’m a regular SNL viewer, but the Twitters were a tweeting going crazy and legal Twitter when it was happening. So I was able to catch the end of it, and then since then I have watched the full clip. But it is pretty cool.

Joe Patrice:

Yeah. I mean, the character doesn’t have a lot to do. He basically is there to get abuse heaped on him by the Jimmy Fallon character. But I mean, I think it’s encouraging that it means that over at SNL, people are paying attention to Ellie and it suggests that he might be a character in future politics sketches, which is nice.

Kathryn Rubino:

Yeah. I mean, I agree that they didn’t really, they nailed the visual, I think unbelievably. So

Joe Patrice:

Hats off to the ING people. They managed to find the exact level of suit that is from afar.

Kathryn Rubino:

You knew. Yeah. It was something I actually, I texted Ellie as it was happening. I was like, the thing that impresses me is that’s the exact shade of gray suit that you wear all the time. I know. Because it used to hang on the back of our office door. Right, right, right.

Joe Patrice:

Yeah. Somebody’s job at NBC this week was to go find a copy of the suit that he wears on all of his TV appearances, which I mean, and they nailed it. It’s

Kathryn Rubino:

Pretty impressive.

Joe Patrice:

Really impressive.

Kathryn Rubino:

Listen, I agree though that he, as a persona, I think is also ripe for caricature, not just his visual appearance, and they nailed the visual. Now, if they actually delved a little deeper and were able to, he’s ripe for caricature. I think his personality, and maybe that’ll be the future.

Joe Patrice:

Yeah, no, so exciting stuff on that front. Unless you have anything else for small talk, I think we really nailed it. I mean, I guess I really nailed it by coming up with this topic.

Kathryn Rubino:

You are the worst that right? It’s not a competition. I think. Oh, come

Joe Patrice:

On. I’m sorry. That’s the end of our time for small

Kathryn Rubino:

Talk. I might’ve had actual small talking now, like real small talk.

Joe Patrice:

Yeah. I’m sorry that you heard the trumpet, so it

Kathryn Rubino:

Was you. It was, was your mouth making those trumpeting noises?

Joe Patrice:

I don’t can fool me. No, you can’t fool me. So we can now move on to our first topic of the week.

Kathryn Rubino:

Boo.

Joe Patrice:

Okay. So Donald Trump owes a lot of money

To Eugene Carroll. He managed to lose the most recent defamation trial, which as a reminder was another defamation trial after he’d already defamed Eugene Carroll, and then he repeated the exact same things he’d already been found liable to the tune of 5 million to his attorneys, not his attorneys. Gene Carroll’s attorneys. Roberta Kaplan and her firm argued, I think quite persuasively to the jury that if he was charged 5 million not to say this, and then he turned around and said it 23 or four more times, that suggests that you need to come up with the amount of money that will make him stop, which is how torts work. And so

Kathryn Rubino:

3.3 million was the number.

Joe Patrice:

Yeah. So now he’s got like 88 at some odd million that he owes, all told, and there we go. Anyway, the reason, I mean, that’s a whole story in itself. Do you want to talk about the substance of that or do we want to move to the absolutely non substantive thing? That is the story here.

Kathryn Rubino:

Deal. There’s Tray here. I will just kind of put a little footnote in that Roberta Kaplan appeared on the cable news circuit over the weekend and feels very confident that her client will get the money.

Joe Patrice:

Yeah. I, and I don’t see any reason why that wouldn’t be true. I mean, because this is a seconded death. I mean,

Kathryn Rubino:

Whether or not he has that 83 or million,

Joe Patrice:

Well, that’s the, I’ve long been one of those people who thinks that this guy is not the billionaire he claims to be. That said, he owns at least some amount of interest in a number of properties, so he should be able to get that kind of money. But it may well be that if you’ve been thinking about moving to Mar-a-Lago, it may go on the market or something like that. Anyway, probably not that. Anyway, the point is he owes that money. Robbie Kaplan’s going to get it. There’s not much reason to think that that wouldn’t be the case. Okay. Again, this is the second trial on the exact same thing. The appeals process has already more or less been slammed in his face over it. So any appeal at this point is, I mean, it’s hard to see what it would be really over anyway, so there’s that. The non substantive bit that we were going to talk about was this Marks a kind of a stunning defeat for otherwise. Exemplary lawyer, Alina Haba,

Alina we talked about last week, was managing to screw up every bit of the trial process from the rules of evidence on down. She claimed she needed mistrials for things she didn’t understand. The judge lost patient. Judge Kaplan lost patience quite a few times up to and including at the very end when he had the little aside that one of her objections. He’s like, you’re getting real close to spending some time in lockup. So we, it wasn’t going great for her. So this loss doesn’t really becomes a big surprise. But she then put out, well, she didn’t, Trump’s fans put out a picture that somehow they got ahold of, which that’s where I go with, she put it out because how else would they have gotten this, some swimsuit picture of her that was captioned. This is Trump’s lawyer, Joe Biden, eat your Heart out, which I don’t quite under. There’s a lot to unpack there.

Kathryn Rubino:

I mean, obviously objectifying and all the problematic things, but I am not sure why. I’m not sure why that matters even a little bit. I had much rather have a competent lawyer to do the lawyering than an attractive one. Well,

Joe Patrice:

That was what really got me about it was the takeaway I had that was interesting. Getting into the armchair psychological pathology of these folks is it means that in their mind, having an attractive lawyer is not just a good thing over competence, which as you pointed out, probably untrue, but it also suggested Impliedly. They were suggesting that Biden would feel bad about this fact Biden, who, as we all know, is not actually involved in any criminal or defamation trials. So it’s not even like it’s a reciprocal thing. It’s not even like this is his lawyer and they’re in some sort of a Courtroom battle. I,

Kathryn Rubino:

Yeah, I mean, I think that people are not understanding that all these legal battles have nothing to do with Joe Biden. Right. It’s offense against Trump that he has to get through in order to fight the boss at the end in order to get to the Biden battle, he has to get through this first, and Biden who, Alina who I think that’s probably what he’s saying out there.

Joe Patrice:

So you raised the objectification point, which is a fair one. I will also say the interesting level of this from an objectification perspective was that it seems as though she may have kind of a gravitational lensing effect. Because when you look at the picture, there’s weird warping going on behind her, which it suggests how black holes can bend light or that this is just really, really clumsily photoshopped this picture.

Kathryn Rubino:

I mean, first of all, clumsy Photoshop is not unheard of. Right? The Kardashians are constantly under fire for the warped walls behind them, and you’re literally standing in front of a checkerboard pattern, and it’s not checkerboard near your waist weirder. So that’s not, I think that the prevalence of apps like facetune and other kinds of things make it super easy to do on your phone, and they’re also not incredibly high resolution when you’re doing it on your phone. So people do it quick and they throw it up there, and it is what it is.

Joe Patrice:

If this is the sort of thing you’re intending to make into a, if you’re a public figure, and I guess you’re right about mentioning the Kardashians here because they would fit this, but if you’re the sort of person putting something out that is going to be scrutinized like this, can you not try to be a little bit more careful that,

Kathryn Rubino:

Did she though, I guess I don’t know the origins of the picture, but it looked to me like a vacation photo from a couple of years ago.

Joe Patrice:

Well, sure.

Kathryn Rubino:

I mean, I don’t think she was thought of herself as a public figure three years ago. She wasn’t really. Right.

Joe Patrice:

But I guess my take on it is, well, then how did it get in the hands of the acolytes? Who decided to tweet it around this?

Kathryn Rubino:

Somebody who had time to scroll through her entire Insta feed?

Joe Patrice:

Oh, I guess that’s true. People publicly put all that stuff up. Well, and then that goes to the question of why wouldn’t you privatize that stuff if you’ve gotten to this point in your life? But

Kathryn Rubino:

Because you probably also think, I’ve got nothing to hide. It’s not a big deal. It is what it is. The pictures are there. They’re not, who cares if you’re even thinking about it? She probably has spending a lot of time brushing up on Courtroom procedures, so she may not have thought really too hard about her Instagram,

Joe Patrice:

But because she was too busy airbrushing up the Okay, whatever.

Kathryn Rubino:

Okay. All

Joe Patrice:

Right. Well, yeah, so

Kathryn Rubino:

There’s that lawsuit, right? That people are suing social media companies for the bad psychological impacts of social media on folks, and I think that the editing your photos is something that a lot of people do and don’t even think about one way or the other. Why wouldn’t the tools are there? I assume everyone’s photos are a little bit touched up. Why wouldn’t I do the same?

Joe Patrice:

Yeah. I guess mean I’ve never touched up any of my own personal photos that said, I’m kind of an Adonis physical specimen, so I don’t need to, but what was that? Yep. Did I hear anything? Okay. My headphones have some scratch

Kathryn Rubino:

For the sound of silences.

Joe Patrice:

Yeah, no, no. I’ve never really understood all of those sorts of things. I mean, the artsy thing I understand is that sometimes you can make the picture black and white, so I don’t, well, you’re

Kathryn Rubino:

Also a little bit older too, right? I dunno if you even mean this in a dig

Joe Patrice:

Way. Whoa, whoa, whoa, whoa, whoa.

Kathryn Rubino:

I don’t even mean that as a dig, really, but I think particularly for millennials, I think that, and think Gen Z might even be different than that, but I think for millennials it’s a lot more understood that that happens. I don’t think it’s wild to think that people do it. I think it’s just, yeah. Yeah, sure. I’m sure some people do. Yeah. Or they don’t put up bikini photos or whatever it is, but it doesn’t strike me as something absurd.

Joe Patrice:

Yeah, fair enough. Alright, well, let’s take a break. Now. That was going into last week, the top story of the year, that Alina story, but then it was immediately surpassed by what we’re going to get to on the other side of this break. McDermott will and Emory is Vault’s number one law firm for associate satisfaction three years running. Why? Because they’re doing big law better. At McDermott, you define what your success looks like, they help you achieve it. Award-winning professional development program and hands-on mentorship propel you toward your goals while the industry leading wellness benefits help you feel your best. So you can do your best. Want to see how your life could be better at McDermott? Head to mw.com/ Above, the Law. Okay, so the current leader in the club

Kathryn Rubino:

Clubhouse’s

Joe Patrice:

For

Kathryn Rubino:

Best story, it’s still January. It’s the waning days of January, but we’re not far into it.

Joe Patrice:

Sure. But the current leader in the clubhouse is, there’s a constitutional battle happening right now, a

Kathryn Rubino:

Bit of a crisis, you might even

Joe Patrice:

Think sort of a crisis. The governor of Texas has decided to use his own law enforcement to take over the border. The United States Customs and Border Patrol feel as though that’s their job. Something about the nature of the supremacy clause and how the constitution works, but they are not being allowed to do their job by state officials. This was then shot up the shadow docket of the Supreme Court to get a quick response. The Supreme Court issued a ruling with zero opinions because everything works

Kathryn Rubino:

Well. Yeah. Shadow docketed, and it just came back as a five four decision,

Joe Patrice:

So a five four decision with no opinions. A couple years ago I wrote a story about Justice Barrett and kind of the cynical disingenuous garbage that she was spouting about how, well, you can’t criticize us. We write our opinions, and if you read them carefully, you understand exactly what we mean, which overlooked the fact that most of the stuff they do, they don’t even write opinions for anymore because that’s the shadow dot.

Kathryn Rubino:

Although was on the right side of this decision, she and the Chief Justice joined the liberal justices in the majority saying that the supremacy clause exists. Yeah. Yay. She could read the Constitution.

Joe Patrice:

You stepped on what I was saying, but so most of what they do don’t even have these opinions anymore. That’s a shout out to checking out Steve Lax book about the shadow docket. But yes, she joins the chief in ruling that the supremacy clause exists. Chris Geer makes the argument that it’s not entirely guaranteed that the four justices who voted the other way don’t believe in the supremacy clause. He kind of floated the idea that maybe they just thought that the appeal wasn’t right for some sort of a procedural issue. I can’t remember

Kathryn Rubino:

If wishes were bunnies then that’s what I think about that. Listen, think it’s a game. It’s telling us who they are from the very beginning. We know we who they are. We know that they care about what the policy impact is to these decisions more than they care about the rule of law or about having a specific methodology. They call themselves Textualists, call themselves originalists, but they’re not, and they just use that as a way to hide behind what they actually want, which is whatever policies they currently want. I think it’s wildly problematic, and I think that folks who are just happy that Roberts and Barrett joined the are overlooking how terrifying it is that four justices are not willing to say that the supremacy clause should control in this instance, and it’s literally causing a constitutional crisis to five four decision, and Abbott’s refusing to do anything about it. Well,

Joe Patrice:

That’s the next bit of this. So this transitions to emboldened by the fact that not a majority voted for him. Greg Abbott has doubled down and refused to comply with the order and just said, I still don’t think this applies to me and we’re going to

Kathryn Rubino:

Make me, is what he said.

Joe Patrice:

Yeah. So we’re at that point when Andrew Jackson did that to John Marshall, at least he was the president. This has a lot more confederacy to it. It feels

Kathryn Rubino:

Like Confederacy.

Joe Patrice:

Yeah. I mean, it’s weird, and now if it comes to it, obviously the president can tell the National Guard to bite it, and what happens then? I think at least the leadership of the Texas National Guard are professionals who would understand that and would not follow an illegal order from Greg Abbott, but who knows where we are at this point.

Kathryn Rubino:

Yeah. I don’t think that we should go around making too many assumptions in general. I feel like the last few years, if they’ve taught us anything, it’s not to assume that people are going to do what they’re supposed to do.

Joe Patrice:

So that’s spawned another thing that we wrote about, which was there was a real flurry on social media of what are you wearing to the constitutional crisis with people putting up goofy things that they intend to wear when the Republic dies? Did you put up anything? No.

Kathryn Rubino:

No.

Joe Patrice:

I mean, I guess, yeah, fair. Well, thanks for being plugged into the legal, the law, social media sphere. Meanwhile, I did, because I

Kathryn Rubino:

Think I would probably have gotten an image though, from the Barbie movie, Supreme Court, justice Barbie, maybe

Joe Patrice:

I put up a picture of Alf wearing a tuxedo. I felt like that really encapsulated. Exactly.

Kathryn Rubino:

It shows that you’re Gen X. Yeah, it does.

Joe Patrice:

Okay, alright. I thought it encapsulated the moment. I mean, I really thought the real one I thought of what I will actually be wearing was just the picture of Johnny Depp playing Hunter s Thompson yelling, we can’t stop here. This is Bat Country. That’s what I think. I actually view this particular moment in history, but I thought it was a little too pretentious for somebody who’s a journalist to post a Hunter s Thompson image. So I went

Kathryn Rubino:

With Al. I think that whatever passes for armor is what I actually want to wear. It’s all terrifying.

Joe Patrice:

Yeah. Alright, well, let’s, I need

Kathryn Rubino:

Some tactical vest. Ooh. I want to wear the vest with a lot of pockets from the Black Widow movie. Oh,

Joe Patrice:

Okay. That Florence

Kathryn Rubino:

P

Joe Patrice:

Wore. Oh, that’s a good one. With the Florence Poh characters.

Kathryn Rubino:

Florence Poh character. Yeah.

Joe Patrice:

Right, right. Yeah. Okay. Alright. Yeah, that was funny. I haven’t thought about that movie since the theater. Okay. Yeah,

Kathryn Rubino:

I really enjoyed it. Now I know it wasn’t as quite as well received as some of the other Marvel Fair, but I thought it was a real good movie.

Joe Patrice:

All right. Let’s close this out. This is a story that just is actually breaking a little bit as we’re talking about it.

Kathryn Rubino:

We record on Mondays something that both Chris and I have covered in the past. There was a discrimination and retaliation case that Davis Polk was facing from one of their former fired associates, and the trial was, I mean, the allegations were splashy and whatnot, but when it actually came to trial and the cross-examinations and all these witnesses came up, it was pretty interesting. Davis Polk, the firm argued that it wasn’t, was discrimination as much as it was just a bad associate, and it was kind of painful, I think, a little bit to hear all the negative reviews that were out there. All that kind of stuff is pretty painful I thought to go through. But this morning, well, on Friday, the judge let the jury begin deliberations, but the discrimination claims were, and some of the defendants were eliminated, so they only considered the retaliation claim against two of the individual defendants and the firm itself, and came back after two hours of deliberation that no one was liable.

Joe Patrice:

Yeah, no, it was an interesting case and we’ve been talking about the, I mean, we just in the last couple episodes have been talking about the Troutman pepper situation and these kind of fine lines between managing associates and inviting, if not actively inviting, but inviting through omission discrimination, because you can do that through the omission too. If the only person you’re criticizing happens to be black, then you being a jerk doesn’t actually get you out of that potentially. But this is a slightly different case. The allegations in this case of just, Hey, can you do this? It reads very much Bartleby. The Scrivener just like, yeah, I prefer

Kathryn Rubino:

Not to. I prefer not to. Yeah.

Joe Patrice:

Which is not

Kathryn Rubino:

For those been not a winning closely following the associate in question was the allegations were that they were asked to do an assignment for a different group than he worked for, but his hours were relatively low and the other group was slammed and they needed him to help out and he said no. He said no. I think he said that, are you aware that black associates generally don’t do well in big law,

Joe Patrice:

Is what this person responded. Right?

Kathryn Rubino:

Right. It’s what, yeah, the plaintiff,

Joe Patrice:

What responded? The associate responded, yeah,

Kathryn Rubino:

But which has nothing to do with a partner at a different group, but a partner at the firm wanting you to do an assignment as someone who spent time in big law, I cannot imagine, right?

Unless you’re billing. Well, it’s not true. I can’t imagine if you’re billing 100 hours a week consistently, I could see billing, I’m not really sure I have the bandwidth. I could see that legitimately as a thing. That was not the allegations in this case, that it was that he definitely had the bandwidth. He was billing the least amount of hours or whenever, if I wasn’t billing 80, 90, a hundred hours a week, there’s no scenario where I would feel like saying, no, no, thank you to an assignment was an acceptable path forward, and apparently it wasn’t a path forward. Right. He was fired eventually.

Joe Patrice:

Anyway, so that’s our big law story of the week, I guess. I

Kathryn Rubino:

Think we’re good.

Joe Patrice:

I think that’s it. Yeah. Alright, well, we’re off to legal week. We’ll be doing lots of stuff there so if people are there, they can see us. If not, we’ll catch you at the next thing. You should be subscribed to this show so you get new episodes when they come out. You should write reviews, stars, write like a little something. It always helps. You can check out Above the Law and read that because that’s where we get all these stories from. Then you can be informed by the time we start riffing on it here. You should follow us on social media. It’s at ATL blog. I’m at Joseph Patrice, she’s at Kathryn one, the Numer one. We’re also over at Blue Sky where I’m Joe Patrice and she’s still Kathryn Rubino. You should check out the Jabot podcast that she hosts. I’m a guest on the Legal Tech Week journalist round table where we talk about legal tech, which as we’ve all decided is clearly the most fun thing we do here.

Kathryn Rubino:

Okay.

Joe Patrice:

Okay. Your mic I think is still on, and then you check out the other shows from the Legal Talk Network and with all of that said, we will talk to you next week. Peace.

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