An individual’s use of the justice system shouldn’t solely be based on a cost-benefit analysis, but for many, it is just that. With such a major hurdle in access to justice, a retooling of legal practice is needed to make justice affordable for all. Rocky Dhir talks with Joshua Weaver about the innovative ways the Texas Opportunity & Justice Incubator helps lawyers offer high-quality services to low and modest income people.
Joshua Weaver is director of the Texas Opportunity & Justice Incubator (TOJI), a flagship program of the State Bar of Texas focused on supporting attorneys as they build sustainable solo practices serving low-income and modest-income communities.
Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host, Rocky Dhir.
Rocky Dhir: Hi, and welcome to the State Bar of Texas Podcast. Those of us who practice law fully recognize that most lawyers cannot afford to hire themselves. How many lawyers can plunk down tens of thousands of dollars to pursue their own rights in court. How many times have we had to tell a client, well, you have a pretty decent argument, possibly a winning argument, but the legal fees just won’t be worth it.
For many, if not most, the justice system is a cost-benefit analysis as much as it is a weighing of merits. In 2016 to 2017, under the leadership of then President Frank Stevenson, the State Bar of Texas launched TOJI, the Texas opportunity and Justice Incubator. Those lawyers who practice in the business realm, recognize the term incubator as referring to initiatives that help startup tech firms, which begs the question. WHAT is TOJI and what exactly is it incubating here at the State Bar?
Well, I wish I had the answers because, well, then I could give them to you. Of course, then we would have a very, very short episode. But to get the real answer, the one with substance and personal knowledge. As we like to say in affidavits, we will be speaking with Joshua Weaver. The director of TOJI. Joshua is well suited to his role having been a consultant to technology startups in a previous incarnation and Joshua is what we call an attorney-preneur. An attorney and an entrepreneur for those of you who might not have had your coffee yet. So, let’s find out what Joshua knows. Joshua Weaver, welcome to the podcast, thanks for being here.
Joshua Weaver: Hey Rocky, thanks for having me here. It is definitely a pleasure and a treat to be visiting with you today and talking about TOJI. I’m excited about this conversation.
Rocky Dhir: Absolutely. So, first of all, why don’t you — since you’re the director, you tell us a little bit about what exactly TOJI is and what the heck are you incubating over there?
Joshua Weaver: Yeah, thanks. So, this is kind of a head-scratcher even for me to try and explain. Usually, when I try and describe TOJI, even to other attorneys, I just like blank stares and response. But the best version of it I think I have is we kind of all have this concept of a tech incubator, right? And so, the tech incubator is designed to walk early-stage businesses through that first year, the second year, third year of trying to establish themselves and then grow and scale. And legal incubators have been around for a lot less time than tech incubator. So, this movement is only, you know, it goes back maybe six or seven years. TOJI was kind of at the tail end of the first wave of legal incubators, but it was definitely modeled off of the tech incubator idea. The main difference being that tech incubator take equity in the businesses that they are incubating and TOJI does not.
So, we have a charitable mission instead of a profit-driven mission. But the idea is largely the same. We are here to help attorneys through that first really critical year of founding the law firm, opening the doors and then figuring out how to get customers, how to scale, how to hire staff and really become sustainable.
Rocky Dhir: I had the pleasure in honor of interviewing Frank Stevenson when he was establishing TOJI. Just as he was ascending to the presidency and one of the goals of TOJI at that time, as I remember him saying it to me, was to help attorneys who want to start law practices, especially solo practices or maybe small practices aimed at maybe low income or modest income individuals. Is that still part of the TOJI business model, if you will, or has it morphed in some way?
Joshua Weaver: No, absolutely. I tell people that we have a dual mission. And so, one half of the mission is we are supporting these attorneys as they found their law firms and try and get to sustainability. The other half of our mission is to try and address what has been termed, “The Access to Justice Gap.” And so, there was a report by the ABA, it came out I believe 2015, 2016, and the report basically said that approximately 80% of Americans either cannot afford to pay an attorney or have the perception that they cannot afford to pay an attorney.
Either way, they concluded that it results in the same thing which is that people are not meaningfully able to access our justice system. And that is both a civil problem and a criminal problem. And so, part of TOJI’s mission, there’s a saying that I really love I think it encapsulates the concept so nicely is we want to help support attorneys who want to do well by doing good. And so, doing well, by doing good I think it gets at – there’s this common myth in the outside world looking at A to J but also within the A to J community that serving low income, serving modest income families require some king of val of poverty. It’s like if I’m spending my time making myself more affordable than $500 an hour, I’m probably straggling to keep on the lights. And that’s just not true. That’s not what the evidence spares out. That’s not what we see in real life.
Really, what we found is that there is this gigantic latent market that is largely untapped, it’s largely underserved by attorney. 80%, that’s not just folks that are under the federal poverty guideline. That is you and me and most people that we know fall into that category and they still have legal problems, right?
And so, there’s a market here. And so, part of what we’re trying to weave into TOJI and really help the attorneys learn and understand is that you can have a very successful business while still reaching that unmet access to justice need that exists in the low-income and modest income communities.
Rocky Dhir: That brings up an interesting question about exactly — the current attorney business model, the two that we usually think of is either you bill your time by the hour or you take a stake in your cases, if you’re on the plaintiff side and you’re hoping for either a steady pay out through hourly fees or you’re hoping for a really big payout by scoring big on a particular personal injury matter, or plaintiff’s side matter. It sounds like TOJI is trying to redefine that and maybe figure out new ways for attorneys to make money. Is that accurate or am I oversimplifying it?
Joshua Weaver: No, I think you’re stating it correctly. I would say that we’re not reinventing the wheel over here. We certainly — I don’t think that we’re breaking any new ground in this sense but what we are doing is we are teaching attorneys that it’s not only the billable hour, it’s not only contingency and look, I come from a contingency fee background, right? I worked in plaintiff’s litigation. I’m not trying to knock people that bill by the hour or do contingency fee work, it’s more a mission of education that there are other ways to model your business.
And so, attorneys tend to have a very limited perspective on how you can make a business profitable, right? We were sort of taught that there’s two ways, there’s the billable hour, there’s contingency fee and then we’re told to just go with the flow. Go with what the firm has done for the last 50 or 60 years. But it hasn’t actually always been that way.
So, before the billable hour became popular for thousands of years, it was popular to do attorney work through flat fee and alternative billing. And so, we’re trying to return to some of that tradition and we’re trying to teach people that you can offer different combinations of types of pricing models. You can do a subscription model, you can do a flat fee, you can do a sliding scale model and you can make these pricing models work and make your business profitable. Another huge one for our attorneys and this is a real eye-opening moment when they get it. You can see the aha moment. Is this concept of commoditizing a legal practice.
Rocky Dhir: This is interesting. So, I’ve never heard this term. Let’s do this, Joshua, because this sounds like a great moment for us to take a break, hear from our sponsors and then come back and talk about this concept of commoditizing a legal matter. Okay, I’m fascinated, but hang on. Let’s hear from our sponsors and we’re going to come back and exactly get into what you mean. We’ll be right back.
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And we are back with Joshua Weaver talking about TOJI and its remarkable work in trying to help redefine how we lawyers might structure our businesses. Just before the ad break, we talked about – well, actually Joshua brought up this idea of commoditizing a legal matter. So, Joshua, tell us what that means. I have to confess, I’ve never heard that.
Joshua Weaver: Yeah, so, you’re not alone. I had never thought about this and I’m embarrassed to say because I come from a tech background, right? So, before becoming an attorney, all I did was commoditized business models. I just wasn’t really thinking about it. I wasn’t engaged with it at that time and have the same awareness. But simply put attorneys are accustomed to whether it’s billable hour or contingency fee. We are accustomed to the idea that if you’re not actively working, if you’re not billing, then you aren’t earning money, right? And so, the structure — you can even see this in the structure of a traditional law firm, right? Because you only make money when you bill, what do you have to do in order to earn money when you’re not working? Well, you have to hire a bunch of associates. You have to have the associate’s billing so that you can catch some shut-eye, go on vacation and so be able to earn money.
Rocky Dhir: It’s like a labor-based model, we’ve got people working.
Joshua Weaver: So, the commoditization of law refers to figuring out ways to turn Legal Services into what I would call widgets, right? And so, instead of only earning money when you are actively doing something on the case, you design a product, right? And by designing a product, you are turning yourself into a widget seller and guess what, you can sell widgets while you’re sleeping, right? So, it’s revolutionary to how you think about the business model. All right, so that’s pretty abstract. Let me make it super concrete.
Rocky Dhir: Yes, please. Because I’m not that smart. I can’t figure out what you mean.
Joshua Weaver: I don’t believe that is true. You seem like a smart guy. But to make it concrete, out in California we have a very innovative company. I think a lot of people at this point have heard of Erin’s Company, Hello Divorce, right? And the concept of Hello Divorce is it shouldn’t cost $15,000, $20,000 to get a simple divorce. So, what did they done? They have commoditized that legal service. They have turned it into an automated document generating process and they’ve drastically slashed the prices of getting a divorce through their service.
Now, I don’t have any particular affiliation with Erin or with Hello Divorce, but it’s a great example of what it looks like to think about turning a legal service into a legal product and there’s a lot of other opportunities for this. So, when we talk about this within the TOJI cohort, you’ll see these light bulbs turning on and people will start saying, well, what if we were to commodities parking tickets or landlord-tenant disputes or creditor debtor disputes. There so many areas within the law where a combination of automation and commoditization offer opportunities for people to adjust and pivot their business model in ways so that not only is the thing that they are selling much, much, much more affordable for the general public, but they can also get away from that service labor model where you’re only earning money if you’re actively billing.
Rocky Dhir: It sounds like when we’re talking about automating or commoditizing that that might apply — and maybe I sound like an old curmudgeon when I say this, but it sounds like that might apply really well to areas of the law that have more routine built into them. Where it’s the same thing being done over and over with maybe slight variation. But then can you apply that to something that’s a complex business litigation dispute or something that’s got a lot more moving parts?
Joshua Weaver: Yeah, that’s a great question. And I think that — whenever you hear one of these like tech heavy lawyer episodes, you hear like it’s not the robots coming for your job, right? There aren’t going to be robot lawyers. And I think that’s true, right? It is tech plus lawyers. It is tech enabling lawyers to do things more accurately, more efficiently, better, faster and stronger. And so, when you get something like a complex business litigation type case, it may be true that you can’t automate all of it. It may be true that there — in fact, this is generally true of most areas of practices that there are aspects of the attorney job that cannot be solved by a pure technology solution but you don’t have to get to the point where you are completely automating the attorney out of the job for this to work. Often times, you only need to be able to target portions of what the attorney has traditionally done and commoditize that, automate that and then you’ll be so much further ahead in terms of your efficiency that you are able to turn this into that widget selling platform, that widget selling business model instead and get that win-win both the customer and for the attorney.
Rocky Dhir: So, let’s maybe put some — get an example. I don’t mean to put you on the spot because it’s not like we discussed this example ahead of time, but lets — the time when I often times have to tell folks that your claim probably isn’t worth pursuing because the dollar amount, it’d be something like a breach of contract dispute and the amount in controversy is maybe $20,000, something that it’s significant, it’s a lot of money but it would get quickly outweighed by the legal fees involved in pursuing that claim and getting an attorney to take a $20,000 amount in controversy on a breach of contract, on a contingency would be kind of unrealistic for most of us. So, you’re in that nether region of having a claim that has an impact on your life but it’s not big enough to get somebody to really delve into it and take it to court. So, I’m just using that as an example. So, it’s a $20,000 breach of contract case, where do you foresee that lawyers would be able to automate or commoditize in cases like those and then actually be able to bring those cases to trial or bring those to courts so that maybe some measure of weighing of the merits could happen in those situations?
Joshua Weaver: Wow, this is such a heavy question. I love this. This is what I think about. I think about this stuff all the time and I think it’s such a good question. I used to work — the plaintiff’s firm that I used to work, they handled birth injury and in birth injury cases, you have the most sympathetic client imaginable, right. It’s a baby, it’s an innocent child.
Rocky Dhir: But how much of that baby going to earn over the course of the years, right? It becomes earning capacity.
Joshua Weaver: Yeah, I mean it’s really — it’s very tough. That is the hardest case to tell somebody like, I’m sorry, like it just doesn’t make sense from a dollar and cents perspective. It’s going to take me $120,000 to take this to trial and there’s not enough money on the line, right? So that’s a problem. I personally see that and this is just me on the problem, there are probably smarter and better lawyers that have a better opinion on this but, there’s a problem with the procedure, right? There’s a problem with how complicated the machinery has become when it comes to putting on evidence, when it comes to involving experts and that’s a difficult thing to solve. It’s not something that I think can be completely solved by technology.
But going back to my earlier point, you don’t have to solve the entire problem in order to make a large step forward, right? So, there are some new tools that are coming up. I’ve seen attending AVA tech show. I saw some companies and I think the thinking here is that for cases where the amount in controversy is just too little. The way to move forward on that is to have a system that is going to reduce the amount of expense and the time required in order to put on evidence. And that is something where artificial intelligence where Doc Review, the automation tools that are cropping up to help speed along the processing of large amounts of evidence can be impactful.
The other thing that can be impactful is we have these online mediation platforms that are starting to pop up. And so, we have very simplified third-party attempts at what would otherwise be at trial. And so, they may say, you get to talk to an expert but the expert can only be on for 30 minutes, right? And so, it just drastically reduces the burden of that evidentiary process that we currently rely on.
Rocky Dhir: Do you have any thoughts on the extent to which — let me maybe phrase it a different way and attack at this way. For a lot of lawyers, one of the big risks in taking that $20,000 or even $100,000 breach of contract claim is that if you do charge a flat fee, let’s say you say, you know what, I’ll do this for $8,000 or $10,000 or $20,000, whatever the number is, you charge a flat fee, something goes wrong. Now, suddenly you’re on the hook for a lot more money and you might be on the hook for a malpractice claim or some kind of disciplinary action because something went wrong because you were trying to automate or because you were trying to maybe make things more efficient. You didn’t do things the traditional way and if something goes wrong now suddenly your license or your insurance carrier could be involved in this. Do you see that as being an issue that attorneys need to be concerned with as they move forward in this — I guess I’ll call it a new age of trying to rethink how we do legal services?
Joshua Weaver: No, I don’t. I don’t think that this is a practical concern for attorneys. I mean, if you’re going to commit malpractice, you’re going to commit malpractice, right? Every attorney has a duty to evaluate whether or not they are competent to take the case or they can zealously represent their clients. I think actually these alternative billing strategies incentivize attorneys to put more effort and more thought on the front end than they might otherwise do.
I mean, there’s a saying in — at least in plaintiff’s litigation, right. In paraphrasing, it’s like every case looks like a million-dollar case the first day that you hear about it, right? And it’s true. We all think that the case is the best that it ever will be that first time that we’re getting the facts. So, when you engage with these alternative billing strategies. It’s not a one-size-fits-all approach, right? There’s a menu of options. There are risk callers. There are ways to limit risk and exposure and money but the bottom line is typically they encourage the attorney to put more thought on the front end when they’re going through that process of figuring out what the case is worth and what they might charge for it. And the reason why is because like you said you don’t want to get in over your head, find out that the scope is creeped on you and then end up losing money.
The other thing that it incentivizes, which is really positive for both the attorney and the client is an open and consistent effort at good, clear communication. And so, I tell my attorneys all the time, if you have a flat fee, you need to have a conversation on the front end with your client and tell them, look here’s what the flat fee covers, here’s what it does not cover and the does not cover part is every bit as important as what it does cover then as you’re working the case, the very moment that you get the bad news, the moment that you spot that looming danger of, ah this is going to be more work than I thought, there’s a complication, I couldn’t predict this, that is the exact right moment to call that client and have a clear conversation with them and tell them, look, here’s what’s happening. This is what was covered in our arrangement. This is going to be more work, it’s more complicated. There’s some detail that we couldn’t have seen ahead of time and that client communication actually goes a really long way towards making clients more satisfied in the end, right? Like all the data suggests that the origin of many client complaints against lawyers is inadequate communication.
Rocky Dhir: I couldn’t reach my lawyer.
Joshua Weaver: Right. They’re bad things that happen, right? No lawsuit goes perfect. No representation goes perfectly. But this alternative billing style actually doesn’t centralize better communication, which typically results in more understanding clients.
Rocky Dhir: So, going back to TOJI for a second because — we could rip all day and talk about the legal world and how it could change. But going back to TOJI, I guess there’s two questions that what you say kind of brings up. The first is who can join TOJI? Who can be an eligible attorney to be part of TOJI program? Is it strictly new attorneys or are you looking even somebody’s been practicing 30 or 40 years and now wants to be tool. Can they become a part of TOJI? Let’s maybe address that first, who’s eligible to be part of the TOJI program?
Joshua Weaver: I’m so glad you asked that Rocky. So, in what I would call the first wave of incubators, the primary thinking was that we were entering a recession, there weren’t as many law jobs available. And so, the first wave of incubators were predominantly aimed at fresh graduates. People that maybe couldn’t get a big law firm job. And we’re considering hanging up a shingle of their own. They also tended to be very Local. So, the incubators tended to be incubators that were aimed at a city or just a state and in that sense, more localized. And there was a physical presence, right? The incubators were a place that you actually went to physically.
This has really changed, and so TOJI was kind of on the very tail end of that first wave of incubators. There is now been a full second wave of incubators and I’m really proud to say I think TOJI has really led the way as a thought leader in this space in making this pivot. And so, the pivot is to go to a completely online platform. And the thinking there is by having a physical place, in TOJI’s case it used to be Austin. We had a physical Austin location.
By having a physical location, it’s kind of a double whammy of bad things, right? So, not only are you only open to people that can physically be in Austin, relocate to Austin, but you’re also doing a sort of brain drain in the communities where those attorneys are coming from.
Rocky Dhir: What happens to people in El Paso, who lives far away, and Amarillo.
Joshua Weaver: Exactly. You’re taking a talented attorney who knows that community, understands their needs, removing them from that community and forcing them to relocate to a place where frankly like we don’t need a lot more attorneys. We’re doing well in Austin. So, by pivoting to a completely online platform, what we’ve done is we’ve opened it up to everyone, right? So, if you’re that attorney out in the middle of nowhere, I mean, we have had attorneys who are literally the only attorney for two or three counties, in those legal deserts.
They’re able to join and participate just like the person who lives in Houston, just like person who lives in the DFW metroplex. We even recently had an attorney who was carrying on a practice located in Alabama and Texas and we they able to participate because of that virtual platform and then getting to the other part of your question about who can apply and whether or not practice experience is important, what we found is that there’s actually a huge swath of people that are interested in this type of learning environment. And so, we have some folks that are straight out of law school, very fresh, very green. We also have attorneys that have been practicing 30, 40 years and they’ve decided that as their last act as attorneys, they want to have a firm of their own, they want to do things their way. They usually have a very niche passion for the community that they want to serve as a solo.
So, we have a wide range of experience, a very diverse group of people that we are pulling from rural, metropolitan, we have over 35 areas of law represented among the cohorts and that diversity, I think, is not only critically important for the success of the program, it really brings perspective and a wealth of good information for cohort members because they have that range of people and perspectives to draw on as they go through those struggles of starting a firm.
Rocky Dhir: This brings up kind of another fundamental question I suppose because when TOJI was starting and we talked about it, we alluded to this earlier, it was really focused on training lawyers for low-income and modest income communities. But what we’ve been talking about is really retooling how law is practiced and making it more affordable for everybody. Do you think the focus of TOJI has changed or evolved or is it still focused on low- and modest-income communities with kind of a spillover effect into maybe folks that are not technically low in modest income?
Joshua Weaver: Yeah, so there is a wide range of — there’s a spectrum on how that actually works out in pressure or reality, right? So, it’s good that theory craft this stuff on paper. It’s good to write out your mission statement and then real life happens and you deal with real attorneys and real practices. And you find that it’s really mixed bag, right? There are some people that are hyper-focused on low-income communities. There are some people, you know, I would say, typically the majority of TOJIans tend to focus on the module incomes.
Rocky Dhir: TOJIans, I like that.
Joshua Weaver: Yeah, TOJIans. They focus on the modest income clients. The truth is, although there is no perfect solution for this, there is a lot of money and there is a lot of good organization and structure designed and in place to help serve the low-income communities. If you’re even just a few dollars over the cut off for that aid, you’re just kind of on your own. And so, that’s where a lot of the focus of TOJI has turned. That’s where a lot of the attorneys that come into the program really have a heart for service, focused on that modest income category and that represents everyone that doesn’t qualify for legal aid, all the way up to the folks that are able to pay those handsome billable hour fees.
Rocky Dhir: Right, and some of them can pay up to a certain extent, but then they reach a ceiling and that’s probably — even folks that are in upper- or middle-class suburbs that fall into that. So, that’s kind of why I was asking that question. It sounded like maybe it’s got a wider scope than initially planned, which is kind of cool. Now, in maybe the final couple of minutes we have left, I wanted to maybe ask you to foreshadow for us, if you will. What do you think is to come for TOJI? New initiatives, feature plans, where do you think this is going to go in the next say, 5 to 10 years?
Joshua Weaver: Well, I have a passionate answer for that.
Rocky Dhir: Really, big surprise.
Joshua Weaver: Yeah, I know, huge surprise there. You know, I have been involved in the legal incubator scene since pretty close to the beginning. I’ve only been the TOJI director for — going on two years but I’ve been involved in the scene since early on and I think the thing that I’m most passionate about is it’s been a struggle and I don’t want to lay blame on anyone for this. This is just a natural growing pain, right? But there’s been a struggle to get organized and to be collaborative on a national and international scale.
And so, I was on the phone the other day, we had like a five-way call with some other directors from other illegal incubators in America. And we had some folks from Egypt and Pakistan on the phone and they were trying to start legal incubators over in their respective countries, it’s just painfully true that there isn’t a very organized and collaborative environment for the leadership of these incubators to work together. And so, what’s happening is there’s a lot of reinventing the wheel, right? If you want to be a new incubator director, if you want to start an incubator in your town, in your city, your country, you just kind of have to piece things through on your own, and it’s up to your creativity, your ingenuity to make it work.
Where I think this movement is going and where I think TOJI has a lot to contribute both in America and abroad is putting any structure that actively encourages and facilitates collaboration and sharing of knowledge. And so, one of the initiatives we’re working on this year, I’m hopeful that we’ll be able to publish it later this year, is we are taking all of the knowledge that we have accumulated both within TOJI also within the Baylor Law Legal Map Maker Program and hopefully, within a few of the other prominent legal incubators and we’re combining all that information and knowledge and putting it into a learning management software. We are publishing that software and that platform and the hope and the dream is that other directors will be able to log in. They will be able to see very clearly. Here’s what TOJI does. Here’s what their curriculum looks like. Here’s what structure looks like for that program. I’m going to now pick and choose the parts that I think are good. Maybe I’m going to throw in a little bit of my own flavor, my own seasoning, and come up with a curriculum where hopefully there isn’t as much reinventing of that wheel.
So, I’m very excited about this. I think it has a lot of potential. I’m very excited about the other incubator directors and the Access to Justice Organizations that are involved with this. The goal is, let’s all just work more collaboratively, let’s be more efficient about how we’re organizing this and then, ultimately, we will be able to help more attorneys and help more of the public.
Rocky Dhir: That’s fantastic. Joshua, I wish we could talk about this all day, but we have reached the end of the program. But this was fascinating. Thank You Joshua for taking the time to join us and for educating us on TOJI’s progress. I mean, best of luck.
Joshua Weaver: Well, thank you so much. It’s been a true treat to be here and if I have the opportunity to — can I give a shoutout?
Rocky Dhir: Absolutely, go for it.
Joshua Weaver: So, okay, so shameless self-serving shoutout, but first of all, big, big, big, thank you to all the other incubator directors that have been part of this. I certainly cannot do this alone and the mentorship and the help that I received from the other directors is just phenomenal. There is so many great people working in this space and second to that, I just want to announce. We are accepting applications for our next cohort. So, if you are interested in learning more about TOJI, our website is txoji.com and you’ll be greeted by a video and some information about what that looks like if you’re interested in joining the program.
So, if you’re thinking about starting a law firm or if you’re in the very early days of starting a law firm and you want to join a very supportive entrepreneurial community, I’d say go check that out.
Rocky Dhir: Wonderful, txoji.com, check it out folks. It’s going to be a lot of fun. So, Joshua, thanks again, and of course, I want to thank you for tuning in and I want to encourage you to stay safe, be well, and keep an eye out for all this cool things going on here on the State of Texas. If you like what you heard today, please rate and review us in Apple Podcast, Google Podcast or your favorite podcast app. Until next time, remember, life is journey folks. I’m Rocky Dhiry, singing off.
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