Just when you thought the legal profession couldn’t get weirder, we’ve got an extended treatment on the acceptability of emojis in workplace communication and the slow death of the Department of Justice under the weight of the shutdown. Moral of the story? If you have a civil claim against the government, now is the time to bring it.
Special thanks to our sponsor, Smith.ai.
Above the Law – Thinking Like a Lawyer
On Emojis And Shutdowns
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.
Joe Patrice: Hello all. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice of Above the Law. With me, as always is not Elie Mystal, as always in 2019 I guess I can say.
Kathryn Rubino: Increasingly regularly.
Joe Patrice: Yes, is Kathryn Rubino, also of Above the Law. How are you?
Kathryn Rubino: Hey friends. How are you?
Joe Patrice: I am good. I am good. I am good. And also of course we would be remiss not to thank our sponsors from Smith.ai. If you don’t know Smith.ai, they are a virtual receptionist service for lawyers. They have US-based professionals answer your phone and website chats and screen your potential clients and schedule appointments. So schedule a free trial with them by going to Smith.ai.
So we are here.
Kathryn Rubino: Hey, how are you?
Joe Patrice: I am good. I am good. Last week you didn’t really grasp the format. Do you have anything that you are angry about in particular this week to grind your gears? Or maybe I should stop trying to make you like another Elie in my life.
Kathryn Rubino: Yeah, I mean that’s fair.
Joe Patrice: That’s probably something to start with.
Kathryn Rubino: We don’t want Elie. We have enough Elies in our lives. But I do find it a little bit frustrating when people assume your availability without actually asking you.
Joe Patrice: Oh. See, that’s not cool. You understand this was an emergency of Elie’s availability, Elie can’t be here, an emergency came up.
Kathryn Rubino: Yes, yes, but it usually is accompanied by a request, not a demand.
Joe Patrice: I didn’t — no, that was a request. My chat to you is you understand if Elie is not around there is a podcast at 3, that is not necessarily a demand, that is an —
Kathryn Rubino: See, it does not sound like you are asking me. You are not saying, hey, are you available at 3 to cover because as you know Elie has this thing that’s come up.
Joe Patrice: I just informed you of a fact and you then brought all the baggage that you are carrying.
Kathryn Rubino: I can’t imagine why I might have baggage with the interaction with Joe Patrice.
Joe Patrice: See, I am a pleasure to work with.
Kathryn Rubino: Is that what you tell yourself?
Joe Patrice: That’s what other people tell me.
Kathryn Rubino: Who?
Joe Patrice: People, very important people, the best people.
Kathryn Rubino: That’s amazing. That’s amazing. No, but I don’t mind covering a podcast, I did have to reschedule other meetings, because my life is not just at whims of Joe Patrice and Elie Mystal, but fortunately there are other people I was supposed to meet with where —
Joe Patrice: Where they are still in another meeting. So cool, so that’s your gear grinding, you are upset about that sort of thing, that’s fine.
Kathryn Rubino: And I didn’t yell.
Joe Patrice: Yeah.
Kathryn Rubino: See, how you can be annoyed about things.
Joe Patrice: And not yell.
Kathryn Rubino: And keep your tone appropriate.
Joe Patrice: Interesting. I don’t know if appropriate is the right term, like some of the things he discusses are bad enough that it is appropriate to be upset.
Kathryn Rubino: Fair, maybe appropriate is the inaccurate word, but you can also express anger and frustration without raising your voice.
Joe Patrice: Right, passive-aggressiveness, yeah.
Kathryn Rubino: That’s not even what I mean, although in this instance that is what I use.
Joe Patrice: I mean as an attorney, you are very well aware of how passive-aggressiveness works.
Kathryn Rubino: Yeah.
Joe Patrice: That actually is for those who are considering entering the big law universe, that is in many ways the dominant paradigm in my experience of big law. There are a few screamers, but they are few and far between, they are much more the people who are just — they are not really mad, they are just disappointed.
Kathryn Rubino: So okay, that’s a good question, what when you were a practicing attorney or even now I suppose, was your go-to passive-aggressive email line? Like as per my earlier email, I went to that one earlier, as per below, if it was an email chain and I like really just didn’t read two emails ago, this is my fault because why, I think that was a pretty effective twist of the knife.
Joe Patrice: I don’t think I ever engaged —
Kathryn Rubino: I cannot believe that is not accurate, that cannot be accurate.
Joe Patrice: No, I mean — no, they can be and for good reason because I am —
Kathryn Rubino: Charming, is that what you were about to say?
Joe Patrice: Oh God, no, the opposite. No, I was going to go very much the opposite. No, because I am annoyingly blunt. I think a lot of times if something was wrong, something hadn’t been done, I think it would be hey, what happened with this? I would be very direct about, did you ever do this, that sort of thing. I don’t think I ever —
Kathryn Rubino: You really think you have that scene tone when you were — as an associate when you were dealing with partners because —
Joe Patrice: Oh no, there is no passive-aggressiveness with partners. There it was obsequiousness is the word you are looking for.
Kathryn Rubino: But those are the worst offenders, those are the ones who can’t be bothered to read all the emails from those who are below them or whatever and you are like, you know, I did — oh, we need a timeline, cool story, there has been one sitting on your desk for two weeks, was that one wrong or was it different in some way, I don’t understand what’s going on.
Joe Patrice: I was pretty blunt with them too, not in a confrontational way always, although it depended on the relationship. I had one partner who I worked with for many, many years who our relationship was defined by the fact that I had no problem yelling at him and vice versa and we got along great because we did not have any of those pretenses.
Kathryn Rubino: Interesting.
Joe Patrice: Other people I know who worked with the same partner had issues, they couldn’t figure it out, because they didn’t have the ability to be direct, which is something that I think he valued a lot. So sometimes it works out, different people work different ways.
Kathryn Rubino: I mean I also think — I mean I have got to call you a little bit on this one, I do think that having that method available to you and still be considered a valued member of the team has no small part to do with the fact that you are a white heterosexual man, right?
Joe Patrice: Oh yeah, yeah, sure.
Kathryn Rubino: Like women have and people of color have a lot less access to those modes and still be seen as collegial and jovial and a friend of the partner or whatever, it comes across like I am a bitch if I am direct or people of color. There is lots of baggage to unpack there and I think that as a white guy you have got the full range of rhetorical devices available to you.
And I think that that’s actually something that pisses me off when people talk about how terrible passive-aggressiveness is in the workplace and whatnot, not that you did that, but I think that it’s largely because that is a method that is available to all. It reads the same across a lot of different gender and ethnicities and whatnot and I think that that’s the reason why it has become increasingly popular within any sort of professional context, which also like corollary to that, I realize this may be about five or six years ago, I use probably too many, but I use emojis in professional correspondence all the time and I think it’s appropriate.
Joe Patrice: It’s probably not, but let’s — we will stick a pin in that for a second and just say, are you missing calls, are you spread too thin, interruptions kill your productivity, but clients demand a quick response, the US-based professional receptionists at Smith.ai help law firms screen new clients and schedule appointments by phone and website chat. Plus, Smith.ai integrates with your software including Clio and LawPay. Plans start at just $60 per month. Get a free trial at Smith.ai.
So we are back. So you use emojis in professional context. Now, granted, your profession right now is making big jokes about lawyers on the Internet, so maybe it’s okay here.
Kathryn Rubino: Yeah, no, I am not just talking about when I work at Above the Law, but previous to this as well. Yeah, I mean I think that it also corresponded for me with an increase in sort of messengering programs being used at vendors and other law related industries. But when you are talking over chat with people, I think that going to a smiley face or a ha-ha face or something along those lines just makes sense and it helps to, especially my last job before I started ATL, I worked with a lot of people in different offices that I had never met and you are trying to build your relationship with someone and they may not understand the way that you are trying to say something. So throwing an emoji in there to be like, I mean this cutely, here is a smiley face or like questioning or shrugging emoticon to like make it clear, this is the way that these words, which could be taken in a variety of different ways, it’s how I mean them in this context.
Joe Patrice: Yeah, I don’t know. I certainly have used emoticons, the grandfather of the —
Kathryn Rubino: Sure, but I do think that like a lot of programs automatically convert them, right?
Joe Patrice: Yeah, I guess that may be true. Yeah, I have certainly done that before in rare instances where I am trying to put a no, I am not really yelling on what would otherwise be a terse reading email. And I am one of those people who doesn’t actually have a problem with emojis; I just feel like you are taking it maybe just a bridge too far for me.
Kathryn Rubino: Well, I also think that before Above the Law, did you have many jobs that used messenger clients as their primary mode of communication?
Joe Patrice: No, it was always formally.
Kathryn Rubino: Yeah, which I think is also different, but I do think there is Slack, there is Messenger, there is Ping, there is all these different programs now which is meant to sort of let employees be accessible if they are working remotely, people work from home, like you work across offices and whatnot and so you use these programs. And yet, if you have never met someone and you have been on a project for two months together, you have to find a kind of shorthand way to make sure you understand what’s going on.
Joe Patrice: Yeah, yeah, just got that new assignment, eggplant, eggplant.
Kathryn Rubino: I haven’t used the eggplant emoji at work.
Joe Patrice: Fair enough.
Kathryn Rubino: It’s a step in the right direction.
Joe Patrice: Yeah, but yeah, that’s interesting. So I will say, back to the passive-aggressive thing, one of my all-time favorite stories that I love all the people involved in the story.
Kathryn Rubino: Please tell it.
Joe Patrice: But I got an email from a partner, I guess not a partner at the time, but a senior associate who was about to be a partner at the time saying hey, just like exasperatedly a day after a thing was supposedly due, did you send the blah, blah, blah letter, and I went yes, I did remember that, I did send the letter, followed immediately by, why would you do that. And I was like see, that wasn’t cool. That was just not cool to begin this way.
Kathryn Rubino: They tricked you. They absolutely tricked you.
Joe Patrice: Yeah, that was not cool, but no, I have no problems with the people involved in that story, but it was — I have even told the person that story years later.
Kathryn Rubino: They are angry about the letter, they can’t tell whether they are mad that you did it or didn’t.
Joe Patrice: Yeah.
Kathryn Rubino: But either way, you probably did it wrong. That actually is probably good life advice, Joe Patrice probably did it wrong.
Joe Patrice: Ooh, that’s —
Kathryn Rubino: I am sorry, that was bitchy, but like I had to go for it right there.
Joe Patrice: Yeah, but at least you were active-aggressive as opposed to passive.
Kathryn Rubino: You appreciate that, do you?
Joe Patrice: Yeah, I do.
Kathryn Rubino: Okay. Well, it’s good to know.
Joe Patrice: I mean I work with Elie, I appreciate active-aggressive. But yeah, so what have we covered now? We have covered law firm mood and style, we have covered a brief foray into the privilege issues involved with being white men, heterosexual men at work. We have talked about emojis. This has been a banner day for a wide range of things, considering we walked in with no particular agenda, but we are —
Kathryn Rubino: And we still don’t have one, but here is something about the eggplant emoji. You ready?
Joe Patrice: Okay.
Kathryn Rubino: Well, it’s not really about that, but one of the stories that I thought was interesting from this week, I don’t know if you have heard, but at the recent Law Professor Conference AALS, at one of the panels, the Columbia Dean said that one of the best ways for law school administrations that are looking to make —
Joe Patrice: Only way even.
Kathryn Rubino: Yeah, only way, yeah, they did say that. Only way for law school deans or administrations to find out whether or not someone they are considering for a lateral move to their law school, to know whether or not they have a history of sexual harassment is when Above the Law reports on it.
Joe Patrice: Yeah.
Kathryn Rubino: And I do a lot of that work.
Joe Patrice: That’s true.
Joe Patrice: It was definitely something that I was shocked by, and some of the social media traffic queried why law schools can’t ask the applicants about these things and there is a lot of confidentiality issues frankly when it comes down to it. So they are a little bit hamstrung about trying to get all the details out there. And I thought it was a really interesting thing and it’s something that I think that at Above the Law we try to cover as soon as we know about it.
Joe Patrice: Yeah, no, it was very gratifying to see that message come across even though I don’t do nearly as much of that work as you did, although —
Kathryn Rubino: You do a bunch of it.
Joe Patrice: We did a lot of the Yale issue from last year, which is still unresolved, but we just reported what we were hearing from it, a lot of that I was involved directly in the reporting work on that.
Kathryn Rubino: And I actually wound up doing, because this kind of inspired me, I wound up doing kind of an omnibus post that was like hey, here are the sort of #MeToo — the professors that have been caught up in #MeToo scandals and providing links to all those stories that we have written, because there is not like an easy place to go. We don’t have some sort of a subpage that’s like #MeToo scandals at law schools. So I kind of created this post to collect all of the stories in one location so they are easier to find, and you had written a bunch of them. There’s a bunch of stuff from 2017 you’d written, former dean and stuff like that, you know. Okay, he’s smiling, like he’s — I’m just.
Joe Patrice: Yeah. Well — no, I mean it’s — it’s always —
Kathryn Rubino: It’s something we all participate in.
Joe Patrice: It’s always heartening to hear that your colleagues talk about how you’ve done such a fantastic job, so thank you.
Kathryn Rubino: You are very not welcome.
Joe Patrice: But no, that is a key thing that we operate as something of a check upon these issues largely because for whatever reason people feel that they can’t get into them and that’s been kind of the long-term problem in the #MeToo issue is that there have been a — he said/she said thing that perennially leaves people with no ability to resolve issues in a recourse and that is discouraging and we at Above the Law have a capability. It’s not like we just run with whatever random, anonymous tip we hear. We have standards and —
Kathryn Rubino: Of course.
Joe Patrice: — believe in reporting things out, but we are a sounding board that where people can tell their stories and if we get something together we can be a resource for schools to, and firms to avoid doing —
Kathryn Rubino: Terrible things.
Joe Patrice: — doing bad things again.
Kathryn Rubino: Yeah.
Joe Patrice: Which we had a story last year of a partner who lateral to a new place for that new place to find out the reason they were lateraling was that, there had been a problem at the first place, so.
Kathryn Rubino: Wooh. Yeah. I think one of the good parts about this job is being able to hold folks that don’t feel like they have to be actually being holding them accountable, some small way.
Joe Patrice: Well, we are recording this before you’re going to hear it, so –
Kathryn Rubino: That is generally how that works.
Joe Patrice: Yeah, I mean, otherwise it’s a tremendous strain on the editors. But — but yeah, so as of now, and I’m willing to venture that this will still be true when this episode comes out, and if it’s not, we can all be pleasantly surprised. There is a government shutdown and we are staring down. It’s for us right now — well, by the time you hear this, it will be less than a week before the Federal Courts will run out of money.
Kathryn Rubino: That sounds bad.
Joe Patrice: Yeah. There’s already a plan in place for what they need to do if they do run out of money, but yeah, we already have several members of the Department of Justice are working without pay right now. It’s a situation that’s only going to get worse over the next bit and so we’re sending out our —
Kathryn Rubino: Yeah, I think it’s been interesting some of the reactions that the judges have had to the situation as well. I think you wrote something about this.
Joe Patrice: I did and I segue.
Kathryn Rubino: You wrote?
Joe Patrice: Yes, I wrote about a judge who — basically a lot of what’s happening is that in the criminal cases which obviously are the most difficult to — I mean, they are the most grave and serious, those are moving forward. But to the extent the DOJ pursues civil actions, their strategy has been to file with judges, hey, there’s a government shutdown so let’s have an indefinite stay of this case.
And a couple of judges have gotten these and responded with, nope; including one judge who referred to it as laughable that the government thinks that they can get out of this because they don’t have any money, and his response was, this is not a policy issue, this is the abdication of the President and Congress to the extent Congress could theoretically override a veto.
Kathryn Rubino: Sure.
Joe Patrice: They got everyone together to fund the government —
Kathryn Rubino: And they voted on it, yeah.
Joe Patrice: — to faithfully execute the laws, and his response was, given that that is what is going on here, it is no different than if a private litigant walked into my room and said, you know what, I’ve decided to stop paying my attorneys, give me some more time, and it’s like, no, I would never do that, so why would I afford the government the same — same option. And —
Kathryn Rubino: And I think I read something too that in during the last government shutdown which admittedly was — is likely to be significantly shorter. The government had requested, similarly requested extensions and delays in 16 instances and each of them were soundly rejected.
So it really isn’t a surprise that this is how judges are reacting to the latest shutdown, particularly when it seems like a long shutdown. It’s not something that the president is afraid of.
Joe Patrice: I mean others have said and I have a link to this in my post on this judge. Other commentators have pointed out that if you’re a practitioner right now and you have a client who has a case — a civil case against the government, you probably should file that right now.
Kathryn Rubino: Yeah, you should.
Joe Patrice: There’s a nonzero chance that you can win a default judgment there.
Kathryn Rubino: Yeah.
Joe Patrice: Because the DOJ is certainly not in a position to fight back, and if judges are unwilling to offer these stays —
Kathryn Rubino: Yeah, absolutely.
Joe Patrice: This is your opportunity right now. If you slipped and fell in front of a mail, in a post office, this is your time.
Kathryn Rubino: The time is now.
Joe Patrice: So yeah, that’s going on, we feel very bad for all the AUSAs out there who are working without pay.
Kathryn Rubino: The other folks in other positions, but as it specifically relates to Above the Law.
Joe Patrice: Yeah, we take out our audience, yeah.
Kathryn Rubino: I get it. I just —
Joe Patrice: On the other hand AUSAs, they are going to find other jobs; whenever they want to, they can go to that.
Kathryn Rubino: Sure, and you are an AUSA you probably have, the world is — the legal world is always true, let’s say.
Joe Patrice: So maybe we shouldn’t feel that bad. Yes girl.
Kathryn Rubino: Oh yeah, we are looking that way.
Joe Patrice: Yeah, well, cool. Yeah, so what else happened? Oh I got in a fight with some like random right-wing trolls on the Internet.
Kathryn Rubino: Oh wow, it must have been a good time. I remember though a time that you told me that some right-wing troll had declared a fatwa on me.
Joe Patrice: Yes, that happened.
Kathryn Rubino: I don’t even remember what the story was anymore, but I’ve only been at the shop three years, mind you, but — but it made me feel like I was doing the right thing.
Joe Patrice: Yeah — no, you had a call-out, “Everyone should try to destroy Kathryn Rubino from a radical anti-immigration group.”
Kathryn Rubino: Oh there you go.
Joe Patrice: So that was a thing you did. My issue this week was a former clerk — and by clerk, you think, wow, that great academic, must be smarter, but you’ve got to kind of also remember if they’re clerking for high-end Republican judges, they — especially at the circuit level, you don’t really know, they’re probably just some random troll who was the top of their Fed Soc Group.
Kathryn Rubino: Sure. That does appear.
Joe Patrice: Yeah.
Kathryn Rubino: Do we have the majority of those simple jobs?
Joe Patrice: Yeah, so you can’t — yeah, and it’s unfortunate because —
Kathryn Rubino: It seems like you are –
Joe Patrice: When you are going around hiring you’re saying, ooh, this is a circuit clerk, but then you kind of realize they don’t really know anything. Anyways, some random former clerk, and not just former clerk, former clerk for Judge Howe who even conservative law professors like Orin Kerr had said, Judge Howe’s out of his gourd with some of these opinions he’s writing.
So, yeah, he said a bunch of random stuff attacking his own school for doing pro bono work, which —
Kathryn Rubino: That seems inappropriate.
Joe Patrice: Yeah, which I — I said was wrong on — basically wrong, but I went into more detail about some of the statements that were designed to be misleading and inflammatory on this guy’s part, he —
Kathryn Rubino: So a right-wing troll, you wrote about a right-wing troll, so now, no surprise actually that a bunch of trolls coming up to you.
Joe Patrice: Yeah — no, and he tried to fight with me a few times after that on Twitter and it was quite comical, like because I mean, fighting with these people on the Internet is, it requires some degree of intestinal fortitude because they come at you and it’s annoying and they’re — they are obnoxious and they kind of beat at you and they have their buddies attack you whatever, but I mean, if you actually have the wherewithal to go through it, it’s really like fighting a toddler. I mean, it’s just like they are not particularly smart or funny and you can just —
Kathryn Rubino: I 22:18 toddlers.
Joe Patrice: You can just flip everything on them and like it’s satisfying if you have an audience because of people who are kind of smart, because then they kind of keep back channel, like oh my god, and it’s useful too, because I feel especially in the legal world, these folks have professional reputations and just building this record of how actually they aren’t remotely smart enough to —
Kathryn Rubino: Hold the positions.
Joe Patrice: Hold the positions they have is valuable in and of itself. So that was —
Kathryn Rubino: Well, good on you.
Joe Patrice: Yeah, I know. That was fun.
Kathryn Rubino: You did a good thing this week.
Joe Patrice: Yeah, I mean just fought back against some randos.
Kathryn Rubino: Yeah, but pushback in every instance, right?
Joe Patrice: Yeah. So yeah, so that’s, that’s us.
Kathryn Rubino: It’s been the week that was.
Joe Patrice: The week that was for this Thursday is when we record this, so yeah, cool.
Kathryn Rubino: All righty.
Joe Patrice: Yeah, you can tell this is one that was put together in an emergency as we were like, are we done?
Kathryn Rubino: So how about those —
Joe Patrice: There’s no script here, this is —
Kathryn Rubino: Sports ball.
Joe Patrice: — sports, yeah, we’re very much doing a — doing — we’re like jazz musicians, but like really bad at Jazz. There’s no like good give or take.
Kathryn Rubino: Oh, that was another thing that happened recently.
Joe Patrice: Jazz?
Kathryn Rubino: No. Joe Sports Ball.
Joe Patrice: Sports Ball, yes, that did happen.
Kathryn Rubino: Sports Ball recently was the College Football National Championship.
Joe Patrice: That’s true.
Kathryn Rubino: And Alabama does not beast out of that.
Joe Patrice: It did. And what’s weird is like not in any way that like in almost every individual play you would have thought Alabama was winning and then just not.
Kathryn Rubino: Not, not, not at all. Yeah — no, I thought that that was a pretty fun game to watch for those of — that have gotten a little tired of seeing Alabama dominant year in and year out.
Joe Patrice: And instead it was just the other team that’s been in three national championships.
Kathryn Rubino: You got to, you got to take what you got, but I do think that —
Joe Patrice: It’s like watching Cravath be at the top of the list every year, yeah. You’re like, oh.
Kathryn Rubino: Now it’s Auric.
Joe Patrice: What’s this king it’s 24:14.
Kathryn Rubino: Yeah. Who’s Latham? But no, I think it’s interesting. I do think that about halfway through I was like, oh my gosh, are we watching the end of the dominance of Alabama, which might be wishful thinking, that was so fun to watch.
Joe Patrice: That was legal in some way.
Kathryn Rubino: They have law schools?
Joe Patrice: Yeah. Alabama does.
Kathryn Rubino: Alabama does, yeah, count it.
Joe Patrice: Fair enough. All right, so with that we’re done. So, thank you for stepping in, in an emergency setting which I am glad that you agreed to my request, which was humble and in no way presumptive —
Kathryn Rubino: Okay.
Joe Patrice: — that you would be here.
Kathryn Rubino: It won’t be in the future, I can guarantee that.
Joe Patrice: Yeah, and thank you all for listening. If you aren’t subscribed to this show, and by that I mean, if you just like randomly came across the show somehow, then you should subscribe to it, that way it gets sent to your various listening devices and you’ll never miss another episode of the pure content goal, that is what we just did that.
You should also give us reviews, stars, write something about it, explain how much you miss Elie.
Kathryn Rubino: Oh come on. I write — I mean in the room.
Joe Patrice: Yeah, fair enough. Anyway, but write those things that helps us move up and the algorithms so that more people who are interested in hearing about law can see us.
You should also follow ‘The Jabot’, which is Kathryn’s podcast.
Kathryn Rubino: Yeah.
Joe Patrice: Yeah. You should follow the other Legal Talk Network family of shows. You should follow us on and read Above the Law.
Kathryn Rubino: Of course.
Joe Patrice: Obviously. Follow us on Twitter. I am @JosephPatrice. She is @Kathryn1, spelled in the way she spells it.
Kathryn Rubino: K-A-T-H-R-Y-N.
Joe Patrice: Yes. That version of Kathryn, okay, there are —
Kathryn Rubino: There are, that’s true. There is a lot of commonly accepted spellings of my first name, yeah, but mine is best.
Joe Patrice: Sure, why not. Anyway, so with all that said, I think that’s the end of this episode. Good job.
Kathryn Rubino: Bye.
Joe Patrice: Bye.
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