Joe and Kathryn have a freewheeling chat about legal news, which is a more professional way of saying they improvised for 30 minutes after Elie Mystal overslept and failed to show up for the scheduled recording. Above the Law is basically a late-stage rock band.
But the pair carry on and discuss Alan Dershowitz bumbling through the early stages of the defamation case he’s asked for, Brett Kavanaugh’s Supreme Court clerk hiring, Alabama Law School throwing away millions, and many more of the week’s screwups.
Special thanks to our sponsor, Smith.ai.
Above the Law – Thinking Like a Lawyer
So Many Mistakes, So Little Time
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. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. This is the part where I would normally introduce my colleague Elie Mystal, who said he was on his way to the recording and has not managed to make it here.
We are hoping that nothing bad has happened, but Kathryn Rubino has graciously stepped in, at least temporarily here. I mean we could have him barrel in a minute, we will never know.
Kathryn Rubino: Well, Elie barreling into a situation happens quite frequently, so yeah, never rule it out, but I am here anyway.
Joe Patrice: Yeah. So unfortunately, because we did this last minute, we did not come up with our standard run-through of ESPN show —
Kathryn Rubino: Hot Legal Topics.
Joe Patrice: –ESPN show the Hot Legal Topics, yeah.
Kathryn Rubino: True, true.
Joe Patrice: Yeah, so.
Kathryn Rubino: So we are just going to riff for a little bit. That’s fun.
Joe Patrice: Well, I mean the issue is we — like I know that you are thankfully here, I was trying to get a hold of Elie, but I just couldn’t, and you know why?
Kathryn Rubino: Why?
Joe Patrice: I mean he was just missing his calls and that’s something bad, and that’s why I would like to point out that if you are missing calls or are 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.
Was that —
Kathryn Rubino: Very natural.
Joe Patrice: Yeah. No, I tried. So what’s going on in legal news this week? This is becoming kind of like — we have actually descended to the point where we are like that bad Larry King period, where he just basically read a paper on TV.
Kathryn Rubino: Is this what’s going on in the news today? Yeah, you actually wrote a story today about Alan Dershowitz, who recently filed a motion to have David Boies dismissed from the case.
Joe Patrice: And Boies Schiller as a whole, yeah.
Kathryn Rubino: As a whole, kicked off the case, which I guess you can talk a little bit about it.
Joe Patrice: Yeah, Alan Dershowitz, Harvard Law Professor, he got some fire for representing Jeffrey Epstein, who is a convicted sex offender, who got a deal that is remarkably light considering what he was doing. He, by all accounts I think this is a fair description, he was trafficking underage girls and he managed to get a slap on the wrist from current Secretary of Labor, Alex Acosta actually is who gave him that slap on the wrist, partially negotiated by Dershowitz.
And one of the things that — one of the women who was underage at the time, now an adult — actually a few of them have suggested that Dershowitz was involved in the scheme tangentially; he has denied it repeatedly. He claims that he settled those claims and was exonerated and that people he settled with declared that it was a mistake. Those people now say that is not what we said. He said that he would like anybody who disagrees with him to sue him.
Kathryn Rubino: And.
Joe Patrice: At which point Boies Schiller, who represents one of the formerly underage girls, she did sue. That’s where we sit.
The first thing that Dershowitz did was attempt to disqualify BSF. He has long argued that BSF is trying to extort him; apparently by representing a plaintiff, that’s extortion. It’s not particularly clear. But he also has a different claim which is that he for a while spoke with a BSF attorney about potentially representing him and then that attorney about a week later wrote back and said that actually there was a conflict and that claim is also a reason he says that they should be disqualified.
Kathryn Rubino: Well, the thing you actually wrote about today is that the motion for dismissal was resolved at least temporarily.
Joe Patrice: Well, temporarily, yeah, this motion to disqualify actually violated several of the judge’s rules, bringing us to the practice point lesson, read the judge’s individual rules.
Kathryn Rubino: Right, and that’s something that I actually thought was pretty interesting and it seems to be a bit of a trend out in California. There is a class action or purported class action lawsuit being filed against Jones Day; we have covered it extensively on our website. But Jones Day moved — in the lawsuit that was filed by a bunch of former associates, four of which are Jane Doe plaintiffs, so they are anonymous, and Jones Day filed a motion to have those plaintiffs be revealed, saying that they should not be allowed to continue anonymously. They had gotten permission from the judge ahead of time.
And the response from plaintiffs was filled with all sorts of shade because they had not sought a meet and confer ahead of time, and that is also in that judge’s local rules. And so there appears to be a bit of an epidemic of not reading the local rules before you file motions.
Joe Patrice: I mean one of the rules violated in the Dershowitz case was the page length of the brief, which you have got to think at least, if you are doing nothing else.
Kathryn Rubino: Right. It does seem like from my experience in practice and I am sure from yours as well, like double-checking the rules before you hit send. It was just — like a — I mean a default, I mean you always did that. You always had a junior associate do it and then rechecked it yourself, because just in case they read the wrong rules for some reason. I mean it just seems like such a basic practice tip that it’s very interesting.
Joe Patrice: Yeah. No. And I have been on the wrong side of that once.
Kathryn Rubino: Oh no, oh no.
Joe Patrice: Oh no. And I am going to — I was on the right side of it, but superiors disagreed, and I kept saying we can’t file this, it’s too long and people said no, it would be fine, and the judge was less than happy.
Kathryn Rubino: Well, that is why they put it in the rules.
Joe Patrice: I believe handwriting on the out — just sent us back the motion with handwriting on the front of it saying, is this a joke. So that was a bad day.
Although in that instance, the real problem there, to be completely honest was I think it would have been different if my firm had been acting alone, but it was one of those situations where there are multiple co-counsel doing different things and everybody wanted to say their own piece. So the page limit, I mean —
Kathryn Rubino: Quadrupled I am sure.
Joe Patrice: I mean the thing ended up being 100 pages. I wrote four paragraphs for my specific client. So I mean I understood, we were very conscious of keeping it in limit, but others disagreed and then we got in trouble.
Kathryn Rubino: Well, it sounds like you deserved it and a valuable lesson learned.
Joe Patrice: Oh, absolutely, absolutely.
Kathryn Rubino: Valuable lesson learned, follow the rules, that doesn’t seem like that large a burden to place on litigants.
Joe Patrice: Yeah, yeah.
Anyway, so that’s what’s going on in that case. They have now finally — they have moved to re-file their motion properly. We will see what Judge Preska thinks of that. But it’s always fun, because as — I mean this is a case that’s going to be interesting to watch, because it’s one that certainly Professor Dershowitz has wanted to have for a long time, at least publicly he claims he does. He wants to have this settled once and for all, so he cares a great deal about it. And I know that the BSF attorneys on it who — Sigrid McCawley is the lead on it, she is very passionate about her client’s rights and so it will be very interesting.
Kathryn Rubino: For sure. I am sure we will keep up with that at Above the Law.
Joe Patrice: Yeah. Well, that’s that, and we got through that with no sound effects.
Kathryn Rubino: Oh no.
Joe Patrice: So yeah. So what else, what else is going on in the wide world of law?
Kathryn Rubino: This is why I tell you preparation is so important.
Joe Patrice: Well, I agree, I think preparation is important.
Kathryn Rubino: Well, I guess from my perspective, a big thing that happened to me is that FOX News decided to talk about one of my articles.
Joe Patrice: Oh yes, that’s some personal news.
Kathryn Rubino: That did happen. I mean they didn’t want to talk to me; they just wanted to talk about me, which listen, gets my foot in the door, right?
But I had written an article about Justice Kavanaugh’s hiring all women to be all his law clerks, and at Judicial Conference Ruth Bader Ginsburg complimented him for that fact. And listen, I have great respect for Ruth Bader Ginsburg. The podcast I host pays homage to her and the jabot that she wears when she reads dissents from the bench, you know, whatever, I have great respect for her. But I disagree that Justice Kavanaugh deserves any sort of compliments or respect for having a bunch of women as his law clerks.
Joe Patrice: Well, okay, let’s unpack that.
Kathryn Rubino: Sure.
Joe Patrice: I don’t know as though that’s necessarily fair. I mean obviously there is some value to — especially the way in which Supreme Court clerkships end up on résumés and stuff, there is obviously some diversification value to giving this basically legal industry chit to people who are traditionally underrepresented.
Kathryn Rubino: Sure, but I also think that given the cloud that Kavanaugh took the bench under, which obviously for those who were in a coma for the last year-and-a-half included very powerful testimony from Dr. Christine Blasey Ford alleging that he attempted to rape her when he was in high school, and I think that there was a lot of outrage from women in particular about his eventual confirmation.
Personally I know that tons of women who would otherwise either be uninterested in politics and certainly not in the sort of nuanced or the little — the Supreme Court were very upset by it. I think that Dr. Ford’s testimony was very powerful and I think that it very much felt like a slap in the face to lots of women, particularly when the longest serving justice at this point, Clarence Thomas, had allegations of sexual harassment at him at the time that he was confirmed and that’s all kind of back in the news with Joe Biden running; he was in charge of the committee at the time that Clarence Thomas was confirmed.
And so I think that being able to say look, I hired a bunch of women is a way of sort of whitewashing the testimony that happened, and I don’t think that it is near sufficient enough and I think that it is problematic that we try to pin these awards on people in order to — so that we forget what really happened and so that it becomes merely a footnote to that person’s biography, in a sense that look at this fantastic champion of women, the first ever all-female law clerk class was Justice Kavanaugh, and I do not care.
I care a lot more about —
Joe Patrice: Substance.
Kathryn Rubino: –Dr. Ford’s testimony, as well as the actual substance of what his decisions are likely to be. There is a lot of concern amongst court watchers and the general public frankly that Roe v. Wade is under attack and that the current composition of the court is unlikely to do much to save Roe v. Wade and I don’t care how many women law clerks participate in writing or are part of the majority on that brief, I care about whether or not reproductive freedom in this country is protected. Those are the things I care about.
Joe Patrice: And that’s what FOX decided to hone in on you for?
Kathryn Rubino: Yeah, which they — I think I made a good point that it’s more about just kind of getting these awards, it’s about actual substance.
Joe Patrice: And one of those clerks we discovered is going to be ‘Tiger Mom’ Amy Chua’s daughter, which brings us back to — if Elie were here, he would point out that —
Kathryn Rubino: He would love to crow about this. In fact, the fact that he doesn’t get to, and you should prevent him in future episodes from bringing this back up, because it has already been covered Elie. Had you been on time you would have been able to toot your own horn.
Joe Patrice: Yeah, when all this was going down Amy Chua, who teaches at Yale, was a big supporter of Kavanaugh and Elie said —
Kathryn Rubino: And she runs the Clerkship Program at Yale.
Joe Patrice: Elie was very quick to say that her defenses of him seemed very much like somebody angling to get their daughter a job. Her daughter then wrote Elie on social media and explained that that’s not really going to happen, you don’t know what you are talking about. I am going into the JAG Corps. I am not going to be on the Supreme Court any time.
Anyway, so fast forward, she is a Supreme Court clerk.
Kathryn Rubino: She was one of the women that —
Joe Patrice: Yeah. Literally everything she said to Elie was a lie, maybe not a lie at the time, maybe she thought at the time she wasn’t going to, but everything Elie predicted about why folks would come to his defense in order to sweeten the pot for their own kids all appears to have come to fruition.
Kathryn Rubino: Yeah, Elie was right, and whether it was a deliberate lie or some sort of a misunderstanding or a genuine disbelief in what the future hold, I don’t know, I won’t sort of pretend to know, but the reality is, when you say something very publicly and very forcefully, this is not going to happen, this is me speaking, I think that when you turn around and do the exact opposite for whatever reasons it leaves a lot of questions and frankly a bad taste in a lot of folks’ mouth.
Joe Patrice: I think that’s right. Well, speaking of bad tastes, the Legal Academy, let’s talk about that for a little bit.
Kathryn Rubino: Okay.
Joe Patrice: So law schools, they constantly are raising tuition, they claim they need all this money in order to function.
Kathryn Rubino: They do.
Joe Patrice: It’s unclear exactly why they need all this extra money that they never needed before.
Kathryn Rubino: Right, because it certainly — they’re not just raising tuition as per inflation, it is increasing significantly at a greater — at a much greater rate than inflation would dictate.
Joe Patrice: No, historically we’ve zoned it in on some issues, Paul Campos, for instance, has done a lot of work on this that capital improvements, new buildings are a huge part, but also inflated salaries for unnecessary administrators, the deputy assistant dean of Intramural Sports or whatever is certainly a — that gets a 180 grand. There’s actually online a word generator that you can hit, that will just give you your academic title and a proposed salary.
Kathryn Rubino: Amazing. Amazing.
Joe Patrice: Yeah, if you hit it, it gave me something like deputy liaison to the president for the issue of dining plans, 190,000 or something like that.
Kathryn Rubino: Well, that — that’s nice.
Joe Patrice: So given this, you would think if they were going to raise all this money, it was going into the process of hiring people. One law school is trying not to spend money hiring people.
Kathryn Rubino: Yeah, that’s a story that’s kind of been blowing up today. Yeah, Tulane Law School posted a job advertisement in a couple of different places, advertising for an adjunct professor. Oh, it sounds fine.
Joe Patrice: Sure.
Kathryn Rubino: But it’s a volunteer position and they make it extra clear in the body of the description that adjunct professors are a non-paid position at the law school. So they are looking for — and if you look at the full description, it is exactly the responsibilities you expect any adjunct professor to have, responsible for class and their specialty, whatever, and they are looking for free labor.
So, I mean — and the thing that really kind of was galling, I mentioned this little bit in the article but Tulane not only is it a reasonably prestigious university, law school in particular, but they also charge somewhere I think it’s $56,000 in tuition which exceeds the average law school tuition, which is about $47,000.
They charge more than average and they’re still trying to get something for free here, it just seemed — and I think that in particular, I think a lot of academics across the board whether they are in the legal space or any sort of university professional, are very upset about this. Professors are not paid handsome sums by and large. The average professor, particularly adjunct professor is not becoming rich off of their work and the notion that someone’s willing to give it out for free really is problematic in terms of that person first wants the ability to do a bunch of work for free, which implies that they have a lot more means than maybe is average.
But it also kind of devalues the amount of money that universities have to spend for other adjuncts and other specialties and other places besides the law school and it really undermines really the whole academic proposition.
Joe Patrice: Yeah, we’re talking about spending a lot on professors and that transitions me to another big story that’s been going on, which is that the University of Alabama Law School has voted, their trustees voted — of the Alabama system voted to return some $26 million to their donor.
Kathryn Rubino: Seems like a lot.
Joe Patrice: The biggest donor in school history Hugh Culverhouse, Jr. donated this money — actually made some advance payments on it and they voted to return it. Culverhouse went public and said that a lot of it was to do with the criticism that he’d made of the state government as vis-à-vis, the most recent Abortion Bill.
It now looks like the school released some emails suggesting — they are purported to say that’s not why he was — we took his name off the door and gave him his money back. We made that decision before he made any comments about that.
Kathryn Rubino: Maybe.
Joe Patrice: It does appear as though at least before he made public comments that that decision was made though their whole universe of emails suggesting that there was a problem dates only to the day after the Abortion Bill was passed, and seems when you read them, this gets to where — why I transitioned to paying top dollar for people.
It read very much as a series of miscommunications where he would say something like I’m endowing a professorship, I don’t want it just to be another random tenured professor. I want you to spend big bucks to go out and try and poach somebody from a top-tier school, which is a perfectly reasonable request for somebody putting money in.
Kathryn Rubino: It certainly seems that way. I’m giving a lot of money to this law school. I would like it to be a great law school academically.
Joe Patrice: Exactly, exactly now —
Kathryn Rubino: It doesn’t seem ridiculous.
Joe Patrice: No, the reaction to it from the school side is he’s trying to meddle and determine and decide as a non-faculty member who gets to be on the faculty, which would be an accreditation problem, which it would be.
Kathryn Rubino: Sure.
Joe Patrice: However, there is nothing in these emails unless you have the most bizarre read of them to suggest that’s what he’s saying.
Kathryn Rubino: Right.
Joe Patrice: He is literally just saying, I’m upset that you appear to be looking only at candidates who are perfectly fine educators but not the sort of T14 —
Kathryn Rubino: Big name.
Joe Patrice: Big name that I thought I was giving you extra money to go out and get, because that’s really the thing. He made these advance payments with the idea that this is going to be money used sooner than the endowment agreement suggested.
Kathryn Rubino: In order to make an academic big splash.
Joe Patrice: In order to make a splash.
Kathryn Rubino: Yeah.
Joe Patrice: So yeah, there was nothing particularly overstepping about it but they read it as like you read these internal emails and they’ve clearly decided to build this case that he’s trying to meddle, even though it doesn’t really look like unless you have a very disingenuous reading that that’s what he’s trying to do, but OS, so — but that’s where I was saying as far as how schools just aren’t spending their money on faculty. They’re spending it —
Kathryn Rubino: Now when they can get it for free.
Joe Patrice: Yeah, they’re trying to get that for free, they’re spending it on deanships, they’re spending it on buildings. Ave Maria Law School has just spent some $2 million to build a Wellness Center, I guess.
Kathryn Rubino: They might want to spend some of that money into Bar passage programs. They have I think a 53% passage rate.
Joe Patrice: Yeah, I mean, I got nothing against wellness centers, it’s good for people to be well.
Kathryn Rubino: Sure and it’s true that law school is a particularly stressful time.
Joe Patrice: Sure.
Kathryn Rubino: And making sure students have the ability and the tools necessary or to deal with that additional stress, it’s very important, particularly to go into legal profession that is noted for having a lot of mental health and addiction issues. It is an important thing. There was a study that Kaplan had done saying that some high percentage of law students did not think that there was enough mental health services at their schools.
And that is something that’s very real and kind of the background to this, but when only 53% of your student body is able to pass the Bar, which is obviously a necessary step in order to become a lawyer and to be a practicing lawyer who makes money from their education that they’ve spent a lot of money on perhaps, I’m not sure that wellness is the reason why and such a high percentage of their student body is failing the Bar.
Joe Patrice: Yeah, it was just — yeah, I don’t — I don’t know, man. Like — and a lot of it is a diet program too, they have some weird like vegan — quasi vegan diet they’re trying to make everyone do.
Kathryn Rubino: Well, I mean —
Joe Patrice: As opposed to building a cafeteria, that’s the other thing.
Kathryn Rubino: Nutrition is important I guess.
Joe Patrice: Like rather than spend this money to in — if you’re going to make capital improvements rather than a cafeteria it is to run a weird diet class and have a wellness center for a school that’s based on mediocre pizza. I mean, this is the law school founded by the former head of Domino’s with all of his Domino’s money.
Kathryn Rubino: I did not realize that, and it’s super funny.
Joe Patrice: Oh you didn’t? Yeah — no, that’s — this is Pizza University.
Kathryn Rubino: Rule number one, Don’t eat Domino’s.
Joe Patrice: You know what, I’m going to disagree in case they want to sponsor this show; but no, I’m going to disagree like —
Kathryn Rubino: I like — I can eat some Domino’s.
Joe Patrice: I feel as though they’ve turned the corner. I will say that when they were run by the guy who created Ave Maria University Law School, they were fairly bad pizza, but I think they have improved.
Kathryn Rubino: I am going to say as it goes as pizza, but pizza is not a staple of healthy dieting.
Joe Patrice: Oh, you were going that way.
Kathryn Rubino: Yeah, I was just saying, like no one needs like a pasta bread bowl.
Joe Patrice: Yeah, that is a bit extreme.
Kathryn Rubino: And if they’re going to — I mean that is not really a tip for healthy living.
Joe Patrice: That’s up there with the KFC Famous Bowl, another potential sponsor.
Kathryn Rubino: The Famous Bowl, I need a Famous Bowl, that’s fine, whatever.
Joe Patrice: You would?
Kathryn Rubino: I don’t know.
Joe Patrice: Oh. It’s just like everything mashed together, it’s —
Kathryn Rubino: Well, you are one of those people that like needs to eat like divide lines in your foods, in your mashed potatoes, don’t touch your corn.
Joe Patrice: To borrow a line from Patton Oswalt speaking about this very subject; yes, I like my food to be separated like an adult with dignity.
Kathryn Rubino: My point was very specific which is that when you’re trying to encourage healthy eating, you probably aren’t eating a ton of Domino’s.
Joe Patrice: Yeah, yeah, that’s fair. Yeah, all right, well — so, we’ve covered a lot of ground.
Kathryn Rubino: We have which is —
Joe Patrice: Is there anything else you want to cover?
Kathryn Rubino: That was kind of a big story. It’s the Big Law going on.
Joe Patrice: Yeah, that’s the big — that’s the big picture of things.
Kathryn Rubino: Yeah.
Joe Patrice: Yeah.
Kathryn Rubino: Especially if we’re staying at the political realm, which —
Joe Patrice: Right, which — I mean we don’t have Elie so we don’t need to.
Kathryn Rubino: Well and also I mean things are very rapid fire in that world. I feel like if people want to care about politics they can probably watch — the probably other podcasts that are ideal for you.
Joe Patrice: Yeah. All right. Well, thank you all for listening and suffering through this plan-less episode. I frankly think we winged it pretty well.
Kathryn Rubino: Well, we do like to talk.
Joe Patrice: Yeah.
Kathryn Rubino: So, I mean, listen, so someone just wants you to talk for 20 minutes, I don’t know how to get paid just to do that, but —
Joe Patrice: Fair enough. Well, thanks for listening to the show. You should be subscribed to the show, of course, so you can get each new episode directly onto your device. You should also leave us reviews, the stars as well as writing something because the more they gets written the more they pick up on it and realize, hey, this is a legal podcast and then they recommend it to people.
You should stop random strangers on the street, tell them that you listen to this show and that they should too.
Kathryn Rubino: Hey, do you need a new podcast? Let me tell you.
Joe Patrice: Yeah — right, and people collect podcasts.
Kathryn Rubino: People do.
Joe Patrice: Anyway, you should listen to The Jabot, Kathryn’s podcast. You should listen to all of the various offerings from the Legal Talk Network. You can follow us on Twitter. I am @JosephPatrice, she is @Kathryn1, the Arabic numeral.
Kathryn Rubino: We should say that as much as possible so they don’t get confused.
Joe Patrice: Yeah, Arabic numeral. Yeah — but no, do you saw there were some study recently where people are like we should ban?
Kathryn Rubino: Yes, it is not just a plot line from Veep, right?
Joe Patrice: Yeah.
Kathryn Rubino: Like it is actually a real thing, people are like Arabic numerals, let’s do away from them, like you know the alternative is Roman numerals, right?
Joe Patrice: Right.
Kathryn Rubino: Like you can’t tell time when your watch is like that.
Joe Patrice: Yeah. All right. And thank you of course to Smith.ai for sponsoring. We will be — and read Above the Law and we will be back in the very near future. And Elie appears to be alive, because he just walked in.
Kathryn Rubino: So those of you who might be worried.
Joe Patrice: Of course one minute too late. All right, bye.
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