Some Supremely Useful Advice

Episode Notes

Transcript

Thinking like A Lawyer

Some Supremely Useful Advice

10/09/2020

 

[Music]

 

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.

 

[Music]

 

Joe Patrice: Hello welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I am joined by someone else who occasionally writes at Above the Law. Senior editor Kathryn Rubino. How are you?

 

Kathryn Rubino: I’m doing pretty good. How about yourself?

 

Joe Patrice: You know.

 

Kathryn Rubino: Well you know pending you know.

 

Joe Patrice: Yeah, all the same disclaimers we do every week about like, as best as we can and all that sort of.

 

Kathryn Rubino: Well, yeah there’s COVID but also you know, our democracy is not looking great today.

 

Joe Patrice: Yes, and for those of you who wonder why it’s not looking great, you should definitely go back and check out our episode where we interviewed Rick Hasen who gave us a lot of reasons to be very terrified about democracy.

 

Kathryn Rubino: Well also you know we recently had the debate and you put out a drinking game for the debate.

 

Joe Patrice: That’s true.

 

Kathryn Rubino: I mean it’s a couple days later and people are still feeling the hurt. It was devastating.

 

Joe Patrice: I do have to apologize to all of our readers that we lost to alcohol poisoning. I’m sorry. I did not intend that to happen. I’ve written debate drinking games for this website for the last two presidential elections even before I worked here. I wrote the Above the Law drinking game when I was just a freelancer and —

 

Kathryn Rubino: This one was brutal. I mean the number one — the first question was obviously about the supreme court which is —

 

Joe Patrice: Which is fine. I knew that was going to happen.

 

Kathryn Rubino: You knew the supreme court was going to come up, it was going to be a thing. It’s a pretty big story, great. But I mean the very-very first question and it only got worse from there.

 

Joe Patrice: It did. I put a bunch of things in there, you know, that I really did not expect all of them to happen and I think at the end, the only things that didn’t were I don’t think Trump ever explicitly mentioned pardoning people and I don’t think anyone said —

 

Kathryn Rubino: Elena Kagan was not mentioned.

 

Joe Patrice: Elena Kagan was not mentioned but it didn’t matter because that question was all any other supreme court justice who wasn’t — yeah. And then I don’t think anyone actually verbalized the question, hey where’s Kanye? Which was one viable end, but beyond that, it just kept getting worse. I just remembered about 40 minutes in, some totally innocuous comment got made and I looked down and realized it was on my list and I was like. I did not intend this to come up. Yeah, so that was not less than —

 

Kathryn Rubino: So, we’re still dealing with a few hangovers. I think we all know why.

 

Joe Patrice: Yeah, hopefully by the time this episode comes out that won’t be true. That’ll be a whole week after the fact as bad as it was, I don’t think that’s the issue. But anyway, yes, so we had a debate drinking game. You should look out for those in the future obviously.

 

Kathryn Rubino: They’re a lot of fun.

 

Joe Patrice: Yeah, well —

 

Kathryn Rubino: Maybe you just read it, you enjoy it but you don’t follow it.

 

Joe Patrice: And then you just don’t actually try to follow it, yeah. Well, fair enough. Yeah, no, it was the sort of thing that towards the end as things kept piling on, I got you know, really nervous about it and I got worried. You know what else is worrying?

 

Kathryn Rubino: What’s worrying Joe?

 

Joe Patrice: If you’re worried about a contract deadline, Contract Tools by Paper Software is the most powerful versatile and full-featured Microsoft word add-on for contracts. For less than a dollar a day, Contract Tools can help you navigate complex legalese, fix common contract drafting problems and much more. See for yourself with a seven-day free Trial. Go to papersoftware.com/trial and get started today. So, I guess maybe that is the jumping off point. One of the single most popular story on our pages this week has been a story about the supreme court and in particular, it was a musing that I came up with about —

 

Kathryn Rubino: You were looking out for Donald Trump, which strikes me as off brand for you.

 

Joe Patrice: I was. I’m you know, I’m doing my best to protect our president from people who want to take advantage of him. No, but it’s true. So, the conversation actually grew out of a talk I was having with a non-lawyer about, well what really could happen with the supreme court and whatever. And it ultimately, this conversation kind of got me thinking that Donald Trump is getting played by Mitch McConnell and the federalist society.

 

Kathryn Rubino: Your lips to god’s ears, right? But how so Joe?

 

Joe Patrice: He seems to not understand that this whole nomination and trying to ram this through before the election is not in his best interest. And by that, I mean if you look at the way this election is shaping up, it seems as though the biggest problem for his potential re-election is the moderate or disillusioned republican voter. The Project Lincoln person if you will. The George Conway’s of the world.

 

(00:05:00)

 

These are the sorts of people who actually are very happy to have Amy Coney Barrett on the supreme court.

 

Kathryn Rubino: Sure, they would like the sick vote.

 

Joe Patrice: They just don’t like Trump. They find him annoying. They think that he’s bad for the party and I think we’re finding that more and more elected republicans share this view. They just feel right now they have to put up with it but it’s a sliding scale until they become the kind of never trump her down the road and it feels to me as though the answer right now with this is to say to those people who you need to turn out, who you need to get back on board or else you have no real hope.

 

Kathryn Rubino: Right.

 

Joe Patrice: Don’t say I’m going to get this woman confirmed before the election because that’s giving up any possible leverage you have with those people.

 

Kathryn Rubino: I mean isn’t that just saying get ready for the lame duck appointment?

 

Joe Patrice: Potentially, yeah.

 

Kathryn Rubino: Isn’t that worse though for the country?

 

Joe Patrice: Sure, sure, sure, but again, I was writing this from the perspective of what it encompasses.

 

Kathryn Rubino: Looking after your buddy Donny?

 

Joe Patrice: Well, yeah, and well there’s two aspects to it. One, it was —

 

Kathryn Rubino: It’s like you’re out of your element Donny.

 

Joe Patrice: Yes, so there were two elements. One was definitely that it was from that perspective and so I didn’t have to worry about that.

 

Kathryn Rubino: Even if it’s a little tongue-in-cheek.

 

Joe Patrice: Right, and I think that what he has to worry about is if he does this then now, they’re all good with him. I mean they’ve got three justices when there were only two openings, which is pretty good.

 

Kathryn Rubino: For four years that’s fantastic.

 

Joe Patrice: For four years but also three when there were only two openings, which is extra impressive. There’s not really potentially Justice Breyer but he seems to be in good health and having no interest in resigning under a republican administration. Meaning, that the odds that they’re going to replace anybody else going forward relatively is slim.

 

Kathryn Rubino: Right.

 

Joe Patrice: The next term is not likely to make much impact on the supreme court unless something really out of the ordinary happens. I mean Justice Thomas has had health issues but he — you know, should, you know, based on his age, he should be able to survive another four years and he shows no signs of wanting to retire. Alito seems uninterested in retiring and with that point, there’s not much else to get. So, from the perspective of these republicans, his usefulness disappears after this appointment. And I think he needs to understand that if he wants those people to vote for him, he should be dangling this.

 

Kathryn Rubino: Sure.

 

Joe Patrice: It’s weird for somebody who prides themselves on deal-making that he’s taking —

 

Kathryn Rubino: He just kind of missed it entirely.

 

Joe Patrice: In taking the stance of what if I just give up all my leverage? Like it just doesn’t make any sense. But the second reason why I didn’t worry about the lame duck session in that, one was that I was writing it from his perspective. But also, from his perspective, it’s also an opportunity to punish people who don’t vote for him.

 

Kathryn Rubino: Sure.

 

Joe Patrice: I think you set it up like I will put her on the court if I get reelected then if he loses, he says no. You burned me, you screwed me and I’m not going to reward you.

 

Kathryn Rubino: I mean that would be a very fascinating alternative history.

 

Joe Patrice: I mean, he’s vindictive.

 

Kathryn Rubino: Sure.

 

Joe Patrice: And I think that you know, that could have been what happened. But in any event, putting aside all those future scenarios, my argument was just a thought experiment spinning out. The best option for him is not to have somebody confirmed in the short term and nonetheless he’s trying.

 

Kathryn Rubino: Well, I mean I don’t think — despite the title of the book, I don’t think he’s very good at making deals.

 

Joe Patrice: Deal-making?

 

Kathryn Rubino: Yeah.

 

Joe Patrice: Well, I mean that might be why he’s 400 billion dollars in debt or whatever.

 

Kathryn Rubino: Yeah, those taxes sure came out this week.

 

Joe Patrice: Yeah, well thankfully he managed to have a debate where he moved that into being the least of all things he needs to worry about. So, but yes, so that that was our thought experiment about how this dominance —

 

Kathryn Rubino: I do think it’s a very interesting query and a way of thinking about the world although I think you’re right that it’s not something that’s going to happen. And you know, you’re right, putting three people on the court is far better than any term should really have the right to and certainly that’s what the folks who have recently put up a term limit bill suggesting that the supreme court justices should have term limits. I know that that’s one of your big hobby horses in terms of court reform. And those, you know, assume every term would have two people to appoint. And so, you know, if you’re doing better than the average, you know, make your peace.

 

Joe Patrice: Yeah, this is a piece of legislation that’s been a long time coming. It actually has been proposed over the years many times. It’s even been in courts before. I think it was first proposed in like 1807. But the most recent iteration which troika of democratic lawmakers put up last week and is one of our — or was that this week?

 

(00:10:00)

 

God, time’s moving so fast.

 

Kathryn Rubino: It was this week.

 

Joe Patrice: Anyway, what you got? Time’s moving fast.

 

Kathryn Rubino: Time is weird. It’s 2020 you all.

 

Joe Patrice: But this bill which has support from folks like our friends over at Fix the Court, as you said would have two justice openings every term.

 

Kathryn Rubino: Right, and you know this way when you’re voting for our president exactly how many supreme court justices you’re getting.

 

Joe Patrice: Exactly.

 

Kathryn Rubino: You know, it’s not a — maybe there’ll be a new cancer treatment, I don’t think so.

 

Joe Patrice: It’s macabre the way we handle it now. It puts us in the position of viewing people like monarchs which is deeply-deeply anti-democratic.

 

Kathryn Rubino: Sure, and I also think that you know, from a human perspective, it also robs folks of the ability to grieve, right? One of the biggest things that I heard people critical of my kind of stance on Ruth Bader Ginsburg’s passing was that, you know, you’re already thinking about the political. You’re not worrying about you know, this is a great woman who passed away which is obviously accurate. But also, you have to think about the political. Her dying wish was literally don’t let him appoint somebody to my seat. So, I mean I think it was on her mind as well.

 

Joe Patrice: Right.

 

Kathryn Rubino: Because feature of the system is not a bug.

 

Joe Patrice: Because anybody who actually knows about the supreme court outside of some weird platitudes understands that it is an organ of the constitution which makes it a political entity. And the way in which it is structured with these lifetime appointments and people serving until the end of their lives increasingly, it is an aristocracy and it does mean that your concern immediately is you know, the justice is dead, long live the justice. I mean that is how these functions and that’s inappropriate in democracy and yet here we are. And so, a term limits bill would endeavor to make some changes to that and I think it would be welcome on multiple levels. The argument about its constitutionality would be — is obviously there. The constitution says that the judges — federal judges are supposed to serve in good behavior and not have their pay reduced at any point after they take the job. The pay part could obviously be worked around but the definition of what is good behavior, there is an argument that that means they have to have their job for life and you can’t do anything about it. The counter to this is that we have senior status in our court systems and the function would be to amend the judiciary act to say that the supreme court will be made up of the nine most recently appointed people. And after you cycle off of that, you would become a senior justice. You would still have a role within the court, you would still ride circuit to the extent that they do that occasionally. I know Justice O’Connor has done that over the years after retiring. You would still be able to do that, you would still be available for —

 

Kathryn Rubino: If there are recusals.

 

Joe Patrice: Recusals and stuff like that.

 

Kathryn Rubino: You know, and open all bad kind of stuff up.

 

Joe Patrice: Yup, but you would just not serve on the active duty supreme court which should be legal and to the extent that anybody wants to challenge the constitutionality of it, I don’t know who has standing. This supreme court under Roberts has waged such an aggressive war on what it means to have standing that I’m fairly confident under their own — obviously they aren’t known for —

 

Kathryn Rubino: They do what they want.

 

Joe Patrice: They aren’t known for consistency but under their own ideological consistency, the only person who could really bring the case would be them.

 

Kathryn Rubino: Right.

 

Joe Patrice: And not just them generically, literally the first one who gets told they have to sit down is the only one which I guess would be Thomas in this scenario could bring the case.

 

Kathryn Rubino: And in which case they couldn’t hear the case.

 

Joe Patrice: And you would think that they couldn’t hear it and then yeah, exactly. Like there’s so many reasons why this probably would not result in a supreme court saying that it is unconstitutional but alas, the term limits bill is out there. Obviously, it’s not going anywhere right now but I think it’s an important symbolic bill that we should rally around and raise attention around and hopefully in the future we will have a government willing to say, hey, maybe we don’t have people and jobs for life.

 

Kathryn Rubino: And let’s not have all of our rights dependent on the health of an 87-year-old woman.

 

Joe Patrice: I mean yeah, and that too. But I mean even if it weren’t that, I just think it’s so profoundly anti-democratic. It’s so against the whole supposed principle of the country.

 

Kathryn Rubino: Yes, yes Joe, but there are so many facets of the way our federal government works that are profoundly anti-democratic, right?

 

Joe Patrice: Sure.

 

Kathryn Rubino: The seat limit on the house. The senate will — sure, absolutely but also even the seat limit in the house of representatives, something that I find completely untenable, right? The fact that somebody in Wyoming’s vote counts so much more than someone in California because of the number of house of representative members that are you know, allocated per citizen.

 

Joe Patrice: Right.

 

Kathryn Rubino: Is unconscionable particularly when you have something like the senate which was designed to be anti-democratic.

 

(00:15:00)

 

Joe Patrice: Right.

 

Kathryn Rubino: And it just you know, magnifies the harm.

 

Joe Patrice: Right. The house was designed to be the opposite of that and now it is also somewhat.

 

Kathryn Rubino: Also, not by constitutional amendment but by —

 

Joe Patrice: By statute.

 

Kathryn Rubino: By statute limitation on the number of seats in the house I think only amplifies the problem of the senate.

 

Joe Patrice: Well you know, it’s interesting you mentioned that because a couple of years ago, actually 2016 I guess or 2017. I think it was in January or so, I actually wrote a piece and a law professor actually wrote me back and said that he was taking up the piece for actual scholarly work, so that was nice. But on that subject which is even if you assume that the house of representatives can statutorily cap how many representatives there are which therefore leads to these increasing disparities as some states are way so small and then you’ve got to cater around them. But I made the argument that this was a backdoor constitutional amendment that should render it you know, at least illegal to the extent that it impacts the electoral college because the electoral college —

 

Kathryn Rubino: Right.

 

Joe Patrice: Is in the constitution and set up with the understanding that the number of representatives would be directly proportional to this population, and now that a statute gets passed limiting it to 435 which then has the effect of having the district that is Wyoming being way different than the districts that make up California. You now have this carryover effect into that which seems like you’ve amended the constitution by not changing the line because the constitution says that it’s just the number — total number of house representatives’ members and senators. But you’ve actually changed it because even though the constitution never had to go through the process that the constitution contemplates for amendment, you went ahead and made this change and just said, and that means textually we’ve changed the constitution.

 

Kathryn Rubino: Right.

 

Joe Patrice: That seems problematic and should not be how you get to make changes in this country.

 

Kathryn Rubino: Particularly when there’s enough problems with the electoral college to start with, this just only makes it worse.

 

Joe Patrice: Right, well I guess really quick we should definitely transition. We’ve been going for quite some time on this so.

 

Kathryn Rubino: It is a big story.

 

Joe Patrice: It is, it is, it is.

 

Kathryn Rubino: It’s okay.

 

Joe Patrice: But you know, we also talk a lot about law firms.

 

Kathryn Rubino: We do, we do. It’s kind of our bread and butter.

 

Joe Patrice: Yeah, and you know, and we also talked about COVID, that’s why we have a special show about it and if you’re wondering how have law firms weathered previous economic downturns and come out stronger on the other side? LexisNexis Interaction has released an in-depth global research report confronting the 2020 downturn lessons learned during previous economic crises. Download your free copy at interaction.com/likealawyer to see tips, strategies, plans and statistics from leaders who have been through this before and how they’ve reached success again. And on the note of people reaching success again, many firms have reversed their salary cuts and more have fall bonuses.

 

Kathryn Rubino: Correct. Yes. Both of those things are kind of trending in in the autumn, which is you know, special bonuses started by Cooley Davis Polk who came over the top with massive bonuses. Some firms have followed on while they did their own thing. The firm, most firms have tied fall special bonus amounts to class year. Like we see with end of the year bonuses is kind of the standard and big law, but while actually linked it to the number of hours billed year to date through the end of August I believe it is, so folks are — a lot of folks are really mad actually because to get that top number, the top number I think is $50,000.00 which is $10,000.00 more than the top bonuses that are in the kind of standard Davis Polk scale but the question is how many people are actually in a position? I think you have to build 2600 hours to get that?

 

Joe Patrice: Yeah. None.

 

Kathryn Rubino: You know, how busy is the bankruptcy group? You know?

 

Joe Patrice: Yeah, I mean busy but yeah.

 

Kathryn Rubino: And maybe they can get it but you know, eighth year associate who’s in litigation may not be and may be making a lot less in terms of bonus amount than they would if they were at Davis Poke or someone that did these yearly bonuses and there’s been a lot of anger coming from the rank and file at the firm that’s for sure.

 

Joe Patrice: Yeah, I mean it’s very much a bait and switch. They want the positive attention of look, we’re offering bonuses.

 

Kathryn Rubino: And look at this number, $50,000.00. That’s the biggest number yet.

 

Joe Patrice: Yeah, and then you look at it and realize but who’s actually touching that?

 

Kathryn Rubino: Right, and we don’t know.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: And that’s the issue, we don’t know. It sounds like even folks at the firm aren’t quite sure how this will all work out, so it’s very interesting to see how that firm is dealing with it and you know, I think that particularly in 2020 being so linked to hours and numbers for billables is really a problem, you know? There are so many things that have happened this year. So many reasons why otherwise excellent attorneys are not billing what they would otherwise bill, right?

 

Joe Patrice: Yeah.

 

Kathryn Rubino: There’s a pandemic you guys.

 

(00:20:00)

 

There’s been massive social injustice and unrest as a result, right? There’s been you know, lockdown orders forcing people to work from home. People are also being their kid’s teachers, you know? Not just for a month or two but for the end of the entire last semester as well as starting school this year. There’s a ton of reasons why you know, and that even assumes even if — assuming they were all the hours available that there might otherwise be. But there’s also not as many hours available at plenty of firms, right? There’s been articles I think our colleague Stacey Zareski wrote an article about how partners are hoarding hours and doing tasks that they would otherwise farm down to more junior attorneys but because they’re worried about their own hours, particularly non-equity partners that they’re doing tasks that would be perhaps more appropriate in a junior’s hand. So, there’s not as many hours coming down from partners. There are obviously industries that have been massively affected by the pandemic and the lockdown and if your clients are in those industries, you are likely seeing a lot less work from those clients. So, that’s also an issue. So, there’s lots of reasons why a good associate is not billing at the top of their game right now.

 

Joe Patrice: No, and it and I think we’re seeing now some other firms’ kind of taking this approach either explicitly saying you know, you’ve got to have all these hours to get your bonus. Or one of the tricks that is out there for some firms like Cravath, they are not even though they’re traditionally compensation leaders, a Kirkland & Ellis did this similarly. They’re traditionally compensation leaders but they’re saying, well we aren’t going to give these fall bonuses to match Davis Poke or whatever. We’ll wrap it in to our annual end of the year bonus but part of that trick is knowing that those annual ends of the year bonuses usually do at these firms have some tied hours and then they can wait until then and then they can set unrealistic hour requirements and then not pay people.

 

Kathryn Rubino: Yeah, and we’ll see kind of how it all shakes out and part of the problem when you’re trying to get an industry take is that it will be very individualized and it’s hard to make broad statements when it’s like the California office of this practice group is screwed but the New York office of this other practice group is doing better than expected. So, it’s kind of hard to make those kind of broad statements when everything winds up becoming super individualized which is tying it to hours is how that happens, right? And you know, and I think that associates are right to be concerned and to wonder. But it’s also fair to say not every firm has an hour’s requirement before you get your end of the year bonus, right? Some firms are just lockstep, if you’re in good standing, we will keep you as busy as we can and if not then it’s on us. It’s not on the associates to find work. We’ll keep you busy and that’s kind of the attitude at some firms and you know, other firms have 1800-hour requirements. Some have 2100-hour requirements and the difference between that is a lot.

 

Joe Patrice: And their bump ups and their individualized bonuses like they do at Kirkland and yeah. I think that a lot of the delay people are delaying because they can try and work around it on the back end.

 

Kathryn Rubino: I mean I think that that will happen for sure at a lot of firms. Cravath obviously gratefully got a lot of flak for pushing off the fall bonuses, but I do think that at Cravath in particular, it’s likely that they are just going to wrap it up in full and make sort of associates whole. I mean there’s always an issue when you’re not getting your money until December or January and you could have gotten the money potentially in October. There’s you know the time value of money, but I do think that there is a risk at that firm that folks will be made whole in terms of the market. But it is very much a question and I think that associates are right to have these questions and I think they’re right to be annoyed about this and you know, some of our insiders at the firm are saying, you know this really chips away at the Cravath brand to not immediately meet the bonus numbers or do better than the bonus numbers.

 

Joe Patrice: Yeah, I mean this is you know, this is a brand that traditionally acts first. They have been caught a couple of times now not acting first and this is becoming a trend and you got to start wondering if you’ve got a firm whose whole cachet is that we lead everybody find it following, that’s disconcerting.

 

Kathryn Rubino: And you know, what was the 2018 raises that happens that Millbank led the charge on, so it wasn’t Cravath in that instance but what Cravath did do was come over the top at least as it applied to senior associates. And it was enough to really be like, they are the real compensation leader. It’s enough to kind of keep that brand and focuses the mind and I think the other thing for firms and if anybody who works at a firm particularly in branding and PR for firms if you’re listening here.

 

(00:25:03)

 

Something I think you have to be very mindful of is that the reputation of a firm as it applies particularly when you’re talking about law school recruiting is only three years long, right? You know, as much as you’d like to think that these brands are hundreds of years old and they are of course, but the kind of the moment cache is very much built in the law school process and there’s a constant turnover of who’s in law school and what their perceptions are. And so, you know, it’s a shorter life span than you think and you may have been the leader for a lot of years but who remembers who the compensation leader in 1994 was right now?

 

Joe Patrice: Yeah. Probably Wachtell.

 

Kathryn Rubino: Probably.

 

Joe Patrice: Anyway, but whatever, so yeah, that’s great. Well, it looks like we’re coming to the end of our time together here. Yes, but thank you all for listening. You should be subscribed to the show, that way you get new episodes when they drop. You should be giving them stars and writing reviews even just writing those words just triggers that algorithm and gives it a little bit more of a jump so that more people know about the show. You should listen to our other shows the ATL COVID Cast which we mentioned earlier. The Jabot, Kathryn’s show about diversity in law firms. I’m also on the Legal Tech Week Roundup with Bob Ambrogi about technology stuff. You should be reading Above the Law as always. You should follow us on social media. I’m at Joseph Patrice. She’s at Kathryn1, numeral one. Thank you again as always to Paper Software for their contract tools. Check that out and get your free Trial. And I think that’s it.

 

Kathryn Rubino: Bye.

 

Joe Patrice: Bye.

 

[Music]

 

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.

 

[Music]

 

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