News is moving far too fast for this show. We discuss the elevation of Amy Coney Barrett and it immediately seems like old news. Meanwhile, Brett Kavanaugh’s clerks apparently failed to closely edit and cite check his opinion, leaving the beer-soaked jurist with egg on his face in a critical opinion. Finally, we talk about the best — if ill-advised — way to get out of your criminal charges.
Thinking Like A Lawyer
Have You Tried Editing Your Opinions, Your Honor?
November 3, 2020
Intro: Welcome to the 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 LegalTalkNetwork.
Joe Patrice: Hello, welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I’m joined by another senior editor from Above the Law Kathryn Rubino.
Kathryn Rubino: Indeed. How are you?
Joe Patrice: Good. So, we are here. This is a good time to announce early I have often if you’re used to receiving this in your feed on Tuesdays. We will move slightly and start having episodes on Wednesdays just a few hours but don’t worry. But this is corresponding the good news is you often hear us say things especially in 2020. I feel more so than any other year. You hear us talk about stuff and you probably are going — I don’t know why they said that nine stories already happened since then.
Kathryn Rubino: That was like a year ago.
Joe Patrice: Because obviously we would record the week before and then release it early in the week. We’re going to move to recording a tighter window of recording closer to when we release that does require us to move to Wednesdays but I think it’ll–
Kathryn Rubino: I think it’ll help.
Joe Patrice: It would be for the better for all the rest of you to feel long term like you know when we say — when we talk about stuff not knowing that it happened.
Kathryn Rubino: What’s going to happen in the week in between recording and releasing?
Joe Patrice: Right. And obviously this year has been the most — the most troubling effect.
Kathryn Rubino: So, what has happened in the world in the legal world since last we spoke Joseph?
Joe Patrice: Since last we talked? Last we talked the Supreme Court confirmation happened which we knew was going to happen but like that has officially happened a second little public event was held for it which–
Kathryn Rubino: I mean okay. So, that’s true. Amy Coney Barrett has been officially sworn in as a justice on the Supreme Court. She’s taking over not only Ruth Bader Ginsburg seat but her chambers as well. So, that’s all real — that’s all real. And I know a lot of people obviously were very upset about it. But for my own mental health, I guess I’d already kind of assumed it was happening.
Joe Patrice: Of course.
Kathryn Rubino: It was the only — it’s the first time since the reconstruction error that a Supreme Court candidate was confirmed with zero votes from the opposing party.
Joe Patrice: Yeah. Yeah. Yeah. That’s where we are.
Kathryn Rubino: That’s a very distinct legacy.
Joe Patrice: Yeah. I mean, I feel it is. On the other hand, there is something we said for this is also an era where we don’t have where we’ve blown up the concept of the filibuster entirely. So, there are people who went through that process over those years who probably could have been confirmed if we lived in a world without the filibuster but that was a tradition of the senate that was there. Some people call it anti-democratic which it kind of is except it’s really the only thing making this senate close to democratic because we–
Kathryn Rubino: This senate is fundamentally on democratic.
Joe Patrice: It is fundamentally on democratic. The filibuster by design–
Kathryn Rubino: Rhode Island has the same number of senators as Texas.
Joe Patrice: Right. And the filibuster by design is supposed to be there so you don’t get a situation where senators who are elected with like 13 to 20 million fewer voters who they represent being the majority while the people with all the actual people in the world being the minority and not able to do anything. And the filibuster is supposed to give that minority represented party some ability to slow things down. It got abused pretty badly, it has then gotten blown up and so we get to this.
Kathryn Rubino: Now it’s worse.
Joe Patrice: Right. And so now–
Kathryn Rubino: Good news now it’s worse.
Joe Patrice: Now, matters are worse.
Kathryn Rubino: And I think that that kind of is a weird dovetail into what’s going on now, right? Because with Amy Coney Barrett on the Supreme Court the one thing that everybody kind of left a center or even a large chunk of the center is talking about is court reform.
Joe Patrice: Yes. Well,–
Kathryn Rubino: And I knew you’ve said on the podcast. You’ve written about it extensively but you are very concern that expanding the court will blow up in democrats face.
Joe Patrice: Yeah. I’m not a huge fan of the idea of expansion. I think that — part of it is a — and not to get all legal philosophy. It is very a — I have a very (00:04:45) view of how things should work in this world.
Kathryn Rubino: Okay.
Joe Patrice: And I feel–
Kathryn Rubino: Choose do go on.
Joe Patrice: I feel as though a lot of the problem in this world is that the reaction to the abuse that happened here with the–
–and I also one of those people who believes there’s only one abuse of the process here it just happened in two distinct halves. Either Gorsuch gets on the court and she doesn’t or Garland gets on the court and she does. But I feel like the republicans were going to get this five four level majority one way or the other. It was the attempt to get cake and eaten it too that is an abuse. And something probably needs to be done about that to make it more fair and more representative of how the founders set up the country. That said, I would much rather not engage in the tit for tat game of well we’ll do this.
Kathryn Rubino: We’re going to add six senators.
Joe Patrice: We’ll add more people because I just feel like that only invites the retaliatory response of — well then we’re going to do it. And then, that sort of a — and one thing I said to somebody recently talking about this and why I would personally prefer a staggered term limit system where judges justices remain justices for life but their active duty much like we have senior judges at the — at other levels just redefine how the judiciary act works. You could just statutorily redefine it that the active panel of the Supreme Court is only the nine most recent and say that there’s 18-year terms every two years another one gets put on, it becomes automatic, it becomes clockwork who you vote for an election becomes the person who chooses the next two justices and that’s it. I think that part of the reason I think that is that — was having a conversation with somebody the other day and I said look, tit for tat is an easier sell than putting toothpaste back in a bottle. I feel as though if this sort of a term limit system were to come into place and we would have at least two potentially four justices added and taken off through this format it would be difficult then for somebody to come into power again and go. You know what, let’s get rid of all them and go back to a lifetime thing where we can pack and bought in it’s like no. It would become a norm that makes sense that is fair and that you could trust either direction. I like that better than whoever happens to control everything especially where elections are screwy at this point, representation is messed up, gerrymandering, the senate is anti-democratic, I would much prefer a system like than one that gives whoever has their hand on the lever the ability to blow everything up.
Kathryn Rubino: Sure. Sure. And it is going to be a very — I mean, assuming knock on everything that we have that there is a democrat in charge of the executive branch hopefully we also get the senate. I think that it will be a very interesting world that we’re going to have. I think there’s a lot of proposals that are very serious court reform and I know last week we talked a lot about Biden saying that he wanted a bipartisan commission to study it but I think that’s particularly. Now, I think that something has to be done. I think Biden know something has to be done. I don’t know exactly what that’ll be but it’ll be very you know as a spectator of history as it’s happening like this is it right? Something will happen whether it’s term limits, whether (00:08:07) the court. There’s also (00:08:09) conversations about adding States, adding Puerto Rico, adding DC as a state. Also, conversations about changing the cap on the number of members of the House of Representatives.
Joe Patrice: That is — yup that’s–
Kathryn Rubino: Which we’re all kind of — this is a real time where reform is getting very seriously talked about and very seriously considered and I don’t remember that being as real before.
Joe Patrice: That absolutely true. And I feel there’s a piece that I will have put up by the time this accomplishes.
Kathryn Rubino: So, this is mark — I can guarantee you this update–
Joe Patrice: Basically, John Roberts faces a situation as far as the court specifically goes I would like to think and obviously others are going to try and get around this but he faces a situation where the court’s going to change and they can either do this the easy way or the hard way basically. I think that the easy way what I would my dream would be in this kind of (00:09:02) vision that I have is that that would be a term limits law passed the next administration would put up a justice and that person would show up at the Supreme Court and start measuring drapes in Clarence Thomas’ office. Because that would the person who would be off through that system. If there is a challenge to it and some argument that that’s not constitutional that would get resolved pretty quickly because one of — one or the other of them is a Supreme Court justice and that has to get resolved fast. And basically if it’s resolved in the favor of the term limits law, we would then have at least two–
Kathryn Rubino: There is also potential stripping of jurisdiction–
Joe Patrice: Right. Which you could jurisdiction strip on that to prevent the court from making any judgment on it which is constitutional. It’s explicitly in the constitution but people are still afraid that even though it’s written clearly in the constitution that the Supreme Court might decline to pay attention to that. But either way, that gets resolved one way or the other.
–I think it resolved in favor the law. You would have a couple of people in. A President gets set of this is how it works. People do whatever and then — and that’s it. And if it gets struck down if they don’t want to play that game, then the response is, well, you had your chance.
Kathryn Rubino: Here’s what a new justice is.
Joe Patrice: We know that adding four to six to obviously Elie says 20 which would turn our court into like Swiss Supreme Court which is a joke. But nobody seriously would want that many but I know he’s saying that but you would add people and you know that would be the hard way. I certainly would hope cooler heads would prevail and we would get something that is more fair and reflects — just democracy should not be run by an aristocracy sitting on a bench for 30 years. Like there should be some turnover. And clearly that’s what the framers intended. The first chief justice–
Kathryn Rubino: No one thought that the entire fate of our rights would turn on how long an 87 year old is able to lift.
Joe Patrice: The first chief justice quit before hearing a case because that’s how bad this job was and nobody cared about it. Like that’s what the founders thought this was going to be and the idea that it has changed demand some sort of change with it I think. And the Supreme Court’s important. They do a lot of things. They deal with constitution law but I mean there’s criminal law cases and there’s — I mean, everything. Property and you know–
Kathryn Rubino: Something here I think you’re building (00:11:23).
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Kathryn Rubino: So, — I mean, the other kind of issue that is — we’re talking about with relationship to the Supreme Court because again it’s a pretty big deal in legal circles. There is kind of the mom aspect of putting Amy Coney Barrett on the Supreme Court. People are talking a lot about–
Joe Patrice: Yeah, I caught that. That was good.
Kathryn Rubino: I didn’t even mean it that time.
Joe Patrice: I mean, the nickname is just too perfect.
Kathryn Rubino: It’s too good. It’s too good. But it’s also an interesting juxtaposition to the very famous Ruth Bader Ginsburg quote. How many women on the Supreme Court is enough and she’s famously said when there are nine and I mean listen, it was a great quote it seemed very off the cuff when it happened. It was — it’s great in its own way. But the reality is I don’t think Ruth Bader Ginsburg — I mean listen, she knew at the end of her life that Amy Coney Barrett was likely to replace her years before.
Joe Patrice: This has been a known.
Kathryn Rubino: This has been a known fact and yet her dying wish was still please let the next administration replace my seat. So, she didn’t mean it in quite of this literal like literally having ovaries is somehow superior to having testicles, right? The issue wasn’t talking about it. I don’t think in quite that same way.
Joe Patrice: Yeah. Definitely not. I actually — I’ve always thought that the way in which she was talking about it was not that nine women is the ideal as much as it’s enough when nobody would blink an eye if it happened to be nine women.
Kathryn Rubino: I think that — I think that is definitely — I think that is definitely true. And you know obviously, you know physicality is not determining of someone’s gender and whether someone is a woman or not but–
Joe Patrice: But I mean, I think that’s part of the same thing. It’s that the norm should be that it never is notable.
Kathryn Rubino: It would be a problem.
Joe Patrice: It would not be notable if it were to happen. I think that was what she was trying to say.
Kathryn Rubino: I think that is true and I think that with the ascension of ACB I think it really kind of pulls it into stark relief and you know I think you also had a story this week about someone sort of defending Brett Kavanaugh. He notably has a lot of female clerks and something that I wrote a couple years — gosh it feels like 1 million years ago. But while ago, was that I don’t care how many female clerks he has. I care about what his polices do to women and it’s not good and it’s only getting worse. And yeah, I don’t think that that’s okay.
Joe Patrice: Yeah, I know. That’s definitely true. Speaking of his clerks, I guess they had a bit of a research problem this week.
Kathryn Rubino: Yeah.
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Kathryn Rubino: Yeah. So, he — it was a recent decision that came out as a Monday. I believe the same day that ACB was elevated to court and it was the DNC versus Wisconsin State Legislature case. And in a 5-3 majority all the conservative justices found that any extensions to Wisconsin’s voter laws were inappropriate.
Joe Patrice: Yeah. The function of the decision was to not allow a stay basically of this to — yeah so.
Kathryn Rubino: So, that if you have to be received–
Joe Patrice: That was a weird posture which is why there wasn’t really an opinion. There were a bunch of little concurrences and dissents.
Kathryn Rubino: Yes. And Kavanaugh’s concurrence was extraordinary Mark Joseph Stern at Slate has an entire article that is just dedicated to all the factual errors in the opinion. He pointed out as an example of a state. They said that, there should be a state-by-state decision. Some states have made no changes to their normal election laws as a result of COVID-19 and uses Vermont as an example.
Joe Patrice: Specifically Vermont.
Kathryn Rubino: Yeah.
Joe Patrice: Which — which has.
Kathryn Rubino: Right. I mean, literally that was last week it was a trivia question of the day that I posed. Vermont had their secretary of state came out and said, that is just not true. They actually what they did was mail every registered voter a mail-in ballot on October 1st. So, there was extra time for people to (00:16:36) to do it and no one had to request it so that it kind of eliminates half the process and that was the reason why they said that they are doing it by receive by date not a postmark date because they had already mailed it out on October 1st, and using that kind of as an example to stifle votes is wildly inappropriate and shockingly inaccurate.
Joe Patrice: They (00:16:55) like I noticed when I first saw it the one thing that stuck out to me was this quote from Professor Rick Pildes getting quoted saying that you know there’s a problem with late ballots which struck me as odd. Because I know Rick Pildes and I did not think he would say that. So, I went back and I’m sure enough he does not say that. The literal quote says that but the–
Kathryn Rubino: There’s a (00:17:18)
Joe Patrice: It’s functionally a strong argument. It or more accurately it’s a reason you would do something different.
Kathryn Rubino: Right.
Joe Patrice: But this is — I mean, this is like the citing red flag cases level of bad. And you wonder why there was no clerk who is capable of finding these things. I saw a lot of the mistakes clarified by Tierney Snead from TPM. I actually who Mark Joseph Stern in that article he credit says where he first saw these two because I think she was the first person to sit down with it and really dig into. Wait a minute, these are all mistakes. But it’s true. They — this is what a (00:17:53) radically there to do. And especially because none of these citations really — were necessary. I mean, some of the factual errors that when MJ has like expands on this, he talks about some certain things that are just wrong.
Kathryn Rubino: Right.
Joe Patrice: But like partisanly wrong. Like yours — you know it’s wrong and you’re saying it for a reason. But a lot of these others are just errors that are being made gratuitously. You don’t need to add to the pin site with the case that actually concludes the other way. You don’t need to add to you know Vermont as an example.
Kathryn Rubino: Right.
Joe Patrice: When you know it’s not true. Like and this is stuff that anybody who’s remotely good at this job would have noticed and pointed out and it really underscores something that we’ve been talking about a lot and I know that there are some firms out there that a lot of–
Kathryn Rubino: A lot of money.
Joe Patrice: That a lot of them are quite about it. But the clerks in this world who get all these money because they’re the cream on the crops supposedly. The way in which conservative judges and justices have been aggressively hiring within this kind of echo chamber of fed sock treasurer at whatever you know you get this clerkship and not necessarily the people who are the cream of the crop anymore. And this sort of churn has resulted in a situation where it’s devalued some of these clerkships and you get situations like this where people are making sloppy bad mistakes that frankly Summer Associates don’t make. Honestly, look how you like the one of them I was just like I don’t remember Summer doing that. And like you look at these sorts of mistakes and you think like this is supposed to be a clerk who’s supposed to be get all these money and bring prestige to the firm and that’s why some firms again they’re not talking about it a lot, but they scrutinize clerkships that they didn’t use to. They used to say ooh, two federal clerkships herein now they look.
Kathryn Rubino: Who did you clerk for? Well, I mean,–
Joe Patrice: Yeah.
Kathryn Rubino: You know, for the first time we have a spate of federal judges that were ranked unqualified right?
Joe Patrice: Yeah.
Kathryn Rubino: And so, if you’re clerking for them it’s not going to have the same weight as someone who is ranked qualified.
Joe Patrice: Yeah. I mean, if there’s a logic to clerkships beyond a reflection of your transcript which in theory your transcript — you don’t need that.
Kathryn Rubino: Right.
Joe Patrice: But if there’s any logic to it, it’s that you learned some invaluable information, learning at the knee of some grand practitioner and when those grand practitioners are rated not qualified it’s difficult to make the case that you’ve accomplished anything.
Kathryn Rubino: For sure. For sure.
Joe Patrice: And it’s sad because the whole clerkship universe is a big deal. It’s one of those things that it’s my biggest regret never doing but I could not afford to not do it. I came out in a year that was the one of those great salary bump years. Like one of the big jump ups and the clerkships did not increase.
Kathryn Rubino: Did not respond. They don’t listen to Cravath unlike–
Joe Patrice: And clerkship bonuses back then where $10. Like it was — you come in as a second year as opposed to a first year and here’s $10 and I just looked it was like. So I’m giving up like $70 to get $10 and I was just like I can’t do that.
Kathryn Rubino: Right.
Joe Patrice: And it’s really sad because I think I would have really enjoyed that. It was my kind of stuff like — bookworman was kind of my thing. So, yeah, it’s sad and that this has been trashed like this. But–
Kathryn Rubino: Yeah. I mean, one of the other kind of things that shocked me about the Kavanaugh decision is that for an originalist. Someone who cares so very much about what happened in the 1700s as it relates to constitutional law puts a really strong value on knowing on election night. The winner of the election that is incredibly modern proof–
Joe Patrice: As the founders would have had it instantaneous electronically transmitted results–
Kathryn Rubino: Obviously.
Joe Patrice: As of the end of Election Day.
Kathryn Rubino: As of midnight.
Joe Patrice: Yeah. Well, I mean, the founders wouldn’t have even cared about that. The founders didn’t even contemplate the idea that you would get to vote. The founders technically just said state legislatures get to decide who the electors are. The idea of the state holding citizen’s voting to decide who the electors are isn’t even a concept that is clear for the constitution.
Kathryn Rubino: Right. It just strikes me as a thoroughly modern problem and as touted originalist to kind of say what we need to know right now it mean it’s nakedly partisan.
Joe Patrice: We have a mailbox rule in this world.
Kathryn Rubino: Yeah.
Joe Patrice: We have a rule and contracts that is about the idea that we all understand that once you put it in the mailbox it’s done and it counts as of that moment. And it was — it’s just really–
Kathryn Rubino: I mean, it only makes sense if you assume that he wants a particular result.
Joe Patrice: But I mean this goes back to your point. This is where unfortunately I think we’ve pushed to reform now being a necessity. And it’s no longer — it’s now just a question of what form it takes.
Kathryn Rubino: Yup. There’s a lot of question if it it’s what.
Joe Patrice: Yeah.
Kathryn Rubino: That’s exciting.
Joe Patrice: That’s interesting.
Kathryn Rubino: It is interesting. I think it’ll make for — hopefully the next four years to be very interesting and very thought-provoking as we try to figure out what comes. What do we do in a post-Trump hopefully post-Trump world?
Joe Patrice: Yeah. Figuring out how to come out of things. How have law firms whether 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/Like a Lawyer to see tips, strategies, plans and statistics from leaders who have been through this before and how they’ve reached success again. So, finally, I guess there’s a story that I would you know kind of a fun evergreen story to discuss. What would you do if you’ve been accused?
Kathryn Rubino: That City High song, What Would You Do, Do you remember that?
Joe Patrice: You’ve been — alright. Okay. So, you’ve been accused of several crimes over the years. You’re facing charges for this. You’ve got a different guardianship thing going on with one of your kids. It’s just like the legal issues are just piling up and you know what? It’s tough. Like when you’re in that sort of situation and it’s a true testament to the access to justice problems in this country. You may not be able to find yourself a lawyer.
Kathryn Rubino: Right. And that, pro bono lawyers are fewer far between particularly during this time it’s pretty tough out there.
Joe Patrice: So, allegedly, New Hampshire resident Lisa Landon allegedly found the solution for this. She–
Kathryn Rubino: It was a creative. Does she thinking outside the box?
Joe Patrice: She was thinking outside the box.
Kathryn Rubino: Okay. Okay. So, points for that.
Joe Patrice: I was impressed.
Kathryn Rubino: Creativity.
Joe Patrice: She went to the court and said, yeah, I’m the prosecutor I’m dropping the charges against this woman.
Kathryn Rubino: I guess that she’s not actually the prosecutor.
Joe Patrice: No. No. The defendant is not in fact the prosecutor. But no, utilizing the electronic system among other things managed to pretend to be allegedly the prosecutor to get all the charges dropped. Also pretended to be a retired judge and filed opinions supposedly by him to waive filing fees and a different thing that she was doing.
Kathryn Rubino: Oh, wow.
Joe Patrice: Yeah. She is facing a charge of false impersonation and six charges of falsified physical evidence.
Kathryn Rubino: Well, that seems like allegedly what she did.
Joe Patrice: Yeah. You know,–
Kathryn Rubino: At least she thought outside the box. It’s a trying time.
Joe Patrice: I feel like in this — in the — you know we’re coming up at the end of year which means we’re coming up on the Above the Law lawyer of the year nominees. I feel like–
Kathryn Rubino: Technically not eligible since she sought a lawyer.
Joe Patrice: I don’t know. Like–
Kathryn Rubino: I’m going to hold the line on this one. You have actually be a lawyer to cut this lawyer of the year.
Joe Patrice: I mean, you don’t have to be licensed. I don’t think we have to say people are licensed. We just have — they have to be — I mean lawyers more state of mind as far as I can tell.
Kathryn Rubino: If you believe you’re lawyer, you are a lawyer.
Joe Patrice: Yeah. I mean, if Kim Kardashian can do it, I feel–
Kathryn Rubino: I mean, she hasn’t yet. She’s studying and she’s going to have to take the bar exam before she can be called a lawyer.
Joe Patrice: Yeah. Well, I don’t know.
Kathryn Rubino: I’m going to hold the line on this one. I’m going to say no to be a nominee for lawyer of the year.
Joe Patrice: See, again, this is the kind of stinginess that I have to deal with among the Above the Law staff. This is why–
Kathryn Rubino: If you are noted generosity you know that’s the opposite of accurate.
Joe Patrice: I mean, I am the softie who is known for being warm and caring for always yeah.
Kathryn Rubino: Yeah. It’s kind of the opposite.
Joe Patrice: Anyway. Well, I feel as though we have droned on for you all long enough. You’re hearing this probably in the aftermath of Election Day. So, hopefully you voted, hopefully you are allowed to and hopefully we still have voting in this country which I’m not positive we will based on this week, but who knows things have turned around rather quickly so I should have I guess thrown in the possibility that the franchise has been totally lost. Anyway, with all that said, we will rejoin you in the future. You should be listening to this through your podcast subscription surfaces that’s very useful because then you can get them every time they come down. You should give reviews write something helps more people discover the show. You should be reading Above the Law as always follow on at josephpatrice, she’s at kathryn1 the numeral one on Twitter. You should listen to The Jabot Kathryn Show and you should check out the legal tech reporter roundup weekly thing. I don’t — it doesn’t have like a clever name. I don’t think anyway but you check out that–
Kathryn Rubino: You don’t know any with the show you’re on?
Joe Patrice: I mean, it’s not — he doesn’t like roll up the tongue now. I should yeah–
Kathryn Rubino: Maybe no.
Joe Patrice: We should figure that out. Yeah.
Kathryn Rubino: Yeah. Noted softie Joe Patrice.
Joe Patrice: Yeah. I don’t think that has anything to do with softness. Anyway,–
Kathryn Rubino: We doesn’t not have to do with it.
Joe Patrice: Then with all that said, you should be listening to the other shows of the LegalTalkNetwork and thank you as always to contract tools by Paper Software and I think with all of that we will be back soon. And then, soon coming to you on Wednesdays.
Outro: If you would like more information about what you’ve heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, iTunes RSS, Twitter and Facebook. The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by LegalTalkNetwork its officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always consult a lawyer.
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