Finally, We’re Finished With 2020

Episode Notes

Transcript

Thinking Like a Lawyer – Above the Law

Finally, We’re Finished With 2020

12/30/2020

[Music]

Joe Patrice: Hello. Welcome to – I don’t – okay.

Kathryn Rubino:  Hello and welcome.

Joe Patrice: Welcome to the final episode of “Thinking Like a Lawyer” for the year 2020.

Kathryn Rubino: The Year of our Lord, 2020.

Joe Patrice: Yeah. Well —

Kathryn Rubino: It’s been –- it’s not a thing like people used to say.

Joe Patrice: You can say that.

Kathryn Rubino: People used to say that I feel like.

Joe Patrice: I think we generally go with the ail of the common era or something like that in order to you know, not be as —

Kathryn Rubino: Sure, religious?

Joe Patrice: Yeah.

Kathryn Rubino: Well listen, the religious rights taking over the world, I’m just getting on board.

Joe Patrice: We believe in separation of church and podcast years so we’re going to go with that. So, —

Kathryn Rubino: 2020’s been a thing.

Joe Patrice: It has, and guess what? We’re going to talk about it. Because this is our last episode of the year, we thought we would do a year-end review episode. In the past, when Elly was my co-host, we would do the awards show, but we didn’t do that. Mostly because we were lazy. And didn’t think of awards.

Kathryn Rubino: I was wondering what you’re going to say. In fairness, I feel like this is entirely falls on you. You’re the only one whose ever done an awards show for Thinking Like a Lawyer podcast and – yeah.

Joe Patrice: Yeah, I guess.

Kathryn Rubino: So, I can say this is your fault.

Joe Patrice: Right. Well, that —

Kathryn Rubino: By the way, it’s always Joe’s fault.

Joe Patrice: Yeah, okay, fine. It wasn’t as though it was like a real awards show, it’s just that was conceit, right? That was the conceit to do year-end stuff, we would be like “And Lawyer of the Year would be”… and then we give it to somebody we’re making fun of.

Kathryn Rubino: Above the Law literally has a voting thing, you can actually vote on Lawyer of the Year.

Joe Patrice: Yeah; and I guess we will talk about that in a minute, perhaps. But first, I guess, just before we roll anything out, always thanking our sponsors, LexisNexis, InnerAction, Contract Tools by Paper Software and Lexicon. So, I guess, we’ll —

Kathryn Rubino: So, okay, here’s a thing.

Joe Patrice: Yeah?

Kathryn Rubino: 2020 has been about 700 years long. So, —

Joe Patrice: Really?

Kathryn Rubino: Yes. I think that’s an actual mathematical formula. So, —

Joe Patrice: Well, you know what? You should probably not have it be 700 years long, you should try to save some time. And you know? If you work with contracts and done use contract tools, you’re missing a lot. Save time, make more money, and do a better job for your clients with Contract Tools by Paper Software. Contract tools is the most powerful word add-in for working with contracts. Thousands of lawyers all over the world rely on contract tools everyday for every kind of deal. Visit papersoftware.com to watch a demo and get a free trial. As a special offer to podcast listeners, use coupon code “LTN2020” and get one month free. That’s papersoftware.com and “LTN2020”.

Kathryn Rubino: Slick.

Joe Patrice: Yeah, I’m a professional.

Kathryn Rubino: So, the big reason why 2020 has felt ridiculous is because of, obviously, COVID-19.

Joe Patrice: Yeah, So, if we’re going to talk – so we’re going to go in to the kind of big stories of the year; I think that’s fair, we can totally do that. So, yes. So, I think the biggest story of the year, this shouldn’t shock anybody, is the pandemic. And from our perspective at Above the Law, the pandemic’s impact on the legal industry; in particular, with law firms, it’s been a roller coaster. Walk us thorough, like the life cycle of law firm business.

Kathryn Rubino: Okay. Law firm business?

Joe Patrice: Yeah.

Kathryn Rubino: I mean, because there were other sort of —

Joe Patrice: Right, I mean yes.

Kathryn Rubino: COVID-19-related stuff. But, kind of one of the biggest stories when you’re talking about big law firms and COVID-19 was the – a lot of austerity measures happening. Not every law firm, not by a long shot actually. But a lot of law firms had to make some cuts in order to make sure that they were so profitable this year. That included partner distributions that were either delayed, reduced, depending on the law firm. Salary cuts happened, a lot of folks use the opportunity to layoff or furlough staff. And we even had some associates and partners that were overlayed off or that kind of insidious thing that the legal industry is known for: “Stealth Layoffs” when you know, it’s not kind of an official layoff, but folks are asked to see themselves out the door.

Joe Patrice: Yeah, usually, it’s a disguised performance firing.

Kathryn Rubino: Right.

Joe Patrice: It is usually how it works. Like, as in you’ve worked there this whole time, no one has ever said you’ve been anything but perfect, and then all of a sudden you have a review that is, — you know, we have all of these problems.

Kathryn Rubino: You have three months to leave the firm.

Joe Patrice: Right.

Kathryn Rubino: Yeah.

Joe Patrice: So, we’re firing you for performance even though there’s never been any indication.

Kathryn Rubino: Right. I mean, listen, a part of that is because law firms are not great about performance reviews, that’s part of it. A part of it is because they don’t want the publicity of saying “yes, we have in fact laid people off.”

00:05:04

So, — and it’s kind of incumbent on publications like ours to kind of have tipsters and hear about it and we did report on a couple this year. But you know, it also kind of changes the motivation, right? If you were told that you are being laid off for performance reasons, — or being fired for performance reasons, that makes people less likely to talk about it right? And the whole thing is the only way that these things to the lay of the day, is by word of mouth, by hearing about it, by tipsters. And if you’re like “Oh no, it’s because I was terrible. Never mind, I built extra several hours, never mind, that I’ve never had a negative performance review before right now.”

Joe Patrice: Right.

Kathryn Rubino: You’re less likely to talk about it. There’s a shame involved and you know, it’s meant to create an environment where people are unwilling to talk about what really happened to them at the law firm.

Joe Patrice: Yeah. It’s doubly bad I think because it’s fair to say that at a lot these higher-end law firms where this happens, these are lawyers who probably have never been told they aren’t perfect any point in their life, right? They excel their entire career.

Kathryn Rubino: Yeah. Like, they had to have gone to an excellent law school, they had to have done well at an excellent law school and yet, here they are, for the first time in their lives being told that they’re not good enough. So, yeah.

Joe Patrice: Yeah.

Kathryn Rubino: It absolutely — it builds upon that kind of, shame inducing mentality to try to cover up what’s really happening at the firm.

Joe Patrice: Yeah.

Kathryn Rubino: Yeah.

Joe Patrice: It’s problematic. But so, after —

Kathryn Rubino: Also yeah, that happen a lot in the spring.

Joe Patrice: Yes, all right. So, that was the spring, so then, we fast forward a bit, we start getting a few trickles in firms reversing those austerity measures, starting to pay people back.

Kathryn Rubino: So, yeah. I think there’s really kind of two levels of the reversing of the austerity measures. The first is, your salary is no longer cut, right? Which has happened at more firms saying you know, “Congratulations! Here’s your full salary again.” And then there’s a second level which is “and here’s the money that you should have earned.”, right? Which is still happening —

Joe Patrice: That’s taking a little bit longer, yeah.

Kathryn Rubino: Taking a little bit longer, it’s not – some firms are making lump payments, some are kind of spacing them out, you know, it’s kind of very individualized depending on the firm, but by large, we are seeing the end of big law austerity measures and making some sort of a restitution for it.

Joe Patrice: And then, we hit the fall and wow, things really took a turn/

Kathryn Rubino: Yeah. Turns out, big laws doing just fine.

Joe Patrice: Well, that’s a shocker.

Kathryn Rubino: Yeah. What do you know? Listen, there’s absolutely an economic downturn that happened, but it seems as if the elite in big law are going to be okay. This is not in 2008, 2009, this is a different kind of an economic downturn. And the other thing also kind of contrasting it with 08’, 09’, is that, instead of massive associate, or attorney layoffs, firms were much more likely to institute these cross-cutting measures whether it be salary cuts, whether it be partner distributions, whether it be you know, other sorts of things. So, that was actually really nice to see, and I think part of the reason is that, literally, firms have learned from the last economic downturn, right? There was a classes worth of associates that you know, they laid off juniors because they need as many people to stop these big cases because they weren’t getting these cases. And then all of a sudden when they were supposed to have a giant class of mid-levels, they had one person.

Joe Patrice: Then they didn’t, yeah, right.

Kathryn Rubino: And they were kind of screwed, right? So, you know, I think that there’s definitely this kind of learning from what happened, but then in the fall, starting with Cooley; they were the first firm to announce COVID appreciation bonuses, special bonuses. People sometimes rankle at that name, “COVID appreciation bonus”. “The world’s so bad we shouldn’t be celebrating COVID.” I’m like “That’s not what’s happening”, right?

Joe Patrice: Yeah.

Kathryn Rubino: And they’re saying “Thank you.”

Joe Patrice: Yeah, they’re not appreciating COVID.

Kathryn Rubino: Yeah, I mean, that’s not what’s happening. And then Davis Polk came over the top and actually need significantly larger bonuses than Cooley did who introduced them and just to say thank you to associates. A lot of associates are billing crazy amounts right now because there is a lot of litigation, there’s lot of case – there’s a lot of things going on in the legal world. There’s lot of hours to be had at some firms, I guess it kind of depends on your practice area. But regardless, even for those who didn’t bill as many hours as they might have in previous years, I think a lot of firms were happy that they had folks who were still working and good at their jobs and kind of that stuff. And whether or not everyone gets them versus having take certain hours requirements is sort of been kind of a line in the very dry top of the big law versus some of the other firms who are just trying to kind of keep u.

00:10:11

Joe Patrice: Uh-hmm.

Kathryn Rubino: But yeah, people are getting extra special bonuses this year which was pretty nice.

Joe Patrice: Right. And these more or less do not tradeoff with the regular bonuses which were unchanged from previous years.

Kathryn Rubino: These are all in addition to year – special bonuses plus year-end bonuses.

Joe Patrice: Yeah. So, for a lot of firms, it was a journey, but after some issues, they appear to have come around the other side pretty well. And for firms that haven’t, you should do some reading because how have law firms weathered previous economic downturns and come out stronger on the other side, the LexisNexis InterAction has released an in-depth global research report and fronting the 2020 downturn, lessons learned during previous economic crisis. Download your free copy of www.interaction.com/likealawyer to see tips, strategies, plans and statistics from leaders who have been through this before and how they’re reached success again. You know, one of the under the radar developments of 2020 I think that is related to what we talked about there is the rise in tech adoption and the concept of working from home. I think we had a special series that we you know, wrapped up, but we had a special series about COVID and the law, the ATL COVID Cast. And we talked to an architecture firm that did office architecture about how this is going to change the design – going forward. There’s going to be less need for giant footprints, you’re going to have more people working from home, more people working and collaborating as opposed to sitting in their office —

Kathryn Rubino: Yeah, we did a story this year about shared offices that some big law firms are doing a system where even partners don’t have assigned offices and they have to share.

Joe Patrice: Yeah.

Kathryn Rubino: Depending on who’s coming in that day and you know, you can kind of take over whatever spaces you want and that’s a very different kind of a law firm world than that kind of old-school one partner with kind of mountains of paper in their office that probably couldn’t be moved even if you tried.

Joe Patrice: I think we’ve got a situation where lawyers who are inherently stodgy when it comes to technology. We’re forced to learn what’s out there.

Kathryn Rubino: Yeah.

Joe Patrice: And they more or less have come away thinking “This works, we should have been doing this all along.” And so, I think we’re going to see a change in the way the legal profession operates going forward.

Kathryn Rubino: I do think that. But I don’t want to come across us being kind of we’re never having offices again.

Joe Patrice: Oh no, there will be offices, but —

Kathryn Rubino: And as good that it has been, and I think that, going forward, I think there will always be a component of working from home, and I also think people have realized the benefits of collaboration and the in-person kind of experience particularly for younger associates.

Joe Patrice: True.

Kathryn Rubino: You know, we’ve talked to a lot of folks who say it’s really a very deliberate thing to try to train new associates who have never worked in a law firm before, who have only worked working from home, right’?

Joe Patrice: Uh-hmm.

Kathryn Rubino: And the other thing is, you know, firms have to up their communication level, probably about everything; and that was probably always true. But especially with working from home, not everyone knows how long this is going to last, right? Or what safe and different states have different requirements and you know, what the firm’s plan going forward is, will be interesting. I know it’s one of the new classes of associates at a firm we’re told, “Listen, you don’t have to move close to the office yet. We’ll let you know and plenty of time.” – Like, you know, whatever plans you have, don’t make it based on you know, the assumption that you’re going to be commenting anytime soon. So I thought that that was kind of a way to make sure that you’re communication is kind of the A level; you know.

Joe Patrice: Well speaking of COVID, we also had a major super spreader event at The White House that put the President of the United States into the hospital for a week.

Kathryn Rubino: Uh-hmm.

Joe Patrice: Why did we have a super spreader event?

Kathryn Rubino: Because unfortunately, Ruth Bader Ginsburg passed away.

Joe Patrice: Uh-hmm.

Kathryn RubinoI : And her final request was not honored.

Joe Patrice: I never really understood the whole push about like my wish – I’m like “Well, if that was your wish you could have quit earlier.” And I’m not like one of these people who says that justices have to quit, but if that’s actually your wish, there’s a way to do that which is to not have been here and instilling your job at this point.

00:15:01

Once you are, you’ve kind of have turned it over to faith. So, that’s bad. But, I’ve always taken the stance that one of two things was true. Either Merrick Garland should be on the Supreme Court and ACB should be, or Gorsuch to be on the Supreme Court and somebody else should have the sit.

Kathryn Rubino: I think that that’s right.

Joe Patrice: You can’t have both ways.

Kathryn Rubino: I think that’s true.

Joe Patrice: That’s my issue.

Kathryn Rubino: But I think that you know, writing that at the time that Merrick Garland has already been denied his seat, I think it is within the bounds of fairness to say he should – that the winner of the election should have been able to appoint the replacement to RBGC.

Joe Patrice: Right. At the point that that was the standard, that’s what should have been left by.

Kathryn Rubino: Correct.

Joe Patrice: But democracy reigns, and so here we are.

Kathryn Rubino: Welcome to 2020 ya’ll.

Joe Patrice: Yeah.

Kathryn Rubino: Or, you could say goodbye to 2020 I suppose.

Joe Patrice: Yeah.

Kathryn Rubino: But, yes, Amy “COVID” Barrett was nominated.

Joe Patrice: Yeah. That’s the nickname we gave her, yes.

Kathryn Rubino: Yeah.

Joe Patrice: It’s for a reason, because she gave the president a deadly disease.

Kathryn Rubino: Well, probably not her, right? But somebody at the —

Joe Patrice: Her mere being created the circumstances that did this, yes.

Kathryn Rubino:  Correct, yeah. So yeah, there was Amy Coney Barrett, yeah. They had a – what was it? Some sort of ceremony outside and no masks, and everybody was on top of each other, packed in, and I don’t even remember the total numbers of folks who were infected that could trace back to that event. But it was like, it was a lot.

Joe Patrice:  It was a lot.

Kathryn Rubino:  It was a lot.

Joe Patrice:  Anyway, the —

Kathryn Rubino:  Yeah. So, we have a newsroom for a justice; that’s a pretty big story for 2020 in the legal world.

Joe Patrice:  Yes, yeah.

Kathryn Rubino:  It’s going to be awful.

Joe Patrice:  I think that’s right. It is a big story, it has already proven to be awful. Speaking of COVID, she has already been the deciding vote to rule to allow people to challenge public health edicts as unconstitutional because you know, —

Kathryn Rubino:  Yeah, it was just terrible.

Joe Patrice:  Why have public health?

Kathryn Rubino:  Yeah, and the thing that’s really annoyed me about all of this is you know, I wrote an article saying that I thought she was going to be a terrible justice and I already been proven correct as you’ve pointed out. But people were saying that you know, this is some sort of an attack on religious identity or something like that because she’s Catholic. Spoiler alert, so am I. So is Sonia Sotomayor.

Joe Patrice:  Yeah.

Kathryn Rubino:  You can still be catholic and not think that the way that we have to rule our country is – a particular way. Also, to be clear, the pope has – the leader —

Joe Patrice:  [00:17:31] was wrong, yes.

Kathryn Rubino:  The leader of said religion has already said “That’s not what we have to do.”

Joe Patrice:  It is true though, and this is another trend I think that probably was developing before 2020, but I think we’re going to start seeing more and more of, which is this one-sided sword of utilizing the idea that somebody is religious as an offensive argument for why they can do whatever they want.

Kathryn Rubino:  Uh-hmm.

Joe Patrice:  “Religion, that’s why we can’t have public health.” “Religion, that’s why they could be on the Supreme Court despite having a series of insane views.” These are defensive – and it’s one-sided because at the same time, we’re watching – especially down – if anyone’s monitoring these Georgia runoffs, we’re watching a political campaign where those same defenders of hers are running a deeply religiously targeted campaign criticizing Warnock for his religion which is you know, you’ve thought what was supposedly off limits, but here we are.

Kathryn Rubino:  It’s very, you know, what’s good for me is good for me; what’s good for you is not good for me.

Joe Patrice:  But this idea that religion now operates that way as opposed to its historical role as we kind of kicked off the show about separation like it used to be very much about protecting from religious discrimination at the hands of the government. Now it seems to be turning a different direction. Now, I think she is the “Hey this is probably a trend that we can point” has been going on, but she operates as something of the avatar of it at this point. But yeah, continue the Supreme Court, I guess let’s move to a conversation about the election. We had an election. That election now has become mired in a series of lawsuits. The “Elite Strike Force” of Dr. Jenna Ellis.

Kathryn Rubino:  Oh stop it.

Joe Patrice:  Yeah, she —

Kathryn Rubino:  We’re not doing that.

Joe Patrice:  She is not in fact a doctor because she is a J.D. This is not an aspersion on other people claiming to be doctors who have actual PhDs, like real doctorates, but lawyers, no.

Kathryn Rubino:  No. Just earning a J.D. does not give you – do not call yourself doctor. You just sound like a pud.

Joe Patrice:  Yes. So, Jenna Pud Ellis and Rudy Giuliani who also —

Kathryn Rubino:  Melted, literally melted on stage.

Joe Patrice:  See, you’re going with that, I’m going with sticking his hands down his pants with a 15-year-old —

Kathryn Rubino:  Oh, that also happened.

Joe Patrice:  — he just – I just don’t understand – like, he really has had a year.

00:20:01

Kathryn Rubino:  Is he the lawyer, — is he your personal lawyer of the year?

Joe Patrice:  Honestly, he’s hard to beat in my mind. Like, throughout the year, he’s been Johnny on the spot for every crazy story. So, I don’t know. He would be my vote.

Kathryn Rubino:  And to be clear, when we say “lawyer of the year”, we do not mean, — it’s not necessarily a good thing, but the lawyer that has had the largest impact.

Joe Patrice:  Right. In many times, it has been a good thing, and sometimes it’s been a bad thing.

Kathryn Rubino:  Not necessarily.

Joe Patrice:  But yeah. So, Above the Law’s Lawyer of the Year is much like, much like Time pretends person of the year is, it’s supposed to be about the biggest newsmaker whether that’s good or bad, but Time has clearly turned it into always being good; so, whatever. We don’t necessarily. So, Rudy, that’s the Elite Strike Force, meanwhile Team Kraken, the Sidney Powell wing, they were together at one point, and then they split off and Sidney went her own way. It was kind of like a – it’s like The Beatles breaking up.

Kathryn Rubino:  And then she tried to be appointed special counsel, yeah.

Joe Patrice:  Well, she’s now apparently in conversations about being a special counsel to investigate all of the “fraud” that every judge has – several of them being Trump-appointed judges have looked at and said no to.

Kathryn Rubino:  Appointees, yeah.

Joe Patrice:  We also then learned about the Supreme Court including our newest Justice, all kick to the curb this attempt by Texas to sue the other states for not voting the way Texas did.

Kathryn Rubino:  It’s not how original jurisdiction works.

Joe Patrice:  Yeah. Well in fairness, I kind of sided with Alito and Thomas on this one. They said they also thought the case was meaningless, but they said that we should at least have to grant the request given to file to the extent that its original jurisdiction which I think it probably was a stating suing another state seems like textbook that. But yes, it was somewhat frivolous. That gave rise to a conspiracy theory that if you – I don’t know if you’ve checked this out —

Kathryn Rubino:  I tend not to check the latest conspiracy theories.

Joe Patrice:  Yeah. The latest conspiracy theory is that the Supreme Court behind closed doors were screaming at each other about this case with Roberts demanding that they had to kick it to avoid riots and so on which was news to the supreme court who has not actually met in person in months.

Kathryn Rubino:  Like they’re all old, they know what COVID does.

Joe Patrice:  Yeah. So, yeah. But the Supreme Court has managed to be at the center of wide conspiracy theories over the last few days. So, it’s been a year for them too. They got a new justice, they lost a justice, got a new justice, and now we’re at the center —

Kathryn Rubino:  Had fights that they didn’t even know that they were having.

Joe Patrice:  Yeah. At the center of a giant conspiracy.

Kathryn Rubino:  I mean also, there’s no way, if Alito, — there’s no way Alito doesn’t put out his own descent if he felt that way.

Joe Patrice:  Well, Alito did put out like it, but Alito —

Kathryn Rubino:  Fine. No, but it wasn’t a descent from the —

Joe Patrice:  Right, exactly. Like they’ve put out a statement saying “We would have heard this, but no other relief.” Like they were explicit that this was unanimous on this being completely ridiculous.

Kathryn Rubino:  Correct.

Joe Patrice:  Or as unanimous as you can be theoretically, a third justice could have joined them and chose not to write that.

Kathryn Rubino:  Sure.

Joe Patrice:  Whatever.

Kathryn Rubino:  But the point is, if Alito had to be yelled at, everything we know about Justice Alito makes it very clear he absolutely would have written that.

Joe Patrice:  He would have said something, yeah.

Kathryn Rubino:  Like he’s not one to hold his tongue.

Joe Patrice:  Yeah. Not a [00:23:24]. Anyway, so it’s been a fun year for the Supreme Court; they’ve got a lot of issues to handle, maybe they should streamline some of their administrative tasks. Let’s hear from Lexicon.

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Joe Patrice:  So, I guess on top of that, coming off of the Supreme Court, I guess, the attorney general is gone now.

Kathryn Rubino:  Really?

Joe Patrice:  I mean he resigned last week. So, he’s gone now. But he really had a year.

Kathryn Rubino:  You know, that’s another nominee for not great, but still lawyer of the year.

Joe Patrice:  Yeah, that’s a good point. And frankly, him having to resign right before losing power probably might have put him over the top. Anyway, so, Bill Barr, we hardly knew Yee, he had the whole run with the authorizing tear gas on protesters outside The Whitehouse, he has overseen series of internal moves at the Justice Department that frankly put the Justice Department behind [00:25:03], whoever takes over that job next which –

00:25:06

Kathryn Rubino:  Good luck.

Joe Patrice:  Yeah, good luck clearing out that mess. Well, actually, the next person to take that job won’t be trying to clear it out I suppose because we will have acting Attorney General in the first place. But yeah, that was a whole thing.

Kathryn Rubino:  That was life, yeah.

Joe Patrice:  Yeah. Like I don’t even know how much to get into the Barr stuff but it was a thing and it raised to the point where high school students were trying to get his honorary degrees pulled from him and stuff, or not honorary, like his special place of honor within the school pulled. It just spoke to the level to which this guy evoked serious emotion from folks for the way in which he was handling his office.

Kathryn Rubino:  Listen, in 15 years, there will be some doctorate that is actually by written by somebody who deserved to be called doctor about Bill Barr’s role in the 2020 everything. You know, gestures wildly at the state of the world, you know.

Joe Patrice:  Yeah. The one that got me was actually not even about any of this. It was the revelation that he came into the job of Attorney General having come from private practice and then had the Department of Justice drop the case against his client as soon as he took over which – that just —

Kathryn Rubino:  Seems bad.

Joe Patrice:  Yeah. These were the stories that made us this year and it what it made us was bad, bad folks. I guess we should quickly take a moment to acknowledge the bar exam and obviously, we’ve talked about this quite a bit too.

Kathryn Rubino:  Barr, bar exam, nice to meet you there.

Joe Patrice:  Yeah I know, I thought it was a good Segway, yeah. But, we’ve also talked about this a lot but we have a situation which we continue to license people through a generalist, closed book exam despite the fact that lawyers are pretty much no longer generalists —

Kathryn Rubino:  Definitely not closed book.

Joe Patrice:  — and the practice of law is aggressively an open book process. We still have that. We, therefore, put ourselves in a situation where some states forced students to meet in a conference room or convention hall to take a test, we got people actually confirm having COVID while they were taking the test as it turned which is horrifying and led to —

Kathryn Rubino:  So 2020 though. It’s a story that like really, puts the kind of – the pinpoint on the year.

Joe Patrice:  The alternative was in most states where online exams which were fought with technical difficulties up to and including problems where they ended up flagging people for cheating for doing nothing, that was treated as the better option. There are a few states that —

Kathryn Rubino:  To be clear, it is in fact a better option.

Joe Patrice:  Yes. But I mean, there’s —

Kathryn Rubino:  Sliding scale bubble.

Joe Patrice:  Being relatively better here does not get you clear. There were a couple of states that joined diploma privilege which obviously has been going in Wisconsin for quite some time and works. But we do have Utah and Oregon and Washington joining in. There’s a kind of hybrid system in D.C. and there was a – oh wait, now I guess Louisiana also took some steps to make it better as an emergency. So good for them. We had a show this earlier month actually where we talked about a new study that looks at alternatives to how we go about licensing.

Kathryn Rubino:  Was that really this month?

Joe Patrice:  Pretty sure? Maybe not. Maybe it was November. Point is, you should be listening to every episode of this show so you’ll find out you probably know.

Kathryn Rubino:  I almost feel like time has been a thing this year.

Joe Patrice:  Yeah. But we did have a talk about how there are studies out there, attempts to use this unfortunate crisis as an opening to revisit why we do the things we do. And at this point, the bar exam is so inaccurate in this decade, doesn’t make much sense, it was really devised as an answer in an era before organized legal education.

Kathryn Rubino:  Right.

Joe Patrice:  You wanted to do this, you take a bar exam to prove that you know something about law. Well, now, we have degrees proving that you know something about the law, so what is the point of the exam and now I think the point, one would say, is to prove there’s minimum competence but it is not a minimum competency exam. A minimum competency exam would be like the driver’s exam where you know, you have to get an 80%. We don’t grade the bar exam that way, it is a scaled exam, and it’s done that way because they’re attempting to just let a certain percentage of people through.

Kathryn Rubino:  Protectionist, right?

Joe Patrice:  Yeah. It has nothing to do with minimum competency. And so, it’s a problem, there are other people looking at it and maybe that’s a theme that comes off of COVID is that it has opened the door potentially to this, hopefully —

Kathryn Rubino:  Something good might happen.

00:30:07

Joe Patrice:  Hopefully, the momentum on it will continue after this is over, we’ll see.

Kathryn Rubino:  Well, we can kind of end our year-end review on a good note.

Joe Patrice:  Okay.

Kathryn Rubino:  Which is that you know, all the terribleness of COVID, one of the early folks who publicly came forward with their struggle against the disease was Above the Law’s own founder, David Lat.

Joe Patrice:  Yes, that’s true.

Kathryn Rubino:  He was in the hospital for several weeks, he was intubated and everything, but he’s come out the other end.

Joe Patrice:  Yes.

Kathryn Rubino:  He appears to be you know; he’s doing well. He’ still writing for Above the Law so you can read him on the Above the Law pages and you know, it’s kind of the good kind of capper that you know, as terrible as this disease has been, there’s still hope.

Joe Patrice:  Yes, that is true. Excellent point. With all of that, I guess we’ll be done and we’ll see you all again in 2021.

Kathryn Rubino:  It’s got to be better.

Joe Patrice:  That just seems like – that’s like saying somebody’s not missed a field goal this year. Like, that’s just – you just ruined it.

Kathryn Rubino:  Did you see the [00:31:10] commercials where it’s like —

Joe Patrice:  I have, yeah. It’s a good one.

Kathryn Rubino:  This is not a jinx, this is just statistically, — listen, there won’t be a general election in 2021 which has to be some of the crazy less.

Joe Patrice:  Maybe.

Kathryn Rubino:  Maybe, hopefully.

Joe Patrice:  Anyways, thanks for listening, you should be subscribed to the show, you should give it reviews, just the stars, write something about it, all of that stuff helps the algorithm to move up as the rankings of legal podcasts so that more people can hear it. You should be reading Above the Law as always. You should be following us on social media I’m @josephpatrice, she’s @kathrynI, the numeral on. Checkout The Jabot, another podcast that Kathryn hosts about diversity issues in law. You can issue Legal Tech Week, the legal technology roundtable that I’m a panelist on every week talking about legal tech stuff. I mean, not this week because we’re on break. But you know, like during normal times. You should check out the other —

Kathryn Rubino:  Through ordinary times.

Joe Patrice:  Yeah. Oh yeah, see, you are Catholic.

Kathryn Rubino:  Yeah.

Joe Patrice:  There are other offerings from the Legal Talk Network. Thanks as always to Contract Tools, LexisNexis InterAction and Lexicon for sponsoring today’s show; and yeah, another year in the books. We Weill see you on the other side.

Kathryn Rubino:  Happy new year!

Joe Patrice:  Yey!

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