The New York Times seems to think everyone was too tough of Jeffrey Toobin. They are wrong. Meanwhile one guy who has had far too many chances is Rand Paul, who continues to be completely awful, this time in blocking a bill designed to protect federal judges. And California bar applicants don’t need a second chance either, they just need a bar examiner willing to grade their exams honestly rather than suggesting that one-third of them cheated.
Special thanks to our sponsors, Paper Software, LexisNexis® InterAction® and Lexicon.
Thinking Like a Lawyer – Above the Law
No Second ‘Chances’
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 that esteemed publication, Kathryn Rubino.
Kathryn Rubino: You’re in a very NPR-y sort of voice mode.
Joe Patrice: Am I? Oh, interesting. I didn’t think I was doing any kind of different voice mode.
Kathryn Rubino: You’re wrong.
Joe Patrice: Oh, fair enough. Well, you know, I mean, we’re coming to the end of the year. I think we’ve just got —
Kathryn Rubino: It’s a solemn occasion.
Joe Patrice: This is the penultimate episode of 2020.
Kathryn Rubino: True. That is how time works — linear and all that good stuff.
Joe Patrice: We’re almost there.
Kathryn Rubino: I mean, can you believe 2020 is actually almost over?
Joe Patrice: Yeah. I mean, it’s been so great this year. Everything has been so wonderful. I hate to see it go but —
Kathryn Rubino: It’s been a year.
Joe Patrice: Yeah. It has in fact. You know, and we do still got some news —
Kathryn Rubino: I’m exhausted just thinking about it.
Joe Patrice: Yeah, we do have some new stories to talk about though this week. Big issues in legal news of the week, but before we do that, one thing, we aren’t going to talk about but I know that you spent most of the week talking about bonuses.
Kathryn Rubino: I did. That’s generally our December’s Above the Law.
Joe Patrice: It is and so, because we’ve already talked about that a few times on this show, we aren’t going to go into it again. So, just so you know, firms get bonuses.
Kathryn Rubino: Yeah, this is what I’ll say about bonuses and I know that folks who read us who are not at big law sometimes send us some mail getting a little frustration that we spend a lot of time talking about bonuses. But I actually think that that’s one of the things that we do it at Above The Law that’s actually super meaningful, right? I think that transparency in big law, which is not known for being super transparent is really important. I think it helps people make really smart lateral decisions and you know, when they are in law school as well, though sometimes, you don’t really have perspective of what that even means when you’re in law school, but I think that it’s really important to sort of hold folks accountable — meaning firms accountable and knowing what the market is like and sometimes, I know clients get annoyed because there are big bonuses and there’s a lot of hype about these bonuses, but the truth is you’re already paying the money. The question is whether associates get the money or partners get the money. It’s not about clients getting a discount or something like that. So, I think they just — and frankly who’s complaining these? Like giant companies that give billion-dollar bonuses to their executives. So, they just need to like deal with it.
Joe Patrice: Yeah.
Kathryn Rubino: It’s my — very angry, little.
Joe Patrice: Yeah, fair enough. But no. After a challenging year, you know, some firms are giving out some big bonuses and some firms aren’t and for those firms, they should figure out how have law firms, whether previous second of 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 the 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. That’s just the first of our sponsors for the week. We also force will be hearing a little bit later from contract tools and Lexicon, but for now, let’s transition into the first story of the week which, “Hey, did you know Rand Paul is a dick?”
Kathryn Rubino: Yes.
Joe Patrice: Well —
Kathryn Rubino: Oh, that’s it? Then, we’re done now. That’s the end of that story.
Joe Patrice: So, if you’re working with contract —
Kathryn Rubino: Okay, okay.
Joe Patrice: Oh, sorry. Yeah, no there’s — we’re going to spend more time here.
Kathryn Rubino: So, how has been a dick this week, Joe?
Joe Patrice: One of the developments of this horrible, horrible year of which there had been many, was the killing of Judge Salas’ son. A gunman, a disgruntled litigant, found her house and came and attacked. She was alright though her husband was injured and has since recovered and her son was unfortunately murdered. So, there’s an effort at the federal level to pass a law that would make it a crime for these data brokers to mine personal information and sell them to these folks who are disgruntled, who are looking find federal judges.
Kathryn Rubino: This seems like it would be an easy bipartisan kind of bill to get past. I mean, listen, the Republicans have spent an awful lot of time trying to pack the federal judiciary with folks who agree with them. I imagine they’re very interested in protecting that assets. They have garnered for themselves.
Joe Patrice: Yeah. Exactly. This is all about protecting the entire group of FedSoc folks they put up there.
Kathryn Rubino: Yeah.
Joe Patrice: Yeah. It also included a provision to help fund the US Marshal Service in increasing security and so on and so forth. So anyway, this is what it is and it is —
Kathryn Rubino: It doesn’t seem super controversial to me. I can’t imagine that this is a real story.
Joe Patrice: Well, Rand Paul has decided to hold it up. He is unilaterally exercising his power to kill the bill at least — unless something else comes out of it. His stated reason is that he needs there to be provisions to protect the legislators. Mostly not because as you might think, because his neighbor beat the hell out of it once which did happen.
Kathryn Rubino: But again, his neighbor, being a neighbor, did not need any information off the dark web for that.
Joe Patrice: Yeah. He didn’t need any information. Exactly, but no. Rand is still complaining about how some people yelled at him in DC once and how he wants them prosecuted which the US attorney’s office in DC declined to do because it’s absurd, but —
Kathryn Rubino: Getting yelled at is not —
Joe Patrice: But because he is a whiny child, he feels that since he didn’t get that, he’s going to hold up protections for federal judges until there’s comparable protections for him.
Kathryn Rubino: Stop it.
Joe Patrice: Right. Another bill if you want it.
Kathryn Rubino: Stop it.
Joe Patrice: But yeah.
Kathryn Rubino: This seems — okay. I know that this is kind of your hobbyhorse and you’ve made this argument a lot. But why is one person allowed to hold up what is otherwise a bipartisan effort to do a very small drop in the bucket level of protection for federal judges?
Joe Patrice: You know, actually, I’m less concerned about this one because this is one of those instances that actually falls within what I think would make for a better system for the filibuster. I don’t believe in getting rid of it as much as I believe that people who do it should face consequences and this is a good example of that.
Kathryn Rubino: Sure.
Joe Patrice: He is holding this up. So, we’re talking about the fact that he’s holding it up. If he wants his name attached to the idea that he won’t pass a really reasonable set of security measures for federal judges, then he can do that and face the consequences for that electorally. I like that. I do not like the more standard form of the filibuster which is no one person stands up and says, “I’m the one against this, it’s all behind closed doors. It’s all without votes without speeches.” That’s the stuff that I think is bad because it means bills get killed without any consequences and that’s a problem. So, this, I actually don’t have a huge problem procedurally. I’m glad that we’re getting —
Kathryn Rubino: Good as immoral matter.
Joe Patrice: Oh, yeah, it’s bad. But look, I mean I’m glad that we’re able to drag him over this.
Kathryn Rubino: That’s true.
Joe Patrice: That’s what it’s for. So, it is bad, but whatever. This is what he does.
Kathryn Rubino: I can’t imagine that this is how you want to spend your time, but here we are.
Joe Patrice: Yeah. He is going to the mat for the idea that judges shouldn’t get security. That’s what he’s chosen to do with his life.
Kathryn Rubino: I don’t have words.
Joe Patrice: How bad must it be to be an eye doctor — that you choose this?
Kathryn Rubino: Huh?
Joe Patrice: To be an eye doctor like you have this career that like theoretically is good and you say like “No. What I want to do is stop federal judges from having protections.”
Kathryn Rubino: What does it have to do with ophthalmology?
Joe Patrice: Because that’s what he is.
Kathryn Rubino: Oh. I guess I knew at some point that he was a doctor but I didn’t really piece it all together there.
Joe Patrice: You know, he went to Duke for medical school.
Kathryn Rubino: To be an eye doctor.
Joe Patrice: Yeah.
Kathryn Rubino: Fair enough. So, yeah. I mean, the issue is and I think probably why he has issued being a doctor is that no one’s talking about him when he’s just helping people see, that’s not fame-inducing, being a jerk and holding up federal legislation because somebody might yell at him.
Joe Patrice: If only we were protecting judges from cataracts, then it could be helping us out. Anyway, no, it’s bad. It is troubling. Obviously, we are deeply concerned about our federal judges because —
Kathryn Rubino: It’s an awful story. It’s a terrible thing that happened.
Joe Patrice: Yeah.
Kathryn Rubino: And here’s the thing that gets me. Maybe there’s an argument to like hold up a piece of legislation if you’re like this doesn’t do enough. You know, like we can’t pretend like we have solved the problem when we haven’t fully funded the marshals or something like — it’s not saying “Oh, well, somebody put some — forward some bills we have to agree to it.” There are potentially reasons to not support this but this isn’t it.
Joe Patrice: Still a reason to write another one rather than try to hold up this one.
Anyway, it’s bad but this is how the senate works and it’s just the kind of log jam that they have.
Kathryn Rubino: We’re screwed.
Joe Patrice: It’s just a log jam they have because of the way that proper processes go there. So maybe it’s time to streamline some administrative tasks. So, with that let’s hear from our folks at Lexicon.
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Joe Patrice: Hey, so the next big thing that blew up was —
Kathryn Rubino: Big or little?
Joe Patrice: Hmm, oh I see what you did there. Do you see what you did there? Is the California bar exam — no. But no, we are in fact talking about Jeffrey Toobin again. Jeffrey Toobin obviously no longer with the New Yorker because he does not understand how to turn off the camera on his Zoom chat.
Kathryn Rubino: Yeah. He was caught pleasuring himself on — not caught. He was on a call and started pleasuring himself.
Joe Patrice: On a work call.
Kathryn Rubino: That’s what I’m — yes, yes, yes, yes.
Joe Patrice: I mean, it’s really a — I mean again, I think I said it at the time. I made the jerking off motion on a work call too but I make sure nobody sees it and I don’t do it literally. But no, so he lost that job but New York Times put out a lengthy and I would suggest embarrassing piece which they basically went to great lengths to explain how unfair it is that poor Jeffrey Toobin might not be able to be on CNN anytime soon, simply because he — you know, sexually harass people which is what this is. This is a side note. We actually heard somebody attempted to cite me as the source of something on Wikipedia which you know, always the highest honor but no. It’s true though that they were citing me because I did make the point that this counts as sexual harassment underneath.
Kathryn Rubino: Because it is, that’s why.
Joe Patrice: Under New York law. It is and I mean we all take the anti-sexual harassment training that you have to do as somebody who’s employed in New York every year and we did that and it makes the point routine, you know, in multiple places that that’s how the law works here. It does not matter that he was not targeting anybody on the call or was intending for it to be seen. He did something that makes people sexually uncomfortable and that’s pretty much the definition.
Kathryn Rubino: This should not be a controversy.
Joe Patrice: Yeah, it is not. But somebody tried to cite me for just the fact that that’s what this is and it got reversed by some other Wikipedia editor trying to explain that, “No, no, we can’t possibly be mad at our you know, we can’t possibly call our esteemed Mr. Toobin something like that.”
Kathryn Rubino: As much as Wikipedia is useful and accurate, that is also the problem with it — it’s that anybody with a bee in their bonnet can — and a brief time to dedicate can do what they want.
Joe Patrice: Yeah. And look, I made the point in a piece this week or last week that you can check out still, I made the point that look, I understand this like this visceral appeal for second chances that people have but you aren’t obligated to one and it seems like that is always something we talked about when it’s someone who comes from a relatively privileged background screwing up. They get a second chance and you aren’t really privileged to have that. You are you are afforded maybe the opportunity to create a second act but you don’t get to get your job back and everything because you did something wrong.
Kathryn Rubino: Yeah. You can’t pretend like these things didn’t happen.
Joe Patrice: Yeah. You absolutely have an opportunity to go out and do something new. Write a new book about it, try and get on some other thing. Like you can do whatever you want, but this article’s premise was that we should all just like pretend this didn’t happen and bring him back to the status quo.
Kathryn Rubino: I mean I think there’s a problem when an industry top tries to talk about itself, right? It’s very meta and I think I’ve said this on this podcast before but you know, I get really annoyed at Hollywood movies about Hollywood because we’re all just — they are so self-congratulatory. “Look how great we are” and it’s kind of that same mentality as applied to journalism when journalists try to write about journalism. It’s not great. It’s not my favorite. I mean I say as a lawyer writing about lawyers, I get it.
I get it and that’s why I’m very aware that you have to be diligent and you can’t just be like, “Oh, yeah. Well, we all know how great this is” and maybe, that’s also I think part of the appeal of Above The Law is that you know, we bring snark to the industry. It is trying to puncture that that kind of self-importance that the industry has and I think that you have to be really careful when you’re writing about the stuff. You sound super elitist, super insular, super isolated when you’re just talking about how important this is and I think that reading that Times piece was head-shakingly bad.
Joe Patrice: It was really astounding and I do encourage folks to check both it and our retort out about it? But, yeah.
Kathryn Rubino: Or just read your piece. It’s fine. You don’t have — I mean, not everyone has a Times subscription. It’s fine.
Joe Patrice: Yeah, that’s fair. Anyway, and we don’t force you to have a subscription to you readers. That’s why Above The Law is checking all this stuff out. It was problematic and you’re right. It was just this kind of navel-gazing.
Kathryn Rubino: Oh, man. I hate that navel-gazing bullshit.
Joe Patrice: Yeah, it was something else.
Kathryn Rubino: We’re not that it’s not that important, like it’s not that important that this one guy gets the job to talk about law cases on CNN or any media.
Joe Patrice: Is there anything that happens on CNN with him explaining how a summary judgment works to somebody that couldn’t easily be done by any number of other legal analysts of our cohort? Is there anything lost if like but (00:16:34) is the one who says that to people or for hell’s sake, but give it for us. Like any of us could easily do that. There is nothing special, there’s no reason why he deserves some sort of deference just because he happened to be the one who covered the OJ trial 25 years ago.
Kathryn Rubino: And his parents were journalists and —
Joe Patrice: Right, it’s ridiculous.
Kathryn Rubino: Yeah, I know. I completely agree with you and this is not the first controversy that has plagued his career and I don’t —
Joe Patrice: That’s a bit of burying.
Kathryn Rubino: I think you actually made that joke and you want to —
Joe Patrice: Well, I mean the story glides over the whole “he fathered a kid with a young lawyer while he was already a famed journalist”. A young lawyer who’s the son — or no, who is the daughter of another famed journalist. Just going to keep the whole thing going, how completely insular this world is.
Kathryn Rubino: Yeah, and so let’s be clear. He’s already gone a second chance, right? There’s already been the scandal in his career that he has surmounted. I don’t know how many chances we’re supposed to give these folks.
Joe Patrice: That’s true. It was a thing, well.
Kathryn Rubino: It’s all real life.
Joe Patrice: Yeah, and as I said, he can go out. He’s got a law degree. I assume he’s kept it up to date. He can stop being on CNN and go out and learn to practice like regular people.
Kathryn Rubino: He can review documents just like the worst of us.
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Well, we said that we weren’t going to talk much about bonuses because we talked a lot about that this year. So, not to talk about another subject. We talked a lot about this year.
Kathryn Rubino: The bar exam?
Joe Patrice: Yeah, a little bit. Just real quick update on the bar exam situation. You’ve heard us talk about how this year’s administration of bar exam was largely a mess between trying to force people to take it in person as a super spreader event or to run online exams with untested and frankly technically difficult challenges, shall we say. The online exams didn’t seem like they had thought through some stuff.
Kathryn Rubino: Listen. Some of it is understandable to the extent that they were not intending to go online probably ever and had to make adjustments kind of on the fly because as you — another hobbyhorse of yours, they were not excited about privilege as the way forward. So, a lot of things and this class has sort of been the guinea pigs living it.
Joe Patrice: Yeah. Well, so the California bar exam obviously, so they’ve ran an online exam. The way in which these were proctored was through algorithms using the webcam and microphone that they would watch you and look for suspicious behaviors defined however, the algorithm chose to define it. This gave rise to a story that we’ve written about which is the fairly openly racist level to which the algorithm was flagging black and brown people as cheating from the moment they set down just because it wouldn’t recognize their faces.
Kathryn Rubino: “A black person taking the bar exam? You must be cheating.” That’s literally what it’s saying.
Joe Patrice: No. It doesn’t recognize the face. This has been a problem with facial recognition technology and other —
Kathryn Rubino: That’s why lots of jurisdictions are working on banning that for police techniques and I think —
Joe Patrice: Yeah. It makes a bunch of mistakes and they fairly — routinely was flagging folks as “you’re not the person you say you are” despite being the person they say.
Kathryn Rubino: Just because they’re black.
Joe Patrice: Yeah. Right. Because it can’t tell what’s going on which is a huge problem. And on top of that —
Kathryn Rubino: One would say it’s not actually a technology if they can’t recognize a whole chunk of the population that way.
Joe Patrice: So, well, I mean, it’s the algorithm yeah. But that was only the beginning just getting to the actual story here which is that this last week, we learned that California flagged one-third of all the people taking the bar exam as if they were cheating for various —
Kathryn Rubino: That is too many.
Joe Patrice: Various suspicious behaviors. We didn’t hear — there was no sound in your room, which there shouldn’t have been but whatever. You looked away from the webcam for a second for multiple times which whatever, you blink — but there’s no human —
Kathryn Rubino: Like that’s a thing, right, where you close your eyes and try to think like that’s just —
Joe Patrice: Exactly. And there’s no human looking at these. These are just what was spit out by the algorithm and rather than engage in the job of looking at everything which would be owneris(ph) but you know, what the bar exam —
Kathryn Rubino: But that’s what happens, right?
Joe Patrice: Yeah. That’s what bar exam signed up for, you would think.
Kathryn Rubino: Yeah. And this is the result of deciding to not go with diploma privilege.
Joe Patrice: Well, yeah. So what they’ve done is they have sent notices telling everybody that they think they cheated and explain to us why we shouldn’t fail you. They are not letting these students — or not students, they’re graduates and they’re not letting these applicant’s look at the video to be able to explain what’s going on.
Kathryn Rubino: So how they are even supposed to know? “I don’t know what I was doing. I don’t remember every second of taking the bar exam.” Why should you? That’s weird.
Joe Patrice: You don’t know what you did for hours on end? Huh.
Kathryn Rubino: I know I was taking a test.
Joe Patrice: Yeah, right.
Kathryn Rubino: I don’t know what to tell you.
Joe Patrice: It’s a —
Kathryn Rubino: This is absurd.
Joe Patrice: Yes.
Kathryn Rubino: This is absurd.
Joe Patrice: It is really problematic and sort of thing that hopefully —
Kathryn Rubino: Have they come out with any kind of a statement? Like, what are they doing?
Joe Patrice: Well, so far, they’re just sending everyone Chapter 6 notices, which is the notice that they think you’re cheating. And yes, I have got —
Kathryn Rubino: Like, what can you even say? “I was taking the test. I don’t know what to tell you.”
Joe Patrice: Yeah.
Kathryn Rubino: Like I don’t even know like how do you write that?
Joe Patrice: Yeah, I agree.
Kathryn Rubino: That’s a — oh, that’s so stupid.
Joe Patrice: Not letting them see the video is really astounding, especially because it doesn’t look like anybody is even bothered to look at the video yet before they even got to this one.
Kathryn Rubino: The reality is there is plenty of things that could happen that somebody might take their attention away from the exam for half a second and not be cheating. Right, like you’re not in a controlled environment. Hell, even in a controlled environment, you know, a guy can remember taking the bar exam the Javits Center and you know, there was a somebody fell off of their chair in the back and like everyone turned.
Joe Patrice: Yeah.
Kathryn Rubino: “Oh no. I was cheating. No, I was a human reacting to a stimulus. Like, I don’t know what to tell you. Like, you know, everyone —
Joe Patrice: No, we’re done with the Toobin story.
Kathryn Rubino: Oh, okay.
Joe Patrice: But yeah. It’s bad news. I just certainly hope that people who are in positions of power will see the light here and put a stop to this ridiculousness especially because vaccines obviously are now here but it’s going to take a while for that to roll out so we are going to end up doing this again.
Kathryn Rubino: Do you think we need to do more online exams — oh, that’s in February.
Joe Patrice: Yeah.
Kathryn Rubino: Okay. I thought you’re talking about — I’m still thinking about the big — you know, there’s two administrations of bar exam every year, February and July, July is larger. I’m still thinking about July. I hope by July, we can —
Joe Patrice: Yeah. I’m not entirely sure that July will be safe but we’ll see.
Kathryn Rubino: I’m not sure. I’m not sure at all. My fingers are crossed, my toes are crossed, all that kind of stuff. But I’m really hoping. I’m hopeful. I’m hopeful. I don’t know what else to say.
Joe Patrice: No, I think that’s right. So, with all that said, we can start wrapping this up, I guess.
Kathryn Rubino: Wrapping? Like wrapping presents? See?
Joe Patrice: Oh.
Kathryn Rubino: It’s Christmas season.
Joe Patrice: Wow, I mean, that was a good try. Maybe one of these days, I’ll have you do an ad read.
Kathryn Rubino: No, thanks.
Joe Patrice: But you’re not quite there yet.
Kathryn Rubino: No, thanks. Why would I consent to that?
Joe Patrice: Why wouldn’t you?
Kathryn Rubino: Because it seems like an annoying thing that you have to do.
Joe Patrice: Thanks, sponsors.
Kathryn Rubino: No. I don’t have to worry about that. You have to worry about that.
That’s just like one added layer that’s not me.
Joe Patrice: Yeah. Okay. So, anyway, thank you all for listening and for reading Above The Law. You should be subscribed to this show so that you can get the episodes when they come out. You should be writing reviews and stars and saying things about it to help this algorithm which is less bad than online bar exam.
Kathryn Rubino: Hopefully, not racist. Yeah.
Joe Patrice: Hopefully, less bad. It helped that move us up the rankings for law podcasts. More people can find this. You should be listening to our other shows. Kathryn is hosting the show, The Jabot. I’m on a part of the panel of Legaltech News — or not Legaltech News but I joined members of Legaltech News on a show called “Legaltech” —
Kathryn Rubino: God, you still don’t know the name of your own show.
Joe Patrice: Yeah. I think it’s Legaltech Week. Yeah. Legaltech Week.
Kathryn Rubino: I love that your eye makes some sort of a minor misstatement. It’s, “Oh, I can’t believe it.” But you — it’s adorable when I do it.
Joe Patrice: It is adorable when I do it. That’s the key.
Kathryn Rubino: I like that you think it’s out. Not everyone agrees.
Joe Patrice: Also check out all the other offerings of the Legal Talk Network. You should be checking out us on social media, @josephpatrice, @kathryn1. Thanks again, as always, to Lexicon, Contract Tools by Paper Software, and LexisNexis Interaction and I think with all of that, we’re good to go.