Unfiltered Legal Talk! Uncatfiltered Anyway

Episode Notes

Transcript

Above the Law -Thinking Like a Lawyer

Unfiltered Legal Talk! Uncatfiltered Anyway

2/17/2021

 

[Music]

 

Joe Patrice: Hello.

 

Kathryn Rubino: Hi.

 

Joe Patrice: Yeah, I was once again–

 

Kathryn Rubin: Is that awkward?

 

Joe Patrice: Once again, I was talking to them, but yes, but also—

 

Kathryn Rubin: Again, it’s awkward to hear high and not respond hi.

 

Joe Patrice: That’s fair. All right, so how are you?

 

Kathyrn Rubin: I’m good.

 

Joe Patrice: Good. Great. Can I tell them hi now?

 

Kathryn Rubino: You’re such a jerk.

 

Joe Patrice: No, I’m trying to be welcoming to our guests and welcome–

 

Kathryn Rubino: I think they get it like they hear the intro there, I mean—

 

Joe Patrice: And welcome them to Thinking Like a Lawyer.

 

Kathryn Rubino: They’re already committed.

 

Joe Patrice: Yeah, I guess. All right. So, welcome to Thinking Like a Lawyer. This is of course our 199th episode. Spectacular!

 

Kathryn Rubino: Well, I mean I think the spectacular we’re going to say for next week’s episode.

 

Joe Patrice: That’s probably true.

 

Kathryn Rubino: So, the only person who’s been on every episode?

 

Joe Patrice: All but one I think.

 

Kathryn Rubino: So wow!

 

Joe Patrice: Yeah. So, this is — so I’m Joe Patrice from Above the Law. That’s Kathryn Rubino, also of the same publication. And we’re here and next week is the 200th episode of the show.

 

Kathryn Rubino: Pam-pa-ram!

 

Joe Patrice: So, we’re going to—

 

Kathryn Rubino: We spend all this time making sure you have sound effects that you’re available to use and–

 

Joe Patrice: That’s true.

 

Kathryn Rubino: –you mentioned the 200th episode and you haven’t even come up with a sound effect.

 

Joe Patrice: That’s true. And you know why?

 

Kathryn Rubino: So, let’s take this again. Next week is our 200th episode.

 

Joe Patrice: Yeah. I don’t know where–

 

Kathryn Rubino: Wow! Wow!

 

Joe Patrice: I don’t know where these things are these days, like they’re all over the place.

 

Kathryn Rubino: I mean, just to the listeners and since we’re so concerned about looping them into all the details of what’s going on, but let’s be clear. You almost every week spend a solid 10 minutes with our sound engineers being like, “Can you hear the potential sound effects?” And now, when there’s actually an opportunity that’s not like oddly shoehorned into it, you fail.

 

Joe Patrice: So, the 200th episode of this show [sound effect]. Yes, all right. You’re fine. Now, I need to spend some time in between shows beefing up the sound board. I don’t think there’s a lot of options.

 

Kathryn Rubino: I mean I thought you would have some measure of celebratory sound effect.

 

Joe Patrice: Yeah, I guess. Yeah, I’ll do that.

 

Kathryn Rubino: Well, glad that we’ve foregrounded this issue. So, next week for the literal 200th episode–

 

Joe Patrice: That’s true.

 

Kathryn Rubino: You do something.

 

Joe Patrice: 200th episode, we should have a special guest back. We’re going to bring–

 

Kathryn Rubino: Secret. Secret time.

 

Joe Patrice: Secret? Or could we tell these people? As long as they don’t tell anybody else. But yes, no, we should be welcoming back Elie Mystal, the original co-host of this show who’s going to–

 

Kathryn Rubino: Before we upgraded.

 

Joe Patrice: Oh, okay We’ll tell him that–we’ll tell him that too. Yeah, he’s going to join us again to reminisce about legal — that legal doings. Yeah, I’ve been on every show, but one which was an episode that I was going to join them. I was out of town and I was going to join the show remotely and it didn’t work which led to–

 

Kathryn Rubino: Elie?

 

Joe Patrice: Well Elie and–

 

Kathryn Rubino: You literally just mentioned him.

 

Joe Patrice: No, that’s not what I — Elie and Randazza going off on their own. Actually in fairness, I did end up technically on that episode because Legal Talk Network made me record a disclaimer to begin the show for how explicit the rhetoric got. So technically I guess I have been on every show now, I’m sorry.

 

Kathryn Rubino: So, okay. Okay, that’s fair. That will be a fun thing to reminisce about.

 

Joe Patrice: Yeah. Well, I’m sure this will come up. So yes, so we’re here again and–

 

Kathryn Rubino: It’s a short week. That’s exciting.

 

Joe Patrice: Yeah. Yeah, short week. It’s a president’s weekend. I was just going to say before we get moving too far, to thank all of our sponsors, LexisNexis InterAction, Lexicon, Contract Tools and NODA powered by M&T Bank. So, without any further ado there, I thought maybe–

 

Kathryn Rubino: So, what’s been going on with you this week?

 

Joe Patrice: Well, I’m here and I’m prepared to go forward. I’m –I’m not not a cat

 

Kathryn Rubino: You are not a cat.

 

Joe Patrice: Which is really what I’m — really what really I think what –if there was anything that, we had an actual impeachment trial last week in the legal headline that lorded–

Kathryn Rubino: Actual impeachment trial slash sham of an impeachment.

 

Joe Patrice: Sure.

 

Kathryn Rubino: However, you know, tomato or tomato.

 

Joe Patrice: Sure, but the — but I think it’s fair to say that the line that lorded over the legal industry of the week was I’m not a cat.

 

Kathryn Rubino: Yeah, I mean, I don’t know how your zooming for the rest of the week, but I’ve definitely seen folks who are logged into, you know, lawyer name dash not a cat.

 

Joe Patrice: Nice. Yeah it’s–

 

Kathryn Rubino: It’s been the–

 

Joe Patrice: No, it was fun. A Texas lawyer in this instance was Rod Ponton or Pontin. Ponton. Anyway, he logged in to a hearing and the judge pointed out promptly that he was a cat because he had a filter on.

 

Kathryn Rubino: Filter on, yeah.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: So — so this is actually funny. I know you’re kind of into like the tech side of things and when I first saw — first saw, you know, a lawyer with a cat filter, I was like, “Oh, he let his kids use zoom for something.”

 

(00:05:01)

c

Joe Patrice: Yeah.

 

Kathryn Rubino: Because you know, if I ever like loan my phone to my nieces, there’s a million different filters and hearts popping and all that stuff going on, so that’s what I kind of assumed happened, but I think you actually had some details on the filter.

 

Joe Patrice: Well, it seems as though according to his story, it seems though it was his assistant had—

 

Kathryn Rubino: I’m sorry. Okay.

 

Joe Patrice: Yeah. I think I know what you’re getting at, but in this instance, it was that his assistant had accidentally turned this on or turned it on to have, you know, in another conversation and that’s why they were trying to turn it off. What the interesting thing is though I think a lot of folks tried to get that filter because it’s a pretty cute filter.

 

Kathryn Rubino: It was adorable.

 

Joe Patrice: Yeah and like I mean, everyone’s really familiar with filters from the Snapchat world.

 

Kathryn Rubino: Mm-hmm.

 

Joe Patrice: And none are really quite as cute as that one was. So, people were trying to find it and couldn’t.

 

Kathryn Rubino: Maybe the eyes were really the kind of awesome part.

 

Joe Patrice: Super.

 

Kathryn Rubino:  It was super cute and they kept on rolling. It was very, very cute.

 

Joe Patrice: Yeah. We’re talking about a lawyer who did this and we’ve moved well past the lawyer appearing before a judge looking like a cat well into the — this is a cute filter. But you can’t find it as it turns out. It’s a– t’s a Dell product that was released with one of their webcams years ago. It’s part of the training software or not training, you know, demo software.

 

Kathryn Rubino: A demo, yeah, yeah.

 

Joe Patrice: The problem is, that was a long time ago and they don’t release it and it’s not something you can get on Snapchat or anything like that. And it was only available for PC when it ever existed and they stopped it and the reason this showed up is that this lawyer apparently, I think this — we’ve talked a lot through the pandemic of lawyers becoming more tech savvy.

 

Kathryn Rubino: Sure.

 

Joe Patrice: You know, they–

 

Kathryn Rubino: Sure, the pandemic is forcing this on a lot of traditional lawyers.

 

Joe Patrice: Yeah. Well, and we talked on the Legal Talk weekly like I among legal tech journalists, I’m always pushing back people who say, “You know, it’s unfair this reputation lawyers have as luddites. They really aren’t” –and blah, blah, blah. No, they are and this is proof because this particular filter was only available to this guy because he’s not upgraded his computer in like 12 years.

 

Kathryn Rubino: By the way, that’s also a kind of a great statement about the computer that it’s lasted for that long.

 

Joe Patrice: Yeah, I guess that’s fair.

 

Kathryn Rubino: Like I don’t– none of my computers last 12 years.

 

Joe Patrice: Yes. No, I think that’s very true.

 

Kathryn Rubino: Even the stuff around them.

 

Joe Patrice: Yeah. But yeah, so this guy became a–

 

Kathryn Rubino: Internet sensation.

 

Joe Patrice: An instant little internet sensation.

 

Kathryn Rubino: Yeah and it definitely went beyond sort of the — the legal media. It was — it was widely out there.

 

Joe Patrice: Yeah. No, it was cute. It was not the first time he’s been in the news of course.

 

Kathryn Rubino: Really?

 

Joe Patrice: Yeah. No, in 2014, when he was a prosecutor, he oversaw a raid that kind of violently broke into a smoke shop, ultimately arrested a woman, made her plead guilty to something that according to police reports she hadn’t done as a way of getting her mom and sister, who had also been arrested as part of the plea deal of this woman pleading something that the police say she didn’t actually do. They allowed them to go.

 

Kathryn Rubino: It doesn’t sound great.

 

Joe Patrice: It doesn’t and the rankle of course is he denies that this ever happened, but the woman who was arrested claimed that they’d had a relationship and that he was — this was retaliatory.

 

Kathryn Rubino: Was he really a cat then?

 

Joe Patrice: He — I — he’s denying — he’s denying this like he’s denying that he’s a cat.

 

Kathryn Rubino: Okay.

 

Joe Patrice: So, we’ll see. But, you know, it’s a very troubling story and it’s one that even if all of the stuff that she’s saying is untrue, it still feels very, very iffy. She ran a smoke shop and they made her plead guilty to possessing certain controlled substances, but the police and the DEA reports say, “Here’s all the stuff we seized there and none of it was a controlled substance which does–

 

Kathryn Rubino: Is the case ongoing or–?

 

Joe Patrice: No. She — this was, you know, this was — this was in 2014 and then he ran in 2018 to become the district attorney, have lost and that’s when he moved to–

 

Kathryn Rubino: Becoming a cat.

 

Joe Patrice: To cat practice.

 

Kathryn Rubino: Right.

 

Joe Patrice: Yeah, so–

 

Kathryn Rubino: Cat attorney.

 

Joe Patrice: Yeah, a cat attorney, yeah. But I took it as not getting into the details of this like sorted back and forth between prosecutors and whatever. I took it as one of those reminders that the internet remembers everything and you have your light-hearted fun fluff piece literally in this case and the first thing that happens is somebody goes, “Wait a minute, that guy–

 

Kathryn Rubino: I know that name. This not the first hit on the internet.

 

Joe Patrice: Yeah. No, it’s not good. Anyway, but it was a fun event in our lives that there was a bit of a cat attorney and you know—

 

Kathryn Rubino: Slash prosecutorial misconduct.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: A reminder.

 

Joe Patrice: Oh, yeah. Allegations anyway, yeah. Just a reminder that it’s important to update your computers all the time. And if you work with contracts and don’t use Contract Tools, you’re missing a lot. It 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 every day for every kind of deal.

 

(00:10:02)

 

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Kathryn Rubino: Hey.

 

Joe Patrice: Hi.

 

Kathryn Rubino: It’s almost like we’re back again.

 

Joe Patrice: We are. What are we back to?

 

Kathryn Rubino: I don’t know.

 

Joe Patrice: Okay.

 

Kathryn Rubino: I don’t know. I don’t know. What do you want to talk about?

 

Joe Patrice: Okay.

 

Kathryn Rubino: I’m a great improv partner.

 

Joe Patrice: Yeah. See? That’s the thing. I promised that I was going to do a better job and you’re really killing it here. So you had a story this week about a Law 360 survey?

 

Kathryn Rubino: Well, yeah, I do a daily trivia question of the day and anytime there are surveys about the legal industry is kind of perfect to kind of mind for our legal trivia questions and Law 360 had a survey about partner compensation which actually has spawned several trivia questions as it turns out because there’s a lot of data in there and I think that anyone who is at that point in their career or thinking that that’s some place they want to go eventually is definitely something to take a look at, but one of the more interesting details was how important what law school you go to is to your long-term earning potential.

 

Joe Patrice: Mm-hmm.

 

Kathryn Rubino: You know and everyone likes to think well it doesn’t matter as long as I get — as long as I do a good job as an attorney and whatever and I’m sure there’s certainly parts of that that are true, but let’s not forget that in order to get many jobs and many opportunities, you have to have the resume for it. The legal industry is very elitist and having a top law school on your resume will always, you know, Ruth Bader Ginsburg, people still talk about how she graduated from Columbia and left Harvard Law because, you know, all the stuff that went on right there, people will always talk about your law school. And one of the interesting data points was that for partner compensation to hit the $500,000 threshold if you went to a top law school defined as 1 through 25.

 

Joe Patrice: Uh-huh.

 

Kathryn Rubino: 60% of folks in that bracket hit that threshold, but if you went to any of the law school 26 to 100, then you’re talking only like a 40% chance of hitting that threshold.

 

Joe Patrice: Wow.

 

Kathryn Rubino:  So, you know, even though, this is across all different types of practices across, you know, different — it doesn’t matter if you’re an MNA attorney, litigation, whatever, this is kind of aggregate, but I do think it was an interesting way to say that you could never really escape the law school that you went to.

 

Joe Patrice: Yeah. No, it’s true and I actually remember when i was applying I had no family or anything that had ever been a lawyer, so I didn’t know, but I had an undergrad professor who knew what was going on and I was just kind of compiling lists at random and she said, “Yes, so here’s the deal. You can’t go to any of those. You have to go to one of these”, and really shepherded me through the process and yeah, it’s true, the haves and have-nots gap is not as stark as the T-14 wants you to think it is. They’re like, there’s an immediate drop-off from 14 to 15. It’s a little better than that, but yeah, once you start getting down to 24, 25, it’s not that those aren’t good schools, but the career prospects start becoming a lot tougher as far as — if you’re in it just to make money.

 

Kathryn Rubino: Right, right. You know–

 

Joe Patrice: Which you, to some extent have to be or else you’re in it be in debt forever which is another problem to be resolved.

 

Kathryn Rubino: Yeah, I mean that is always kind of the bigger picture issue with law school and legal education generally is kind of hanging over the whole endeavor.

 

Joe Patrice: Yeah. And see, you know, you just need to get paid.

 

Kathryn Rubino: Yeah, you need to get paid.

 

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Kathryn Rubino: There was.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: Yeah, that did happen.

 

Joe Patrice: Look and — look, other podcasts and sources will probably go through the details of the political ramifications of it. I watched it more for the lawyer end, you know, for the grand advocacy and how did we feel about the advocacy coming out of the defense attorneys?

 

Kathryn Rubino: I mean, if you’re a partisan and you’re a Democrat, I think you felt pretty good about it.

 

Joe Patrice: Yeah. Yeah, that was–

 

Kathryn Rubino: If you — if you identify as right of center, I can’t imagine you were thrilled.

 

Joe Patrice: It did not go well I think is the best way to put it. So, we had a meandering intro and then we had kind of a rage-filled response and then we had the utter cluelessness of this is not denigration of slip and fall lawyers.

 

(00:15:04)

 

They perform an important job in this world, but that job is probably not defending a constitutional challenge to the presidency.

 

Kathryn Rubino: Yeah, but they don’t have to know the constitution nearly as well.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: As they do like local.

 

Joe Patrice: Yeah. It was — it got pretty brutal. I heard the phrase Bill of Attender used incorrectly. I heard a lot of talk about due process as though indictments– that was the one that really burned me as somebody who did white-collar defense.

 

Kathryn Rubino: Mm-hmm.

 

Joe Patrice: The effort that shone made to claim that there was a broken due process because Trump didn’t have the ability to defend himself to the house before they voted to impeach and I was like, that’s an indictment.

 

Kathryn Rubino: You don’t — you don’t get to go there.

 

Joe Patrice: You don’t get to go to the grand jury and defend yourself like that’s you don’t — you don’t have these options all the time like the due process is this trial, you know, it was–

 

Kathryn Rubino: Yeah, this is your due process.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: You can—

 

Joe Patrice: Yeah, this is it right now.

 

Kathryn Rubino: You literally were invited to testify.

 

Joe Patrice: Yeah. This is what’s in front of you now. It was really astounding and weird because it almost seemed as though this was — there was also this video that they kept showing ad nauseam which there were a few senators—

 

Kathryn Rubino: I think they just– they just showed the exact same video twice.

 

Joe Patrice: Yeah, a few times, yeah. And there were some senators involved in it obviously that was somewhat relevant, but they would show all these house members saying that they were convinced that Trump needed to be indicted and they were like so this proves they’re biased and I was like that’s like saying the cops think that people are criminals like yeah, that is their job, then you come here, like that’s what the trial part is. You don’t get to like let it go away because the police didn’t believe you.

 

Kathryn Rubino: Yes and I hear what you’re saying, but I think fundamentally, they did what they had to do which was to make it messy and blustery and if you’re just — if you’re already looking at bias sources which frankly most Americans, right or left are looking at largely biased sources, right?

 

Joe Patrice: Mm-hmm.

 

Kathryn Rubino: There was enough sound bites and clips to make people like, I don’t know, it just seems very confusing out there. And it’s just kind of enough to get folks to believe President Trump or, you know, I think they did enough to muddy the waters and that was really all they had to do in order to clear their way for a 2024 run which is probably their goal.

 

Joe Patrice: Yeah and it was–

 

Kathryn Rubino: Well, that’s if, you know prosecutors actual like criminal prosecutors have nothing to say about it. That was another story this week, right?

 

Joe Patrice: Yeah.

 

Kathryn Rubino: Fani Willis from Fulton County, Georgia came out and said that she was opening up an investigation into potential criminal conduct in election tampering which, you know, I look forward to hear what the results of that are.

 

Joe Patrice: Yeah, so fill us in a little bit more on this. So, this is Georgia—

 

Kathryn Rubino: Georgia, Fulton County’s DA.

 

Joe Patrice: Right.

 

Kathryn Rubino: Newly elected.

 

Joe Patrice: And they’re looking into specifically this Raffensperger call, correct?

 

Kathryn Rubino: Well, that is — that was the beginning of the investigation. I believe Willis made a couple of appearances last week and made some statements to various publications and believes that there is more, but certainly the fact that that call between Georgia Secretary of State, Brad Raffensperger a couple of big law attorneys which we talked about at nauseam on this podcast and you’ve written about quite a few times and President Trump, because that was leaked, it became public, it was out there and she certainly believes there’s enough to start a criminal investigation. She said all the right things now about how, you know, no preconceived notions about what she’ll find, but if that calls public, one imagines there was — there’s additional stuff out there.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: That she can dig into. So, there will be a criminal investigation into potential election tampering. So, we’ll see what happens.

 

Joe Patrice: Yeah. Just as — just as the framers intended, the actual punishment of federal elected officials will be the Fulton County DA’s office.

 

Kathryn Rubino: I mean, if that — it’s what we got.

 

Joe Patrice: Yeah. Well hopefully, they’re organized and can get through everything and — but they’ve streamlined their administrative tasks properly.

 

Kathryn Rubino: Oh, I see where you’re going with this one.

 

Joe Patrice: No, here’s a message just for attorneys out there. You passed the bar, joined a firm or even built your own. Now, you’re finding out you are doing more administration than actual law practice? Lexicon can help. Lexicon is a legal services and technology provider with over a decade of experience helping firms maximize billable hours and until March 1st, get up to $1,500 off onboarding. Visit lexiconservices.com/gotogetstarted. So, to close up on the week, what are you looking forward to this week? What do you like from last week’s news.

 

Kathryn Rubino: In general. Yeah, yeah. Well, not much did I like from last week’s news. What I’m looking forward to for this week is the fact that it’s a four-day week, you know, President’s Day was Monday. What I’m looking forward to the week after

is the 200th Thinking Like a Lawyer spectacular.

 

Joe Patrice: Fair enough. Yeah.

 

Kathryn Rubino: No sound effects even then.

 

Joe Patrice: No, again, I don’t–

 

Kathryn Rubino: I’m trying, I’m trying.

 

Joe Patrice: Sand(ph) trombone is like the best I got, like I have nothing, but mean-spirited sounds right now which is probably—

 

(00:20:03)

 

Kathryn Rubino: I think it says something about you.

 

Joe Patrice: Yes, it’s says something bad, but it’s like – like a gong works I guess. Yeah, you’re right.

 

Kathryn Rubino: That’s terrible.

 

Joe Patrice: Yeah, I guess that’s right.

 

Kathryn Rubino: All right, you want to try it again?

 

Joe Patrice: All right, sure.

 

Kathryn Rubino: You know, what I’m looking forward to next week is the–

 

Joe Patrice: Oh, really? What?

 

Kathryn Rubino: —200th episode of Thinking Like a Lawyer.

 

Joe Patrice: I hit the wrong one. The buttons are a little close here. I’ll try and figure that out.

 

Kathryn Rubino: Oh man.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: I feel like we need to have a practice session before next week’s episode just for the sound effects.

 

Joe Patrice: That’s fair. Yeah, like this not besmirching this, this is a great little program. It’s a new one for those who our–

 

Kathryn Rubino: It’s free also I’m sure.

 

Joe Patrice: —for our long time listeners, you knew that I used to have one that worked and it kind of ceased working and so, we got this new one and it’s great, but the things pre-loaded on it are — there are other kind.

 

Kathryn Rubino: I like the way that that you started out taking full responsibility for the fact that they were a kind of mean-spirited sound effectually.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: I guess it says something about me and now you’re like, these were pre-loaded. I had nothing to do with it.

 

Joe Patrice: They were.

 

Kathryn Rubino: Your story changes, that was my point.

 

Joe Patrice: Yeah. Well I mean, no I think I can still take—

 

Kathryn Rubino: Just get the story and stick with it.

 

Joe Patrice: I can still take responsibility because I obviously have had some time to load up more things which this program invites you to do. But it is true that the– and I felt like I didn’t need to. I felt like this was a pretty good set of stuff, but it’s all kind of, you know, like broken glass and thunderstorms.

 

Kathryn Rubino: It takes too long to get to the thunder.

 

Joe Patrice: What?

 

Kathryn Rubino: It takes too long to get to the thunder for that.

 

Joe Patrice: That’s fair enough.

 

Kathryn Rubino: But I mean, the gong was fine.

 

Joe Patrice: Yeah. Yeah sure. Okay.

 

Kathryn Rubino: Spectacular!

 

Joe Patrice: There you go. (00:21:39)

 

Kathryn Rubino: See, they worked.

 

Joe Patrice: Yeah, yeah, yeah. All right.

 

Kathryn Rubino: Why Joe, did you have something that you wanted to talk about that you’re looking forward to next week?

 

Joe Patrice: No. I was looking forward to another, I don’t know, five to six minutes worth of content was really what I was looking forward to. I thought that – I thought that would help, but yeah.

 

Kathryn Rubino: Well, we have a lot of opinions about sound effects, I think is the long and the short of it.

 

Joe Patrice:  I think that’s true. If I can find a gavel banging, I think that’s one we probably need.

 

Kathryn Rubino: You definitely need that I think, but I also think that it has to be very loud, right? Like because otherwise, it could be kind of muffled and weird and somebody thinks that somebody’s like trying to enter their, like I don’t know like–

 

Joe Patrice: Yeah.

 

Kathryn Rubino: You don’t want to sound like a knock because like — I feel like that’s awkward, but i do think that like some sort of — some sort of applause maybe, a cheer.

 

Joe Patrice: Yeah. See, I had all those with the old program.

 

Kathryn Rubino: Like a woo-hoo!

 

Joe Patrice: The old program had applause and had crickets and it had like—it had some good stuff, but—

 

Kathryn Rubino: So, you do know what should be on this.

 

Joe Patrice: Yes, that’s – yes. I think that’s probably fair.

 

Kathryn Rubino: I think this is still your fault.

 

Joe Patrice: I think, yeah, and I think we talk a lot about this.

 

Kathryn Rubino: You’re the only one who’s been on this for 199 episodes.

 

Joe Patrice: That’s fair. And we talk a lot about law firm business and stuff like that and like i can get a cash register and stuff like that, so that people can know.

 

Kathryn Rubino: Tsi-tsing!

 

Joe Patrice: Yeah. So, you can think about making money and wonder 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 crisis. 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.

 

Kathryn Rubino: Good one.

 

Joe Patrice: Yeah. No, so I will get that done stuff. I am — I’m looking forward to wishing the best of course to all the February bar exam folks who are going to have to deal—

 

Kathryn Rubino: Oh yes, the bar exam is coming back up again.

 

Joe Patrice: Yeah, we’re going to have to deal with this which is really problematic.

 

Kathryn Rubino: So, okay–

 

Joe Patrice: There’s some institute — some jurisdictions are doing it in person already which seems problematic this early.

 

Kathryn Rubino: Yeah, I mean, we are not at a point where everyone has gotten their vaccine.

 

Joe Patrice: Correct.

 

Kathryn Rubino: I mean, fingers crossed, we will be shortly, but we are not there.

 

Joe Patrice: But other, yeah, but other jurisdictions are still doing it online even after all the troubles of the October exam which they have looked at and decided, “Wait a minute. Why don’t we just double the length of the exam?”

 

Kathryn Rubino: Wait.

 

Joe Patrice: Yes, even though the problems were primarily that the algorithm flagged people for cheating because they shifted in their seats, things that are prone to happen over the course of an hour or two of sitting quietly and staring at a screen and instead, they said, “What if we made these sessions twice as long?”

 

Kathryn Rubino: That sounds awful.

 

Joe Patrice: Yeah. It’s ridiculous and they’ve been — the stories of cheating flags that are being handed out willy-nilly by the system—

 

Kathryn Rubino: Is that – I’m sorry, but I was under the impression, you can correct me if I’m wrong because this is kind of your beat, but it was mostly in California that did sort of an overwhelming number of these, whereas in other jurisdictions, they may have gotten those flags from the system, but they had somebody sort of manually go through them before they sent out the notifications.

 

(00:25:02)

 

Joe Patrice: Yeah, so it seems as though what really happened here is very much not the problem of the technology, though of course the technology creates this problem, but it’s one that can be addressed. Exams opposition with their technology is that it is not flagging people that–

 

Kathryn Rubino: That are necessarily cheating.

 

Joe Patrice: Consciously.

 

Kathryn Rubino: Right.

 

Joe Patrice: It looks for things that could be issues and just says, “Hey, this has been flagged.”

 

Kathryn Rubino: A person should look at this.

 

Joe Patrice: Right. Now, that’s problematic for people who like for instance, people of color whose faces who didn’t get recognized from the outset are told basically, “Your whole exam is suspect” before they even start–

 

Kathryn Rubino: That is—

 

Joe Patrice: Psychologically–

 

Kathryn Rubino: Sorry.

 

Joe Patrice: Racist and psychologically not the best conditions to begin a test under, but that said, if things are getting flagged elsewhere, exam’s position is, “Hey, we are not saying that they’re cheating. We’re flagging these for someone to look at.”

 

Kathryn Rubino: Mm-hmm.

 

Joe Patrice: The problem with this of course is it appears as though California in particular got bunches of them because this is a hyperactive piece of algorithm.

 

Kathryn Rubino: Sure.

 

Joe Patrice: And—

 

Kathryn Rubino: And they are very large jurisdiction.

 

Joe Patrice: And they are very large jurisdiction and so, they just send out notices saying that they believed one-third of all test takers cheated and it was up to them to prove to us why you weren’t.

 

Kathryn Rubino: Yeah, I mean, that’s–

 

Joe Patrice: It’s just the laziness to not wanting to do it.

 

Kathryn Rubino: To read different kinds of – yeah three different kinds.

 

Joe Patrice: Yeah. So, this is the—

 

Kathryn Rubino: But yes, that is hard — it is harder to do that, but it’s certainly not harder than all the proctors you have to employ during an in-person examination. Understand that, you know, online doesn’t mean automated 100% of, you know, times and you actually have to do a lot on the back end to make it as tenable a process as possible.

 

Joe Patrice: Yeah. It’s just a problem existed that where it was broken and their response was, “Let’s double down.” It’s really unfortunate and I feel bad for everybody who has to do go through this.

 

Kathryn Rubino: Yeah, I think they’re putting the onus on test takers is just beyond–

 

Joe Patrice: Lunacy(ph).

 

Kathryn Rubino: Yeah.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: It’s not okay, like what are you doing? Like you have a job, you literally have a job and people are trying to get one, so really it’s your job, it’s not the test takers’ job.

 

Joe Patrice: Yeah. I was asked if I wanted to give a pep talk basically to February bar exam takers and I was like, I’m overjoyed to chat with people, but I can’t imagine a worse pep talk than whatever I would say at this point. I’m like, “This test is broken.”

 

Kathryn Rubino: You’re (00:27:21) and –

 

Joe Patrice: Yeah, and like you’re going to–

 

Kathryn Rubino: Good luck with all that.

 

Joe Patrice: You’re going to do the absolute best and unfortunately, this whole system is going to screw you over.

 

Kathryn Rubino: That’s not great.

 

Joe Patrice: Yeah, I’m like I feel so bad about that, but I will try my best.

 

Kathryn Rubino: But that is a decent question. What would your piece of advice be to a February bar exam taker? You can make it both something that’s specific to online or just like the bar exam generally. Like what would you say?

 

Joe Patrice: Maybe the algorithm doesn’t catch the cat filter, I don’t know, like I don’t — I don’t know what possible advice I have to help people avoid these problems, like they’ve got to try, yeah.

 

Kathryn Rubino: Maybe you don’t understand the nature of advice.

 

Joe Patrice: This is the point. This is what I’m saying. I don’t.

 

Kathryn Rubino: Maybe you can like listen. It is a particularly challenging time, everyone is aware of that. In 10 years from now, it’ll be a badge of honor to say that I sat for this this bar exam. It was the worst bar exam. We will almost certainly universally acknowledge that in 10 years’ time and you get to, you know, over drinks, someday, you get to tell your story and it sucks right now, but you will survive it. And whether you pass or whether you don’t, at some point, you will be a lawyer and you have to kind of look to the horizon, look to the future and do the very best you can. I believe in you.

 

Joe Patrice: See, this is what she’s — this is why she’s the one you want for this sort of a job.

 

Kathryn Rubino: I’m better. That’s true, I am a more positive person than you are.

 

Joe Patrice: Yeah and I think that’s fair.

 

Kathryn Rubino: I don’t think is controversial.

 

Joe Patrice: Yeah.

 

Kathryn Rubino: I’ve known you for many years. At this point, I don’t think that anyone who’s known either of us for any length of time would be shocked at that information.

 

Joe Patrice: Yeah. Anyway, well. So–

 

Kathryn Rubino: Yeah. You can do it if you’re taking the — if you’re taking the February bar exam, good luck.

 

Joe Patrice: Yes.

 

Kathryn Rubino: You’ve got this and in five years, we’ll all have a drink on you.

 

Joe Patrice: Yeah, fair enough. So, with that said, I will have a drink on you. Yeah, I like how you slip that in there. I almost — yeah. That was—

 

Kathryn Rubino: Of course, there will be a rich lawyer.

 

Joe Patrice: Yeah, yeah.

 

Kathryn Rubino: There you go. There you go.

 

Joe Patrice: Well, depending on which law school.

 

Kathryn Rubino: There you go. When it all comes together.

 

Joe Patrice: Yeah. See, how it all comes back together full circle? So, next week 200th episode. Until then, you should be reading Above the Law. You should be subscribed to the show. You should be giving it reviews. You should write something, not just give it stars because that proves more engagement. You should be following us on social media. I’m @josephpatrice. She’s at @kathryn1, the numeral one. You should listening to The Jabot as well as the other offerings of the Legal Talk Network, Legal Tech Week. The lawyers round table that I’m on every week is also a good option for you. And I think is there anything else? Oh, then that too.

 

[Music]

 

The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, it’s officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

 

[Music]

 

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