A lawyer tried to get away with a little misogynistic insulting in open court. It did not end well for him. Meanwhile, a Biglaw partner laments low hours and associates skipping out on the office. This should be a warning to associates as the economy cools because whether or not this is fair, this is the sort of thinking that guides layoff decisions. And the bar exam is here and so are all the indignities. Like asking applicants to spend over $100 on lunch.
Special thanks to our
Joe Patrice: Hello. Welcome
Kathryn Rubino: Hey.
Joe Patrice: to another edition of Thinking Like A Lawyer. I am Joe Patrice. Thanks to Kathryn Rubino. Chris Williams is with us. We are all from the Above the Law and we are here to chat about the big legal stories of the week as we do all the time. But we are here —
Kathryn Rubino: It’s kind of what we do.
Joe Patrice: It is. It is. Well, it’s half of what we do.
Kathryn Rubino: What’s the other half?
Joe Patrice: We have a little bit of small talk.
Kathryn Rubino: Did you say small talk was the full half of what we do?
Joe Patrice: I mean, okay, so, it’s part of what we do.
Kathryn Rubino: It’s an element.
Joe Patrice: Okay.
Kathryn Rubino: How’s your weekend, Chris?
Chris Williams: I had a good weekend.
Joe Patrice: Good.
Chris Williams: I missed the last week. Sorry, to all of you out there in the listening world who missed soul through tones. But the news is, it was a good week. I was in Florida. I got to see some family. I was there for my cousin, Ayla’s first birthday which was cool. I made the decision that of all of the cousins that she has, I’m going to be the best one. So, if you’re listening to these fellow combatants, I want to go full highlander like I’m learning my sword technique. I‘m going to get there, but I mean, like in a peaceful way. Please don’t use this against me in a future lawsuit. But it was great. It was great. I went to Disney.
Kathryn Rubino: Yay!
Chris Williams: I’m not a Disney adult. Cough, cough but I can see the appeal.
Kathryn Rubino: You see this is how it starts. They get you.
Chris Williams: Becoming a Disney adult is like with most kinks. It starts as a joke and it wraps up. But yeah, —
Kathryn Rubino: What was your favorite Disney ride?
Chris Williams: My favorite is Disney ride was the only one I went on. It was a bumper car thing. And I got on it and I realized that this might shock some of you, “I’m a nerd” because as I was riding through it, I was thinking about this one chapter in practical philosophy about getting to listen. I was like, “Oh, this feels like free will, but it is actually being controlled by something else.” And then my date was like, basically, like shut up. I was like, “I get it. I get it.” But it was a very good thought.
Joe Patrice: So, you went on to Tomorrow Land’s Speedway? Is that what we’re talking about?
Chris Williams: It could be. I don’t remember the names because again, —
Joe Patrice: The little puttering cars that are on rails.
Chris Williams: It was one car and we weren’t allowed to hit the other cars.
Joe Patrice: The Right. Yeah, that’s the Speedway. Yeah, that’s like the only thing that I would never ride. Interesting.
Chris Williams: Hey, well you know. Oh, another thing is the swag I picked up is ridiculous. So, one thing is Disney Ride at its 50th year also Disney is only 50 years old.
Joe Patrice: Disney World is.
Kathryn Rubino: Disney World
Chris Williams: Disney World. Okay, got you. That explains why in 1928 it was on the jacket that I bought.
Joe Patrice: Right.
Chris Williams: And it was a bomber jacket. A Mickey Mouse bomber jacket and I’m going to bag at least three grandmothers in this jacket. It was so fly.
Joe Patrice: Well, okay. Kathryn, how are you?
Kathryn Rubino: I’m doing well. I had some friends over to this little barbeque action and we are in the middle of the heatwave here in the northeast. So, we did some swimming as well.
Joe Patrice: Good.
Kathryn Rubino: How about you, Joe?
Joe Patrice: Yeah, pretty uneventful.
Kathryn Rubino: You survived as opposed to that is a sort of becomes a victory of sorts.
Joe Patrice: That is true. I did survive the heat wave and the storms and all. So, yeah. All right, well I think that puts an end to this.
Chris Williams: Always eventful in small talk, Joe.
Joe Patrice: I mean, I don’t know. I made a one and done as I have already blown the horn. I can’t actually continue.
Kathryn Rubino: I think I will allow it.
Chris Williams: You keep blowing the horn all the time, Joe.
Joe Patrice: I played around but I have one of those whipping siphons that you can charge with NO2 and all. And I made a brown butter sauce that was really good you know?
Kathryn Rubino: Look at you.
Joe Patrice: So, I played around the best sort of thing.
Kathryn Rubino: Being all crafty and whatnot.
Chris Williams: Look at that.
Joe Patrice: Yeah, I know I did some cooking.
Kathryn Rubino: Where’d you put the brown butter sauce on?
Joe Patrice: Artichoke.
Kathryn Rubino: Oh.
Chris Williams: So, Kathryn has much higher faith in you. I thought you were just spooning the brown butter in the mouth directly.
Joe Patrice: Yeah.
Kathryn Rubino: That’s an unfortunate visual we have now given our listeners.
Chris Williams: Oh, no.
Joe Patrice: So, speaking of unfortunate statements, that’s a good transition.
Kathryn Rubino: It’s good as we’re going to get, I’ll tell you what.
Joe Patrice: And so, Kathryn, you put together a story that was the big one of last week. So, that was a little bit about that.
Kathryn Rubino: Oh, I think I know what you are talking about.
Joe Patrice: I would hope so because in the production memo it explained that that’s what we’re going to talk about first.
Kathryn Rubino: You know what, I think you pretend that people read everything you write.
Kathryn Rubino: But anyway, this is a story about an attorney who fancied himself more clever than everyone else in the courtroom. He had recently lost a motion and he wished that after the motion he said, “I just want to wish and named the male attorneys in the room. I have you all have a good weekend.” And to his adversaries who were all female attorneys he said, “See you next Tuesday.”
Joe Patrice: Right.
Kathryn Rubino: Which in the case and the poor judge was like, “That’s very kind.” I did not know the other meaning behind the phrase “See you in T.” And was unaware that they sort of had this hidden meaning when it was brought to the judge’s attention. It was like, “You might want to check out this urban dictionary definition of ‘see you next Tuesday.’” Brought everyone into his chamber for a meeting, and the attorney was like, “Oh, I didn’t think anybody would understand what I meant.”
Joe Patrice: So, all of that and so the answer to being called out about this is, “I didn’t think you would figure this out.”
Kathryn Rubino: And he said, it was an in-joke between himself and someone else and other folks in his office. And I’m like, “and everyone else under the age of 45, maybe.”
Chris Williams: I thought my response to that was how enormous to get called bless your heart. “Oh, they care about my heart health.”
Kathryn Rubino: I was actually surprised actually by Exact Synergy because there was a ton of folks when they kind of the story blew up on social media. And one of the things that I found most illuminating was the number of attorneys who responded, “I had no idea that was that meant.” Or, “how many times have I been insulted and just never understood.” But I felt this was a very well-known insult. She is a real “See you next Tuesday.”
Joe Patrice: Yeah.
Chris Williams: I mean guess that it shows the people you hang around because my friends –
Do you know?
Joe Patrice: Or maybe people say that to Kathryn a lot. I don’t know.
Kathryn Rubino: Wow. Wow. Well, I am friends with the likes of you. So, maybe I’m used to being insulted.
Joe Patrice: Obviously not.
Chris Williams: Fine.
Joe Patrice: With that said though, this has actually an interesting question as an ethical matter. So, when confronted with the answer, “Oh, I just assumed nobody would figure it out.” It’s not a great answer.
Kathryn Rubino: No, it went through. That’s not an excuse.
Joe Patrice: On the other hand, part of me thinks. I mean, you’ve been caught at this point. It seems like attempting to lie to the court further could only make it worse.
Chris Williams: You know, the funny thing here is, here’s my philosophy frame. “I feel like it was kind of like a Barley defense.” Like if an insult is said in the middle of the woods, and that will hear it you know? It was like as if nobody knew. I mean it’s still bad, but I guess that’s the only direction that could make sense. Like, “I have no foul. Nobody understood it.” Like, he was negligent or whatever. I mean, it’s still dumb. Don’t do it. Don’t insult people.
Kathryn Rubino: And I guess this kind of goes to the question of how many folks could be expected to know it at a given moment. But sort of, I think in my peer group I think sort of elder millennials would all be very, very, familiar with this as an insult. And I do wonder if maybe they’re sort of a weird in-between the time of generational issue where some folks may not be as aware of it. But I mean, it’s hard to come up with it. I’m certainly not saying, “Lie to the court, right?”
Joe Patrice: Right.
Joe Patrice: But that’s not an issue.
Kathryn Rubino: It’s only going to make you worse, right? But at the same time, well I guess, I would not be insulting y opponents in court unless I wanted everyone to know that I was in fact insulting my opponents. And maybe that sort of goes to “He didn’t think he’d get caught. He thought he was smarter. He thought whatever.” But the judge even said that “Not only it was problematic because he used this sexist insult against your opponent.” But also, you tried to pull one over the court and it was referred to the disciplinary board as a result. It certainly is unacceptable I think at a minimum. But this attorney seemed to think that he was the only one smart to get it. He and his buddies.
Joe Patrice: Yeah. I’m really hung up on this discussion of whether you attempt. It’s a bad defense to say, “I didn’t think I’d get caught.” But it was like, “Yeah, I feel like.”
Kathryn Rubino: I don’t think you are smart enough.
Joe Patrice: Yeah, I feel like the only hope you have in that situation is to come clean as quickly as possible because it’s not like they’re going to and so like the judge is fooled anymore.
Kathryn Rubino: But I think like there’s like a way you can potentially come clean like, “Yes, I did make these insults to my opponent.” It was said in the heat of the moment. Also, not saying that you did it as a premeditated joke.
Joe Patrice: Oh, some contrition, I see.
Kathryn Rubino: Contrition it’d be like, “I’m so sorry. It was the heat of the moment. It was a contentious argument. I let my emotions do the better of me.” Blah, blah, blah. But being like, “Oh, I didn’t you’d get it.”
Joe Patrice: Yes.
Kathryn Rubino: He was the particularly insulting way to go about it.
Joe Patrice: I see what you mean.
Chris Williams: He could have pulled it and walked away. Remember that moment, and have you all seen, Breaking Bad? So, remember at the point when he was like, “You caught me like, hands up.” Like, he’s still a dick but it’s like that one. He couldn’t be an asshole commit to it.
Kathryn Rubino: I did it. I was also kind of surprised again how many people admitted to not knowing that as a sort of undercover insult. But when I was finding GIFs to use in the story, there were plenty of seeing you next Tuesday option stuff.
Joe Patrice: Yeah, I would think so.
Chris Williams: What is this in reference to? Because the way you’re saying, Tuesday is very specific?
Joe Patrice: Well, I think I mean, she’s –
Well, do note that we all get what it’s a reference to it at this point, right?
Kathryn Rubino: No, but I think and so the first ones or the first times that I’ve ever heard it was on American Dad and the character Roger.
Chris Williams: Okay.
Kathryn Rubino: Although he didn’t say, “See you next Tuesday.” He says, “Catch you next Tuesday.” But it’s a very like tad kind of—you know, because that character is meant to be a Paul Lind kind of caricature or whatever. But she’s a real “See you next Tuesday.”
Joe Patrice: Yeah, I don’t think Chris knows who Paul Lind is.
Chris Williams: No, but I ask because there was a thing, I say totally not in the conjugal cuts but I was thinking about it. I say like if somebody is saying something like a regular occurrence and to me, it’s like an everyday thing, I’m like, “It’s a Tuesday.” And it’s like a Mortal Combat movie or something like something with the guy who was the husband in Adams Family. Not Mortal Combat.
Joe Patrice: Street Fighter.
Chris Williams: Street Fighter. Street Fighter. And there was this woman, she was mad like “You massacred my village.” She was like, and to me, it was a Tuesday. So, I was just wondering like, because when I said “I always have that in mind.” I was wondering if the See you next Tuesday thing was a reference to a movie.
Joe Patrice: Which I believe is Raul Julia final movie was Street Fighter, yeah.
Kathryn Rubino: There you go. Anyway, it is just that it starts with the letter t.
Joe Patrice: Yes. Well, the sound effect is not working.
Kathryn Rubino: We can pretend.
Joe Patrice: We could pretend.
Kathryn Rubino: Bring, bring, bring, bring. Have you heard about the whole thing how like kids nowadays don’t use their hands to stimulate a telephone the same way that like Gen-x used to? You know, like for Gen-X the use of your pointing finger and your pinky to be like that of the telephone. Now, they just hold it because a phone is a brick in their minds.
Joe Patrice: That’s actually fascinating.
Kathryn Rubino: Yeah.
Joe Patrice: And it makes sense.
Kathryn Rubino: Yeah. Well, you know, if you stopped thinking about telephones in general it might be because you need a service for someone to take care of.
Joe Patrice: Oh, like a virtual receptionist?
Kathryn Rubino: That’s what I was toying with.
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Joe Patrice: Welcome back. So, you also had a story about big law firms and a memo that went around. If you would like to jump into that discussion from the production memo that I sent, you would note that this was the story we were going to talk about. It seems it was a very intense story.
Kathryn Rubino: Oh, I remember now. I wrote a lot of stories last week as it turned out.
Joe Patrice: But only a couple of them were listed on the production memo I sent out.
Kathryn Rubino: I’ve had a busy morning friend.
Joe Patrice: Yeah.
Kathryn Rubino: Sorry, we can’t all keep only one thing on our mind as you can.
Kathryn Rubino: Whoa. Anyway, this is yeah, the litigation ahead at a big law firm, Akin Gump which has sent rounds of memos to associates.
It turns out that partners seemingly are having a difficult time getting associates to take on more work. He said, “too many calls for help are either being ignored” or that “I’m too busy.” The problem according to the litigation chair is that that does not align with folks’ timesheets. And indeed, the last two months of billables have been particularly low. And he also makes a correlation between low billables and people not coming into the office as per the firms’ expectations. They’re doing sort of a hybrid schedule where you’re not expected to come in five days a week necessarily. But there is an expectation that you’re at the firm several days a week and makes that kind of correlation, which I’m skeptical that that’s the reason because let’s not forget, there are plenty of years during the height of COVID when everyone was billing plenty of hours from their house. But regardless, that’s the sort of distinction he’s making and he asks associates to bring more “intensity” to their practice and also makes a plea for teamwork because we’re all in this together really. And you know, as the last Catholic, I kind of appreciated the guilt element as well.
Joe Patrice: So, here are two issues here. The one is that in the mind of the firm folks aren’t billing enough hours. And the other is, putting aside how many hours are being worked. People aren’t doing that work inside the office.
Kathryn Rubino: Right.
Joe Patrice: Okay. So, to take the second part first, this is a recurring theme that we’re hearing a lot about, which is the transition to a hybrid work model coming off of a couple of years, where everyone was remote, which more or less proved that you could make a ton of money and bill a lot hours while working remotely. So, we have kind of a generational clash of folks who say, “We’ve proven we can do this remotely. Why do we have to go back to an office.” And folks saying, “Yeah, you do have to go back to an office.” Now so far, the big firms at least are not trying to push coming back five days a week, but are saying that three to four days a week people should be in the office, which from my perspective sounds like a great deal, but it seems that associates are pushing back on that.
Kathryn Rubino: Yeah, and I think actually in this email kind of trying to create that correlation between office and billables is a little bit problematic because I think the way this sort of getting more folks on board with coming to the office on a regular basis is saying, “Listen, we know that in 2021, you build X-number of hours and that was great.” And I think the more savvy firms are certainly doing is trying to make the pitch anyway, that it’s not about just about billable hours. It’s about creating a sustainable environment and also teaching the next generation of attorneys at the firm.
Chris Williams: Also known as a sales pitch.
Joe Patrice: Yeah, I mean it certainly seems.
Kathryn Rubino: Listen, a mid-level associate can continue, right? A senior associate knows what they’re doing, but trying to get the younger folks, the first second-year associates to understand. There is so much you pick up in an office environment when you’re not even trying to learn not just how to lawyer, but how a particular firm does what it does. And we also know that that’s true because there has been a bunch of surveys done of incoming summer associates or first-year associate classes, and they have all said that they overwhelmingly are looking to come into the office at least part-time.
Chris Williams: To be fair on an email chain, see you next Tuesday will be sunk.
Kathryn Rubino: So, there’s that kind of coming back to the office issue. But then, there’s that second question of how many hours are folks billing. And you know, we’ve been talking for a while now that you work in big law is slowing down a bit, folks are talking, projecting the potential for layoffs, which you know the kind of coming off the high of 2021 seems a little, bit of a shock to the system, which I completely understand, but it is certainly talked that is going around. And I think something everyone has to be aware of. And listen, I don’t know what associates in litigation at Akin Gump are billing. I don’t have access to their timesheets, but if you’re there and you’re on track to bill 1600 hours right now, you might want to even react with intensity as the firm would like. If you are on track to bill 2,100 hours and there’s a feeling, well, maybe you could squeeze out 2400. Sure, maybe take a couple of the summer months that are a little bit slower.
You know, take that as a well-deserved break but there is also plenty of talk about layoffs, and I don’t think you want to be thought of as someone who’s been shirking their overall responsibilities when partners are saying “We’re making calls. We are asking people for help and no one is responding.” I don’t think you want to be the kind of person that’s thought of that way when rumors about potential layoffs are swirling around.
Joe Patrice: Oh yeah.
Kathryn Rubino: Unless you don’t care about being laid off.
Joe Patrice: Right. And that’s a thing for folks who haven’t been through it before. Layoffs come, they come and go, and sort of those situations where it is always the oncoming train at the end of the tunnel. Like everything’s good in big law until the moment that it isn’t. And don’t think that layoffs, can’t come because we just had a great year. That’s almost always how it goes. There’s a fantastic year,
Kathryn Rubino: 2008 – 2009 was an after a super high billable than 2007, right? These things happen, and they’re never fair. It’s not that the worst associates are the ones who bear the brunt of the down economy. That’s just not true. You might be the one who has to sort of bear it. And if there are any warning signs like there are right now, use that to your advantage. Be aware. Don’t be caught sleeping because, you just were like, “Well, I billed a lot less year.” That’s not always enough. And if you’re the person or group of folks that are thought of as not being team players, that’s an easy call for the firm if they have to cut someone. But don’t make it easy for them to let you go.
Joe Patrice: Yeah, I think that’s fair.
Kathryn Rubino: Because it’s not going to be fair just that you had a great 2020.
Joe Patrice: Yeah.
Kathryn Rubino: They’ve already collected that money; they no longer care about that time.
Joe Patrice: Yeah, and the market changes, your practice group may not be useful at this point, and a decision needs to be made. And that’s why in some ways more important than the numbers, the hard numbers of ours is this phrase, “team player.”
Kathryn Rubino: Yup.
Joe Patrice: Because that shows the sort of subjective impression that the firm has of you.
Kathryn Rubino: And listen, it’s not fair. I’ve often used to hide all sorts of ill motives, but if it still continues to be sort of an important factor when folks are making these decisions. So yeah, and they’re giving you a heads-up now.
Joe Patrice: Yeah, be careful. Tread very lightly when firms start talking like this because it may not be justified, but it is.
Kathryn Rubino: Right.
Joe Patrice: And you should be –
Kathryn Rubino: Aware and you know, listen to the folks that Akin giving the litigation department a heads-up, but if this sounds at all familiar and you’re at a different firm, take it that way.
Joe Patrice: Yeah.
Kathryn Rubino: Try to use this information to help your own career.
Joe Patrice: Well, we’re back in and let’s finish up by talking about the bar exam, which is going on right now for everybody listening to this. So, that means for a large segment of our audience, you’re probably listening to this a little bit late this week, because you’re doing the bar exam. There is just so many injustices involved in the bar exam as a whole concept, but this one deserves some special attention. I honestly thought this was a joke when I first saw it. But in fairness, I had hoped I didn’t think it was a joke because I was pretty confident it was real. I’d just hoped that it wasn’t. The New York bar exam in particular at its Javits Center location. They have other locations of course, but their Javits Center location released a menu where you could buy your lunch to eat during the bar exam. You know, it’s a two-day exam. And so, two days’ worth of lunches.
Kathryn Rubino: Sure. It kind of eases the process. You don’t have to worry about waiting in line during the limited time that you have off. If you’re not from the area, specifically, you may not know where all the fast food and or delis are.
Joe Patrice: Because Google was a thing but doesn’t exist.
Kathryn Rubino: But it also takes one last thing that you have to worry about during that or only you only get one hour. Not everyone’s relaxation is waiting in line. So, take a little bit off and get your order of food delivered right to you.
Joe Patrice: Or as the case may be, maybe don’t do that because the bar exam is charging between thirty-three and fifty-three dollars for boxed lunches.
Kathryn Rubino: That is absurd.
Joe Patrice: A fifty-dollar lunch consists of a turkey sandwich, a pasta salad, potato chips a cookie and graciously includes a bottle of water. That is fifty-three.
Chris Williams: To be fair, these people just spent two hundred thousand dollars to learn from Google how to be a lawyer. What another three hundred fifty bucks?
Joe Patrice: So that means over the course of the exam, that’s a hundred and six.
Chris Williams: That’s two minutes of your kind of law professor talking about how the founding fathers think abortion is great or whatever.
Kathryn Rubino: Well, think about the really great food you can get in Manhattan for fifty-three dollars a pop. Like you can get some significantly better food than a dry turkey sandwich, and a thing of potato chips.
Joe Patrice: Within walking distance from the Javits. Oh look, the Javits Center is not exactly in a hotbed area, but it’s better.
Kathryn Rubino: True.
Joe Patrice: They have now built the Hudson yards area, which has eateries in there. You are within walking distance of a Chic Chef I know.
Kathryn Rubino: For a lot less than fifty-three dollars.
Speaker 1: it. Yeah,
Joe Patrice: When I did it, I was able to walk a little closer to the port authority, which is about like probably like a twelve-to-fifteen-minute walk is significant, up there, it’s just fast food everywhere. So, there are options for you than thirty to fifty-three dollars. Obviously, at this point, anybody who’s taking advantage of this has already paid it. But this is for anybody out there who might be doing this in the future. The bar exam is a broken system for a lot of reasons. There’s not really a great reason why we make people take a duck triangle test from memory to perform a job that is about research. A job in research where people are specialists instead of generalists anymore largely. So, it doesn’t make a lot of sense to have a bar exam in the first place, but this just really speaks to the overall contempt for the licensing process. We have this horrible exam that nobody actually sees as a benefit to protecting the public or ensuring that people are qualified lawyers. And on top of that, they’re perfectly willing to charge you over a hundred dollars for two boxed lunches. People out there, you should be mad about the existence of the bar exam. You should be doing whatever you can. Everyone’s busy, but if you aren’t doing what you can to directly get involved with state bars to push back on this existence of this, do what you can to support people who are making those decisions. State reps, state senators. The folks who choose state supreme court folks, state bars often are really the people doing this. So, get involved there.
Kathryn Rubino: Yeah, and I think it’s also important because I think there is a lot of momentum in favor of the bar exam is a kind of attitude of. “Well, I went through it.” So, the next generation just has to do it too. And if you’re at all outraged at the bar exam process and kind of getting rid of that instinct is super important.
Chris Williams: I just know if there was someone selling hotdogs out front of that for like ten bucks a pop. They would have made a killing.
Joe Patrice: Yeah, that’s a good point.
Kathryn Rubino: The fifty-three was in fact the kosher and that was an added. It is even more difficult I think to find a kosher meal under those circumstances.
Chris Williams: All-beef hot dogs for fifteen.
Joe Patrice: Yeah, I mean to both. That’s why Chris’ suggestion about –
Kathryn Rubino: Hebrew National.
Joe Patrice: Hebrew National’s cart should be right there in front of the Javits Center. I think you’re right. You could really, really rake it in there. It’s unfortunate, but good luck to everybody out there who is taking the exam at this point. And hopefully, odds are in your favor.
Kathryn Rubino: May the odds be ever in your favor.
Joe Patrice: Well, cool. Thanks for joining us all today. You should be subscribed to the show. Leave it reviews, all those sorts of things. Help people find the show. You should be reading Above the Law so you hear these stories and more as they happen throughout the week. You should check out The Jabo, Kathryn’s other podcast, or the Legal Tech Week Journalists Roundtable that I’m on. You can check out a bunch of other shows that none of us are on but are nonetheless awesome that is on the Legal Talk Network.
Joe Patrice: We are available on social media. I’m @josephpatrice. She’s @kathry1, and he’s @rightsforrent. And yeah, I think now that’s everything.
Kathryn Rubino: Peace.
Joe Patrice: All right, bye.