The FBI’s search of Trump’s residence has brought on a whole lot of caterwauling on cable news and social media from lawyers and law professors in Trump’s orbit. Yet no one seems able (or willing) to accurately describe the whole warrant process. Meanwhile, a federal judge is pulling the rug out from his replacement — who would diversify the bench — for the stupidest reason. And a new report suggests that neural implants will replace the billable hour by forcing lawyers to bill by brain activity. That seems… unlikely, but this week was full of surprises.
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Joe Patrice: Hello.
Kathryn Rubino: Hello.
Joe Patrice: Welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice. Kathryn Rubino just interrupted me.
Kathryn Rubino: Did you miss me?
Joe Patrice: Chris Williams is also —
Chris Williams: I did. I did.
Kathryn Rubino: There you go, there you go. Wouldn’t you have been writing the conversation, Joe? Move it or lose it. I got nothing for a friend.
Joe Patrice: We’re 18 seconds in. It wasn’t like I was–
Kathryn Rubino: Life goes at you fast.
Joe Patrice: Well, anyway, we’re all from Above the Law and we’re here as usual to talk about the exciting news in the legal industry over the last week, but without further ado, we begin as always with a little bit of small talk, which we mark small talk so that people know that we’re in the small talk phase of the show.
Kathryn Rubino: Do we?
Joe Patrice: We do. How do we do that?
Kathryn Rubino: You’re just going to interrupt me. What did you do without me here to interrupt for two weeks, huh?
Joe Patrice: It was so glorious!
Kathryn Rubino: It was glorious? You love this. You love pissing me off. I can’t lie.
Joe Patrice: Yeah. All right.
Chris Williams: There’s a thin line between love and loath.
Joe Patrice: We’re in the small talk section. Anybody have anything interesting to say in a non-legal capacity?
Kathryn Rubino: Well, I hosted a barbecue this weekend.
Joe Patrice: Nice.
Kathryn Rubino: Which is great fun.
Chris Williams: Thanks for the invite.
Kathryn Rubino: Sorry. You do live in a different state and all that. I’ve barbecued twice this summer and both times I have burned myself. Previous to this, I have never burned myself while barbecuing and I am deeply concerned that this is a new trend for me when I dislike intensely and I think I need to invest in more burn cream.
Joe Patrice: Get like those longer gloves, like heat-resistant gloves or something when you’re trying to do this.
Kathryn Rubino: Maybe. But that was the thing, it wasn’t like, oh, I was flipping a burger and I burnt myself or something like that. It was like I accidentally, both times, different days, different weeks, I just brushed up against a very hot-
Joe Patrice: Maybe it’s a design flaw. Have we considered suing? How about that?
Kathryn Rubino: No, I haven’t, because I have gone —
Chris Williams: Non-legal.
Joe Patrice: I know, that’s —
Kathryn Rubino: I’ve had many years without burning myself. It appears to be a user-based phenomenon, not a fundamental problem with it, with a barbecue, but it’s really a bit of a frustration and it’s on the side of my arm which I sleep on my side and my arm is usually underneath my head. It’s just, I couldn’t and that was very upsetting all night long.
Joe Patrice: Here’s my impression of Kathryn trying to do basic cooking.
Kathryn Rubino: I’ll have you know, I’m a very —
Chris Williams: Is that a gender reveal?
Kathryn Rubino: I am a very talented cook. That is the truth, whether or not I burned myself, my guests were pleased.
Joe Patrice: Yeah, fair enough.
Kathryn Rubino: This did not impact my ability to get the food on the table in a timely and delicious manner because I am undeterred.
Joe Patrice: Fair enough. Well, we’re wishing you a speedy recovery from this.
Kathryn Rubino: Chris, how was your weekend? I don’t care how Joe’s one was.
Joe Patrice: I think that’s fair.
Chris Williams: Speaking of burns, this conversation’s heating up. You know that thing where you introduce yourself at a party, like a work event you don’t want to be in but you feel like you have to because you’re afraid if you’re not, you might get laid off or something? And somebody asks your interests or hobbies and your mind goes blank, and they’re just like the monkeys clapping with the cymbal. I don’t remember what I’ve done in the last week but I did have some good Thai food. And I watched JoJo’s. I remember watching JoJo’s up to part four. I like the middle of part four and some good stuff happened. I know y’all listen for the legal commentary but fuck that, go watch JoJo’s. It’s great, it’s great. All the cool kids are doing it.
Joe Patrice: We did get an email from the last time you were talking about it from a listener who is asking questions about JoJo’s.
Chris Williams: Oh, shit. Look at that! I should probably respond, but —
Joe Patrice: I responded on your behalf. I knew the answer to the question.
Chris Williams: Oh, no. What was the question?
Joe Patrice: Just wanted to know — it’s not really important.
Chris Williams: I don’t think you’re getting the point of small talk, Joe. This is literally when we say the non-important things.
Joe Patrice: Fair. Part of the reason we forget what we did all week is because this last week was such a barn burner for new stories.
Kathryn Rubino: From a legal — okay.
Kathryn Rubino: Okay, that was my fault.
Joe Patrice: It was your fault.
Chris Williams: A double interrupt. That is good!
Kathryn Rubino: That was my fault, but I will not forget this insult, Joe Patrice.
Joe Patrice: Okay.
Kathryn Rubino: No, but this was a particularly fascinating week from a legal perspective, particularly if you’re interested in DOJ subpoenas.
Joe Patrice: After we recorded last week’s episode, there was a search at Trump’s residence. It turns out that there had been a sealed warrant to go get some documents. You may remember they’d already had been a number of documents turned over to the government that were the sort of things that people don’t get to keep when they’re not president anymore.
Kathryn Rubino: After he was unceremoniously kicked out of the White House, he took a bunch of crap with it.
Joe Patrice: That is what it seems happened. He does not have security clearance at this point, so some of that stuff he really shouldn’t have. They’re kind of arguing that he by default declassified anything he chose to take home with him which is a dubious argument but also one that, that’s all well and good, but they’re not declassified anymore. He might have been okay to have them when he was president, but now they’re classified and you have to turn them back over, which there already had been several documents turned over as part of what a normal process would be.
The government goes over says, “Hey, you owe us all this stuff,” and then they got it. What happened last week though is that somehow the FBI came into the knowledge that there was stuff that had not been turned over despite the fact that they’d already had this exchange. That is the sort of thing that in criminal circles.
Kathryn Rubino: Seems willful.
Joe Patrice: It’s the kind of bad faith move that results in people actually going and getting warrants and then raiding your house as opposed to relying on you to voluntarily turn stuff over. With that, we weren’t going to hear anything about the warrant. Trump went on social media to complain about the search, at which point, seemingly called in Merrick Garland from his slumber and Garland decided to call the bluff and he said —
Kathryn Rubino: It’s like the call that like actually summoned.
Joe Patrice: Yeah, the Department of Justice does not comment on ongoing investigations but and it likes to seal —
Kathryn Rubino: Dot, dot, dot.
Joe Patrice: And it likes to seal these sorts of things for the purposes of protecting any suspect’s rights, but when that suspect is making noise about it, it’s out there. So Merrick Garland moved to unseal these warrants, that has been done. There is another warrant that is still under seal because it apparently was from some search that was not this Mar-a-Lago thing. We don’t know what that is, but the ones that address this search came out and what they reveal is that the Department of Justice is looking at violations of the Espionage Act as well as destroying and evidence and obstruction.
Kathryn Rubino: You don’t want to force people to learn how to spell espionage. It’s a little tricky.
Joe Patrice: It was an interesting week just from a legal perspective delay. I just don’t understand. I understand that he’s burned a lot of bridges with a lot of lawyers at this point, but you want somebody there who will prevent you from making the situation worse and that seems to not be what he has, trying to make a big deal out of the search as though it’s not standard practice when somebody’s held out on the government from an earlier request, going on TV, and ranting about how unjust it is.
Because the crux of that going on TV and ranting about how unjust it was, was, of course, the logic was it was under seal so nobody could see it and the government wasn’t going to unseal it theoretically. At all times, Trump’s team was able to tell the world what was in that warrant, but they didn’t want to. They wanted to complain about it being unfounded, but not release it themselves, which was something of a red flag and then Garland has done that. That’s where we sit now I think.
Kathryn Rubino: I mean, I think it’s very interesting. It was another case of the former president complaining about a typical process that happens to people all the time, but it’s unfair because it’s happening to him and it’s really sparked a ton of right-wing feelings about the FBI, none of them good. So, I think that, historically have associated the right wing with law enforcement, but that pipeline appears to be broken.
Joe Patrice: They’re full abolish the FBI at this point.
Chris Williams: I thought these were the — he should have complied people whenever some kid gets murdered by a cop. What happened? Now, just fuck the FBI and Department of Homeland and Security.
Joe Patrice: Should have complied.
Chris Williams: It’s almost as if it was never about compliance of the law to begin with.
Joe Patrice: Interesting. No, it really is weird how we’ve gotten to this point and we’ve also had some law professors do some —
Kathryn Rubino: Not just any law professor. You’re slow playing this, Joe.
Joe Patrice: No, I mean our good buddies, Jonathan Turley and Alan Dershowitz both went to the media and said incredibly stupid things that actually make you wonder. They’re the sort of things that if you didn’t know that they had law degrees would make you think they didn’t have law degrees. It was that kind of failure to grasp basic principles of how the legal system works, which is becoming a problem. I mean when you have the words law professor next to your name, you owe something of a public service to not play fast and loose with how the law actually works in these settings.
Kathryn Rubino: I mean, the other part of that is also that people who are actually trying to learn and to figure this out and perhaps aren’t, haven’t made decisions one way or the other, or somehow avoided becoming partisan over the last four or five years. When you have that as the Chiron law professor, after I think there is an assumption, it’s an appeal to authority. There’s an assumption about the accuracy of the things that they’re saying or writing and when it’s obvious to lawyers they are not being accurate, I think it really does the entire profession a disservice and particularly the schools that they are associated with.
Joe Patrice: I mean, I certainly would not want to be the dean of the school that those kind of people are associated with and just watching my school’s name be plastered up is, somebody saying, “I’ve never seen a search warrant executed like this.” Really?
Kathryn Rubino: But have you just never seen a search warrant? Was that what you were saying?
Joe Patrice: Just real bad. “Why didn’t the FBI call ahead and let them know?” Yeah, because that’s what we do with criminal investigations a lot.
Kathryn Rubino: Why didn’t you give us an opportunity to destroy the evidence? Come on, now! That’s un-American.
Chris Williams: That is literally a Dave Chapelle skit. I think it was (00:12:42) skit where he was like, “Hey, we’re going to come around. What’s good for you?” Literally comical.
Joe Patrice: That sort of stuff does happen and indeed happened for Trump and these documents back in January, that sort of negotiated settlement. But when somebody’s burned you on that, then it’s unlikely the government’s going to give you a second try.
Kathryn Rubino: Listen, you’re allowed to negotiate a settlement when you’re talking about other items that a President may have taken from the White House. But you’re talking about the top-secret documents, there doesn’t seem to be ton of negotiation room where there shouldn’t be.
Joe Patrice: It gets a lot harder there, but that’s the big thing that’s going on last week. It put us in the position of having to explain various statutes and how warrants work and so on to the audience as more and more stuff happened. Then we made fun of some law professors.
Kathryn Rubino: All in all, a good time has happened.
Joe Patrice: It was all in all a busy week. It’s been a busy time.
Kathryn Rubino: Yeah. You know how I know it’s busy?
Joe Patrice: How?
Kathryn Rubino: Because we’ve had the phone ringing off the hook
Joe Patrice: Off the hook. Is it really on a hook?
Kathryn Rubino: Well and, you know, I think that it’s one of those phraseologies —
Joe Patrice: Those idioms that you’re just not going to let go of?
Kathryn Rubino: I’m not going to, but you know what I will let go off? My need to actually answer the telephone.
Joe Patrice: How would you do that?
Kathryn Rubino: Virtual receptionist services.
Joe Patrice: All right. That makes some sense.
Kathryn Rubino: It really does.
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Joe Patrice: Another thing that happened is there’s some ongoing issues in New York Federal Court. We have a judge who has been on the court since the Clinton Administration. He’s supposed to take senior status. He’s 85 years old, plans to take senior status, not really retire, but cut down on the caseload. Given that this is his plan, his successor has been selected and nominated. Jorge Rodriguez, obviously, this as you might imagine from the tenor of that name, this adds to the diversity of the federal bench, which has been a Biden Administration goal.
Kathryn Rubino: Goal, they’ve been pretty good at.
Joe Patrice: This is the plan, but Rodriguez practices on a system in the Albany area. Judge David Hurd is a judge who is in the same district but chooses to sit in Utica. He has decided now that he’s going to refuse to retire unless Biden put somebody in Utica. This is, of course, really ironic given that Judge Hurd was selected for his seat to sit in Albany and he just ignored that and went to Utica. It would actually be bringing it back to where it was supposed to be all along if the replacement was in Albany.
Kathryn Rubino: Has he given besides just liking Utica, has he given any reasons why he feels that it’s more important to have a federal judge in Utica rather than Albany?
Joe Patrice: I mean, look, there’s a lot of talk about how it’s a long way away and it better serves the area, but the demographics of New York are changing. Cities like Utica are not what they were in 1930 or whatever, and probably should be consolidated in Albany, but whether that’s true or not, this is not a call for a retiring judge. That’s a call for the rest of the judiciary for the executive branch he was making these nominations.
Basically, everybody in this process has more of a role in making that call than a federal judge who is now holding up and potentially preventing a soon-to-be colleague from getting their job and assumed to be diverse colleague from getting their job because his ego does not want him to not help out the local legal market there.
Chris Williams: This one’s supposed to be Marbury Madison that we had that’s so bad. Just move over! Give the dude his mail.
Joe Patrice: The latest on this is that there’s some talk that Rodriguez has agreed to actually uproot his life and move the 90 miles over to Utica which if he has, good for him, but also something he should not be forced to do. One can only hope that he’d do that just until this guy retired-
Kathryn Rubino: Short-term rental?
Joe Patrice: Yeah, I don’t know, but what I took away from that was yet another. We talked a lot about the Supreme Court and how to make it have more legitimacy and so on. We’ve talked about term limits for active duty service that way, but this is another place where maybe the whole judiciary needs to have a moment where they say that, look, if you get this job, you are only going to be active duty for 18 years or whatever. Then you’re gone and that you moved a senior and that means we don’t have judges who are hopped up on their own sense of superiority screwing up the whole federal judiciary to meet their whims.
Kathryn Rubino: Yeah.
Joe Patrice: The only good thing to come out of this conversation is like the more people hear about it, the more I think people come around that term limits is necessary. Obviously, they still have the value they add to the judicial system and senior status judges continue to hear cases, but to keep the judiciary functioning, active duty should be on a clock so that we can reliably and predictably know that we’re putting in a new person. All right, so Kathryn, you had a story last week that was–
Kathryn Rubino: It turns out timekeeping billable hours can be worse. Didn’t really think that that was possible, but there was a professor, Dr. Allan McRae who was commissioned by a UK law society to write a paper about neurotechnology and the law. Neurotechnology needs some sort of a device implanted or wearable that communicates your thoughts and/or neural processes to some device.
There’s lots of medical reasons to treat certain diseases, et cetera where you need this kind of input, but in terms of what impact it might have in the legal profession, we’re talking Minority Report kind of shit, well, you thought of bad thing potentially and that’s probably sci-fi, hopefully, we’ll see. Maybe it’s hubris to assume it’s only sci-fi. But another part that I thought was interesting was McRae talked about the possibility of having these sorts of devices that monitor how much attention you’re paying to certain billable matters so that clients may pressure law firms to not bill by the hour or the point six-minute intervals, but instead by how much attention the attorney is paying, which seems even more dystopian than just having to write down what you’ve done every six minutes of your life.
Chris Williams: Do bar examiners recommend this?
Kathryn Rubino: No one’s recommending it. It is a theory that he has that this is a way that neural technology can work in the legal profession.
Joe Patrice: I mean, I don’t feel there’s any argument that something like that could potentially work in that there will be things that can monitor whether your brain is engaged, yada, yada, yada, sure. I just don’t know as though I see it getting to the point of implementation. I understand the idea that clients want more accuracy, yada, yada, yada, but what gets me is clients have wanted this for years. We’ve actually had the capacity for lots of discrete legal tasks. We have ample data and modeling to be able to say, “Here’s a fixed fee. We are going to go billable hours. Here’s a fixed fee for something.” Clients, not universally, but would generally see that as a better more predictable way of dealing with hiring legal work and we still don’t do it. Because even though it might be something that a client wants, the law firms have been remarkably good about saying you have but we refused to do that. I think putting chips in partner’s heads is going to be that line that they’re not going to want to cross.
Kathryn Rubino: I mean, that that seems legit even if I think that perhaps the legal profession should move towards more alternative methods of paying as opposed to the billable hour. But I mean, it’s just like every time the KitKat theme song goes through your head, do you have to take off the amount of time that you’ve billed? It’s already hard enough the amount of hours you have to be at work in front of your computer in order to bill your 2,000, which is a kind of a typical number to get your full bonus is already substantially above 2,000 or it’s built 2,000. You got to work more than 2,000 hours. If you’re literally every time a lyric of some Metallica song goes through your head, that’s it. You have to take that off, that just seems untenable and really, really troubling.
Chris Williams: It’ll be funny though is like if you look at your yearly review and your senior is like, yeah, you’ve worked three weeks with St. Anger around your neck.
Joe Patrice: I understand that it’s something that people may, at some point in the future, feel they want, but I just can’t imagine that this profession that has held up all kinds of stupid traditions just because they can is going to cave over the idea of being monitored 24/7.
Kathryn Rubino: I mean, listen, lawyers have received the reputation of being luddites that are resistant to change. This seems a bridge too far even for people who want to be in the cutting edge of technology.
Chris Williams: Even for Joe.
Kathryn Rubino: Noted legal technology or Joe Patrice things that it’s originally far.
Joe Patrice: Literally legal tech reporter. I know. It’s an interesting story. Obviously, there’s some other legal aspects to it given the Minority Report to quote that story, aspects that you mentioned, but knowing is what’s —
Kathryn Rubino: In their report, they also talked about things like giving enhanced capabilities to some folks as a result of these devices that were potentially implanted. If we do create these super humans, what kind of human rights attached and what can we do, what should we — it got into a lot of that, but again, I think the billable hours, the most relatable for the above the law.
Joe Patrice: Cool. All right. That seems like it. We’re going to return you to your daily schedule and maybe no other major legal catastrophes involving nuclear codes befall us before the next week.
Kathryn Rubino: You’ve just jinxed it. That is definitely going to happen and we can all blame Joe now and Donald Trump.
Joe Patrice: Thanks everybody for listening. You should be subscribed to the show to get the episodes when they come out. You should be getting that review, stars, whatever. That certainly helps. You should be listening to The Jabot, which is Kathryn’s show, the Legal Tech Week Journalist Roundtable I’m on, you should be reading Above the Law to see these and other stories throughout the week before we sit and gab about them here. You should be following us on social media. I’m @JosephPatrice. She’s @Kathryn1, the numeral 1 there. Chris is @WritesForRent. You should be listening to the other shows on the Legal Talk Network.
I guess with that, one special programming note, which is the annual (00:26:11) convention is coming up. That means we’re going to have a real hard time recording an episode next week given that we’re kind of scattered to the winds, will certainly try, but if you don’t get a new episode download it, that will be why and we’ll just come back and have a lot of ill to talk the week after.
Kathryn Rubino: Peace.
Chris Williams: While this episode was not brought to you by KitKat, we do advise that you take a break, burnout is real.
Joe Patrice: There, all right. Bye, everybody.
Kathryn Rubino: Thanks to our sponsor, Posh.
Outro: 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.