It’s Not A Lie If You Believe It.

Episode Notes

Transcript

[Music]

Joe Patrice: Hello, welcome to another edition of Thinking Like A Lawyer — 

Kathryn Rubino: Hey, how are you? 

Chris Williams: Pretty good.

Joe Patrice: So okay, let’s just give up, let’s just give up on introducing the show.

Kathryn Rubino: Anarchy.

Chris Williams: Yeah, so welcome to Thinking Like A Lawyer. It’s here Chris, you know, Kathryn and the other guy and we’re here to talk about the legal goings this week, of course you’re familiar with them because you’ve read all the articles but you know, everybody gets behind on bill every now and again, so we’ll happy to fill in in the meantime so you can still be you know, up to date when you talk the water cooler or whatever water cooler exist on virtual law firm time.

Joe Patrice: That’s excellent and we are all from Above The Law and that is the one little expert bit to throw in there but otherwise, perfect seamless introduction.

Chris Williams: We’re going to take notes.

Joe Patrice: Yeah, no, good. Yeah, no, the part that I took note on is it came across a lot stronger because no one was trying to interrupt you the whole time.

Kathryn Rubino: Well we like Chris.

Chris Williams: You mean, you’re the only one that has that problem of being interrupted so, like maybe feel like Kathryn do it wouldn’t happen either.

Joe Patrice: I have offered that.

Kathryn Rubino: But it’s so much more fun to interrupt Joe.

Joe Patrice: Yeah, fine. Anyway, so yeah, so we are from Above The Law and we’re giving you your weekly roundup of some of the biggest stories in the legal world all the week — 

Kathryn Rubino: But before that.

Joe Patrice: Oh yes, what do we do before that?

Kathryn Rubino: That’s what I said we do — small talk.

Joe Patrice: What?

Kathryn Rubino: See I saw that your hand wasn’t near the button so I said it really quick.

Chris Williams: Everyone was in rare form today.

Kathryn Rubino: Come out swinging.

Joe Patrice: So yeah, we have a little bit of small talk to just get you know, be friendly chatter, it’s like a morning show, you know.

Kathryn Rubino: Sure. I think of Kelly Ripa when I think of Joe Patrice.

Joe Patrice: Okay?

Chris Williams: I see it, I see it.

Kathryn Rubino: Chris, how was your weekend? 

Chris Williams: It was a weekend. I’m teaching at the college level at a school that will not be named Ruckers and I’m realizing that I may have structured some teaching introduction to Africana Studies class and I just the way that I am, I may have accidentally structured as a graduate course and I’m like “Okay, cool, this is fine, you know, people are here because they want to be here, they’re ready to learn and engage.” I gave the first exam and one of the students, who will not be named, of course, one of the response I got back was, “Yeah, so should I have one paragraph for the one reading?” but like in the assignment, I was like, “There’re going to be at least three texts, you need a three texts,” I’m like, “Oh my God, they didn’t read the assignment.” I’m about to get back wingdings and I’m worried. I talked to another professor and they were like “Yeah, students don’t read anymore, I was actually thinking about giving the syllabus on TikTok,” and I’m like “What?” You know, back in my day, we use like font size 12 Times New Roman and I feel like I’m 86 because I expect actual paragraphs, you know.

Kathryn Rubino: To be clear, the youngest amongst us thinks that he’s too old, just be clear.

Chris Williams: Yeah, yeah, but back to me, yeah. Yeah, but no, back to you, back to you ancients.

Joe Patrice: Well all right, well okay, boomer. Moving on from Chris, Kathryn, what did you do, anything fun?

Kathryn Rubino: No, nothing too crazy.

Joe Patrice: Cool, and then — oh wait, no.

Kathryn Rubino: Wow, wow, okay.

Chris Williams: For those without visuals, I almost spat my water, that was good Joe.

Kathryn Rubino: I watched the Sportings this weekend.

Joe Patrice: Oh yeah?

Kathryn Rubino: Yes, there was an F1 race and I was very thrilled that Max Verstappen did not win which always makes me happy neither did Lewis Hamilton which makes me sad.

Joe Patrice: Looks like Max is going to have another taint on this year’s season after — 

Kathryn Rubino: Yeah, we previously spoken about the issues with he’s is considered through reigning world champion, but there were some severe problems with how he won it last year.

(00:05:06)

I won’t go back to into it because this is a time to show but despite that so we’ve kind of jokingly referred to him as Ver-asterisk — 

Joe Patrice: Verst-asterisk.

Kathryn Rubino: Yeah, okay. You pronounce the made-up word better, you happy about that, okay. But we just got information that it is strongly suspected, not yet confirmed with FIA that Max’s team Red Bull has cheated on the cost cap for 2021 and 2022 and there’s no punishments that have yet been decided but included amongst the possibilities are taking away points, taking away championships, et cetera, I don’t think they’ll necessarily do those things but it definitely makes it — I mean, the two other teams that are their closest competitors, Mercedes and Ferrari have been setting that at this is worth at least, you know, significant amounts of time on the course and — 

Joe Patrice: Yeah, well I mean, legitimately started feel bad for this poor guy like he’s actively talented but every time he does well there’s another fairly credible allegation of a taint on it, so maybe someday he’ll have a season where he’s not dragged down like that. Yeah, and then as for me, I did my first test run on Thanksgiving dinner, did a test run with the turkey like getting my dry rubs right and all of that.

Kathryn Rubino: Are you happy with your current rub?

Joe Patrice: I am pretty happy.

Kathryn Rubino: Was it spicy? Was it a spicy rub?

Joe Patrice: Yes, I went kind of Cajun direction, I think I might have not given it as much as I could but you know, I’m still mixing, I don’t like going into Thanksgiving dinner. I think one of the biggest mistake people make with turkey, they always complain about how dry it is and part of that is just not knowing — 

Chris Williams: That’s the mistake, just don’t get turkey, they’re superior foods.

Joe Patrice: Right, right, right, we’ve talked about this and you’re still wrong about that. The point though is people think that it is dry and all which it’s just a matter of brining and stuff like that. But it’s also true that it’s ridiculous that we have this one bird that everyone makes only once a year like you can’t get good at like that. You got to do a test run like a month beforehand just to make sure that you’re still in the groove.

Kathryn Rubino: So you are a little bit ahead of schedule because we’re more than a month away from Thanksgiving.

Joe Patrice: Things are going to be fast especially with all the conferences coming up this month which you know, I’ve got the Clio Cloud conference, ACC, the relativity fast like it’s a very busy month, so.

Kathryn Rubino: But you are ready for Thanksgiving already, I will say though, the weather changed super fast, it was like the official like start of fall became you know, the calendar turned and they’re like oh now, it’s going to be cold.

Joe Patrice: Certainly, here in New York, but I mean, it was 85 degrees in Oregon yesterday so who knows.

Chris Williams: Oregon doesn’t count.

Kathryn Rubino: That’s not a place.

Chris Williams: People that live in Oregon know they don’t count. That’s like saying on West Narnia it was raining.

Joe Patrice: I like that term and congratulations to the West Narnia Ducks for winning this weekend. And with all of that, I think — 

Kathryn Rubino: Beating the trees.

Joe Patrice: Yeah, beating trees, that’s true. Can we get to talking about law maybe, is that a thing?

Kathryn Rubino: I mean, you just going to wait till I talk so you can cut me off.

Joe Patrice: And that brings us to the end of small talk.

Kathryn Rubino: But is it less satisfying when I know that’s what you’re doing because I feel like it’s less satisfying for you.

Joe Patrice: No, it’s still satisfying, it’s interesting, it’s still satisfying. So Kathryn, you had a series of stories last week that did well let’s condense them all into one since they — well, the cast of characters — 

Kathryn Rubino: Similar yeah, I wrote a lot about Ginni Thomas last week.

Joe Patrice: Ginni Thomas, of course.

Chris Williams: Sorry to hear that.

Joe Patrice: Yeah, it’s of course Clarence’s wife, move on.

Kathryn Rubino: She testified before the January 6 committee, that was sort of the most newsy moment of it, and we have a little bit of information about her testimony, some details have been leaked specifically about her opening statement although I will also say perhaps let’s just leave with I think the most shocking bit which is that Bennie Thompson said that Ginni testified that she still believes that the 2020 election was stolen from Donald Trump.

Joe Patrice: Commit to the bit.

Kathryn Rubino: You know, listen, full — she will not crack. So that was obviously a big shocker but in her opening statement she kind of painted a picture explaining that of course my husband knows nothing about any of the things that I do or people like call or interest that I have, but painting is kind of bleak image of marriage, generally.

Joe Patrice: Yeah, that seems kind of sad if this is the sort of the thing, I think this is the way you even phrased it in your piece.

(00:10:02)

If this is the sort of thing that Ginni is so committed to that she is basically made that her whole identity and she doesn’t talk about it at home.

Kathryn Rubino: Yeah.

Joe Patrice: Like do these people even communicate?

Kathryn Rubino: Yeah. It certainly seems like perhaps they just — if her testimony is completely on the up and up, it certainly seems that they don’t talk about very much of anything, maybe the weather. Maybe they talk about baseball we know that or Sporting generally. We know Clarence is a fan of is a fan of Nebraska football. Maybe that’s what they talk about. Maybe they talk a lot about the fact that Scott Frost got fired.

Joe Patrice: Yeah.

Kathryn Rubino: Like maybe that’s what they’re doing at home, but it is kind of questionable because we do know other stuff about Ginni Thomas. We know, for example, she is in communication with a lists of former Thomas clerks and we know that she’s written to this list saying, “I have likely imposed on you my lifetime passions.” So we’re to believe that she is imposed on a bunch of her husband’s former clerks her lifetime passions, but has not imposed those same lifetime passions on her husband.

Joe Patrice: Well, we already knew about the revolving door that seems to operate between her work and his work with the Clanton story that you’ve written about before.

Kathryn Rubino: Yeah, Crystal Clanton was let go from or took her leave of Turning Point USA after a scandal broke alleging that she said a variety of racist things including, “I hate black people” and she got fired from that job. Ginni Thomas hired her as an assistant and then Crystal went on social media with a very close looking photo of her and both Thomas’ saying like, “Oh, these are the best people.” So they spent a weekend together somewhere doing something. So, there’s obviously, you know, someone who works with Ginni Thomas spending time on a weekend with Clarence Thomas. But again, we’re supposed to believe that none of the work that Ginni does ever graces Clarence’s ears. It really stretches credulity. That’s my take on it.

Chris Williams: I feel like this is WWE for constitutional nerds. Have you heard term of kayfabe, whatever it is.

Kathryn Rubino: No. I haven’t.

Chris Williams: That’s a thing. It’s called kayfabe. Look it up, and it’s like wrestlers they never break character and it just feels like some very, very meticulous method acting, like we all know it’s bullshit. We all know it’s bullshit. I guess for the Disney nerds like, you know those who go around and looking for like Mickey Mouse is a greater character but like, “Oh, shit” you know it feels like that. I’m just waiting for one of them to say something like, “Oh, got you, got you.”

Joe Patrice: But yeah, it’s interesting story because it suggest — because it seems unlikely but there’s not communication going on. It certainly seemed unlikely when the only dissenting vote in that case about the January 6 committee was Clarence, the only who had a family member who was about to get embroiled then.

Kathryn Rubino: Subpoenaed. Yeah.

Joe Patrice: It really is a bit of a stretch and it’s kind of a sad commentary to lean into that you’ve never talked, yet you have a completely separate life.

Kathryn Rubino: Although I will say kind of leaning towards maybe they just leave very separate lives is the other kind of scandal that happened last week with Clarence Thomas and that’s on his financial disclosure forms. Over the course of several years, he did not write — he wrote down that his wife made zero dollars despite the fact that —

Joe Patrice: Did she make zero dollars.

Kathryn Rubino: No. She made about 700 — a little bit under $700,000 from political — there you go, I like that sound, from various political groups over that time and paid a salary.

Joe Patrice: Yeah.

Kathryn Rubino: So, he definitely did not fill that out.

Joe Patrice: 700 grand is the sort of thing that just slipped your mind I think.

Kathryn Rubino: You know, listen, although that was over the course of several years, it was not like one big paycheck or something like that, but it is still stretches. It seems odd.

Chris Williams: To be fair, she does think the guy who got a small loan of a million is one who won the election.

Kathryn Rubino: That’s true.

Joe Patrice: Okay. All right. Well, so Ginni is in the news and dragging the Supreme Court along with her. Obviously, the Supreme Court term opens today. We’re not really in a position to talk much about things since not many things happened yet. That’s what happens on day one other than obviously, this is the first day of an official term for Justice Jackson. But other than that, we don’t have anything to do yet but in the coming episodes, I’m sure we’ll be talking about some of the various assaults on the constitution that are coming this term. What’s that?

(00:15:00)

Kathryn Rubino: It sounds like a telephone.

Joe Patrice: It does but we’re in the middle of a show, so we can’t —

Kathryn Rubino: Somebody could get that, somebody who’s not me.

Joe Patrice: Well and that’s where you could bring in virtual reception services like Posh.

Kathryn Rubino: It must be like, you know, exactly what you should do.

Joe Patrice: So let’s hear from them.

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Joe Patrice: Okay. So, let’s switch from a really deep judicial stuff and have a brief overlay in firm practice and how to do your job at a law firm or in this instance how not to. This story is about a Denton’s associate who worked at the firm, appears to have been a first-year associate, no longer works there and now the disciplinary folks are looking into it. Apparently, this associate was given a document review project of 425 documents that he marked over the course of several months, three months, and of those 425 documents, marked all of them, however, the firm was able to notice that only 20 of them had actually ever been opened.

Kathryn Rubino: Yeah. Okay. I spent a lot of time in document review, right?

Joe Patrice: Okay.

Kathryn Rubino: That’s a thing I used to do. That is an appalling rate, 425 documents, you’ probably should be doing that in a day.

Joe Patrice: Yeah.

Kathryn Rubino: That’s probably a nice long day. Again, it obviously depends on the kind of document, what you’re looking for et cetera, et cetera, but it sure doesn’t take that long.

Joe Patrice: So every document in this particular production was a manuscript of Moby Dick. No. Seriously, but otherwise, there’s not really a reason you can’t get through 425 documents in a day. You certainly aren’t taking 277 hours, but it’s also true. Like what gets me is it’s ridiculous to assume this person did 425 documents over the course of 277 hours. When you recognize it was only 20, I have a whole bunch of questions.

Kathryn Rubino: I mean here’s the other thing too, we don’t know from the information that’s publicly available at this point what review tool they were using.

Joe Patrice: Correct.

Kathryn Rubino: But a lot of the review tools have features that a supervisor can figure out how much everyone’s doing at any given course of a couple of days and it’s not necessarily like a big brother, let me look over your shoulder thing. It can be used that way, but not necessarily that way. But, you know, when you’re starting a new document instead and trying to figure out what is the expected review rate for this custodian’s documents because they might be a different sort of document. We may be unfamiliar with them. So you want to look, “Oh, we have five different people assigned to this. They’re averaging X number of documents per hour.” That’s what I can use as a metric going forward so I can estimate how long this review is going to take.

Joe Patrice: Well, so that’s my issue here, right? Because clearly whatever tool they were using, we don’t know which one it was, which ever platform they were using did have these tools, right?

Kathryn Rubino: Yeah, absolutely.

Joe Patrice: Because they were clearly able.

Kathryn Rubino: They are not being used obviously.

Joe Patrice: Right. They were clearly able to identify that only of them had been opened. So, they have access and they just aren’t using them and this brings you back to kind of the grand adoption problem in law and I also wonder to what extent especially when it’s only 425 documents. I wonder to what extent this is an It’s of an in-house inside counsel I shouldn’t say like in-house because that’s another thing, but inside the firm document review or a situation where it has gone through an outside vendor and these are only the hot documents or something like that because —

Kathryn Rubino: Which obviously takes longer as a review process.

Joe Patrice: Right, because if you — I feel like if it’s something that is being done indigenous to the firm, then there’s no reason why there shouldn’t have been somebody looking over the shoulder. If it’s something that happened outside than maybe they aren’t looking closely, but this is three bumps. For three months, you had somebody out there doing a project and nobody bothered to even take a second to look at it.

(00:19:56)

And one of the more interesting allegations of this is Denton takes the stand that no client was harmed by this activity. Which raises for me so you didn’t send out bills for three months? Which that seems problematic.

Kathryn Rubino: Perhaps it’s a client that gets billed quarterly?

Joe Patrice: I mean, maybe? I don’t know. It just seems.

Kathryn Rubino: Wild.

Joe Patrice: It seems wild in a lot of ways. A lot of obviously, chutzpah, the part of an associate to Bill 277 hours to 20 documents. How do you even break up the day? I got to be honest. Like I’d accidentally delete a document. Like if I were trying — even if I were trying to avoid it, I would, I would find myself accidentally opening it up occasionally. Anyway, technology it exists, you should utilize it to avoid these sorts of problems.

Chris Williams: I just know there’s some person that works with that firm that remembers a time they got yelled at by a partner for forgetting a parenthesis.

Joe Patrice: Yeah.

Chris Williams: Like lawyers are so anal. Like there’s no one hate it.

Kathryn Rubino: I once got yelled at at a firm for putting the staple, not a diagonal on the corner of a document. I just made it kind of horizontal and I should have put it diagonal so it’s easier for the paper to fold over according to the partner and I got spoken to.

Chris Williams: Oh, that I did. You should have got as communicated.

Joe Patrice: Yeah, I mean, seriously, how did you think that was okay?

Kathryn Rubino: I just stapled it and moved on with my life, that’s how — because I didn’t bill any time to the stapling process. I just kind of ate that time.

Joe Patrice: You better hope you didn’t. Your clients are expecting you to know a lot of things about a lot of things. Even topics like domain names.

Kathryn Rubino: Domains were definitely not covered in my law school classes.

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Joe Patrice: Okay. So now let’s go to the final topic. We’re going to go back to the judiciary a little bit, but also to law schools. Judge James Ho of the Fifth Circuit is now going around and saying that he’s going to boycott Yale Law Clerk applications. So, if you’re an aspiring conservative Federalist Society All Star at Yale, don’t worry, James Ho is not going to let you clerked for them anymore.

Kathryn Rubino: I mean, this is a classic nose cutting being cut off for the spite of the face.

Chris Williams: Yeah.

Joe Patrice: The argument here, of course, is that there’s been a number of stories about “censorship” at Yale Law School. In reality, none of these things have happened. In fact, the administration has more or less bent over backwards to penalize people for speaking — for protesting and has done almost nothing for people who are, you know, utilizing racial epithets around school or anything like that. But the — there is really eager beaver reporter at right wing publication who keeps posting stories about how Yale Law School is run by the woke mob. And so people who get their news from, you know, fringe outlets like apparently Judge Ho are very steeped in this discussion. And they want in to stand in solidarity with these aspiring clerks. They’re going to boycott them.

Chris Williams: I think that it’s fine, because now there’s less people from, you know, those dreadful schools like Stanford and Harvard have a shot. Like, who are you reflecting? I mean, maybe WashU might benefit from this. But like — 

Joe Patrice: Yeah.

Kathryn Rubino: I mean, it clearly — 

Chris Williams: Yale Law Students.

Kathryn Rubino: No, As Laws who he’s trying to benefit, right? That’s like almost exactly who he’s trying to benefit. U. Chicago, and As Law. That’s it.

Chris Williams: Do Yale Law students even have legal careers? Like, is it in the law school? Like there’s like a laws — there’s like a Yale Law isn’t the real thing, right?

(00:25:00)

This is the most, like least skin in the game boycott since, I don’t know, Bill Gates promising them —

Kathryn Rubino: But look, if you write about it how this has no skin in the game, this just proves that this is a cynical media play because everyone’s talking about it. And he probably wasn’t going to get any clerk some yell anyway.

Joe Patrice: Well, so here’s the thing, he probably was, right? Like this is one of the more significant circuit judges in the conservative legal movement. So one would assume he was. What gets me about it as multifold and I agree with you that this is a cynical and dumb play. The biggest issue, of course, is, you know, back to the directional schools that Chris is talking about, it is ridiculous to assume that the — if you think there’s a Woke Bob at Yale, which is a ridiculous thing to think, then I guarantee it’s worse at Harvard and Stanford, right? So there’s not really a place where you’re getting out of that, if that’s indeed a thing that you believe is happening.

So you’re just picking on one school for no reason. You have to be picking on a school that I don’t believe in the elitism trap that Yale is necessarily better than everyone else. But I am going to say, by virtue of its selectivity, there’s more likely a star there and you’re cutting that off for no reason. But that’s the thing. This isn’t a boycott that is aimed at the underlying issue, or else it would be broader than one school. It’s a boycott that only hurts the judiciary and the aspiring students. What this is all about is keeping his name connected to crazy right-wing issues so that when the next president comes along from the right, he’s the guy whose names in the papers for standing up to the Woke Mob or whatever buzzword that they’re excited about.

And look, he’s getting, you know that other people in this community who just cater to those talking points, devoid of much actual analysis are backing him. I saw there was a quote from Professor Josh Blackman, who’s usually first on the scene for this sort of stuff, saying that, “Oh, you know, this is great. It really — it’s important because it suggests that there’s something wrong with the student’s judgment if they go to Yale.” Which, okay, you’re, you’re a smart if conservative student and you just got a 179 on your LSAT and Yale’s letting you in, you should go to Yale. It is not actually a ding on your judgment. If anything, it suggests that you’re prudent. It’s really ridiculous.

Anyway, and it was a Judge Ho was calling for a broader boycott and more judges to join. I assume he knows that’s not going to happen and that he’s going to be alone, which is all he really cares about. This way, he’s thrown those students under the bus in order to get his headlines, you know.

Chris Williams: I’m hoping this goes so absurd that this has to upset US world rankings. Because what does that — 

Joe Patrice: Well, I mean, yeah.

Chris Williams: Isn’t that like a, what is it, US Law just want to had like the multiple like people that clerked for Scalia, right?

Joe Patrice: Well, I’m not really Scalia because it’s obviously — they’ve gotten named to that after the fact. But yeah, no I mean, the danger of getting there.

Chris Williams: Yeah, so like, if they’re like — because everybody knows that like this and no one knows that there are tiers to the tier 14. Like even within that top — people with that top foreskin or like some schools, that’s more, okay you want to go into the academy? What have you, right? It’s going to be so niche. It’s going to be like, “Oh, if you want to be on the 13th circuit at like 4:00 p.m. on a Tuesday, you have to go to this school,” and it’s going to be like brown or something. Some of them ridiculous. I don’t know.

Kathryn Rubino: They don’t have a law school.

Chris Williams: Yet. It’s going to get so fucking niche.

Joe Patrice: Yeah.

Chris Williams: Like, oh, you got to go to Princeton Law. Trust me, in five years, they’re going to be a top 20.

Joe Patrice: I mean, that was actually — 

Kathryn Rubino: That of course just gets his way.

Joe Patrice: That was actually a thing when I was — it was — it had just ended when I went to law school. But there had been a stretch in the ‘90s where NYU was considering moving the law school to Princeton. So the Princeton Law School would be NYU in New York and the rest of the New York University would separate. That was definitely discussed back in the day, never really happened, NYU continued to function as part of — 

Kathryn Rubino: NYU.

Joe Patrice: –NYU. But that was definitely talked about was to give Princeton Law School, but, anyway.

Chris Williams: The onion if you are listening, that is a clear example of how my bullshit happens to correspond to facts. Look, I can write for other publishers. I can juggle.

Joe Patrice: Fair enough. Yeah. So that was a lot of the week that was, I think.

Kathryn Rubino: Yeah.

Joe Patrice: With all of that, thanks for coming by and spending some time with us.

(00:29:59)

We are available every day if you read Above the Law. We are also available every day if you’re checking social media at @atlblog it’s is the publication. We’re @JosephPatrice, @Kathryn1, that little numeral one at the end there, and Chris is @WritesForRent. We are also — we have some other podcast stuff. Kathryn is the host of The Jabot. I’m a panelist on the Legaltech Week Journalists Roundtable talking about legal technology, at least most weeks. And with that — oh, and also check out all the other shows on the Legal Talk Network. And yeah, then we’re done.

Kathryn Rubino: Peace.

Chris Williams: Peace.

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