Mentioned in This Episode
Joe Patrice: Hi, and welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I am joined by Chris Williams, who is also from Above the Law. You know, I don’t know why I even put that from in there. That’s why this podcast exists. We’re from Above the Law. We’re here to talk about some of the big stories from last week.
Chris Williams: The interesting thing is when Kathryn isn’t here, he interrupts himself.
Joe Patrice: Yeah, we do. We got the opportunity to get through the introduction without being interrupted because Kathryn cannot be with us today. But that’s okay. We will soldier on. We can do so first by sounding the favorite sound of all of our routine listeners the beginning of small talk.
All right. What’s up? Anything?
Chris Williams: You sound very enthused.
Joe Patrice: No, I mean always enthusiastic for small talk. That’s why there’s a fanfare and everything.
Chris Williams: It’s the best segment. I think that the legal information is the excuse people use to have to have a parasocial relationship with us. I think they really care about the small talk and all this stuff about only fans, what have you. Just icing on the cake.
Joe Patrice: Well, that is definitely what’s coming up soon. I have been very much on the road. If you’ve been wondering why I haven’t been writing every day as diligently as I usually have, I had stuff, but not as much as usual. It’s because it’s been a nonstop whirlwind from ABA TECH SHOW to ALM’s LegalWeek to the National Debate Tournament because as people who’ve long listened know, I coach a debate team, and now I’m about to turn around and go to a different debate tournament. So it’s been a pretty wild ride and not a lot of opportunity to be doing day to day writing. So how have things been on the ATL front?
Chris Williams: Well, I’m also doing my fair bit of traveling. Still getting my locals in. Right now, I’m in Thailand. I just got some — wait, I think I’m in Thailand. Yeah, I’m in Thailand. Yeah. What is it? Today is as we’re recording, it’s Tuesday. Last week, I was in Vietnam, so I’ve been moving around and doing some shopping. I’m going to be the most fashionable podcaster in the States when I return, so shouts out to everybody, prepare yourselves. I’m sorry, Joe. That’s just how it is now.
Joe Patrice: You can certainly try, but I’m already wearing my Legal Talk Network T shirt, so I win. Great.
Chris Williams: Damn it.
Joe Patrice: Well, that’s exciting. So with all of that done, I figure we probably have reached we have plumbed the depths of small talk, right?
Chris Williams: I mean, I’m about empty.
Joe Patrice: Great. Let’s talk about something else. I think the biggest story of the week around these parts was, of course, the story about Walt Disney World. And this story came up because it turns out that Ron DeSantis does not like Walt Disney World. They have the sin of being the State’s biggest industry. So of course, he’s opposed to them because they attempted to do things like say that children’s education is a good thing.
And because of that, they also had a policy saying that the cruise ships that they were forcing people on during the pandemic to make money needed to have vaccines. And he didn’t like that either. So Ron DeSantis attempted to stick it to Disney by replacing the board of directors of something called Reedy Creek, which to get very nerdy one L property class. For anybody out there, that was a property class nut. This is a land use story par excellence. The area around Disney that is almost exclusively Disney property. And to the extent, it’s not, it’s like owned by board members, but it’s property that is not technically part of the park, but it’s around there. And it’s often used for future expansions, but also for a living, for people who are Disney employees, et cetera, building condos and such for that.
This area has historically been administered by Disney given that it’s all basically park property. The state has long had a deal saying that the government of this area would not be a neighboring town, but would be something called Reedy Creek, which would be a constituent city, basically run by the people, where they could be run by a board that was elected by the people who live there, which in this case was just Disney.
So it was basically Disney’s entirely 100% captured government over the land that they ran. Municipal government, that is. Given that DeSantis wanted to do something to stick it to the company after it’s stood up to some of his policies, he decided that he was going to have the state legislature, which is also Republican run, strip Reedy Creek of its status. And then, because there was no way to Democratically elect anybody there, since Disney runs it, they would be run and administered by a handpicked board of DeSantis’ people, including a guy who has said that I believe that tap water causes people to be gay. These are the kind of people that he put on this board with the purpose of having them say no to Disney’s attempts to expand the park or build more buildings, whatever, just to make it difficult for Disney to do its business. So we all caught up on that so far?
Chris Williams: I’ve been taking diligent notes.
Joe Patrice: Excellent. So if you’ve been taking diligent notes, here’s where things get fun. The next thing that happens is this is not a move that happens immediately. It has to go through, has to be written up and then voted on, and then he has to sign it, and he has to pick new board members. There has to be an effective date. And during all of that time, Ron DeSantis would go on TV and crow about how he was sticking it to Disney. And he’s really better than Trump because he can get things done, et cetera. And during this period, and the title of the article that we wrote about it, that Walt Disney’s lawyers are better than Ron DeSantis’ lawyers. During this whole period, Walt Disney’s legal team sat down and said, well, we still run this area for another few months, so let’s do things that are in the best interest of the correct fiduciary interest would be to Disney as the person who currently is the landowner. So they entered a bunch of contracts and deals that gave all of the governing power that they had by virtue of the state over to Disney, which is something that they could do because they could enter contracts to the extent that it did not prejudice any of their constituents, which in this case was Disney. It was helping them. And so they did it.
And this came to light when the DeSantis board took over a couple of days ago and discovered that they had no more power other than to make sure that the roads are maintained.
Chris Williams: And this is why you don’t fuck with the mouse.
Joe Patrice: You do not. And more importantly, you don’t fuck with good lawyers, because this was an instance where they saw the situation and just went ahead and moved with it. And then currently, DeSantis is making noise about how he’s going to civilly and criminally now go after Disney for entering these deals. But as a former Republican lawmaker who is currently a law professor, teaches law classes I don’t know if he currently does, but has taught law classes on land use policy, said to one of the newspapers writing this up, there’s very little here for DeSantis to do. It was basically malpractice on his part not to have done anything about this at the time because due to a variety of Sunshine laws that exist, it wasn’t done quietly. And that was kind of my biggest problem. A lot of the coverage of this said, oh, Disney quietly did all this. Which was a lie, because what, Disney didn’t quietly do a damn thing. Because of the Sunshine laws, Disney and the Reedy Creek board had to publicize every move they made so that it could get public notice and comment and all the usual processes that are in place to prevent governments from doing shadowy things.
This was all out there to be seen. But the Florida government seemed to have more interest going on TV and talking about how anti-woke they were than in actually implementing an anti-woke policy. And for that reason, Disney controls all this now.
Chris Williams: I’m going to be frank here. I mean, you love to see it. If this isn’t enough to make you a Disney adult, what else do you need.
Joe Patrice: Right? I mean, come on. Well, so there’s a little bit more to this too, because no conversation of land use law and property would be complete without a conversation of the rule against perpetuities. We should have a sound effect for the rule against perpetuities.
Anyway, so we get to talk about the rule against perpetuities. That is the for those of you who don’t remember or maybe aren’t lawyers and didn’t go through the process —
Chris Williams: Proof said the devil exists, that’s what it is.
Joe Patrice: Didn’t go through the horrid process of learning for the bar exam, it is a fairly archaic rule that a lot of jurisdictions have actually jumped. But it’s this position that basically prevents somebody from somebody from make tying up land forever.
There’s kind of a public interest in the idea that I shouldn’t be able to buy a bunch of land now and make sure that hundreds of years from now it can’t be used. And so this rule, overly simplified, says basically, I can only tie it up for the length of the life of anybody who’s alive as of today. Like if I had like a brother or whatever for the length of their life plus 21 years. So it could never be much longer than the hypothetical length of anybody’s life plus 21 years. So that’s kind of how this works.
So the agreements that Disney put in were to the upper bound of the rule against perpetuities. So they said, hey, this lasts clear up until that point, which obviously would tie this up for probably a good hundred years or so, which should be long after Ron DeSantis is no longer a problem for them.
Chris Williams: May or may not be before Walt Disney’s brain is —
Joe Patrice: Right. Disney’s brain still being frozen. He may. And that actually would push the rule against perpetuities longer if he’s legally alive. Anyway, that’s neither here nor there.
Chris Williams: Let’s make it there. Wouldn’t that be fun if one of the weird implications of these legal debates about what constitutes a person or like a legal agent means that Walt Disney, when he comes back, can just inherit all his shit?
Joe Patrice: Yeah, I mean, remember, the rule against perpetuities also includes a bunch of weird things, like the fertile octogenarian and stuff was always a caveat that you have to assume that somebody who’s maybe 89 could have a baby as a legal matter.
Chris Williams: So I need at least one property professor that’s listening to this to make the cryogenic creator loophole to the rule against perpetuities. And when you put that on your exam, you have to tell us.
Joe Patrice: So one of the concerns, yes, definitely do that. One of the concerns, of course, from the Disney lawyers perspective is we pushed this out all this way. What if DeSantis is so crazy that he chooses to say, “hey, we are going to get rid of the rule against perpetuities. We’re going to, as a state matter, blow up thousands of land deals in our state just to get at Disney”, so we blow it up and make it only 20 years or something like that. Now Disney’s kind of screwed.
Now they thought about this and so they put a contingency for this too, because, as I’ve said again, Disney has very smart lawyers. And they put a contingency in and decided to tag the length of the deal to the reign of King Charles III, saying that the deal, if the rule against perpetuities is somehow taken out in the State of Florida then the deal will last by consent of both parties ‘till the death of any member or any currently living member of descendant of King Charles III, which the youngest of which would be Princess Lilibet of Sussex. Harry and Meghan’s newest daughter, who I believe was born in 2021. So if the queen is any indication, Windsors live a long time, and that’s going to be that. And let’s be fair, Disney chose to tie their deal. You got to give them some props. They chose to tie this deal to a literal princess.
Chris Williams: I have a question. Who do you think would be the pet? Like, thematically, that makes sense? Respect kudos. Who would have been the pettiest life for them to tie this to?
Joe Patrice: Yeah. Oh, that’s interesting. I don’t know. Like —
Chris Williams: Barron Trump?
Joe Patrice: Yeah, no. Tied to the currently living descendants of Donald Trump or something like that. Yeah. You know, Barron’s a little bit older, so you wouldn’t be, you know, you wouldn’t get quite as much runway as you do with Lilibet. But yeah.
Chris Williams: I thought Barron was the young one.
Joe Patrice: He is, but I think he’s like, 15 or 16 at this point. Right?
Chris Williams: Got you.
Joe Patrice: Which is comparatively I was, like, worse than being two years old. Anyway, that’s where we sit. I really have viewed it. I went on the radio in Miami a few days ago to talk about this particular case, and you got to really celebrate lawyers sometimes. This was a problem that came up, and Disney spent money on smart lawyers to sit down and pour through a bunch of land use law and decide this is the most effective way for you to survive this fairly authoritarian seizure of power. This is functionally. Like, nationalizing an industry is what DeSantis is trying to do here, which should terrify people in a more broad sense, but whatever. And they sat down and worked out ways in which they could create ironclad legal protections for themselves. And this is why law is fun right there.
Chris Williams: I didn’t have a nationalizing the industry to own the libs on the calendar. Neither did Disney.
Joe Patrice: Yeah.
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Joe Patrice: Okay, so we’re back. Let’s talk about plaintiffs’ firms. We’re still in the state of Florida as a concept, which is problematic, but there is also a new tort reform initiative that the Florida government has pushed, which is going to make it a lot harder for personal injury attorneys to achieve justice for their clients. And given this new rule, which was passed by the same folks who tried to pull this Disney thing, but also with the money behind it and the lobbying efforts behind it, of insurance carriers who are constantly trying to find a way in which people who are injured don’t get all the benefits of the insurance that exists.
And in response to this, Morgan & Morgan, who you probably have seen billboards for and know well, commercials talking about they’re just a large personal injury firm, the firm sent around a memo to attorneys saying, you know what, this is it. This is the last straw. We are no longer going to offer any assistance to carriers or counsel for carriers, no more delays that they ask for, no more mutually agreed upon scheduling. We’re going to go hardcore because this is where we are now. What do we think or don’t think?
Chris Williams: I’ll be honest, there are some stories that are really riveting. This is one of the ones where I feel like it’s something happening there, but I’m like it’s not clicking. So for the viewers, like us at home, why do we give a damn about this? Is it like a break of decorum thing?
Joe Patrice: Right. So the only good argument I’ve heard anybody say is that this is an inappropriate move because there are certain bar associations, not bar associations, state bars, that impose a duty to be civil to the other side. And, you know, if they ask for accommodations, you have a duty to, within reasonability, honor those. And sure, to the extent that’s true, I guess. But it struck me as though what this letter actually says, from my perspective, is we will do everything that the rules require. To the extent the rules say, file your answer in30 days, we are no longer going to get a call from the insurance carrier saying, can we have 45 instead? We’re going to say, no, you have to do it in 30. And it’s not a lack of civility, it’s a work to rule basically. If the rule says 30, you get 30. If you have a problem with that, you need to go to the court and ask for that to be fixed.
Now, this is going to irritate some courts because it is true that even though these are the rules, given that a lot of people want extensions, what’s going to end up happening is the carriers are going to try to make this seem like Morgan & Morgan’s fault. They’re going to flood the courts with a lot of requests for a lot of extensions and the court is going to say, why is it I have to waste my afternoon resolving this when you should have just given them an extra 15 days? And I understand that and that’s going to be a problem for Morgan & Morgan because they’re going to be blamed for what’s essentially not their fault, but as a sentiment, I don’t know, I was on board with this. I feel as though when I was being civil to the other side, in my cases, it was our clients had a dispute, but there was nothing really happening between us.
This is an instance where the insurance carriers spent millions and millions of dollars both in Florida and around the country doing what they could to make sure that Morgan & Morgan’s livelihood is taken away. At the point that you’re doing that, I don’t know as though it’s actually reasonable for you to assume that Morgan & Morgan is going to play nice. I think we have rules for a reason, and it may hurt the courts a little bit that they have to do this, but I think the proper analysis should be that the courts should say, I don’t grant extensions that you don’t agree to either.
So unless you’ve got really compelling cause like if you’re going to a funeral that day and you need two extra days, fine. But otherwise if I’m a judge, I’m kind of I don’t know, as though I’m even scheduling a hearing, I’m going to get that letter and just say work to rule unless you have something really compelling why you need to give a break. Otherwise I’m going to blame you for coming to me with an extension because you couldn’t do it in the rules.
Chris Williams: So if I’m hearing you correctly, this sounds like undermining cultural expectations by following the rules. How do you think this will play out with regard to like say quiet quitting discourse?
Joe Patrice: It’s interesting, I didn’t really have any connection between the two but yeah, in a certain way, Morgan & Morgan is quiet quitting on the voluntary accommodation game. That kind of is considered a cultural norm. Yeah, they’re just going to work to rule, which I’m using kind of like the more pre-quiet quitting. That was kind of the organized labor term for it where you don’t do anything but the very letter of what you’re required to do.
Chris Williams: Got you.
Joe Patrice: I don’t know. It’s been very interesting. We got tons of tips about it. A lot of people say it seemed a lot of folks just sent it to us with very little commentary, but it seemed like the overwhelming weight of folks sending it were against this move, thinking that this was bad form. But I just looked at it as, look, it’s not ideal but you made me do it. And I think that they’re not the ones going to the state governments and saying, hey, pass a law that makes insurance companies automatically at fault or move the burden of proof that the insurance company is always wrong or anything like that. And the carriers are doing that all the time. And I shouldn’t say that conclusively. I’m sure there are some jurisdictions where tort lawyers do have that sort of clout both formally and informally, but not nearly to the extent.
Chris Williams: Yeah, I think that when you’re in a conflict like that, there are just some things that you do because that’s the proper move. And I don’t think you can really be mad at Morgan & Morgan. I’m just curious to see if and how this will affect their clients. But other than that —
Joe Patrice: As an advertising move.
Chris Williams: Yeah. It just reminds me there was a store I had, there was a guy used to work with and he was playing a fighting game with one of his, like his younger brother and he just kept doing hard punch. And his brother was like, why aren’t you doing a different move? You could do a combo, you could throw me, what have you. And he’s like, well, I keep doing hard punch and you don’t block it. So I’m just keep doing hard punch. So he just kept doing hard punch. He kept winning, right? Even if his brother got annoyed, the move in that instance was to do hard punch. Right?
So if you’re trying to maintain your living and people are giving you a hard time, you don’t get niceness. I’m going to do exactly what I need to do, and if it’s not good for your schedule, then that’s your problem. You take this hard punch and you move on. It seems like Morgan is hard punching.
Joe Patrice: Yeah. But as an advertising move, I do think this is interesting. The level of notoriety this gets has actually had a value of if you’re injured and you’re considering who to hire, all of these personal injury firms talk about, we’re fighting for you. It’s very combative kind of the imagery that tends to work in that space. This is a fairly public move that signals they’re very combative. So it seems like a win-win.
Chris Williams: Seems like the right one. And if you don’t like it, well, they did the right thing.
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Joe Patrice: All right, so OnlyFans, which is not where you can see this show. This is just a podcast. We do not have an OnlyFans account yet, or potentially ever. With that said, OnlyFans —
Chris Williams: I’ve been working on my squats, man. I think I got potential.
Joe Patrice: Okay, well, you keep working on that. I’m better with my fashion sense, which is why I have my Legal Talk Network t-shirt. All right, so let’s break this out. There were a couple of OnlyFans stories this week, actually. So one is in New York, I believe a judge, or more technically an administrative law judge, is technically not a judge. And depending on how you do it, whatever. He has been in New York City, has been terminated because it has come out that he, in fact, had an OnlyFans page. He’s white collar, professional by day, very unprofessional by night, as his bio put it.
Chris Williams: This is funny, man. So my thing is people be fucking like, why do you get fired? You can’t show a little ball or two after, you know, you bang the gavel like.
Joe Patrice: Well, so what’s the — so let’s break it down this way. So what is the risk here? And why would you fire somebody? So it’s obviously not necessarily a professional move. So there’s an argument that a judge has to be kind of above the mere appearance of a lack of professionalism. That said, is he identifying himself as such? Would there be a connection between him and this? But for this kind of coming out, who knows? There’s the potential for extortion, obviously. I’m not altogether sure this particular judge cared. Seems like he probably didn’t. But theoretically, if he’s hiding his identity and doing this, people could extort him, saying, we’ll reveal this, but for you ruling our way, that would be bad. So there’s arguments why you shouldn’t be able to do this while also being a judge. I don’t know. That said, —
Chris Williams: I don’t know if they’re good ones.
Joe Patrice: I mean, extortion seems like a good one.
Chris Williams: Yeah, but you can extort into somebody for anything nowadays. I was watching this — this is a little nerdy, but I feel like the people watching are probably nerd. There’s a show called A Spy Family, and this is a hypothetical scenario, but there was this guy who used to be, like, a high president, and there was, like, this secret vault, and it was like, we can’t let the information in this vault get out or else it could start a war. Turns out, it was just photos from plays he was attending to. All you need to extort somebody’s embarrassing information. People get embarrassed about goofy shit. I could probably extort you over your search history right now, right? I don’t know why OnlyFans is the unique instance of a thing that a person can be exploited with.
Joe Patrice: Yeah, and my search history does look pretty terrible because I’ve had to look up a bunch of stuff about OnlyFans in order to cover this story. That’s the absolute worst with this job, is when something bad happens, you sit there and you’re like, RIP my search algorithm for a month or two because you got to look up the worst possible stuff. Yeah?
Chris Williams: You know what, Joe, thank you for your sacrifice. If not for you having genitals in your search history, you wouldn’t be well informed enough to speak on this podcast today. So hats off to you.
Joe Patrice: Well, consider also consider the algorithm. I had to in a week, research a bunch of stuff about how OnlyFans works and Disney that’s like some really weird, furry sorts of stuff end up looking after that.
Chris Williams: Yeah, you’re on a list, bro. You are on a list.
Joe Patrice: That is just a bad, bad week. All right, moving on. So the judge is in trouble. It also seems like this story is a little unfortunate because it seems like a lot of the problems for this judge really started when he made what I would consider a very fair free speech moment where he criticized a government official. And that criticism government official is what led to all this coming out. That is unfortunate and seems to be kind of chilling of free speech and bad and whatever.
Anyway, that to one side. Let’s move on to a different situation. A young lawyer, she has decided she’s bailing on her job. She was only making 75,000 a year at the firm she was working at and has realized that she made 180-grand on Only Fans in a quarter.
So she’s off. She’s just going to do this now.
Chris Williams: Listen, is she hiring? Listen, these student loans got to get paid somehow, okay? I’m not mad, and I respect it. I respect it.
Joe Patrice: Yeah. I feel like it’s interesting because the concern, obviously, is that this is probably not a long-term career that you can do for years and years. On the other hand, if you’re making 180-grand a quarter, you’re going to be out of debt and you’re going to be able to bank a decent amount of money. And who knows, then you can get some contract work as an attorney on the back end that isn’t going to be high enough to pay off loans, but you’ve already got those paid off and a nest egg. Who really cares if you’re working as a contract attorney you know?
Chris Williams: How many people say, like, oh, I’m going to go to they’re like, oh, I graduated from undergrad, have a humanity degree or two. I don’t know what I’m going to do. I’m going to go to law school. Once I pay off the debt and get enough money, I’m going to not do law.
Joe Patrice: She don’t have to do law ever again. Ever again.
Chris Williams: The JD can be on the wall of decoration. She can open up a commune for like —
Joe Patrice: Well, that’s always been the complaint with the JD advantage argument, which is the law schools try to artificially inflate their employment numbers while they did, at least before they all withdrew from participating in US news and all, but they would artificially inflate it by saying, oh, well, you don’t just count the people that graduate and become lawyers. There’re certain jobs that are JD advantage jobs that you can only get with a JD. So those should count in our employment numbers. And to some extent that makes some sense, right? Obviously, the easiest one is a clerk. But there are gigs in this world up to and including writing for Above the Law, where having a law degree is necessary to get that job and that it should count to some degree.
But these companies were really stretching it. They were calling people who had all sorts of mid-level jobs at random places, they were calling that, well, they probably got that job because they had a JD, and that was really abusing the system. That said, I wanted to foreground that to say that this is one of those JD advantage careers to end up in OnlyFans, I’m sure, is how they’re going to try to play it.
Chris Williams: I would say what better example of JD advantage is there than a former contract lawyer who’s midnighting as a dom? Like they’re going to make such strict contracts.
Joe Patrice: That’s the joke you’re going to try and make that into. All right, fair. Okay, so on the back of that one, we’ll call it quits here. Thanks to everybody for listening. You should subscribe to the show so you get new episodes when they come out. You should be listening to the Jabot, which Kathryn hosts for the Legal Tech Journalist Roundtable, which I’m usually a guest on. Haven’t been for a bit here because of all this travel. But usually, you should be reading Above the Law, so you get all of these. You should also listen to the other shows on the Legal Talk Network and you should give reviews and write things about all of them. You should be reading Above the Law, so you read these and other stories as they come out. You should follow us on social media.
We still have blue check marks because apparently that whole thing was just an elaborate way to get mad at the New York Times, apparently. So you can check out the publication is at ATL blog. I’m at Joseph Patrice. He’s at Writes for Rent and that’s. Writes as in writing, not legal rights. So, like, it’s a W writes for rent. Follow those things. And with all of that, I think we’re done for another week and yeah, we’ll check back in later.
Chris Williams: See you on OnlyFans.