Donald Trump sought a mistrial in his New York trial based, in part, on our articles being “humorous, irreverent.” The GOP frontrunner did not succeed. Ron DeSantis messed with the rights of professors and now has to pick up the tab for their Biglaw lawyers. Or, more accurately, Florida taxpayers will pick up the tab. But that’s just the price Floridians have to pay to help their governor finish third in the primaries! We’re still waiting to see if more firms join the Milbank pay scale, but in the meantime a host of anonymous naysayers are mouthing off to the press in a pathetic effort to dissuade the market from following suit.
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Joe Patrice: Hey everybody.
Kathryn Rubino: Hey.
Joe Patrice: This is Thinking Like a Lawyer. I’m Joe Patrice from Above the Law.
Kathryn Rubino: Hi, Joe Patrice.
Joe Patrice: Hello, and I am joined by Kathryn Rubino and Chris Williams. We are your part of — the majority of your editorial team for Above the Law and we are here to, as we do every week, discuss the big stories in legal of the week that was. But before we do that, we always like to begin with a little chatter, a little coffee talk, kind of, we call it.
Kathryn Rubino: Coffee talk.
Joe Patrice: Our Small Talk session.
Kathryn Rubino: And I small talk?
Joe Patrice: Yeah. How’s everybody doing?
Kathryn Rubino: Good. It’s beginning to look a lot like Christmas in my neck of the woods, spent not on substantial portion of the weekend, making sure that my house was decked out for the holiday season.
Joe Patrice: You put up Christmas decorations prior to Thanksgiving.
Kathryn Rubino: Yeah. I’m a big fan of them.
Joe Patrice: So that is painless.
Kathryn Rubino: No, it’s not.
Joe Patrice: Alright, so I’m on Kathryn’s side on this and here’s my defense of it.
Chris Williams: You are both wrong. The truth does not need backup. There’s a whole holiday in between.
Kathryn Rubino: Which is a precursor to Christmas.
Joe Patrice: Right.
Chris Williams: Is its own thing.
Joe Patrice: One, I celebrate FDR Thanksgiving, so it’s the week before. Two, no, but in all seriousness, I think that if you live in California or Florida, fine, you can wait until after Thanksgiving. But anybody who says like, “Oh, they shouldn’t put them up too early” has clearly never attempted to put up decorations when it’s zero degrees outside.
Kathryn Rubino: I think there’s also a corollary to that, which I strongly believe in, which is that it makes it much more cheerful. There is no sun at 4.30 in the afternoon. So being able to be like, it’s dark out, I want to go to bed, instead of at 5 p.m., being like it’s my bedtime, I turn on my Christmas trees and they sparkle and they twinkle and they make it cozy and make it not like I want to just curl up in a ball and die. So, you know —
Chris Williams: Well, you know why? Because you’re missing out on your opportunity to sympathize with the pilgrims and suffer like they did before they were given their wonderful kind meal of turkey.
Joe Patrice Yeah.
Kathryn Rubino: I mean, I enjoy my turkey. Don’t get me wrong. But I also really… And listen, there’s not that long that we get to enjoy the sort of joyous decoration. I’m going to — I spend a lot of time and money on my Christmas decor. I’m going to have it up for a minute.
Chris Williams: Okay. Go to Home Depot and get a 10-foot turkey. Put that outside.
Kathryn Rubino: I mean, I don’t actually have a problem with that, but I’m not like —
Chris Williams: No, I’m telling you, please do and that will be cool to me.
Joe Patrice: The problem with Thanksgiving, which is one of my favorite holidays just because there’s not really anything attached to it, but food and football, but the problem with it is that —
Kathryn Rubino: Giving thanks also?
Joe Patrice: Yeah, sure, whatever. But the big problem with it is, it’s not a seasonal thing. Like the Christmas Halloween, these are all holidays where there’s like a whole set of things that go for a couple of weeks, if not a whole month beforehand. And Thanksgiving is really just like a grind right until the day of.
Kathryn Rubino: I mean I do think the day before gets a lot of play, but that’s basically it.
Chris Williams: So, what you’re saying is we need a Thanksgiving advent calendar?
Joe Patrice: Right.
Kathryn Rubino: More advent calendars, please.
Joe Patrice: The day before is always a big day because that’s the day that you get home from college, law school, whatever, and get completely plastered with the people from high school and start wondering, “Why was it I hung out?
Kathryn Rubino: Oh, my world is bigger now. Interesting. But I do love a good advent calendar moment. My best friend from childhood who grew up across the street for me bought my baby a little people’s advent calendar, which I’m super, super excited to do with her. I mean, she doesn’t understand things like gifts or anything, but I’m excited for it nevertheless. And yeah, I think that is a fun way to extend the joy of the season.
Chris Williams: As far as developmental stages come, I think consumerism comes right after baby’s first words and walking.
Joe Patrice: You know what the best advent calendar is?
Kathryn Rubino: What?
Joe Patrice: It’s the one where you have Hans Gruber falling from Nakatomi Plaza every day.
Kathryn Rubino: Amazing.
Joe Patrice: This is real.
Kathryn Rubino: I’d buy this. I mean, again, we live in a consumerist world. I’m pretty sure you can buy anything.
Joe Patrice: Yeah, there’s that. Oh, and I’m just looking at it. There’s now multiple of them. But there was an original couple years ago that I saw it was very impressed with.
Chris Williams: Also, one last small talky thing before Joe does his favorite part of the talk, which is just work talk. For anybody that’s interested in Soulsborne games, like Bloodborne, Sekiro, Dark Souls, 1, 2, 3, what have you. Lies of P. P as in Pinocchio is pretty damn good. So, check that out. There’s a leveling system where you invest in your P organ. I don’t know why they named it that, they could have just called it.
Joe Patrice: Because it’s a pancreas, because it’s a pancreas.
Chris Williams: It is. It is. It is a different P organ. But it’s got a lot of heart. Oh yeah, check that out, if you’ve been looking for a game to make you suffer because you deserve it. Lies of P.
Joe Patrice: Yeah. Well, I mean, I’m through one playthrough of Starfield and I am wildly bored. So, I may well do that. What a disaster that is.
Kathryn Rubino: Isn’t that the one that was like delayed when they launched it?
Joe Patrice: A year. Yeah. It’s one that Bobby Flay like dumped his girlfriend over.
Kathryn Rubino: Yeah.
Joe Patrice: It seems like he probably shouldn’t have done that. Anyway.
Chris Williams: The comedian?
Joe Patrice: Yeah.
Chris Williams: Okay. Cause in my mind, I was like, wait, Bobby Flay, but I was like, that’s a different Bobby.
Joe Patrice: That is a different Bobby who probably does not play video games.
Kathryn Rubino: My guess is no. I don’t know that about Bobby Flay, but he’s too busy taking over the food network to do much video gaming.
Joe Patrice: Yeah, I think that’s right. Okay.
Kathryn Rubino: I really do like his new Triple Threat Show. I’ll just say, put it out there. I really enjoy.
Joe Patrice: Yeah, that’s the one where like they have to be three.
Kathryn Rubino: Yeah. It’s with Tiffany Derry, Michael Voltaggio and Brooke Williamson.
Joe Patrice: Yeah.
Kathryn Rubino: I enjoy it.
Joe Patrice: Yeah. So, cooking shows. Great.
Kathryn Rubino: Cooking shows, Christmas trees and video games.
Chris Williams: What’s cooking up with the law?
Kathryn Rubino: There you go.
Joe Patrice: Well, actually, I was going to — before we depart on that, like Triple Threat, that kind of, what I like about that as a format is that it really reflects a litigant’s journey because you go to a District Court and you might win and then the Appellate Court. And then ultimately the points are worth double and nothing mattered when you end up going against the Supreme Court.
Kathryn Rubino: Did you just come up with that analogy right now or have you been ruminating about the ways in which Triple Threat on food networkers like the appellate process?
Joe Patrice: No, I just came up with it now. I did not devote any time to this before.
Kathryn Rubino: Liar.
Chris Williams: We can see your notes, Joe. You know you wrote this down.
Joe Patrice: Introducing our new —
Chris Williams: It’s in purple ink, man. Would I just make this up for the podcast?
Joe Patrice: Introducing our new sponsors, Food Network. No, all right, everybody. I feel like we’ve accomplished, we’ve talked and it was small.
Kathryn Rubino: Small Talk.
Joe Patrice: Okay. What’s up on the agenda for this week? What’s our first thing? Has Above the Law covered a story or has Above the Law been the story?
Kathryn Rubino: Both.
Joe Patrice: Oh, interesting.
Kathryn Rubino: Good news.
Joe Patrice: So, as it turns out, I need to get myself a t-shirt that reads, “Donald Trump asked for a mistrial” because I wrote something mean about him and all I got was this lousy t-shirt.
Chris Williams: That is a flex.
Kathryn Rubino: Humorous, irreverent.
Chris Williams: That is a flex.
Joe Patrice: Thanks, right? Yeah. So, Donald Trump moved for a mistrial in his New York fraud case. It has since been denied, but he had several random grievances. Same old, same old complaining that Justice Engoron talks to his clerk for some reason. That’s a problem, whatever. A bunch of nonsensical arguments. But the arguments that were new to this filing was they found out that the justice actually is the editor of his high school alumni newsletter, which just —
Kathryn Rubino: Bless his heart. That is so like adorable.
Joe Patrice: Yeah, it’s like an email newsletter to alums who want to see it of like, hey —
Kathryn Rubino: It’s delightful. Why was there a problem with that?
Joe Patrice: News from that. Yeah. So, a well-included, not necessarily included by him, actually, like, we don’t really know, but he is the editor.
Kathryn Rubino: We suspect. Yeah.
Joe Patrice: We suspect. But included in some issues were links to stories about a Wheatley high school alum, in this case him, doing this case, and one of them was —
Kathryn Rubino: In the news.
Joe Patrice: One of them was a story written by me that pointed out that in the most polite fashion possible, of course, because that’s how I write.
Kathryn Rubino: Of course. Of course.
Joe Patrice: Very politely pointing out that Trump’s lawyers seem to have absolutely no fucking clue how privilege works, and that story was put in the newsletter with the —
Kathryn Rubino: Editorial comment.
Joe Patrice: Editorializing that this was a humorous and irreverent take that is listed as one of the bullet points, why they feel they deserved a mistrial, that he had a newsletter that had described Joe Patrice’s article as a humorous and irreverent take. They don’t name me, but that’s what it is. And then the second — yeah, there’s another bullet point. Our colleague Liz Dye, who writes for us, also had written an article, again, praising the excellent legal work of Alina Habba.
Kathryn Rubino: I’ve heard some of Liz Dye’s stuff.
Joe Patrice: Yeah. So, Liz Dye pointed out that one of Trump’s lawyers is incredibly stupid. That also ended up in the newsletter and that also is an argument that they made for mistrial. This was all denied by justice like that.
Kathryn Rubino: And there were lots of other links in these newsletters. A lot of them are very dry, newsy sorts of takes. I mean obviously, Above the Law, we endeavor not to be dry like that, but there were some just straight up news articles about the case that were also listed in the motion as problematic which I think very much undermines the point that they’re trying to make.
Joe Patrice: Yeah. So, that was a fun story —
Kathryn Rubino: It was fun. Good times.
Joe Patrice: — to be the center of something for a little bit. The Justice ultimately denied it and with these particular allegations, denied it by saying that yeah, I edit this thing. Obviously, I didn’t write these stories. There’s no indication that I wrote these stories. This is ridiculous. So, there we are.
Kathryn Rubino: Well, there you go. I mean it is kind of interesting, and that’s one of the things about writing for a publication that caters to lawyers, right? They come up.
Joe Patrice: Oh well. So, that was fun. Anything else on that that anyone has? I mean I’m fine to move on. I mean this is a story. I am just — yeah?
Chris Williams: I’m just waiting on one of Elon’s lawyers to put to the story I wrote, do you know how much shit I’m going to talk? If I get caught up with dunking on emerald guy, even if his family doesn’t have an emerald mind, it’s still funny to say. It’s just like cartoonish villa.
Joe Patrice: Well, he is threatening lawsuits as we speak, so we’ll see if any of that turns out into being anything.
Kathryn Rubino: Are they going to spin those threads into gold there?
Joe Patrice: Yeah. We might have to talk about that next week.
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Joe Patrice: Alright. We are back. Let’s talk about Florida, I guess. Got thoughts on Florida?
Chris Williams: Yeah, there’s a lot of talk about how teachers are underpaid, which is true, but it looks like it costs more to not listen to them. There are some professors who wanted to get paid as expert witnesses, which makes sense because if you wrote the book on the thing, why wouldn’t you get paid to wax poetic about what is and isn’t the case in a courtroom? But Florida does her “I hate teachers” thing. They want to prevent teachers from being able to be expert witnesses.
Unfortunately, the teachers knew their shit because they won. They won the case. They’re able to be expert witnesses and they got left — and Florida got left with the bill to the tune of about $372,000 and they have to pay for it, which they were not a fan of because they can’t afford things anyway. And the law firm that the teachers got, because they have commonsense, they needed some good representation, they got Debevoise & Plimpton. And it turns out that the firm was taking their case at a reduced fee like it would’ve been more if the firm was billing up market price, but still there’s complaints over if they have to actually pay it or not, Florida.
Joe Patrice: This comes up a lot where the U.S. system, unlike some other countries, does not generally make the loser pay the winner’s legal fees. There are some arguments for and against that. I’ve always felt that an advantage of making people do that would be — or at least like in constitutional cases and stuff like that, we probably should have a system that makes the loser pay. You shouldn’t be — this is how anti-SLAPP suits work. You shouldn’t have to pay your own bills when you’re being hit with —
Kathryn Rubino: Nonsense, yeah.
Joe Patrice: — qualified, frivolous attempts to restrict your constitutional rights.
Now then the next question of course is, do you get to hire Debevoise and charge the loser those fees or is it knocked down to something reasonable? In this case, there were discounts off of Debevoise’s actual rates, so there’s that going on for them. Yeah, no. So, the Ron DeSantis’ continued bankrupting of Florida through bad litigation continues? Is that what we’re hearing?
Chris Williams: Yeah. So I guess my question is in anything like this where it’s a civil suit, how do you determine what counts as reasonable fees?
Joe Patrice: Yeah, so the usual method is to look at what the —
Kathryn Rubino: Prevailing market rate.
Joe Patrice: — prevailing market rate is. They would probably look in that jurisdiction, which is kind of — I mean there are flaws with that, right? Like a local lawyer in some Jacksonville court, not to say there aren’t great lawyers in Jacksonville, but those lawyers are probably not charging what Debevoise is. And when the case involves — I don’t know why did I say “Jacksonville”. I can’t remember exactly where this case was brought, in Gainesville or whatever. But whatever the locality, when it’s involving constitutional rights and stuff like that, it’s going to be —
Kathryn Rubino: Bigger, yeah.
Joe Patrice: — it’s going to be national in focus, and so you probably need to consider that you’re probably going to hire a New York big law firm to get involved, or DC.
Kathryn Rubino: Or at least a national brand of some variety, yeah. I think that’s fair.
Joe Patrice: So, yeah, it’s a complicated question to figure out what the right rules should be for determining fees. But yeah, courts grapple with it and try to come up with something.
Chris Williams: I don’t know if this is constitutionally big but teachers being able to be expert witnesses, it seems like it has some far reach. It’ll be something that people in a profession would care deeply about. I wouldn’t want necessarily some mom-and-pop firm that doesn’t have as much resources to be the ones determining if they get to speak or not at cases.
Joe Patrice: Yeah, because this really is — in many ways, it was a free speech case, right? Because it was not that they were opposed to expert witnesses per se. They were opposed to expert witnesses saying things that they didn’t like expert witnesses going around and saying. And yeah, expert witness testimony is key to law professors because law professors don’t make a ton. They’re better paid than a lot of academics, but that’s an incredibly low bar. And with their education, they have opportunities to be making a lot more money in the private sector as a lawyer. So being able to take these engagements, to consult on cases, to be an expert witness, that’s supplemental income, that’s kind of important to them.
Chris Williams: Because we’re at a point where even big law associates are having side gigs. People are starving for money.
Joe Patrice: Well, that actually is a great transition.
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Joe Patrice: Okay. So we have talked about this for a few weeks because this is of course the big legal industry conversation for a while. Millbank has issued bonuses already and has issued —
Kathryn Rubino: Raises.
Joe Patrice: — a cost of living adjustment, I call it.
Kathryn Rubino: Okay. That’s definitely what you’re calling it, but I think that certainly the way that the firm talking about it is just that they’re pure raises.
Joe Patrice: I mean the firm talked about it as they’re increasing compensation, which I think is a generic term for it. I think the media and definitely the detractors of this are talking about it being a raise and spending so much more money, but it is a modest move, and I think back to, Millbank did this back in 2018.
Kathryn Rubino: Eighteen.
Joe Patrice: Yeah. They did this in 2018 and at the time then, they described it as really just kind of a cost-of-living move. We understood that prices have gone up and the money we were paying doesn’t go as far, and so we made that adjustment accordingly. And giving associates another $10,000 after the last couple of years is entirely in line, if not a little bit under, where inflation should put it. Whatever. The whole — the apparatus of mostly anonymous commenters who talk to the American lawyer and go grumble, grumble, grumble.
And they’re always like an unnamed Am Law 50 leader, an unnamed in-house general counsel, like all of these kind of cowardly responses.
Kathryn Rubino: Yeah, I mean, I think that there’s a couple of reasons for that. First of all, I don’t think anybody wants the heat of being the cheap firm, right? The firm that’s unwilling to come out and say that they’re not willing to pay the top of market, which is part of I think the anonymity involved, but I also think — first of all, I think you always hear these sorts of stories when somebody makes a compensation move. I think that they’re —
Joe Patrice: Yeah. That’s what I was saying is like whenever this happens, the army of anonymous somewhat cowardly people with titles like those start running to the American lawyer and its sibling publications, whether it’s corporate counsel or whatever and giving fodder for stories in which everyone bemoans that firms need to stop paying associates so much because it looks greedy which — it’s in the same breath that they will turn around in a few months and say the new AM Law 100 is out and look at how eye-popping and awesome the profits per partner are. So if we’re going to talk about something looking greedy, I don’t understand why this only ever gets mentioned when it’s giving associates an extra —
Kathryn Rubino: That’s a great point.
Joe Patrice: — 6% raise.
Kathryn Rubino: Yeah, that’s a great, great point because no one ever applies the greedy factor when PEP gets, you know, when we talk about the profits per partner, but the other thing I was going to say and I think why maybe you’re going to hear more of these stories. This go frowned is that I believe very firmly that you’re not going to have an across-the-board matching situation to these raises. I think in the probably this will be the first time in my tenure at Above the Law where I think that this is really going to be true where you’re not going to see the top 100 firms all match, what you did in all the previous sort of raises I think there are a couple of reasons for that. I think that not everyone is had as successful a year as Millbank quite obviously has had. I think different practice areas have been impacted differently over the last year and I think that firms that are more dependent on things like M&A or technology, did not have the same kind of a year, and I think that that will create some stratification in the market and there is also a round of layoffs for some of those firms as well. So I think that you’re going to see different firms react differently to these sets of raises than we have historically.
Joe Patrice: I think that’s fair, and I mean, we definitely talked for a long time about how there is something of a stratification round and you can say the Am Law 50, but it probably is around 35-ish, where there’s just a drop-off in that revenue, and so is it reasonable for those folks to be paying differently.
Kathryn Rubino: And I do think it’s interesting to going back to your point about where the line of what gets called greedy. I think that there’s also kind of another entry about the information about the firm when you’re talking about salary numbers and it’s a lot easier to say, oh, these are the firms that pay this rate for associates as opposed to sort of creating a line, oh, well, when the profits for partner get above this line then they’re in this level and below that line there at that level versus their ability to pay associates a certain amount, I think it creates a stamp on the firm, also profits and partnered can fluctuate from year to year. You can have a good year, you can have a bad year, but we haven’t ever seen anyone reduce starting salaries across the board for attorneys. So I think that that’s also part of what kind of creates that line and I think that the Millbank way of deciding to share that good year with all the people who are doing the work, I don’t think that sits well with everyone who potentially would make more money if we don’t give out that money.
Joe Patrice: Right, and that’s the ridiculous. Now, that it is just kind of a pure gas lighting done by people who want to remain anonymous, trying to poison the well so that nobody follows and pays the market what the market is worth.
Kathryn Rubino: Is it working is my question to you because this is the longest I’ve ever seen where a raise has been announced by a firm that is amongst the market leaders that no one has matched yet.
Joe Patrice: That is true; however, I also think given the time of year, this is the time of the year when bonus discussions normally happen and normally they happen this week rather than back then.
So there’s a possibility that folks decided to hold off and keep it on the existing schedule that they were going to have for bonuses. So we may not be able to read as much into that as we can, but I mean, it’s entirely possible.
Kathryn Rubino: I mean I guess I don’t have like a list of previous raise announcements in front of me, but they’ve happened at the end of the year before.
Joe Patrice: Well, it’s interesting, I was going to say —
Kathryn Rubino: Do you have that?
Joe Patrice: I do.
Kathryn Rubino: But it feels like an awful long time for there to be no comments from, and listen, if you’re hearing things internally at your firm and you wish to shed some light on it, tell your lovely neighborhood local Above the Law editors, you can send that information to [email protected]. All tipsters are kept strictly confidential.
Joe Patrice: Great. The last several have been November 21, November 22.
Kathryn Rubino: Is that bonuses or raises?
Joe Patrice: This is bonuses.
Kathryn Rubino: Right.
Joe Patrice: November 11, November 7, those were early, then 1927-28, December 7, that was a long one, November 21, December 2, so really is kind of another.
Kathryn Rubino: Yes. If Millbank had only come out with the bonus information, then two things are true. I think we would have already seen matches, one. Two, I would not be surprised that we hadn’t had match. If we hadn’t had matches I wouldn’t have been surprised because people are going to make their bonus announcements when they’re going to make their bonus announcements. It’s the addition of the raise information that I’m surprised no one has stepped up and matched.
Joe Patrice: Yeah, I just think they’re going to —
Kathryn Rubino: It’s also recruiting season though too.
Joe Patrice: I mean to some extent. Yeah, that’s fair. But I just think that they are holding it to their original schedule. So, I don’t know we can really pull it out, whatever, we’ll see. Anyways, so that’s the situation on money. Obviously, we record this and it gets edited before it goes up. So because we just spoke it into existence there will inevitably be a ton of raises between now and the time this comes out.
Kathryn Rubino: I mean, if so bless, and I do think we’re going to see it matches. I think the real question in my mind is whether we’re going to see anybody come over the top of these Millbank members. If there is somebody who comes over the top, is it across the board or is it just for sort of those select classes, the harder to keep at firm mid-level senior associates, which historically have gotten more largesse than other classes.
Joe Patrice: Yeah. Alright, well, so with that said I think we’re done. Thanks everybody for tuning in. You should subscribe this show so you get new episodes when they come out. You should leave reviews, stars, write something, it always helps. You should be listening to other shows, Kathryn is the host of The Jabot. I am the guest on the Legal Tech Week Journalist Roundtable, most weeks. Sometimes I’m not — usually I’m not part of that little roundtable talking about legal-tech. You should listen to the other shows on the Legal Talk Network, read Above the Law because that’s how you read these stories and others before we talk about them. You should follow — this is on the social medias, the aforementioned Twitter is — the publication is @atlblog, I’m @JosephPatrice, she’s @Kathryn1, Chris is @WritesForRent as in writing. We also have some Blue Sky Penetration, I’m @JoePatrice, Kathryn is also @Kathryn1 and Chris is also @WritesForRent, so with all that said —
Chris Williams: This is a heads up. If there are some new social media that drops on there, I’m going to be Joe Patrice.
Joe Patrice: No, yeah, yeah.
Chris Williams: Yeah, so just be prepared.
Joe Patrice: That’s great. Okay, with that said, let’s close this out, we’ll talk to you all later.
Kathryn Rubino: Peace.
Chris Williams: Peace.