Trump Defense Team Playing Tiddlywinks At A Chess Match

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition. I’m Thinking Like. A Lawyer. I’m Joe Patrice. That’s Kathryn Rubino. We’re also joined by Chris Williams. We’re all from Above, the Law. We’re here to talk about the stories from the week that was in legal. We usually do

Kathryn Rubino:

As per huge

Joe Patrice:

And also as per huge. We will begin with a little segment of small talk.

Kathryn Rubino:

Small Talk

Joe Patrice:

Okay.

Kathryn Rubino:

It’s like my joy of the entire recording right there. Yeah, that’s great. I’ll pack it in now

Chris Williams:

That makes two of us.

Joe Patrice:

Yeah,

Kathryn Rubino:

I, well, I can start. I had a big weekend.

Joe Patrice:

Oh

Kathryn Rubino:

Good. My baby turned one.

Joe Patrice:

Yay.

Kathryn Rubino:

We had a first birthday party. Aw, nothing too crazy. But the theme was Rookie of the year slash first year down. So very sports centric. It was a good time. I think I went probably overboard on the desserts, but the advantage to that is I have desserts for a while, y’all. Nice. I got this epic ice cream cake that you could choose the flavors, like listen, ice cream cakes are always good, but when you could actually choose what’s in them, that’s an elite level of ice cream cake to my mind. So I got a chocolate chip cookie dough layered with actual chocolate chip cookies, a layer of fudge and then chocolate ice cream on top, and it was all personalized. They did her name on the outside of the cake in actual chocolate. Not like that weird gross tasting fondant stuff, but actual molded chocolate. It was delightful. So I have half of an ice cream cake left, and I got these giant cupcakes to, I gave her some of both, and she did not like either. Sugars, not really her jam. I have to say. She’s more of a savory girly, which I love for her, but she gave a pretty hilarious, not excited reaction when I gave her some of the cupcake. She shook her head very violently. She was not intrigued at all. I’m sure that’ll change in time, but I’m kind of enjoying it at the moment.

Joe Patrice:

Super.

Kathryn Rubino:

That was my weekend, and I’m still cleaning up my house because I definitely went overboard on the decorations. So

Chris Williams:

I’m surprised you didn’t pull a Christmas and have six separate birthday cakes.

Kathryn Rubino:

Interesting that you mentioned my Christmas decor, because what I did decide to do is one of my least favorite probably Christmas tree proper, at least in terms of how the actual Christmas tree is constructed. It’s like an alpine style tree, so the actual branches don’t start till about maybe two and a half, three feet up from the ground. I’ve converted that into my every holiday tree. So I decorated it as a birthday tree. I put a little baby birthday hat on the top. I put a bunch of birthday ornaments on the tree. I had all the kind of fun stuff, and then when people came, we put the presents underneath the birthday tree.

Chris Williams:

I’m too much. I’m I’m mad that that’s actually kind of brilliant. My first thought is I was like, what in a nightmare before Christmas is this? Because that thing where they have all the different trees. Yeah, I love that holidays. What politan tree. Tree.

Kathryn Rubino:

It’s really fun and I’m going to turn it into my summer tree in a little bit. I’m going to get flamingos that have those little floaty tubes around them and sunglasses and stuff like that and make it a summer tree next. That’s like, I don’t know. I think it’s a little fun.

Chris Williams:

Got you. So I will say this as a quick thing. I don’t have a full blown small talk, but I see that Joe’s eyes are furious with the need to talk about legal content. So I will say this, whenever I think about flamingos, I get jealous that there’s nothing besides say colloidal silver or carrots that I could eat that could potentially change my skin color. The reason flamingos are pink is because of the shrimp they eat.

Kathryn Rubino:

Yeah. And you know, so flamingos are really kind of big in the new mom community because apparently when they have babies, they tend to lose their pink because they give all their nutrients in their bodies to their newborns. And so once their babies are a little bit older and they’re able to take care of themselves, they start getting their pink back. So there’s a big thing in mom talk kind of whatever, where it’s like, I need to get my pink back. I need to start taking care of me because whatever. So that’s my phase. I’m amm in getting my pink back face personally. But yeah, that’s another reason why I think that they’re super meaningful right now for me.

Joe Patrice:

Alright.

Chris Williams:

Enough of that human shit.

Joe Patrice:

Move on now.

Kathryn Rubino:

I like that Joe didn’t even say one word during, he’s like, Nope, I got nothing.

Joe Patrice:

We have had a busy week of various Trump case stuff. Where do you want to start? Florida, New York. Where are we going?

Kathryn Rubino:

I mean, let’s start with Florida because unfortunately there’s little to add because it’s utterly unsurprising. Eileen Canon did what she was put on the bench to do, which is serve the interests of Donald J. Trump and has officially said that the documents case, the federal documents case that is in Florida in her Courtroom will be postponed in indefinitely.

Chris Williams:

Wasn’t there a point earlier on where Joe, I think you wrote an article, you were like, this won’t be that bad. I mean, come on.

Joe Patrice:

I did, and my argument there was that I thought she was too much of a, to really make this all that bad, and I thought that, I really did think that when the 11th circuit, no squishy liberals there, when the 11th circuit’s conservative judges smacked back at her and said, knock it off, that she would

Kathryn Rubino:

Knock it off,

Joe Patrice:

Knock it off, that she would be too scared for her own reputation to attempt to do anything. And in some ways, while the result is wrong, the reasoning I get the credit for showing my work, this is the ultimate coward. I can give credit for being wrong, but okay, this is the ultimate cowards move though. She managed to find a way she easily could be resolving these motions in ways that help out the defense, and she’s not doing that either. She knows that that would result in her getting bent slapped into oblivion by the 11th circuit again. So she’s just kind doing nothing In this instance, she’s making the argument that there’s so many motions that she

Kathryn Rubino:

Has refused to rule off,

Joe Patrice:

Can’t resolve that it needs to be put off. Now the only reason she can’t resolve them is she’s not even attempting to, but she is taking as much the coward’s way out as she can, which I mean is what we all thought. I really did think though that the 11th Circuit had properly scolded her here.

Kathryn Rubino:

Frankly, I’m not surprised, but it wouldn’t be surprising if the 11th Circuit acted based on what’s already in the public record and took the case away from her.

Joe Patrice:

Well, when the first time a couple of weeks ago, I was on CNN to talk about this case among other Trump related things, and that was what me and Nick Erman we both said was that it’s getting to a point where it is obviously a bold and not something that anybody takes lightly, but it is getting to the point where the special prosecutor probably should file, ask for mandamus here, go to the 11th circuit and say, okay, this woman’s a joker and she’s clearly corrupt and you just need to take this case away from her. And based on what the 11th Circuit did last time, I’m not altogether sure that would fail. I think that may well work.

Kathryn Rubino:

And I mean, to your point, I don’t think that there’s much to lose if Jack Smith made that motion, because I mean, what is she going to be more against your, I mean, she’s already in the tank here,

Joe Patrice:

So that’s what’s going on down in Florida. Meanwhile, up in New York, we had worked our way through Stormy Daniels testimony. It ultimately resulted in the prosecution not calling Karen McDougall because I think Stormy accomplished what she was there to accomplish, which there were some people who said she definitely went a little bit further afield of where she should have made some comments that the defense is certainly arguing, has prejudiced the jury against Trump.

Kathryn Rubino:

But in a lot of ways, that door was opened by the defense’s strategy. Right? In the opening arguments, they said that the affair never happened. So to the extent that she’s providing details about the affair, it’s to rehabilitate her own reputation and credibility, which is completely fair because they refuse to admit that it happened.

Joe Patrice:

So that’s a really good point, and let’s break this down. So in this case, the only thing that the affair is really important for is because theoretically, there didn’t need to be an affair for this to have been a payoff to keep somebody even an extortionist quiet or something like that. So what the prosecutors needed out of this basically was testimony that would indicate that Donald Trump didn’t care about silencing this story leaking until he was running for president. To that end, Daniels does testify that she was never told to not tell anybody that she was in fact told that Melania doesn’t care, all these sorts of things, and that’s the testimony that they actually needed. Now, the details she had about what went on during the affairs, theoretically not necessary, but as you’re saying, Kathryn, when the strategy was this didn’t happen, rather than just leaving it alone, that is functionally an attack on her credibility, which leads to her trying to prove to the jury that no, it did, and then take your lumps there

Kathryn Rubino:

If you’re a defense judge, Marchan was very, I think, aggressive about sustaining the objections when he thought that the details were more than were needed to establish that kind of baseline credibility, even striking some testimony that was not objected to because he thought it was sort of over the line. And I think that that comes to one of the big stories of the week, which was the sort of bench slap that Susan Necklace got from the judge saying, why didn’t you object more?

Joe Patrice:

Yeah, I mean, I don’t know if it was a bench slap, but it was definitely, it

Kathryn Rubino:

Was noteworthy. Let’s

Joe Patrice:

Say it was noteworthy having a situation where you’ve, I mean, it’s their own fault for asking for the mistrial. So that then forces the judge to say, for all the reporters in the world to hear. I mean, I don’t know. You could have objected to this stuff, but it seemed like you were incompetent, which this is weird. I mean, I practiced in this space. Susan Necklace has a very good reputation, is very competent. The fact that she wasn’t objecting more is interesting. I almost wonder if the idea was that they’d objected enough to set up the mistrial and they didn’t want to potentially look like they were badgering her. The witness for the sake of the jury, I don’t know. But if was the logic, it’s a weird one because the cross-examination was entirely hostile, which

Kathryn Rubino:

I mean, I thought the cross-examination was outright. I mean, listen, I’m unlikely to be on a jury anytime soon, but if I were, it was offensive in the year of our Lord 2024 basically arguing, well, you’re a porn star, so you couldn’t possibly have been sexually assaulted. That was the tone and tenor of the questions, and it was yikes. It was yikes town.

Joe Patrice:

So what gets me about it is that sort of shaming the witness is a tactic that happens and has all sorts of bad generally, but there are very few people in this world who own their sexuality to a level like a adult film star and director does. You aren’t going to shame this person that way because this person understands and has a very good sense of the limits of what is acceptable and not vis-a-vis their body. I thought it was the worst possible person to, as a tactical measure, it’s never good, but the worst possible person to try and do this to if you think you’re going to get an advantage.

Kathryn Rubino:

I mean also in particular, stormy Daniels, not just anybody who has her job because she’s been at the center of Trump related controversies for eight, nine years. She’s seen the worst that the internet has to throw at a human being and has come out the other side. So whatever Susan Necklace thinks she’s going to ask at a Courtroom is just not going to be it. Right. That’s not what’s going to put her over the line and get the testimony that they’re hoping to get out of it.

Joe Patrice:

Yeah, I thought she was a much better witness on cross than on direct. Obviously we aren’t in the Courtroom, so who knows how the nuances of it play, but at least on paper, the answers she’s giving are the worst nightmare for somebody who’s trying to conduct a cross because she’s not getting defensive and denying things that you can then say, but aha. No, it’s true. She’s straight up admitting the things that are damaging and then twisting the knife with one more.

Kathryn Rubino:

She’s giving zippy little answers that make for sort of great clips, great sound

Joe Patrice:

Bites. You’ve made money off this case, right? I’ve also lost a lot of money from this case, blah, blah, blah. And it’s just like, or

Kathryn Rubino:

You are shilling candles products. Yeah, just like your client. Yeah.

Joe Patrice:

Yeah. She won’t, she’s not doing the denial. She’s not being defensive or I guess her testimony’s now over, but yeah, it really, really well prepared for that role, I

Kathryn Rubino:

Guess. And I think that the fact that the prosecution is not calling McDougall to the stand proves that they agree. They think that her performance was strong and calling it somebody else just increases the risk that the power of that is lost.

Joe Patrice:

Yeah. Well, because the only predicate that they really needed was he didn’t care about these affairs until he was running for president. I mean, at that point, McDougall’s just cumulative,

Kathryn Rubino:

Right? But I do think that the way that Stormy was on the stand really gives a lot of credibility to the notion that the affair happened, right? And when the defense’s strategy is based on, or they already said in cross-examination, this affair never happened. And if you’re a juror, you have to start thinking, well, there’s already holes in the defense’s case. And I think that that sort of carries over, and I think that story was utterly compelling on the question of whether or not she had an affair with Donald Trump.

Joe Patrice:

Right. But that’s not really relevant to the case.

Kathryn Rubino:

No, but it does, than it does start creating questions of credibility with what the defense is saying.

Joe Patrice:

But the only thing that she needed to be credible about was that not

Kathryn Rubino:

Caring, but I think that you start having questions if you’re a juror and one of the things that the defense has said is true you don’t think is true, what else are they lying about?

Joe Patrice:

Yeah,

Kathryn Rubino:

I think that’s a normal human reaction when you are making these judgment calls.

Joe Patrice:

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Kathryn Rubino:

Certainly a more likely possibility than a lot of us would be comfortable with.

Joe Patrice:

For the last time around the Heritage Foundation and Federalist Society put together a short list of judges that they thought should be on the United States Supreme Court and used this as a campaigning tool this time around a different organization tried to jump the gun on the Federalist Society, make the claim that they we’re the

Kathryn Rubino:

Ones you should be listening to. But I mean, let’s be clear, it’s going to be Leonard Leo’s list and we’re all just living with it.

Joe Patrice:

Well, so I think what they did here is if Leo’s list is anything like the last one, it was going to have 20 names on it. I think what was being accomplished here with this other organization is they limited their list to fewer names. Also spent some time directly going after some of the names that are inevitably going to be on the longer list. It was almost as though they were pre budding the LEO list. Understanding the Leo list is still the official list, but they’ve done the job of poisoning well against some of the people they don’t like, and pushing forward as a quote, consensus, the people they do, which was largely the people that we’ve talked about as the worst behaving judges over the last few years. People who not really being celebrated for their brilliant jurisprudence, but instead the people who have thrown the most public tantrums, your James hoes who march around and claim that they’re going to boycott Columbia and Yale, the Duncan situation, the guy who rolled into Stanford and tried to and did get people fired. It’s the wind judge’s attack who got Lawrence Van Dyke, who spends most of his time on the bench writing insults about how much he hates everyone else on the ninth Circuit. Not people who are really doing their jobs, but people who are trolls for a living who was being exalted on this list with other people being pushed further down, people who were marginally more serious.

Kathryn Rubino:

Who were you sort of most surprised on the list that was being kind of hooed by this group?

Joe Patrice:

Look, you got to feel bad for Naomi Ra, right? She’s done everything she can to be the total unserious judge, and she got put on their red flagged list. So you got to feel bad. You’ve sold out your reputation and credibility so much and you still don’t get there. Actually, I thought that of all of the DC Circuit people that they had red flagged there because Walker was also given a red flag. Then they also put down there at the bottom from the sixth, who is kind of one of the first ones to the Clarence Thomas defense. He’s got a red flag too by them. Meanwhile, your Ho Duncans Van Dykes, these are the people who were being pushed to the top of the list as well as a couple of law school deans, the dean of High Point Law School, which you might be wondering. Hey, I’ve never heard of that. That’s weird. It doesn’t exist yet, but it’s planning to exist. And they have him on this list. He’s notable because he was named in the January 6th report because he was one of the key people advising that I’m pretty confident Mike Pence can just declare the election goes the other way.

Kathryn Rubino:

So real serious.

Joe Patrice:

Yeah. So really serious people. The Dean of Liberty also is on that list, who’s an international human rights lawyer who has said that the Holocaust is not as important as getting rid of Roe v. Wade. Not normally an opinion that human rights lawyers have, but hey, so that’s the people that are being pushed by that organization. That’s what you should expect from another Trump administration if that were to come. Yeah.

Chris Williams:

It blows my mind that looking at this list and thinking about the rigor, people had to push Jackson through

Joe Patrice:

Of this list on paper. I guess you would say that James Ho is qualified on paper. His conduct since reaching this point has proven that he is wildly unqualified to have this job. But on paper, his career has been very good. That is not as true of other folks. I mean, van Dyke was quite literally labeled by the A BA as unqualified for the bench. He was pushed through by Republicans. Anyway, that’s the world we’re living in here. Alright, so there is a law firm who has had a bad week.

Kathryn Rubino:

Locke Lorde has had an unfortunate number of stories about them, and Ponzi schemes. One might of course argue that one is a lot for a big law firm, but to have two different Ponzi schemes in the news in the same week is a lot to the point where when the second one broke, I was like, oh, I’ve written about that. And then I looked closer. I’m like, wait, hold the phone.

Joe Patrice:

So Lock Lord had a partner in the UK who was

Kathryn Rubino:

Jonathan Denton. Yeah,

Joe Patrice:

Yeah. Who was involved in, see, now you put that name in. Now it’s going to be confusing. People is talking about Dentons. We’re not talking about Dentons, we’re talking about Lock Lord who was running a Ponzi scheme. He is now going to prison that is separate

Kathryn Rubino:

From 15

Joe Patrice:

Years. Yes. Separate from the situation in Texas where the receiver in a bankruptcy case has made the argument that the entity that they’re the receiver for, they have claims against Lock Lorde there because the bankrupt entity was running a Ponzi scheme to their mind, and that the receiver believes Lock Lorde knew or should have known that that was going on and could have stopped the damage if Lock Lrd had been acting prudently lock, Lord denies any liability for any of this. That said, in exchange for mutual releases and not admitting anything, they are willing to pay 12 and a half million dollars to make it go away, which is about a 10th of the value of the fraud as a whole. So as a firm that is in the middle of merger talks, I guess it’s good that you’re getting all your ponzis cleared up before you merge.

Kathryn Rubino:

Yeah, and I mean, especially for Texas case, sort of clearing your potential liabilities as you’re considering mergers, it’s very important. There’s no sort of question mark on their books once you have this settlement in place, and that makes it a much more attractive position for another firm who’s considering merging with them.

Joe Patrice:

Yeah. It’s not the public relations look that you really are hoping for if you’re a prospective merger partner.

Kathryn Rubino:

But I mean, listen, it depends what that name winds up being at the end. Really. And here’s the thing, big law firms, the PR for a big law firm is very different than PR for a multinational corporation. Coca-Cola has to worry about what mom and pop down the street, think about their brand. But Lock Lord doesn’t really, I mean, even halfway through law school, did you know what a lock Lord was? Maybe. But it’s a different, much more specialized group of people that they’re talking to or need good PR for you, whether it be law students or potential sort of high-end clients. And to the extent that it is a potential merger on the horizon, if that name as such is not the one people are talking about anymore, does it even matter?

Joe Patrice:

Yeah. I mean, I didn’t know what a lock Lord was in law school,

Kathryn Rubino:

That it

Joe Patrice:

Didn’t exist. It didn’t exist when I was in law school

Kathryn Rubino:

Because of, again, another merger,

Joe Patrice:

But I did know what a Lock Liddell was. So there was that. But yes, so see how this

Kathryn Rubino:

Plays out. Again, it’s a highly informed, specialized group of people that they need to care what their reputation is. And as much as it’s sort of very funny to insiders that there are two Ponzi scheme stories in the same week, not great, but two, how does that wash out in a year? Probably less important overall.

Joe Patrice:

Yeah. So we have a quick bit of time. You had a trivia question this week I thought was kind of interesting. Just,

Kathryn Rubino:

Yeah. So the American lawyer put out its annual list of all the data that they collect as part of the AM law rankings. And it includes stuff that you don’t, it doesn’t matter to the rankings per se, but it’s just kind of interesting. And so the question is the attorney, the individual attorney who billed the highest number of hours, what firm did they work for? And sort of the hint is that this person builds an average of almost slightly over, I think it is, 73 hours every single week. That does not count 52 weeks a year. You’re looking at 73 hours of billable time, not time that you spend working, but actually write down accounted for. That’s brutal. Oh, it’s 3,792 hours over the course of the year.

Joe Patrice:

Wow.

Kathryn Rubino:

Yeah.

Joe Patrice:

Where did they work? Yeah.

Kathryn Rubino:

And every year they kind of put out the status. This is the, not that they identify who it is, but this is the firm where the attorney who billed the most hours lives or works at lives in the case of when you’re billing this many hours. But I always sort of think it was like, how many trials was that? Or how many deals was this person just unlucky that they got staffed on a million things? What level are they? How much control do they have over these hours? It always kind of makes you wonder

Joe Patrice:

A lot of time at the printers. Yeah, no. Do you think it’s legit? Yeah. Yeah. I mean, doesn’t seem, it’s a lot

Kathryn Rubino:

Mean you could imagine a world where you’re building 73 hours and it’s just sort of unfortunate if you wind up on case.

Joe Patrice:

Yeah, no, it’s pretty standard, I think, but just not that much Sustained. Sure. Ending the year at 3030 100, that’s wild. But you could see it happening. God, this is a little over the top there.

Kathryn Rubino:

And that data point is also in opposition to another data point that they put out, which I think is perhaps more relevant when you’re, anybody in big law can have a terrible unfortunate year like that and wind up sort of the person who billed the most. But at the other sort of interesting one is, which firm do lawyers have? They have highest average billable hours per attorney. So on average, lawyers billed 2018 hours per year.

Joe Patrice:

Okay. Okay.

Kathryn Rubino:

So it’s a rather small firm. So almost everyone was probably billing somewhere in that number. I think it’s actually the smallest by headcount firm in the AMLO 100. And these are only AMLO 100 firms, just to be clear. And that is Susman Godfrey, which obviously makes a ton of sense. They were really busy last year, which is why they shot up a lot of these rankings because they worked on the Dominion case, they worked on some high profile cases. And when you work on high profile cases, especially giant ones like that, lots of people are billing lots of hours.

Joe Patrice:

With that said, I think we’re done, right?

Kathryn Rubino:

Yeah, I think so.

Joe Patrice:

Awesome. Well, thanks everybody for listening. You should subscribe to show, get new episodes when they come out. You should give us reviews, stars, write something. It always helps. You should be listening to the Jabot Kathryn’s other podcast. I’m also a guest on the Legal Talk Week Journalists round table. That was Legal Tech Week, not Legal Talk, which Legal Talk Network is the network we’re on that has a number of shows that we don’t host that you can check out. You should be reading Above the Law. So you read these and other stories before we talk about ’em here on social media. It’s at ATL blog. I’m at Joseph, Patrice Kathryn’s at Kathryn one. Chris is at Writes for Rent and then Blue Sky. Same things, except I’m Joe Patrice over there. And with all of that said, we’re done. And talk to you later. Peace.

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