Disney Lawyers Learn That Discretion Is The Better Part Of Valor

Episode Notes

Transcript

Joe Patrice:

Welcome back to Thinking Like. A Lawyer. I’m Joe Patrice.

Kathryn Rubino:

Hi, Joe. Patrice.

Joe Patrice:

That is Kathryn. Rubino.

Chris Williams:

I’m just Chris. No last name.

Joe Patrice:

And there we go. Oh, you, you’ve reached the Madonna level or Ronaldo? You’re just going

Kathryn Rubino:

Marta.

Joe Patrice:

Marta, you’re just kind of going there.

Kathryn Rubino:

One named Celebrity Cher.

Joe Patrice:

Okay. Shakira

Kathryn Rubino:

Sha. Oh, that’s a good one. That’s a good one. Prince. Prince recounting

Joe Patrice:

That. Yeah,

Chris Williams:

Actually that I’ll save that for small talk. So looking forward to the real reason. I dunno about everybody else. The real reason I tune in.

Joe Patrice:

Right, right, right. Well anyway, that’s us. We are from Above, the Law, and we have this chat with you all every week to give you a rapid fire rundown of the big stories of the week. That was, but we do begin with a little small talk segment, which, oh, there it’s, that’s the official small talk horn,

Kathryn Rubino:

Small Talk. Okay. So what’s going on with you, Chris and only Chris?

Joe Patrice:

Yeah, it seems like you’ve got a thing.

Chris Williams:

Well, I’m not, I’m not podcaster formally no one as Chris yet, so I’m not that deep into prince lore, but I spent most of my weekend inside, but that just meant that my journey was mental. I got caught on a thought hole. I was thinking about the nature of fidelity and judgment, but in a legal sense, I think I might’ve mentioned this last podcast, but I was listening to Prince’s rendition of wa, my guitar, he gently weeps and he stole the stage, but it still felt true to the song. If anything, it felt more realized than the Beatles version. So how do you stay in spirit of a thing, still balance your individuality and also flesh out the thing, but what does it mean when the way that you flesh it out is different from how the original person created it? I heard the Beatles version. It was okay, maybe fourth of the best recordings of it. I heard a Clapton version. It was really good. Heard a Yoyo Ma Santana version another. Well, Carlos Santana wasn’t the best, but see,

Joe Patrice:

Santana, that’s another one. You don’t actually need

Chris Williams:

The Carlos Santana,

Kathryn Rubino:

So I don’t think that one counts.

Joe Patrice:

Okay.

Kathryn Rubino:

Whatever. Not giving you any credit on that,

Chris Williams:

But yeah. You know how we have you as lawyers, you have those moments where you’re like, well, if you follow the letter of the law versus the spirit of the law sort of thing, I was trying to like the spirit of a song versus the letter of it. There’s something bigger than the individual notation,

Joe Patrice:

The idea of a cover that more actualizes the song than the song. My example of this, if you want to build this into a bigger academic piece, my example of this would always be Bob Dylan wrote all along the Watchtower, but Jimi Hendrix version is the official cannon in my mind. Right. Yeah.

Kathryn Rubino:

I mean I think that’s true of a couple of Bob Dylan songs because he’s such a terrible singer. Right. No shade. I don’t think it’s just accurate. There are other versions that are more catchy.

Chris Williams:

Yeah, my Go-to version isn’t the Lama Gaja guitar, Jane Louis, it’s actually hurt. I think it was Trent, but then Johnny Cash covered it and he’s like, that’s not my song anymore. So it was a Cash’s version was infidelity. So much so that it made the originals not seem genuine. The original retroactively became angsty.

Kathryn Rubino:

Do you remember when the Osbournes had a show and the Pat Boone cover of Crazy Train Of Crazy Trade? Yeah. And to this day I’m like, that is such a sweet, delightful little version of that song.

Joe Patrice:

Yeah. I think there are gradations here in which I think could be explored academically between the ones where the new thing absorbs the spirit of the song and becomes the new song versus things that become transformatively good covers versus things that are

Kathryn Rubino:

Alright versus something that kind of takes the seed and becomes something different.

Chris Williams:

I don’t think an example, and I’m willing to get off it, but if y’all want to continue, go on. I think an example of a thing that is transformed but it isn’t infidelity to one of Drake’s biggest songs is a hotline bling, which is a pretty boldfaced theft of drams chacha and there’s no question that Drake’s version more popular but doesn’t feel like justice was done. It doesn’t feel like care was shown in it. It felt like a ripoff. So yeah, that line between judicial judgments, actual being judicious about the way that you’re deciding to play the thing versus taking or appropriating that line. It was fun thinking about that musically.

Joe Patrice:

Well, that’s the thing. Another one, another good example is the original 14th amendment and what we currently operate on there.

Kathryn Rubino:

The first, it took us a minute to get there, friends or the second but was worth it

Joe Patrice:

The some small talk. Hey, so our first story of the week is the biggest story out there that we covered. Certainly as well as, I mean this one crossed over into the mainstream media. If you have, for instance, a Disney plus account, you should make sure there aren’t any red LEDs in your house from roving snipers who can now take you out legally because of your subscription. I think that’s how I read that case.

Kathryn Rubino:

Not quite. And to be clear, it is not any ruling as much as it’s an argument that one of the parties is making, which has not actually been ruled on, so we have some time here, but I think everyone kind of heard the basics. It became very much part of the zeitgeist in the past week, which is that Disney, it was facing a wrongful death lawsuit. A woman and her husband and mother were at a Disney restaurant at Disney Springs Ragland Road, according to the complaint, asked the server repeatedly, she had a bunch of allergies, asked repeatedly about allergies in her food, wound up dying of anaphylaxis shortly after eating there. Very sad, very tragic set of circumstances. There’s a loss of being filed on behalf of her estate by her husband. One of the arguments that Disney is making is that because he downloaded a free trial of Disney Plus that has a mandatory arbitration agreement clause in there that he can sue have a jury trial, he can’t sue. He just has to do it in arbitration. They also make a similar argument because they bought park tickets to Epcot as part of this trip, which at least seems a lot closer related, more related to why you’re

Chris Williams:

There. Just make a ticket argument

Kathryn Rubino:

And that is really just make

Chris Williams:

The ticket argument. Yes,

Kathryn Rubino:

Yes. This is my entire point of this article. These big law attorneys, white and Case are the attorneys for Disney in this instance. You don’t have to make every argument just because it’s colorable. Why are you doing this it? And listen, I have a lot of passion about Disney. I think as we’ve discussed on the podcast, and it struck me in particular because Disney gets so much credit for the care that they are known to take around allergy issues. Families who have kids with allergies will go out of their way to have a Disney vacation versus some alternative because they believe that it is safer for their family and easier to manage and to navigate. And now all of a sudden everyone’s talking about this lawsuit. Everyone’s talking about how poor a job a Disney entity did in this instance when it came to allergy issues, the years’ worth of work and the care that countless cast members have taken in order to solidify this reputation is undone because somebody thought they were too smart.

Chris Williams:

If this was a contract exam, brilliant because it’s a colorful art. It is very clever. Very clever. It shows they did the reading. This is more than just Quimbee, although Quimbee is also great, but just reading this from an HR perspective, what in the hell are you doing?

Kathryn Rubino:

Why? Why? Just because you can doesn’t mean you should. Doesn’t mean you

Chris Williams:

Should and that’s one of the things you learn from practice.

Kathryn Rubino:

Yes, and I mean listen, partners are all over this. They’re the ones who signed. This is not, but I’m sure they got so excited when they found the information. They’re like, oh look, in 2019 he down that Disney Plus never paid for it. Mind you, it was a free trial. But to like listen, we can make this argument and I think has absolutely blown up in their face. And also what’s going on in the general counsel’s office. Somebody in house read this.

Joe Patrice:

Yes. Somebody at the client who theoretically has incentives that may not directly align with the law firm. The law firm might still be in as Chris’s example, is they may still be wrapped up in ivory tower issue, spotter mode where they want to throw everything in someone within the law department. Their job is to look at it and say, does this mesh with the business interests that we also have? Because sometimes law and your actual business interests don’t always align like

Chris Williams:

Here.

Kathryn Rubino:

And it’s such a ridiculous argument whether or not it is legally acceptable. It is such an kind of, that’s what the majority of the headlines are, even though there’s also this park ticket argument, which is a superior argument. The majority of headlines only talk about the Disney plus subscription, all of the memes that you’re seeing about downloading the streaming service and just not understanding the interests of your client. I think what this shows

Chris Williams:

How we occasionally get a push, well, not, we’re not administrators. They’re like, Hey, people from science backgrounds, you should go to law school too because you’ll think about things differently. I know law, it’s a humanities degree, but you need to have some comedians because immediately first thought reading this, I was like, one, this should have never left the group chat. It is funny. You should have stayed there. Secondly, this is literally a South Park episode south. There was a South Park episode where everything was called Human Scent iPod or something like that,

Joe Patrice:

And

Chris Williams:

Butter is goofy ass red, the fine print. He was like, yep, yep. Right here it says they can your mouth and attach another person to your butt and if Apple needs to, they can attach another person to that person’s butt. And I was like, this is the episode. This is what you’re doing right now. Do not larp South Park. South South Park is there to critique and get paid.

Joe Patrice:

Don’t copy them. As I recall, everyone read the fine print except for Kyle, I believe, and he’s the one who got the wrong end of the or the wrong middle of the

Kathryn Rubino:

Boom,

Joe Patrice:

The centipede. But in some ways this reminds me of to do the flip side of the do a wacky legal thing and make that the story. It’s the flip side of the fight that Disney had with Ron DeSantis and about the Reedy in that one, they managed to figure out that they could publicly notice a series of meetings and have these property transfers or transfers of rights happen, and utilizing our friend, the rule against perpetuities set it to the death of the years after the death of the last remaining descendant of Charles iii. And that became a story because it was such a bizarre, ridiculous thing as the rule against perpetuity. Always big examples always are, but that was an example where they did the funny thing and it became the story and it made them look smart. That is of course a dispute that ultimately got settled with one side claiming victory, but that side was the side that didn’t actually win. DeSantis claimed victory except the final terms of that settlement were Disney got to choose the people who actually had power on that board amongst the people that DeSantis technically controlled, and they also get first refusal on everything. So they basically got back to where they started,

Kathryn Rubino:

Which is all they wanted. I think part of the lesson for Disney in these two stories is that you have to be aware of who your opponent is and how that reads. Right? It’s different when it’s a questionably popular governor that has gone after you at your company because they’re going after L-G-B-T-Q-I-A people that is a very different opponent than a doctor. A bereaved

Joe Patrice:

Widower,

Kathryn Rubino:

A dead woman. This is a terrible story. You don’t want it in the news. Also, why did it even get this far? Why haven’t they just settled the case? And so no one can talk about it anymore. Yeah, it just doesn’t feel like a great business move.

Joe Patrice:

Yeah, bad strategy over there. Okay, so the other thing of note from last week I guess is from my understanding, and again I wasn’t really around much last week, which will be our final story, but Skadden compensation, what’s the deal with

Kathryn Rubino:

This? Well, we’ve been talking about, and something that’s certainly been true in the industry is there’s a ton of partner moves groups or different rainmakers leaving one big law firm for another, and folks over at law.com noted that Skadden was losing notable folks were taking off from there and query why that’s a very well-known, well-respected sterling reputation. Why could that be some anonymous recruiters? Were speculating that part of it is that they’re compensation model for partners doesn’t quite allow them to get up to the top numbers. What numbers that we’re talking about is 20 million being that real gold standard that if you’re going, that’s really what you want, but based on how the partnership agreement at Skadden works, you can’t really get to that number. You top out somewhere between 14 to $16 million, which listen a lot of money still, but that all trickles all the way up and down the scale. The point is just that if all else is equal, why wouldn’t you want an extra 8 million a year? And we’re also seeing this not just vis-a-vis Skadden, there’s lots of rumors and stories about plenty of other big law firms changing their partnership agreements so that they can entice the best people to come to their firm or to stay where they are depending on what their book of business looks

Joe Patrice:

Like. When I read this, I thought it was similar. There’s another survey result that came out today from over at American Lawyer talking about the equity partner pay spread, which doesn’t necessarily speak to whether it’s a small lockstep model or a eat what you kill model or these or how giant the actual money is. But the spread between the lowest paid partner and the highest paid partner on average now is around 8.8 to one. Whereas the group of folks who firms, at least for ones, they have data that are at a less than four to one ratio, has dwindled to 1, 2, 3, 4, 5, 6 firms, which it just shows that that idea of the equity partnership being partners is really on the decline because you get these situations where people are wildly, well, they’re the NBA players to use the poorly conceived analogy from earlier this year.

Kathryn Rubino:

I think we’re going to continue to see and hear about this. It’s not just Simpson Thacher that’s changing their partnership agreements. I think we’re going to see more and more stories where firms want that flexibility. I think the top of big law is going to continue to get bigger and part of what that’s going to mean is being able to throw around these incredibly flashy numbers in order to grab those, that tippy, tippy top talent. That’s a lot more money than I get paid for the great work here at Above, the Law

Joe Patrice:

Fair. But it is interesting, the finances of this industry continue to be fascinating and they’ve, that’s a

Chris Williams:

Wonderful way to say rage inducing, but go on.

Joe Patrice:

Well look, again, as we discussed with the NBA story, the amount lawyers are getting paid is piddly compared to the industries that are the clients of lawyers. So it’s not really that bad, but it is interesting how a business model that used to thrive on the idea that everyone are kind of equal partners has gone so far away from that both in the structure and in the amounts and in the spread and in the who gets to call themselves and the multiple tiers. It’s been a big change and it’s been a change over a relatively short period of time all things considered.

Chris Williams:

I’m just waiting on the time when there’s some point where there’s going to be, there’s an article Stacey put out where it was like, associates are still having side gigs to supplement. I’m just waiting to the point where they take some partner class that still needs side gigs to stay afloat.

Joe Patrice:

I mean, yeah, it is certainly possible. The problem with the associates in fairness is well, one, the bimodal, it matters where they’re an associate. If they’re a big law, then they are making a decent amount of money. If they aren’t, whatever, but it’s related to that is the associate problem is when people say associates make so much money, it forgets that they’re already taking huge chunks out of their paycheck in loan repayment and it’s almost like owning a second luxury home in addition to the place the hovel that you’re renting. And that structure is always going to mean that no matter how much these people are making, they are behind the eight ball on that. And that is something that exists. That is a fixed cost, well not fixed depending on where you went that people don’t think of that way in that if you went to that law school and you work at New York big law, if you went to that law school and work in some smaller market, big law, you are making the same amount in a lot of these cases. It used to be that there were geographic differences between offices and there still are at some firms, but a lot of them have taken to treating weirdly as they move away from treating all the partners equally, they’re moving toward treating all the associates equally and it’s a pretty good deal to be

Kathryn Rubino:

Sure. Even if you look at something like Houston, which is the fourth largest city, so it’s also a very big thriving city, but the cost of living is significantly lower. Or even if you are spending the same amount on housing, you are getting a very large

Joe Patrice:

House

Kathryn Rubino:

Versus a studio

Chris Williams:

Also no income tax, right?

Joe Patrice:

They’re a no something tax. I think it’s no income tax. I can’t remember if it’s Oh yeah, they do have property tax. They don’t have income tax.

Chris Williams:

Yeah. Yeah. So big. That’s a big, I’m actually seeing much closer to the gross.

Joe Patrice:

Right. I mean, on the other hand though, state income taxes are usually outside of living in New York City where you pay the city tax. There’s usually fairly small anyway.

Kathryn Rubino:

Okay. Joe, why don’t you rega us with everything that we need to know about the latest con.

Joe Patrice:

I was at the International Legal Technology Association’s annual show last week where I saw it was the biggest one ever. Over 4,000 folks from something like 34 countries were there. Impressive. There was a lot of the tech folks within the law firm and law department world, as well as a lot of the vendors who build the software and hardware that the legal profession runs on. Big themes I would take away from it. Alright, so the quiet one, like the real super secret one. Have you heard of ai? No. Yeah, no, that is, yeah, exactly. Well, unfortunately we’re not talking about practice or we are talking about practices. Oh, good one. Yeah. We’re talking about lots of law practices. It’s bit a game. Yeah, so not a game. We’re talking about law practice. So yeah, the gen AI was obviously the biggest subject as it was last year. It’s still a little unclear what it can do for law. What

Kathryn Rubino:

Do you do here?

Joe Patrice:

There are certainly tasks that it can do and there are improvements being made in making it more reliable in its results, faster in its results, but there are still some questions as to how far this can go. I think there are people in this world who envision it becoming far more powerful than it actually is likely to be barring some other Sure.

Kathryn Rubino:

The people who are invested in it. Yeah.

Joe Patrice:

I always cite, there was a Goldman Sachs report recently where they were like, we don’t think this is worth putting money in, and Goldman Sachs would put money into a grandma eating contest,

Kathryn Rubino:

Dirt contest farmers.

Joe Patrice:

So when they said that, that made us all kind of sit up. There are value for law though. There’s a lot of value, and this is the part that I thought was really interesting. There was a lot of value in it as a user experience tool and nobody called it that because of course nobody wants to say that’s really what it’s valuable for, but it seems like that’s what it’s really valuable for. As I talked to a lot of folks, they were saying what it did was give an easy way for people who’d never really interfaced with these various products that have existed for years. Now for those of us who go to these shows all the time, but they’re now starting to use them because, oh, well, I just typed in this question and it figured out to go over to this particular platform and pull this data from it and give it to me. The idea of it as a catchall user experience tool may seem not particularly earth shattering, but in a lot of ways, surprisingly, surprisingly, that actually might be the most important productivity that it can have. Yeah,

Kathryn Rubino:

I mean I think there’s also just such a big gap, especially in the legal profession because lawyers have this reputation for being hesitant to adopt new technology.

Joe Patrice:

So I mean, you’ve done discovery work like the disco large multiple e-discovery vendors said things similar to this, but I’m just going to point to them because they said these exact words. They monitor who the seats are, who are accessing the discovery sets that they’re hosting, and they said they’re senior partners that have never once logged on who are logging on now and doing things with the dataset.

Kathryn Rubino:

That’s a tremendous difference. I mean part of it’s also as people who used this kind of technology and tools age into those more senior roles, that’s obviously a part of it, but I think you’re right that easier it is, the more intuitive it is, the more people in the legal industry will use the tools and there’s a big difference between buying software a program or some technology and actually becoming a part of your firm’s.

Joe Patrice:

Yeah, it was interesting. So these same senior folks who’ve been on things all along are now interfacing with it because they can type in the questions and get the data. They feel it’s easier. It is also true that a lot of those systems early on were not particularly, they were very much things you had to be trained on and not as much anymore.

Kathryn Rubino:

Well, that’s a great takeaway. Life’s going to get a little easier.

Joe Patrice:

Yeah, that’s a big takeaway. I think there continues to be less attention paid to, but shouldn’t be on collection work and security issues surrounding that. The worst part of discovery is not actually reviewing it, sending it to people, then those people reviewing it. It is actually chasing down all the human beings who within your client have stuff that might be responsive and getting it from them. That is a process that has gotten worse as more communication happens outside usual channels with weird chat apps and encrypted messages and so on. That’s a huge area that a few of the people I talked to were addressing how a client and a firm can do that. It is not, however, something that screams the words ai, so nobody really talks about it as much, which is unfortunate, but that was the other large takeaway from it. And then, yeah.

Kathryn Rubino:

Well it sounds like that industry’s progressing. We’re moving a little bit more towards the widespread adoption in terms of usage, so that’s good.

Joe Patrice:

Yeah, so as far as, I can’t really point to one thing that just jumped out. This is the most amazing thing I’ve ever seen, but a lot of progress in both of those fields. Really interesting stuff on that front. If you have even the mildest interest in the technology that makes a law firm tick. It was a really cool show and I will be writing about it for the rest of the week. How was the

Chris Williams:

Swag?

Joe Patrice:

Swag was good. I got a stuffed animal. I didn’t really get a ton of stuff. What’s weird is I noticed this from shows over the last couple of years, swags kind of on the way out really. There’s a few things. I got a water bottle, I got a stuffed animal, but it used to be, and the culture, it’s weird. The culture of corporate deal toys are gone. As I talk to big law firms, which those used to be the kind of story and I think some of it is driven by environmental concerns and stuff like that.

Kathryn Rubino:

People Just, Marie Kondoing our lives

Joe Patrice:

And people want Marie Kondoing their lives. People thinking that maybe we don’t need an extra hunk of plastic, whatever it is. There’s more contest stuff. There’s more. I got

Kathryn Rubino:

Experience kind of stuff. I read, I got a

Joe Patrice:

Couple of bottles of Jack I guess that I got. I realized, really I forgot. I forgot that I got those, but I did get those.

Chris Williams:

I guess you Drank them.

Joe Patrice:

Yeah, no, I still have them in my bag. Well, there was no reason to drink them there because I was drinking at events while I was there, so I didn’t have to. Yeah, okay. So yeah, those kinds of things.

Chris Williams:

I guess I need to go to the next one.

Joe Patrice:

Glad Legal, lots of great candy candy.

Kathryn Rubino:

More consumables. Yeah, no waste, no storage

Joe Patrice:

Free popcorn at one of the places.

Chris Williams:

No Harry Potter Wand.

Joe Patrice:

No, though the particular vendor who did that, they had a magician at the booth though. Nice, nice. Who was doing some cool stuff stuff. So

Kathryn Rubino:

He experience kinds of stuff is still popular.

Joe Patrice:

Yeah, and the folks who normally have the airplane simulators and race car simulators, they had a virtual golf driving thing this year. That’s

Chris Williams:

Preferable.

Joe Patrice:

Yeah. I don’t know. I like the old stuff, but I understand the value. What else? Yeah,

Kathryn Rubino:

I don’t know. You went Not me.

Joe Patrice:

Food was good. It was great.

Kathryn Rubino:

Well, I’m glad you are back, honestly, because you do produce content. Because my job

Joe Patrice:

Only a couple more weeks till the next show that I get to.

Kathryn Rubino:

Goddammit. I feel like it’s a season.

Joe Patrice:

It is the season

Kathryn Rubino:

Where you just kind of hit one show after another after another. It is.

Joe Patrice:

Well, alright. With all that said, thanks everybody for listening. You should be subscribed to the show so you get new episodes when they come out. You should leave us reviews, stars, write things. It all helps out. You should be following Above the Law at the website. So you read these and other stories before they come out. You should check out the Jabot Kathryn’s other podcast. I’m also a guest on the legal tech journalist round table. So a good way to hear some more legal tech talks from people who’s not just me. You should be following us on social media at ATL blog, at Joseph Patrice, at Kathryn one at Rights for rent and all those. But I’m Joe Patrice at bluesky. But otherwise, I’m Joseph at the X Twitters and with all of that, I think we’re done. Peace. Peace.

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