No, Your Honor, I Didn’t Call You That, I Was Talking About, Um, Bundt Cake

Episode Notes

Transcript

Joe Patrice:

Hello. Welcome to Hey. Yeah, welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I am joined by some of my colleagues. I got Kathryn Rubino here. Hello and Chris Williams Greetings. And we are doing what we do every week, which is a little recap of the stories from the week that was in legal over here at Above the Law. But we as usual begin with a little bit of talk about things that aren’t worthy of a complete story. A little small talk if you’ll small talk. Yeah.

Kathryn Rubino:

It’s not just stuff that isn’t worthy of a full story, it’s also just catching up, proving that we’re not AI generated.

Joe Patrice:

Yeah. Again, yeah. Alright.

Kathryn Rubino:

Yes, we know you’re a workaholic and just want to talk about work, but we are people.

Chris Williams:

Yeah. Well, so we’re also people that saw each other this weekend. We did, which is

Joe Patrice:

In real life person.

Chris Williams:

Yeah.

Joe Patrice:

We are all in the same place

Chris Williams:

And no one got into a fight, which is part of the course, but it’s still nice to Nice acknowledge.

Kathryn Rubino:

I was like, have we ever? No, no,

Chris Williams:

No, no, no. Yeah, sorry.

Kathryn Rubino:

But it is true. As regular listeners know, the three of us have a background in policy debate and there was a policy debate tournament this past weekend at the United States Military Academy that we all were there for. We all judged and ran, helped run the tournament.

Chris Williams:

Yep. Obligatory, go Army beat Navy, woo-hoo.

Joe Patrice:

Navy was not able to attend. But

Chris Williams:

Yeah, I mean one of the most strongest way to lose is to not even show up, but no, it was fun. So as you might be able to gather from the fact that the tournament was at the United States Military Academy in West Point, there were cadets there and one of the things that, I’m a troll at heart, people know this, people that have interacted with me pleasure of being my friend, burdened by being my friend, they know this. As I was figuring out what I was going to wear over the weekend, I was like, oh, it’s cold out. I know what I have to do. I have to wear my sweater that says you’re probably DEI too. And on the back of it, there was a short list of all the people that qualify as being DI candidates, but that wasn’t enough. I think on a Sunday when we was being dropped home, a cadet was kind enough to drop us off at a train station so I can get back to my home and go sleep in my bed, got time to kill.

It’s like a 20 minute drive. So I asked him, Hey, do you ever think about yourself as being a DEI hire and this is a presumably white heterosexual male. He’s like, no, why would I do that? I’m like, well, you’re a veteran every time or will be, well, presumably at some point at some point, but you’re going to be a veteran every time you go past a restaurant and it’s like a 10% discount for veterans. That’s DEI. They’re deliberately trying to include you. Workplaces are made more diverse by having veterans there, sort of the measures that might carve out jobs specifically for veterans. That’s an equity endeavor. He was like, I guess in a general sense I’m like, no specifically y’all are literally DEI hires and it’s always a fun experience for a person who thinks of themselves as being at the center, realizing or being the norm, realizing that they actually have fringe benefits. But that was just a fun exchange

Joe Patrice:

And that’s been a big part of this whole anti DEI push. These folks just really don’t grasp that it is so much broader and absolutely centers veterans as part of it when you look at the literature around it. Yeah. I will throw in just because it’s not full story for us, but I was at a convention last week as

Kathryn Rubino:

I often am. No way. That’s such an unusual experience for you to be at a legal technology convent. I am

Joe Patrice:

Begging and I am begging any, yeah, no, I am begging anyone to move their conference out of September and October. It is just a brutal run of conference attendance. I have been on the road pretty constantly this whole time, but yeah, no, so I was

Kathryn Rubino:

Do you think there’s a real benefit for these big legal technology companies because whether they have their own sort of user conference or something like that, but in terms of building their year around big announcements or whatever to have them all back to back, they can maybe announce at one but then talk about the big thing that they’re doing weeks, a couple weeks after, that kind of thing. Is that part of

Joe Patrice:

Why

Kathryn Rubino:

They do

Joe Patrice:

It? It’s just, I understand it logistically. There just isn’t a lot of good times to schedule other than right now

Kathryn Rubino:

There are 12 months

Joe Patrice:

And some of those months are super expensive. Some of those months or summer months where people are like, I want to go on vacation with my kids who are out of school. Some of those months are the holidays and when you really boil it down September, October are the best months to do it in April. April. Well, and that’s the thing,

Kathryn Rubino:

April spring break is March, so it’s less that you don’t have the I

Joe Patrice:

Did talk to family

Kathryn Rubino:

Thing.

Joe Patrice:

One of the conferences that I have been to in September and October did tell me that they were looking at May, so they might Justin Timberlake it and

Chris Williams:

Yeah, I was going to say they might’ve just been a boy band fan

Joe Patrice:

And that conference’s going to be May, but no. Yes, but there really aren’t a ton and that’s what’s made up so difficult. But I was at the Clio conference and kind of wild there. They seem to be moving massively up market.

Kathryn Rubino:

I don’t think your definition of wild is the same as mine

Joe Patrice:

Or most people’s actually be, but it is. Yeah, no, I

Chris Williams:

Would think it is T wild.

Joe Patrice:

No, absolutely wild. Moving across the business of law, practice of law, moat horizontally as well as vertically up to the big law market, investing in a whole new division to do enterprise work. Yeah, no really crazy conference. I’m

Kathryn Rubino:

Not saying that that’s not a big announcement, but wild.

Chris Williams:

Yeah, I’ve never heard such a wild explanation. Make me want to go to sleep.

Joe Patrice:

No, it was sort of like a fire hose being pointed in your face and turned on as far as the shocking and overwhelmingness of it, but yeah, really interesting. Alright, well, are we ready to talk about some of our stories from the week

Kathryn Rubino:

I was born? Ready?

Joe Patrice:

All right. Well, you had one of the bigger stories of the week, Kathryn. It was a conversation. We do have an explicit tag, but Maybe We guard ourselves a little bit. Let’s talk about professional etiquette.

Kathryn Rubino:

So just maybe somebody listening is newer to the practice of law. This might not be completely obvious. Don’t call a judge an FC.

Joe Patrice:

Okay.

Kathryn Rubino:

Yeah, that’s the lesson that I learned. A

Joe Patrice:

Fiery counselor,

Kathryn Rubino:

I mean, do you not want the, if you want the with the deck, I’m happy to say hell. Okay. All right. We

Chris Williams:

Can say it now. Okay, there we go. I’ve been waiting on this ever since.

Kathryn Rubino:

No, but Michigan attorney Marshall Tauber was in a zoom hearing for his client and Judge Yasmin po rule against his client, and this is also interesting because it also has sort of a tech component to it, but the screen went blank for he was in his car doing the zoom call, by the way, so maybe not the most robust setup that you might be used to, and the screen went blank he thought. He says, who knows? He thought that he was no longer connected to the Zoom and after saying, judge, thank you, let his FNC fly and the court was not amused.

Joe Patrice:

Really

Kathryn Rubino:

Not amused. Thankfully

Chris Williams:

The readers were well sure. One of the best stories of the week

Kathryn Rubino:

Pretty quickly said that there had to be a motion for contempt hearing. Criminal contempt hearing said that the attorney participated in willful disregard to the court’s authority that you shouldn’t refer to the court that way. Also noted that the attorney’s client who was in the Courtroom had a visible reaction to hearing the term of art being used to the court. The Michigan appellate court found that the contempt charges could stand against him. His attorney had argued that it wasn’t willful, that it was sort of just an utterance that they didn’t intend for the judge to hear it. Therefore they shouldn’t be held in criminal contempt. Also said that the tabar

Joe Patrice:

Was so it was kind of a, if contempt falls in the woods and no one could hear it, it doesn’t exist. Is that their

Kathryn Rubino:

Argument that they didn’t intend for to call the judge a slur? They might’ve felt it and wanted to utter it, but they didn’t mean for them to hear it. And the court said that willful for these purposes does not require the intention for the judge to hear it, but rather that you said to say the thing and that it did in fact have an impact on the court’s authority in the moment.

Chris Williams:

Sure. This reminds me of a prior story you wrote where at least that person had the attack to hide it behind a cu next Tuesday.

Kathryn Rubino:

That was another one.

Joe Patrice:

Well, I was just going to compare it to another story too. So a lack of respect can manifest in multiple forms, and obviously this is different than calling the judge honey accidentally, but here we are. Right?

Kathryn Rubino:

Sure. He said that he’s going to appeal this to the Michigan Supreme Court, so we’ll see if they have any different thoughts about this as the case moves on. But the Talbert said that the comments weren’t directed at the court. They weren’t intended to be insulting, but they were just my thought at the moment. And those two halves of that statement seem like they’re in direct opposition to one another because why are you having that thought right now? Right after the judge rolled against you? If Not, in order to insult, if not the judge, at least the decision that they made, but probably the judge because it wasn’t like that’s a dumb thing, it was noun. Right. That is a slur against women and it was a female judge. Seems pretty, I also would not be amused in Judge Poll’s position.

Chris Williams:

Maybe it was a sort of like the Queen’s deal where it was just like a generalized, the royal, the editorial. Yeah. He just got finished watching Peaky Blinders. He was just in a British vibe. It just doesn’t have the same connotation over there. Wow. I mean it does. Yeah.

Kathryn Rubino:

But also why do you need to, why this isn’t necessarily part of the decision, but why do you need to think that T I’m not trying to be thought police over here, but you need to do some work as to why this really offensive slur is your go-to when you have a setback professionally do some work as to why is that your Oh, that’s how I was feeling in the moment, and it is something that is wildly offensive. That’s an appropriate use of the word wild as well to half of the population and at this point there are more women in law schools and big law and all that kind of stuff. This is more than half the profession or will be someday. And it’s really wild that this is your go-to. Oh, bad things were happening kind of moment. Also, you can think things and you don’t have to utter them. You can keep some things on the inside.

Joe Patrice:

I tell people that all the time.

Chris Williams:

I don’t know if lawyers are good at that. The not speaking thing.

Kathryn Rubino:

He was in his car. Right. It’s not like he had an audience. He’s not trying. You hear them the same If you say them out loud or you think them, you have the same benefit or impact regardless. You can just keep some stuff on the inside.

Joe Patrice:

Well, all right. Actually, I’m going to switch around our order from our planning document a little bit just because we already kind of previewed a DEI conversation. Sure. Chris, you had a story this week, a follow up on a story we’ve dealt with in the past. There’s an organization that’s going around suing places and what’s going on with their attempt to go after Michigan?

Chris Williams:

Oh, they’re losing a lot. They’re really good at it. They should change their name to L orp, but I think it’s a faculty and students.

Joe Patrice:

It’s fast orp and Yeah, I’m not altogether sure what all it is. It’s faculties and student blah, blah, blah, blah something.

Chris Williams:

I do want to kill the time to actually say

Joe Patrice:

The acronym. Yeah, you look it up and I’ll kind of talk while you do. They’re like wokeness, ambulance chasers. They just kind of go around and point woke and try to file lawsuits.

Chris Williams:

No, like Bloom and Company if they weren’t successful.

Joe Patrice:

Yeah, ed Bloom’s Bigotry Brigade as I like to call them, but yeah, they’re doing that.

Kathryn Rubino:

Faculty alumni and students opposed to racial preferences there we,

Chris Williams:

Yeah, and the thing about the racial preferences, it also factors in, I mean, they must have not thought it was important enough to mention that they also don’t like gay queer folk, but they’re not safe either, but one DI category that doesn’t get any flack from fast or veterans, but that’s what second point. But yeah, so

Kathryn Rubino:

I think it’s interesting because from jump, this case was obviously on the thinnest of premises, but that does not necessarily mean anything in the year of our Lord 2025.

Joe Patrice:

Let’s at least set the tone and say exactly what this case was they went after. Yeah. Oh, you got it.

Chris Williams:

Yeah. So they were targeting Michigan for alleging that they were using race and other disqualifying factors and selecting who A got onto law review and B, which members of faculty or professors who were able to get their papers published in law reviews. So it is generally a law review focused thing. In the first article I wrote talking about FAST or I was like, okay, here’s why maybe you didn’t get into law review because of lesser qualified black women shots out to kaji, but maybe it’s just because you suck and then I’ll give an example, concrete examples of say how their arguments against the use of race clearly didn’t move off of an understanding of the directions of the law review sample packet. They missed a point where the law review said that race wasn’t really a factor, that grades aren’t the end all be all, and a lot of the fast were like, Hey, these people with lower grades got in. It’s like, well, and it’s also the practical matter of if you’re going to be working for hundreds of hours on top of your law school experience, you’d want to be in community with people that you can bear working with and fast just generally gives a very strong unbearable vibe. I wouldn’t be surprised if the people that were unable be affected, maybe they didn’t get in just because who wanted to be around them.

Joe Patrice:

This is what they do. They file these lawsuits against organizations they complain about, they find some Becky with bad grades who doesn’t get on the web

Kathryn Rubino:

But often have them anonymously. Right? So it’s not even like somebody

Joe Patrice:

Or prospectively the one that they tried to do against NYU, they didn’t even have a person who’d even applied yet.

Chris Williams:

Right. The thing I love about all these, Hey, y’all are using race as an excuse to not get on Merit is they’re not even merit as groups. Fast has nothing but a chain of losses. I think the one you just mentioned, it was a suit on behalf of white male professors, but no white male professors actually applied to be in the thing.

Joe Patrice:

That’s actually a separate one, but yes, that one. I forgot about that one until you just mentioned it. Yeah, there was also that one where they argued that white professors hadn’t had their articles published in the law review and then the white professors who were complaining had never even attempted to send their manuscripts to there.

Chris Williams:

If you going to ignore threshold standing issues, you have to be on the Supreme Court. Oh, there we go.

Joe Patrice:

Well played. Yeah. I mean it goes to though level to which, and you don’t want to make the legal system less accessible to people, but

Chris Williams:

They do actually. Well,

Joe Patrice:

No, no, no, you don’t want to do that, but filing fees might actually be and filing fees and the American system of covering your own costs as opposed to the British of loser pays, encourages this kind of bullying of a lawsuit. I don’t think these folks even imagine that they can possibly win any of this garbage. What they want to do is drag a law review into court and force them to dick around and spend a bunch of money and then maybe give up and throw a bone to these causes. You don’t want to make that worse,

Chris Williams:

Bigger,

It’s bigger than that. They also get to get propaganda sites like Fox or what have you to cover this story its own, I think of these, I think of things like this when Kim Kardashian wore Marilyn Monroe’s dress, sometimes these are just fabricated events and even if there is no real likelihood that they’ll win, the fact that it became a news story is sufficient to color public perceptions to slide the window towards all this DEI shit is happening. Even if they aren’t successful in the merits, even if it’s a loss of money, they gain the social capital to be able to continue bearing the horn.

Kathryn Rubino:

100%. And also, as I was kind of alluding to earlier, there are plenty of unsuccessful or should be unsuccessful lawsuits, bad idea lawsuits filed by Donald Trump that have, instead of being thrown out and wound up with great concessions and some deals on the side, CBS, but nine big law firms, these are all things that shouldn’t or should be thrown out of court and instead they’re getting just wild concessions.

Joe Patrice:

The big law things were executive order, but the A BC Stephanopoulos, which we’ll talk about in a minute actually, but yeah, you’re right. So there probably needs to be some level of reform to create a situation where it is harder for folks to do this. And I wanted to add to Chris’s point about the news jacking that goes on here before he became the defacto president, Steven Miller was pursuing a lot of these sorts of cases and it was a pattern. It was like find whatever the news story is going to hit SEO of the week and he would file some kind of weird lawsuit about it.

Kathryn Rubino:

Yeah, he did a Macy’s. He

Joe Patrice:

Sued Macy’s because

Kathryn Rubino:

Right of Thanksgiving, because of the parade,

Joe Patrice:

The week of the Thanksgiving parade and yeah, stuff like that. So it’s definitely a PR thing like Chris was saying. All right, so this story is tangentially related to George Stephanopoulos made a remark a while back where he referred to Donald Trump being found civilly liable for raping author Eugene Carroll that resulted in a defamation suit from Donald Trump because the actual finding in that case was he was found liable of defaming Eugene Carroll when he said she was lying about the rape. That may seem to a normal person, like a weird distinction, but it’s legally relevant. Trump sued over that even though Stephanopoulos was quoting something that a normal person would read. Those two things as being somewhat related. Ultimately A B, C settled anyway and gave Trump’s $16 million, something like that. The reason this comes up is that Stephanopoulos is also still hosting news shows and he was involved in a interview recently that I found worthy of writing about, which is we’re looking at a situation where the administration is trying to mobilize troops for law enforcement purposes, which is not legal under the Posse Matata Act of 1878, whatever, but there is an exception, which is the insurrection Act, which can be invoked to say because there’s some sort of an insurrection going on.

You can send troops to be thrown at citizens and just used domestically. Trump, apparently Trump has not invoked this yet, but there is conversation that he is preparing to, especially as he keeps losing court cases in Chicago and Portland over these efforts. Here’s what gets me about this. On an episode of a show that Stephanopoulos hosts, they had brought on Sarah Ker who used to work for the Jeff Sessions Department of Justice as spokesperson. A lawyer works over at the dispatch conservative but not as fully bga. But my issue with this interview was that it felt as though the beginning of the apology tour already and what bugged me about it was sort of a, it’s wrong if Donald Trump were to invoke the insurrection Act, but he totally can and it’s legal that it can and even going to fill out your bingo card. She even goes to say that if Donald Trump were to push the limits of the Constitution and invoke the Insurrection Act, the person you should blame for it is Joe Biden, whatever, but cool, cool, cool, cool. My takeaway about this is there are many talking heads who say lots of crazy things, but the more insidious form of a talking head is one that says, I personally think this is bad, but because that I think is the most chilling form of commentary because it is the one that allows somebody who might be in the middle, somebody who is the person that you need to mobilize to stand up to these sorts of situations and

It preemptively chills their belief and it gives them permission to say it’s acceptable to say, I’m against this personally, but I can’t do anything about it. In reality, her analysis is, what’s the technical term?

Kathryn Rubino:

Bullshit?

Joe Patrice:

Yes, that is the technical term I was looking for. Absolutely. This is not how any of this works. She says that in this interview, half of all presidents have done this that is not actually mathematically accurate even She says that

Kathryn Rubino:

Numbers lie

Joe Patrice:

Stephanopoulos points out because he now having his turn to be hyper-technical about something after his brush with the administration points out, but to the extent they’ve done it, they don’t do it over the objections of governors. And her response to that was absolutely 70 years ago it was used once over the objection of a governor. It was actually used a couple times back then, but it’s one of those things where she presents it as though this proves that it can be used this way as opposed to the exception against the rule additionally of the insurrection acts prongs explaining why you can do this. When Eisenhower her example, deployed it in Arkansas, it fell within the text of one of those exceptions, which this would not at all Trump’s attempting to send folks in to help out ice and stuff like that. So none of this is legally justified on any measure of the text or spirit of the law, but we don’t even need to get there. We can live in the perfect conservative world of believing in Textualism and there’s no justification for this, but my takeaway was we have a real problem in this world and the problem is not necessarily the crazies, it is this sort of apology tour, this sort of, well, I’m still okay this, I still want to be able to attend polite society and go to cocktail parties by saying I’m personally opposed, but I’m going to do the work

On the administration’s behalf by laying the groundwork and sane washing this incredibly destructive breach of authority.

Kathryn Rubino:

I love that termane washing, but I think the other sort of really key piece of this that links to our previous conversation is that so much of these battles are being fought in the court of public opinion and people aren’t really realizing it. It’s a PR battle and that’s why some folks think it’s okay for Trump to try to send troops to Portland. They think it’s on fire, it is not.

Joe Patrice:

It is not.

Kathryn Rubino:

You are from there, Joe, well aware that Portland is not in fact on fire. It is a delightful place to get a craft beer that is about it, but there is a sense that that is not true. And when you try to say, but hey, it’s not actually on fire. You’re told by the far right you are crazy. You believe the lies. That’s all fake news and there is really, it is happening in people’s hearts and minds as opposed to in courtrooms and people are creating the framework that that is allowing this to happen and really needs to be called out in this way.

Chris Williams:

It’s funny reading this stuff in undergrad and I have people be like, oh, post postmodern philosophy is like bullshit and non real world, but it’s hard to look at this and not interpret it as, oh, we’re living under conditions of post-truth. Well one, I was going to say, I can see videos of the biggest threats in Portland being naked cyclists and people in Tyrannosaurus Rex costumes dancing

Joe Patrice:

Inflatable,

Chris Williams:

But then at the meta level, can you even trust the videos because we have things like Sora too, what have you, and I think that I’ve seen a couple of them and I’ve had interactions with people walking down the street. If you take away that watermark, they wouldn’t know the difference. So I do think that the post-truth aspect of it is becoming far more prescient and non theoretical. I think about there’s this section, this is getting a little too heady. I’ll stop soon, but

Joe Patrice:

There’s

Chris Williams:

These sections of where Bogard is talking about metaphysics or being the solutions to imaginary problems, and I think about the notion of educating and informing people as being the way to fix the problem that we’re in as metaphysics because what I see is that people are confronted with the truth and what happens is it actually refi their positions. They get more committed to the things that they were saying, even if they’re false because it’s not about the truth of the matter, it’s about the ego positions that are entrenched by the things that they’re affirming said in English. If you had an uncle that denied vaccines and you handed him 30 peer reviewed essays on why vaccines, there’s no connection between vaccines and autism, the response wouldn’t be, oh, this is informative. It would be you’re trying too hard, it must actually be real, and then they burn the papers. I think about that in the context of what Joe was saying about how she’s norming and sane washing.

Joe Patrice:

Yeah,

Chris Williams:

I don’t think that he’s wrong, but I think that the problem might be grander than that. It still presumes norms were like things like civility matter. It doesn’t matter as much in my mind that she’s making the absurd positions and seem more reasonable. What matters is that there’s no clear way to fight the insane positions through the imposition of sanity. But

Joe Patrice:

I think there’s something to that. I mean as troubling is it is that you’re making us all remember boatyard? Well, you

Chris Williams:

Could forget boatyard, but that’s also a link.

Joe Patrice:

But actually I think that is a good description where I sit, I’m

Chris Williams:

So fresh off a debate tournament, man.

Joe Patrice:

No, no. Yeah. I think there is something to be said for the uncle who it reifies everything and so there’s not really a point what bugs me and that actually speaks to why I’m more concerned about this sort of an interview than even somebody going on Newsmax and saying crazy things. I think this sort of an interview is speaking especially when they begin it with, I personally don’t think this, but they are targeting the people who possibly are persuadable who do not have an entrenched ego position, and that’s what makes it so much worse. I think there is a post-truth problem and there are people who are lost. We saw it again this weekend. There was that rally the king stuff, and if you go on social media right now, all that they’re doing is saying that all the video is fake and from 2017, none of it is in fact it is all from this weekend, but if you look on X right now, the artist formerly known as Twitter, that’s all they’re saying is they’re trying to say that this is all fake video.

Chris Williams:

And I just do want to clarify, I do agree with your point about the Saint Washington. The way that I think about it, it’s like when the person in school, the person in undergrad is saying, yeah man, the moon is made of cheese and you don’t have to believe me. You can go look at it for yourself. It’s like that appeal to reasonability or that appeal to the notion that the things can be verified is a great cover to say non-verifiable things at the meta level.

Joe Patrice:

Alright, well I think that should probably be the end for this week. Thanks everybody for listening. You should subscribe to show so you get new episodes when they come out. You should leave reviews and stars. All that stuff’s good and useful and helps other people find it. I know that’s an ask everybody does on podcasts and so on, but nobody but

Chris Williams:

Not every viewer does it

Joe Patrice:

And then nobody does it because I mean it is a thing. But please do it. Help us out with all that sort of stuff. You should be listening to the Jabot Kathryn’s other podcast. I’m also guest on the Legal Tech Week Journalist round table. You should be listening to the other shows on the Legal Talk Network at the Clio Convention. I talked to some of the other hosts of some of those shows who were there, so it was nice to chat with some people. So check them out. You should be reading Above the Law every week. So read these and other stories before we talk about them here. Follow on social media. It’s Above the Law dot com. On the Blue Sky, it’s a L blog on Twitter over I’m at Joe Patrice Kathryn’s at Kathryn one. Chris is at Writes for Rent. And with all that said, we will check in with you again next week. Base Peace.

Continue Reading