Above the Law - Thinking Like a Lawyer

Donald Trump, Drake, And James Ho... punchlines write themselves. ----- Donald Trump's trial shenanigans continue. Is he going to violate the gag order again? It seems inevitable but... our prediction might shock you! But even if his unfiltered "Truthing" is behind him, there are so many other ways to show contempt of court. And a busy week in Morningside Heights as Columbia Law School students ask school to cancel exams in light of campus unrest, or at a minimum convert its optional pass/fail model to mandatory pass/fail to avoid placing a stigma on worried students. Then conservative judges announced a boycott of Columbia until their demands for "viewpoint diversity" are met. Also, small talk becomes big diss track talk as we devote a whole segment to Drake and Kendrick going to war and the legal implications.

The New York courtroom where Donald Trump is on trial is apparently unpleasant. Is that the former president's doing? The world may never know. Also, the fact that the racists are coming for Justice Ketanji Brown Jackson isn't surprising -- but who gave them the green light? And, a judge learns a valuable lesson about hot mics and why you should always assume someone is listening.

Let's see if it pays off as well as a billionaire covering up an affair. ----- Donald Trump's hush money trial kicks off after a week of Trump alienating everyone involved in the process by refusing to respect basic decorum and attempting to skirt the gag order by arguing that RTs aren't endorsements. The Am Law 100 is also out and we talk through some of the key takeaways and Judge Ho tried to defend his take on forum shopping and it's... not good.

We continue breaking down the U.S. News & World Report law school rankings and the chaos that its new methodology introduced. And we know exactly who to blame for breaking these rankings. Elon Musk recently went in for a deposition defended by Quinn Emanuel's Alex Spiro and earned a motion for sanctions. And a Berkeley Law protest goes viral, but all the "free speech" talk misses the mark.

Haphazard ranking serves as a reminder that service hasn't quite found the right formula after law schools started withdrawing their data. _______________ The full U.S. News & World Report law school rankings are out and they are... something. Duke is tied with Harvard? NYU nearly drops out of the top 10? Are we just hurling darts at a dartboard here? In a sense, yes. At least ever since law schools started withdrawing their cooperation. Meanwhile, a Biglaw firm tried to promote healthy sleep despite being the primary reason associates don't sleep and Trump's bond in the NY civil fraud case looks a little suspect.

Breaking down the action-packed final week of March. ___________ Special guest Liz Dye joins us to talk about the week that was. First, we delve into the abortion pill oral argument where even most of the conservatives scoffed at the right-wing effort to let an Amarillo courthouse second-guess the FDA on science. Almost as though the Chief Justice just tried to crack down on that practice. But along the way Neil Gorsuch showed off his (lack of) research skills and Alito and Thomas sought to revive the legal legacy of a chronic self-pleasurer. Then we check out the end of the showdown between Ron DeSantis and Disney that looks like a major victory for DeSantis until you, ya know, actually read the settlement agreement. Finally, Trump's got another gag order and went straight to work setting up the inevitable contempt hearing over it.

Conservative justices can't stop telling on themselves when it comes to forum shopping. __________________ Joe Biden says he got a standing ovation for trying to BS his way through a law school cold call. We call BS on that. Also Cooley Law School finds itself at the bottom of the heap when it comes to bar passage rates again. At some point, the ABA has to step in... right? Finally, the nation's judges did something about politicized forum shopping and right-wingers can't stop help but crying about how they miss their cheat code.

Parental leave and a bumbling Supreme Court highlight the week. _____________________________ Are law firms going to get stingy with parental leave? While most firms report solid revenue, sparking resentment over a few weeks of leave seems like a weird strategy, but DLA Piper recently cut back on the leave available to non-birthing parents. It's a first as far as Above the Law can tell, but will it be the last? Also, the Supreme Court screwed up its metadata, committing an error that would get junior associates fired. And finally, Joe Biden offered the Court some tough talk... by quoting them.

Bond... unaffordable cash bond. _________________________________ Donald Trump needed to put up some cash before E. Jean Carroll can begin executed the judgment she has against him. Instead, Trump tried to argue that he was simply too rich to put up a bond. The argument was not persuasive, but it did get Above the Law mentioned on Stephen Colbert. We also discuss the Supreme Court taking up the Trump immunity case even though there's not a chance they'll endorse his theory. And when should we just let bygones be bygones with a lawyer's bigoted past? A law professor says everyone is way too hard on Thomas's new clerk just because she got fired from a past right-wing organization after racist messages came to light.

Another firm begins cracking down on office attendance through punishment. Law firms want lawyers back in the office, but if they don't want associates spending that office time fielding calls from recruiters, it's time to consider incentives that treat lawyers like professionals. A Bush judge questioned Trump's manhood and Amy Wax fights back against the slap on the wrist Penn prepared to give her.

The Alabama Supreme Court ruled that frozen embryos are living children for the purposes of Alabama law. And while there are a lot of serious implications for the future of family fertility efforts, let's take a second to consider how much this absolutely breaks the state's rule against perpetuities. An attorney in the YSL case faces gang charges herself. She's made some... marketing decisions. Hogan Lovells must ponder whether invoking the wrath of ancient Roman poltergeists are worth a prime office location. Has anyone considered just working from home?

Even-keeled professionalism may pay off over time, but being a mercurial lunatic always pays off now. ______________________________ Former Trump aide Stephen Miller used Super Bowl week to launch a stunt employment discrimination complaint against the NFL. The rule in question is the subject of a much better legal challenge that it doesn't do ENOUGH to address anti-Black discrimination, but nothing about Miller's legal moves have much connection to reality -- up to and including the fact that he IS NOT A LAWYER. The Supreme Court heard oral argument in the insurrection case and Chief John Roberts hasn't shown his complete ignorance of basic facts about American elections since Shelby County. Finally, Judge Aileen Cannon receives motion to reconsider, the boldest litigation move of all since it requires counsel so confident in their eventual success that they're willing to call the trial judge a moron.

We're reaching peak Alina saturation. ___________ Last week may have officially been "Legalweek" but it was bad lawyer week at Above the Law, where Alina Habba dominated traffic with her ongoing futility. Her rapid retreat from the very phony "it's actually bias that so many prominent lawyers all worked at Paul Weiss" motion after being informed of the very real sanctions that could result. Robbie Kaplan, one of the Paul Weiss alumni in question, also shared her story of Donald Trump pulling out the half-clever schoolyard insults. We also discuss a firm that announced it would lay off 1/3 of the first years... but not say which ones! And we talk a little about Legalweek and how AI isn't quite ready for primetime... even as lawyers keep getting in trouble for trying.

Sometimes you can't actually fake being smart. _________________________________________________ Alina Habba may soon be replaced in the Trump legal team constellation, but we'll always have memories of her crackerjack legal analysis and the stupid swimsuit debate. There are four justices who don't seem to care about the Supremacy Clause. And Davis Polk faced -- and successfully beat -- a discrimination suit.

'The only rules are there are no rules' apparently doesn't fly in Judge Kaplan's courtroom. ____________________________________ We don't even talk about Alina Habba's weird swimsuit thing on the show because it broke after we wrapped recording (next week, I guess!), but we have more than enough material discussing Trump's lawyer bumble through basic courtroom procedure and lodge motions for bad court thingies in the proud tradition of the Simpsons' greatest character. We also discuss a racial discrimination lawsuit against Troutman Pepper and whether "the partner is always a jerk" is a defense. And it looks like the federal courts have opened an investigation into Clarence Thomas... which will probably go nowhere.

Who needs a judge's approval to start ranting in court? Every other person ever, you say? ___________________________________________________ Donald Trump's legal team informed Justice Arthur Engoron that their client would deliver closing remarks in violation of basic New York rules, setting off a series of decreasingly coherent emails with the judge over Trump's willingness to abide by the constraints of a closing argument. He was not willing to... but he went ahead and did it anyway. Meanwhile, Slaughter & May joined the ranks of firms trying to crack down on lawyers ducking the office using all its surveillance powers and another firm that announced matching bonuses has instituted a retroactive hours requirement to bait and switch its attorneys.

Maybe GPT-5 will want a free RV? _______________________________________________ The Chief spent his entire annual report on the federal judiciary on the rise of artificial intelligence and how AI cannot possibly replace judges because the judge is so much harder and more nuanced than, say, calling balls and strikes. Not that anyone would be stupid enough to describe being a judge like that. Steven Calabresi has either lost his mind or is engaged in an epic troll with a series of pieces arguing that Clarence Thomas is the bestest and most incorruptible justice ever! Finally, plagiarism is all over the news for mostly bad faith reasons, but it highlights again that the law isn't easily governed by rules of plagiarism and copying by design.

The highs and mostly lows from the year that was. __________________________________________ As we turn the page to 2024, we reminisce over the top stories at Above the Law over the past year. Layoffs, salary hikes, ethical quagmires at the Supreme Court, Donald Trump's criminal cases... the legal industry provided a lot of fodder for Above the Law this past year. Join Thinking Like A Lawyer as we discuss all the big stories of the year and ask the question: can it get any worse than this year? (Hint: it can).

Law firms may hem and haw about raises, but they're still doing more than all right for themselves. Rudy's defamation trial did not go well. Before the latest development in the case, we talked about Michael Cohen's fake case brief and the implications of legal technology on criminal justice.

No one wants to admit weakness, but K&L Gates trying to put a smiling face on layoffs left a lot of observers cold. Meanwhile, Stephen Miller is mongering about a conspiracy to make Taylor Swift famous that somehow doesn't revolve around her talent. And Joshua Wright has brought a lawsuit against ASS Law despite still failing to understand that his problems are all in the mirror.

Payable sometime in 2024... of course. ________________________ Milbank got the ball rolling several weeks ago with a round of raises. Cravath has now upped the ante for more senior associates and the Biglaw landscape has finally decided to pile on. Where is all this going and what does it all mean? We've got thoughts. Meanwhile Amy Wax went ahead and invited a white nationalist back to campus and one of her students is disappointed that people weren't nicer about it. Finally, a new lawsuit presents an ethics issue spotter involving Trump lawyer Alina Habba.

Elon Musk files a facially ludicrous lawsuit and Trump argues that sexual assault doesn't count on airplanes _____________ After promising a thermonuclear lawsuit against Media Matters, Elon Musk showed up to court with a string of claims that would fail under his own recitation of facts. Meanwhile, Donald Trump takes aim at the Federal Rules of Evidence in a bid to undermine the E. Jean Carroll case and Stephen Miller goes after Macy's in a cheap publicity stunt.

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.

It's been over a week and no firm has yet to announce that it will match Milbank's latest series of raises. Or, more accurately, cost of living adjustments. Meanwhile, Cravath took the plunge on income partnerships, becoming the latest firm to abandon the time-honored one-tier partnership model. And the turmoil over Nixon Peabody's effort to sneak Donald Trump onboard as a client sparks calls for leadership change.

For most major law firms, the prospect of representing Donald Trump and stamping the firm's name on his nutty pet arguments is a non-starter. Over at Nixon Peabody, the firm jumped right in, bringing on the former president as a client and filing a brief complete with the zany "Brandenburg means it can't be an insurrection" argument that Trump's been having all his lawyers make. Partners don't seem happy about this turn of events. But, since we recorded, we've learned that firm leadership doesn't really care that partners are concerned. We also discuss Sam Bankman-Fried's absurd courtroom sketch and the aesthetic brilliance of Jane Rosenberg's dark and brooding courtroom sketches. Finally, a number of Biglaw firms sent an open letter castigating law school deans for campus antisemitism.

Stroock strikes out. -------------- We thought the end might be near for Stroock & Stroock & Lavan when we recorded this episode. We were right. And with that, the Biglaw world moves to exclusively one or fewer ampersands. A senior lawyer tried to pull a prank on an airplane. It ended badly. And we discuss the last time newly elected Speaker of the House Mike Johnson tried to run something. It was a law school and it failed in epic fashion.

LSAT's decision is not totally... illogical. ----------- The LSAT is ditching logic games from upcoming tests and the Above the Law gang is conflicted over whether or not that's a good thing. There's a good argument that the section disproportionately disadvantaged folks with vision issues. On the other hand that was a deficiency that admissions could address on the back end, but without that score schools no longer have a pattern recognition evaluation -- and what's more "thinking like a lawyer" than pattern recognition? We also discuss NYU Law Review getting sued by Stephen Miller and a lawyer citing Hitler approvingly.

A Clio Cloud Conference roundup. ----- Joe checks in from the 2023 Clio Cloud Conference joined by Legaltech News editor-in-chief Stephanie Wilkins, dean of legal tech journalism Bob Ambrogi, and Legal Talk Network producer Laurence Colletti to talk about legal technology and the small law market. We talk artificial intelligence, hot legal trends, and access to justice.

Also Donald Trump's lawyers continue making mistakes. ----- Donald Trump's attorneys don't have a leg to standing on. Get it? They keep making bad standing arguments and the judge has now threatened sanctions. A former prosecutor arrested in road rage incident because... Florida man. Meanwhile, a judge has stopped hearing cases after he started "spraying bullets" in road rage. Though he says he really doesn't remember it -- you know, how gunfights just slip your mind. And we welcome the return of the time-honored but always stupid debate over the value of cold calling in law school.

This week we chat about the First Amendment, sexual harassment, and, yet again, Blackface in the legal community. ----- Most Americans don't understand the First Amendment... just like Amy Coney Barrett! More sexual harassment allegations in Biglaw, which gives us an opportunity to consider the impact of senior attorneys coming forward to prompt change. And, yes, there is talk about Blackface at the end because it sadly keeps coming up.

Sam Alito might be citing witchhunters from the 1600s as authority on the meaning of the Constitution, but the Fifth Circuit is taking it a step further and fighting over how the Bible might interpret a statute governing class action lawsuits. The MyPillow guy lost his composure in a video deposition for all the world to see. Probably had a bad night's sleep on some lumpy pillows. And it was quite the worrying summer for law students. Summer associates don't trust that they're going to get full-time employment and exploding offers have proliferated throughout the industry. At least one firm with a low retention rate this year still found the time to take everyone to the club.

In our latest chat, we discuss Biglaw strip club outings, Jeff Clark taking time away from his indictment to be an idiot online, and associates unhappy with a law firm's office tracker. ----- Gunderson Dettmer got a lot of flack on Reddit from folks accusing the firm of hosting a summer event at a strip club. It wasn't a strip club, but it was a nightclub with scantily clad go-go dancers, which doesn't make it much better from the perspective of a harassment-free work environment. And after making it rain at the club, the firm ended up no-offering a bunch of summers anayway. Jeff Clark took shots at Neal Katyal on social media. He missed. And Goodwin unveiled an office presence tool to let folks know who is in and out of the office at all times. Folks don't seem happy about it, but is it just the price we pay for hybrid work?

Also, how to create a culture that welcomes Biglaw vacations. ------ Amy Coney Barrett recently spoke publicly about how she longs for the days when most Americans couldn't recognize Supreme Court justices, highlighting that justices don't have to be there long for a culture of unaccountability to set in. Speaking of which, the majority of Clarence Thomas's former clerks signed an open letter shrugging off his ethical problems. But the real question is... did any of them bother to read a draft before signing on? And a managing partner wrote the firm about the virtues of taking a real vacation and got some blowback from attorneys.

A little Broadway for this week's title. ----- Law firm productivity is down, but are we really worried about that? It's a traditional harbinger of layoffs, though something about this market feels a bit different. Meanwhile, a right-wing advocacy group has sued a pair of Biglaw firms for offering fellowship programs aimed at improving diversity -- offering a lesson in forum shopping along the way. Finally, former ASS Law professor Joshua Wright brought a defamation suit against former students for harming his professional reputation. He admits that, as a married professor, he was sleeping with multiple students simultaneously but seems to think that's NOT the part that ruins his reputation.

The Fifth Circuit judge made a bunch of headlines last week and we jump into all of them. Plus Texas's use of water saws and Ron De Santis isn't faring well in his battle with Disney. (Always bet on Mickey.)

And they're running out of a bunch of lawyers. A surprising level of jerk content this week as we discuss the value of real Jamaican jerk seasoning, Clarence Thomas getting his RV financed by a health care executive, Alan Dershowitz complaining about his neighbors, and Judge Aileen Cannon botching straightforward criminal law (more than once).

Elena Kagan and Samuel Alito have... very different takes on judicial ethics and what Congress's role is in all of it. Plus, Lindsey Graham has a change of heart about a federal judge because it's politically expeditious. And a deep dive into starting salaries for attorneys.

Alabama is just straight up defying the Supreme Court on election law... but when liberals propose the same thing all of a sudden it's a crisis for the rule of law. I see how that goes. Also a hard-working Biglaw staffer gets caught up in a political backlash to what seems like an honest misunderstanding. And law students have no freaking idea what they're in for.

For real though, don't mention your law school rank in your wedding vows. You may think it cute but literally no one else does. Clarence Thomas has been workin that lifetime tenure racket from the very beginning. And ,careful what you post on social media, unless, of course you just enjoy having to go through the same trial multiple times.

Also more mandatory office policies and a brief primer on the Federal Circuit controversy. The Supreme Court's ethical lapses reached such heights that a fellow federal judge had to step in to publicly ask what's wrong with these people. And it's not just the big ticket scandals anymore, with the Court's reputation so tarnished that folks freak out over non-scandals (or at the most minor ones) like Venmogate and Sonia's Book Club. Meanwhile, more Biglaw firms opt for a 4-day mandatory office policy, though there's still not a lot of momentum behind the move. And Judge Pauline Newman of the Federal Circuit continues to fight against her colleagues for her right to continue to hear cases.

Between threatening Facebook and suing Wachtell, the Chief Twit is pretty active. We also talk about the end of the Supreme Court Term and the struggles in bar prep. ------ Elon Musk is desperately seeking a win and if he can't get it in a cage match against Mark Zuckerberg, he'll try his hand in court. Spoiler: it's going to go just about as badly. He's sent a legal threat to Facebook that fails to articulate much in the way of a legal issue and now he's suing Wachtell for being the lawyers that forced him to buy the company in the first place. Meanwhile the Supreme Court Term ended in a blaze of gaslighting and a hail of disingenuous spin. And now law schools are facing legal threats if their student body looks diverse. Finally, bar prep is just a little bit more stressful for students prepping with Themis, which continues to suffer website problems in the critical weeks before the exam.

More Supreme Court scandal news as Justice Samuel Alito tried to run out ahead of a ProPublica report with his own Wall Street Journal pre-rebuttal. We're all for confronting your problems head on, but Alito only managed to make himself look worse. A judge in D.C. sides against a man with a marijuana prescription because his neighbor didn't like it. So much for property rights. And we discuss the new Above the Law Top Law Schools ranking for the year!

Because someday you might face massive espionage charges... or something. Donald Trump is struggling to find representation in his multi-count federal criminal case and it shows because he just can't stop saying incredibly damaging stuff about his case. Like how he will plead guilty for money. This is what happens after decades developing a reputation for stiffing attorneys. We also have more layoffs from Orrick and Reed Smith -- what can we glean from these moves? And a Massachusetts court expanded the standard for ineffective assistance of counsel to include instances where the lawyer is clearly bigoted.

When you think about it, is a deputized bear really weirder than keeping classified documents in a bathroom with two chandeliers? Donald Trump got indicted since we last convened. And then the case got assigned to the same judge who got professionally scorched for trying to bail Trump out in the first place. Apparently he thinks the government pays people to plead guilty? It's all very weird. Davis Polk plays follow-the-leader with Skadden and announces a 4-day in-office work week -- is this the start of a trend or not? Barber Ranen is no longer Barber Ranen after racist, sexist, and antisemitic emails between the founders at their last firm came to light. There's a lot to be said about baked in structures of discrimination and casual bigotry, but also... how did labor and employment attorneys think it was a good idea to put this in writing? And we talk about a bear cop.

Maybe the woman who called the cops on a Black birdwatcher should try using ChatGPT to make up some fake caselaw for her appeal because the real ones aren't helping. After a year of sword rattling that higher education is "hostile to free speech" because students don't appropriately sit quiet and absorb what speakers on stage are laying down, the media grandstanding came to a halt -- and in the case of the NY Post went into reverse -- amid calls to defund CUNY Law School over a speaker. Apparently it's only a "free speech crisis" in one direction. Meanwhile, the Second Circuit seems highly skeptical of Central Park Karen's claim that her former employer defamed her for citing its zero tolerance for racism in firing her. And by "highly skeptical" we mean the panel appears to have granted oral argument simply to dunk on her lawyer. Speaking of lawyers getting dunked on, the hapless attorneys who filed a response filled with fake caselaw they got off of ChatGPT are in serious trouble. But don't mistake this for "the perils of technology" because this was a failure of good old-fashioned lawyering.

And the Supreme Court's ethical problems just won't go away. Biglaw has always played follow-the-leader. Usually it's about bonuses, but Skadden is taking a big gamble that the rest of the industry will follow it back to a Monday-Thursday office work week. If the rest of Biglaw doesn't follow suit, the giant sucking sound you hear will be Skadden talent lateraling to rival firms. Also the Supreme Court's ethical follies continued with John Roberts teasing a secret plan to cure its ethical woes, while Gibson Dunn took a turn as legal industry laughing stock with a shoddily researched letter on behalf of Harlan Crow. And the Court sided with a grandmother after the county stole $25,000 from her... but dig a little deeper and her case wasn't as sympathetic as it looked.

How can one guy mess up this much? Ron DeSantis is about to announce a run for president, but meanwhile he's botching remedial civil procedure and running face first in the Fourteenth Amendment. Also, the Kamala Harris camp seems interested in reigniting her tough-on-crime persona by trashing public defenders. It's dangerous rhetoric that erodes faith in the justice system. Finally, Justice Kagan lashes out at Justice Sotomayor over intellectual property rights.

Joe and Chris talk about law school, layoffs, and basic decency. After law schools threw a public tantrum over the U.S. News and World Report ranking, with several withholding key data required to create a credible list, the rankings are now out and... they have serious credibility problems. Missing data, important factors glossed over, and shady employment accounting from the schools result in a broken list. Congratulations boycotting schools! You've managed to make it all worse. Meanwhile, in Ohio a pregnant lawyer sought a continuance after being put on emergency bed rest and got denied by the state supreme court because screw your human frailties. Finally, Dechert joins the layoff trend with a 5 percent global cut. As always, we wonder if this has broader significance or not.

When you list all of the revelations of the past month, it's impressive. Since we last chatted about Clarence Thomas facing an intractable ethics scandal... more stuff happened! We learned that he also got private school tuition off a donor, that Ginni was getting paid by FedSoc Prime (Leonard Leo) under the table, and that the courts were asked to deal with all of this over a decade ago and declined. Meanwhile, Lewis Brisbois faced a massive defection with upwards of 150 attorneys bolting for a boutique and prompting a leadership change. Still, with over a thousand attorneys how much does it really matter to shed a few hundred? Finally, Florida passed a new piece of performative racism legislation targeting permits for undocumented workers including DACA participants... and this places Dreamer attorneys in jeopardy of losing their licenses.

Also Ron DeSantis is getting beaten up by Disney again. The Supreme Court punts on a thorny felony murder case, prompting a conversation over whether the use and abuse of the rule can ever truly be reformed. There's also a super biller out there who managed to bill an average of over 10 hours a day last year. Presumably the attorney is weeping in a corner somewhere. Finally, Disney took its fight with Ron DeSantis up a notch with a new lawsuit that hasn't made everyone happy. Become a host of the ABA Law Student Podcast: Apply Here!