Above the Law - Thinking Like a Lawyer

Yes, there's still more to say about Clarence Thomas. On this week's episode of Thinking Like A Lawyer Kathryn and Chris go back to the Clarence Thomas ethics well as Ted Cruz decides to weigh in. The New York Bar Exam was kind of a debacle, or at least the process of revealing the results was a debacle. And the Supreme Court gave reproductive freedom advocates a small victory last week, which prompted Justice Samuel Alito to tear down his female colleagues.

Who reads all of the statute anyway? The ethical hits just keep coming for Clarence Thomas as a second story about the gifts he collected from Harlan Crow expanded to include buying and maintaining a house for Thomas's mom. Rent free of course. Thomas doesn't have a particularly good excuse for not disclosing this since the text of the disclosure requirements are pretty clear. I guess holding people to the text of the laws they break only matters for poor people facing life in prison whose lawyers sleep through trial. We also discuss a new spate of layoffs and why we still feel cautiously optimistic about the second half of the year and the decision by U.S. News to delay its law school rankings.

Clarence Thomas takes some me time. An ethical quagmire surrounds Clarence Thomas. No, not that one. Not that one either. This one is about the gifts he's taken over the years without disclosures. Donald Trump took all of a couple hours after his indictment to start riling up his mob against the judge and prosecutor. And a Paul Hastings associate issues some bad advice.

Also Morgan & Morgan has had it with insurance lobbyists and the legal profession is losing talent to OnlyFans. Ron DeSantis tried to punish Disney by dissolving the local government dominated by Disney flopped when the smart lawyers pointed out that it would put the state on the hook for a deluge of liability. His latest effort to then replace all the board members flopped because while he crowed about his legal maneuvering to cable news, Disney publicly noticed some land use meetings and entered deals that functionally transferred the board's power to the company through the life of the last surviving descendent of King Charles III, making Lilibet of Sussex, the youngest of the group, arguably Disney's most important princess. Meanwhile, Morgan & Morgan has informed staff that it's no longer granting additional curtesies beyond those legally required after the insurance lobby secured massive a giant tort reform package in Florida. And a judge and young lawyer have both left the legal industry for OnlyFans... in case any of you are looking to lateral.

Latest podcast also talks about ranking the best law schools the worst way possible. With March upon us, we created our our bracket-based challenge to rerank the top law schools based on... nothing. If the law schools don't want to provide data to ranking services, we'll show them what that looks like. It's pretty bad. Speaking of bad, a litigant got a bit of a lecture from a federal judge who cautioned for more civility in filings and let's just say he did not get it. Finally, we return to the hybrid work model with a study in contrasts. One firm announces that it's going to close up the office for the month of August while another puts bonuses in jeopardy if an associate prefers to work in the office on different days. One of these firms will have a happier roster before this is all said and done.

Also, Elon Musk really needs legal counsel. Judge Stuart Kyle Duncan is the latest speaker to cry foul that an audience of law students heckled him to death. He's received an apology from Stanford Law School already, but the videos released from the event and the witness accounts appear to show the judge playing the role of wrestling heel. Taking the honest if probing questions from the audience and obstinately refusing to answer to further frustrate the students. Elon Musk fired up his Twitter machine to lurch the company into a potentially massive liability before someone -- presumably a lawyer -- told him about wrongful termination. Maybe he shouldn't be too quick to ditch the requirement that he run every Tweet by a lawyer first. Finally, Merrick Garland is taking heat for the fact that it's 2023 and Donald Trump has yet to be charged for anything stemming from the Capitol riot. But Garland's right.

And a pop quiz: do you know what 'bofadeez' is? Judge Roger Benitez of the Southern District of California decided to use his marshal to take a 13-year-old girl out of the audience and handcuff her in the jury box. Apparently, he didn't realize arbitrary acts of psychological torture upon children was frowned upon in this establishment. Now the Ninth Circuit is looking into a formal complaint. Also, those Dr. Rick commercials scold people turning into their parents for trying to leave voicemails, but it might be worth checking to see what the voicemail greeting you set 10 years ago says. Because for one aspiring lawyer it wasn't great. Finally, the Fifth Circuit's Judge Ho thinks it's wrong to prosecute political rivals on made up charges and frighteningly he's in the minority on this question.

And Sidney Powell drew the judge she needed at the right time. It may tickle the search engine algorithms, but the phrase "quiet quitting" seems out of place among lawyers. A firm sued one of its former attorneys for "quiet quitting" on them and now she's hired Wigdor to countersue, which is about as loud as lawyers can get. Meanwhile, the Texas judge hearing the state bar's complaint against Sidney Powell was a tad too quiet with a sparse summary judgment order kicking the case citing confusion about exhibit numbering. Finally, Wikipedia tried to stand up for the Constitution... the federal government told it to sit down.

On this week's podcast, we discuss a North Dakota law firm sued its associates and won, seeking to clawback paychecks for failing to meet billing requirements during the pandemic. Wasn't there a program to protect employers from cutting salaries during the downturn, you might ask? There was! And the firm took gobs of it. Also, Clarence Thomas is likely getting a statue in his honor, because as they say in Unforgiven, "deserve's got nothing to do with it." Finally, the one simple trick to $100 million in billables that the Third Circuit doesn't want Jones Day to know about.

On the latest episode of Thinking Like A Lawyer, Kathryn and Chris ponder the need for a rule against Confederate flagsin courtrooms in the UNITED STATES OF AMERICA the year of our Lord 2023. Speaking of bold stances on things that should be obvious, the American Bar Association would really like a Supreme Court ethics rule, but we know that's not happening. Plus if you want your full bonus this year at Perkins Coie, you're going to have to bill more hours. Which is a crappy move, but still better than the layoffs slow-moving through Biglaw.

Also, let's talk about Biglaw and cancel culture. How much continuing power should a judge have over the lives of defendants who plead guilty? A judge recently forced a woman to withdraw and apologize for statements diverting blame for an incident that she'd admitted to in court. A January 6th defendant is in hot water for the same thing. Prosecutors use overcharging and the ordeal of trial to leverage defendants into pleading guilty but a guilty plea has to mean something, doesn't it? Also, we discuss whether Biglaw has a cancel culture problem (it doesn't) and Judge Ho's case research (it's bad).

Also, some salty law school talk. Every high schooler has a group text chain and then a chain where they complain about the people they don't like on the group chain. Brett Kavanaugh is unaware of the second chain. Because when you have to do public tours to convince people that you have friends, you don't have friends. Meanwhile, a law professor didn't take too kindly to a student request. And while cursing at students isn't acceptable, the frustration probably was justified. Finally, there are a lot of thorny ethical challenges in this world, but some conflicts are pretty clear. Like, $62 million clear.

And what's going on with the legal market right now? The Supreme Court's inquiry into the source of the leak of its draft opinion in Dobbs failed to find the culprit among the clerks and permanent staff. Attorneys familiar with internal investigations pointed out that the report appeared carefully drafted to mislead the public without technically lying about the failure to investigate the people with the most access and motive, leaving the Court's legitimacy more compromised than when the investigation started. Meanwhile, an attorney caught billing hundreds of hours for document review he didn't do earns a suspension, and Goodwin Procter makes heads spin as its layoffs are immediately followed with a major lateral move.

Also, Joe Biden's documents elicit special counsel attention. A (now former) senior attorney at an Ohio law firm texted an associate blasting her for interviewing for another job while on maternity leave. The controversy laid bare the persistent threat of pregnancy discrimination, but also the ways these attitudes fester when management fails to take swift, decisive action. The Department of Justice appointed a special counsel to look into Joe Biden's mishandled classified documents in a case of Republicans needing to be careful what they wish for. Also Marjorie Taylor Greene found herself on the wrong end of a scathing cease and desist from Dr. Dre's legal team and Elon Musk continues to struggle with the aftermath of obliterating Twitter's legal department.

It’s only the beginning. While Goodwin Procter announced a major round of attorney layoffs, Holland & Knight announced a blockbuster expansion by adding Waller Lansden. Two different paths both driven by industry uncertainty: should firms cut or grow their way out of declining demand? Also, Ginni Thomas kept doing Ginni Thomas things.

Always waiting until the last minute. The week between Christmas and the New Year is usually pretty dead for legal news, which makes it the perfect time for a firm to try to slip some shady stuff past the goalie. Shearman started telling associates that they would not be getting bonuses for a variety of previous unannounced reasons. Foley Hoag tried to retroactively apply next year's hours requirement to this year's bonuses (they did the right thing and retreated within 48 hours). And Nelson Mullins sprung a new "collections" policy that you really have to hear about to believe.

The gang breaks down the biggest trends across the legal industry this year. From the Supreme Court's leaking to major ethical lapses, 2022 came in with a bang (raises) and leaves with a whimper (stealth layoffs). Did we learn anything? Probably not. Are we going to talk about it anyway? Of course. What else are we going to do?

It's all about optics. When an associate left Jones Day before serving a full two years, the firm billed for pro-rated bar study expenses. Once again, just because an agreement allows a firm to do something, doesn't mean it should. It's just not a good look for a firm. Speaking of optics, we also talk about Justice Brett Kavanaugh partying with Matt Gaetz and Alex Acosta -- and more importantly, parties with business before the Court this Term -- all while Supreme Court legitimacy sinks like a stone. Speaking of legitimacy, the Fifth Circuit agrees that a judge committed an ethical breach in hearing a case, but decided to just sweep it under the rug. Also, by the time this posts, Twitter will have changed its policies five more times, but we discuss the legal ramifications, if any, of Twitter's short-lived ban on mentioning "competitors."

Also the country may have dodged a constitutional bullet. If Ebeneezer Scrooge ran a law firm, he would probably bill associates for his own lack of work. It turns out, there's a law firm in North Dakota doing that right now. Also, the Supreme Court heard argument on the independent state legislature theory, a tortured reading of the Constitution designed to give Republicans a permanent federal electoral advantage, and it seemed to be a bridge too far for three conservative justices. All that and a chat about Congress making it a national secret how much money Ginni Thomas makes from outside interests.

But they caught me with some contemporaneous third-party emails? We discuss the crackerjack investigation the Supreme Court performed into allegations that Justice Sam Alito has a history of leaking decisions. After a religious leader confessed to lobbying efforts that included leaks from Alito concerning key decisions, Alito told the Court "it wasn't me" and, remarkably, they just accepted that and called it a day. Speaking of decisions, the Eleventh Circuit finally put a stop to Judge Aileen Cannon's string of zany decisions in the Trump seized documents case. Also, a former Biglaw partner thrust herself in the spotlight to bemoan her firm for enforcing the bare minimum of anti-harassment policies and a pair of law schools controversially announces a merger.

ABA poised to eliminate standardized testing requirement... but should it? Taking the LSAT is the first step in the law school journey. But it doesn't have to be. The ABA is considering dropping its requirement that accredited schools employ standardized testing as part of admissions. Some argue that the LSAT is a critical tool in promoting diversity in both law school and the profession. Others claim that the test's value as part of the process is overemphasized and that affording admissions more flexibility is a better tool. We also discuss the tale of a judge who questioned if a lawyer was faking a stroke. Spoiler alert: he was not. And we talk about rising Biglaw rates in an era of economic uncertainty.

Elite law schools are withdrawing from the U.S. News & World Report rankings one by one, but what does it all mean? We've never loved the USNWR methodology, but the reasons these schools cite for departing the rankings don't seem all that great. Maybe the schools would like to help a certain alternative ranking get better results! And the Biglaw bonus cycle has kicked off even amid an uncertain business environment.

Annual gathering aims to silence woke heretics... misses spectacularly. The Federalist Society national convention kicked off with Judge William Pryor mocking Above the Law for insinuating that the organization is a bunch of ideological hacks in a monologue that was "funny" to the extent it amounted to a quarter hour of self-owns. A day later, FedSoc proved its hackery when the Board voted to bar its founder and co-chair from identifying himself to the media as either a "founder" or "co-chair" -- a move that backfired when Steven Calabresi's immediate response was to tell the media that the Board had voted to bar him from calling himself the founder or co-chair. Please do not let these people write your contracts! We also discuss "Paul Clement's Lament" that law firms care more about money than his passion project of making America objectively worse and more dangerous. And more news of bubbling layoffs!

It's not 2009 all over again, but it's not great. Layoffs are continuing to percolate through the legal industry. Will they stay contained to a few firms with hard hit clients or are we seeing the beginning of widespread firings. Meanwhile, Jones Day has another brush with the Streisand Effect, leading the panel to have to explain who Barbra Streisand is to our youngest member.

Also, hybrid work models show strain. While Ye (née Kanye West) continues to bring new meaning to his song Black Skinhead with a flurry of antisemitic remarks, Biglaw firms are being Heartless and leaving his stable of representation a Ghost Town. But are they Stronger for making the move? Meanwhile, work from home policies remain in their infancy, but firms are already frustrating associates with tweaks. Cravath's originally announced policy has added a wrinkle and Ropes & Gray has folks positively grumpy. How long will the growing pains last? We also discuss Slaughter & May's new late night policy, the challenges facing Magic Circle firms.

Donald Trump is threatening a dumb lawsuit against the Pulitzer committee, but is it dumb like a fox? Because the right certainly has New York Times v. Sullivan in their crosshairs. There's still no information about the Supreme Court's investigation into the Dobbs leak. Color me utterly unsurprised. Steve Bannon is heading to jail, but that might not be the end of his legal woes. Maybe that federal pardon wasn't all that and a bag of chips.

Also lawyers don't make enough money... maybe. An anonymous Illinois bar applicant took to Reddit to confess to cheating on the exam. Perhaps "anonymous" should be placed in quotes because the author proceeded to provide a ton of identifying details triggering a bar examiner investigation. Also, new data suggests lawyers should raise rates, but is that really true? And merger mania is back in Biglaw with two top-tier mergers. All that and a brief aside about Liechtenstein admiralty law. Your Opinion Matters Help us make this show better by completing the 2022 Listener Survey.

Joe went to a conference... here's what went down. The crew couldn't convene this week because of the Clio Cloud Conference, but here's Joe's interview with Pamela Smith talking about lawyer public relations.

But it might make you a sociopath. Ginni Thomas testified to the January 6 committee that she still believes the election was stolen from Donald Trump. They wouldn't call it the "big" lie if it went down easy! But she also testified that she and Clarence don't talk about work, which might be even less believable than her stolen election claim. Also, an attorney billed 277 hours to review 20 documents... that seems like something the firm should've stopped earlier. And Judge James Ho is trying to help conservative Yale students by announcing he'll never hire them. And you thought Ginni wasn't making sense.

Receive The Appropriate Prizes. Did you know that it's not a good idea to keep two sets of accounting ledgers in order to scam banks and skimp on taxes? It's true! And the majority of the Trump family is finding that out as the NY Attorney General files a lawsuit. Have you considered putting your very freedom in the hands of a judge with decades of experience based on your own misunderstanding of one incident in their lives? Trump did that too, proposing Judge Dearie as special master, apparently on the logic that the judge got made at the Department of Justice once and assuming he'd hold a grudge. What about misleading the Supreme Court about the relief you want to be a political pawn? That's frowned upon as well... but no one seems like they're going to do anything about it.

And we speak of mermaids and copyrights. There are people out there planning to digitally replace Ariel in the new Little Mermaid movie with a computer generated white character. This is great news... if you're Disney's outside IP enforcement counsel! Meanwhile, the SCOTUS offseason heats up with Chief Justice Roberts complaining that the public questions the Court's legitimacy and Justice Kagan indirectly points out that it's his fault. Also, maybe ACB forgot whole parts of the First Amendment because she doesn't plan on those existing much longer. And we go down an antitrust rabbit hole at one point.

Also, judges need to get their act together. Did you ever think we'd hear a Supreme Court justice questioning the law school model? Well, it happened! Sandwiched between some nonsense about the Dobbs leak, Neil Gorsuch mused that the United States may not need to force students through 7 years of higher education to practice law. We may not have all the answers, but at least people are talking about it. Also we have a couple of horror stories about judges refusing to respect lawyers with families and the best way to build an office culture.

See, it was an elaborate art piece to demonstrate the futility of law. We breakdown the shenanigans involved in the latest Trump search warrant order... which is in a civil matter... with a different judge... invoking privileges Trump doesn't have... granting relief he didn't even ask for. What does any of that even mean? Good luck to the judge's clerks in their future endeavors after getting handcuffed to this! We also discuss debt relief and how it impacts law students. And we discuss Jones Day and ponder if lawyers are morally complicit in the work their firms perform.

Um... 28 U.S.C. Section... Why Not? The Donald Trump warrant fight provides a scattershot of weird challenges to unravel for the non-lawyers in our lives. We've got collateral attacks and special masters and still no clear sense of how there's any jurisdiction for any of it. But he's found a judge seemingly willing to play along. As a reminder, the job of finding judges like these belongs to Leonard Leo, the guru behind the Federalist Society who now has a billion in shadowy money to play with. Speaking of right-wing law students, Yale Law grad J.D. Vance really understands the opioid crisis in Ohio... because his charity appears to have contributed to it!

We didn't plan to get this deep into the feels, but here we are. Kathryn and Joe sat down to talk about a couple human interest stories in law. Joe discusses the story of AXDRAFT, a Ukraine-based legal tech provider (part of the Onit family) and its struggles and triumphs in the face of an ongoing catastrophe while Kathryn talks about an Afghan judge who fled the country with her law degree sewn into her clothes. All this and a brief chat about ILTACON.

The FBI's search of Trump's residence has brought on a whole lot of caterwauling on cable news and social media from lawyers and law professors in Trump's orbit. Yet no one seems able (or willing) to accurately describe the whole warrant process. Meanwhile, a federal judge is pulling the rug out from his replacement -- who would diversify the bench -- for the stupidest reason. And a new report suggests that neural implants will replace the billable hour by forcing lawyers to bill by brain activity. That seems... unlikely, but this week was full of surprises.

Alex Jones is not going to be paying anything near what the jury determined. While slapping Alex Jones with $45 million in punitive damages for defaming the families of Sandy Hook Elementary shooting victims. But the state of Texas makes juries deliberate and then substitutes its own cap for their decision. Thanks for your jury service, but we've decided to go in a different direction! Now get out! We also talk about the tax controversy surrounding Ivana Trump's final resting place, the Supreme Court's legitimacy woes, and Brittney Griner's Russian sentence.

This podcast must vest, if at all, within 21 years... The bar exam decided to ask a couple of rule against perpetuities questions, obliterating its last claim to legitimacy -- that it teaches real-life practical law. Another reminder that licensing is broken and we need to take bold steps to reform it. Clarence Thomas opted to give up his cushy seminar at George Washington Law and some people are whining about that. And Nicholas Sandmann's "epic" defamation lawsuit against the entire mainstream media ended with a thud... just like we said it would.

Mistakes were made. A lawyer tried to get away with a little misogynistic insulting in open court. It did not end well for him. Meanwhile, a Biglaw partner laments low hours and associates skipping out on the office. This should be a warning to associates as the economy cools because whether or not this is fair, this is the sort of thinking that guides layoff decisions. And the bar exam is here and so are all the indignities. Like asking applicants to spend over $100 on lunch.

Due diligence is your friend, Elon. Twitter has sued Elon Musk for walking away from his plans to purchase the company and it's hard to see how Musk gets out of this unscathed. Twitter's deal lawyers negotiated a pretty ironclad agreement, Musk's complaints fail basic logic, and Delaware law is roundly against him. But other than that, he's doing great! We also talk about the value of impeaching Supreme Court justices for lying during the confirmation process -- even if there's no hope of removal -- and we chat about the value of a good video deposition angle.

Plus Texas targets Biglaw. Since the Dobbs opinion came down, Supreme Court justices have faced protests outside their homes and outside their favorite restaurants. The Supreme Court asked local officials to clamp down on it and Morton's Steakhouse used its JD from the Filet Mignon School of Law, but the Court's problem is its own pesky precedents catching up with it. We also discuss the threat Texas legislators sent to Sidley Austin suggesting it would go after the firm for its health plan covering health care travel and the future of state border-crossing laws and guns and briefly preview Elon Musk's Twitter fight.

January 6 hearings invite a more hearsay mistakes than the bar exam. Hearsay isn't the easiest concept in the world in application, but compared to the "fertile octogenarian" it's at least straightforward. The complexity is in all the exceptions, not hearsay itself. And yet the January 6 hearings invited a lot of hearsay talk that wildly missed the mark. The gang also takes a look back at the now concluded Supreme Court Term -- and the nightmarish preview the justices dropped on the last day -- and chats about the latest in the Britney Spears litigation.

Constitutional law is more of a vibe now. Well there's not much to talk about in the legal world besides the Supreme Court so... let's do that. The Court ruled that state legislatures are both free to craft the laws that suit their state and that state legislatures are dangerously lawless entities that must be crushed by judicial fiat... WITHIN A DAY! The half century of Roe isn't a historical tradition, but a 111 year old gun permit statute is not as historically rooted as a 14 year old Supreme Court opinion. It's a wild time to try to untangle the rule of law. Also, Biglaw firms are scrambling to react to the Dobbs opinion, and former Solicitor General Paul Clement throws a pity party in the papers.

Starting to notice a pattern? The January 6 Committee is very interested in speaking with Ginni Thomas following revelations that she had a correspondence with John Eastman about election shenanigans. But more interesting is the revelation that Eastman was telling his buddies that he had inside information about closed door Supreme Court meetings casting an even brighter spotlight on Thomas. It's still anyone's guess who leaked the Dobbs opinion, but it's worth noting that Occam's Razor is undefeated. We also discuss the latest religious schools opinion from the Supreme Court and UCLA's Absent-Minded... or just plain absent... professor.

Also, people don't want to go back to the office. At all. The latest edition of the ATL Top 50 Law Schools ranking is out and provides some interesting insights into legal education. As the ATL system privileges "outputs" by focusing on job placement and costs rather than incoming student GPAs and LSAT scores, the ranking gives prospective students a look at the best bang for their tuition buck and gives law schools a great way to game the system: be cheaper and get your grads jobs that will let them pay off debt. We talk about the rankings and some curious schools dropping down the list. We also discuss associate resistance to the "3-day in-person work week" model. It seems as though lawyers don't want to return to the office at all and that might not be in their best interest.

The bar exam is a daunting obstacle, but it doesn't have to be. Joe and Elie chat with Rich Douglas, COO of Themis, about the bar exam and how to conquer it. Rich also tells us about the Themis Law School Essentials program of free review materials for law school courses and we discuss the impact the GRE is going to have on law school admissions.

"PODigal"... get it? Whatever. The original Thinking Like A Lawyer hosting team is back for a limited engagement! With the team depleted by holiday vacations, Joe is joined by Elie Mystal of The Nation to talk about the Supreme Court, touching on everything from Shinn -- deciding that "actual innocence isn't enough" when it comes to getting people off death row -- to the coming Bruen opinion that will stifle even the mildest of gun regulations across the country. We may even have a little to say about leaking draft Supreme Court opinions.

Yale. Again. Everything keeps coming back to New Haven. Conservatives are doxxing law students for saying they might not party with FedSoc anymore. Professors are whitewashing Alito opinions. Alums are attacking the press. Why can't this school chill out a little? Also a Biglaw firm needs some lessons in collegiality and Elon Musk is trying to make his own law firm.

Does the new Texas social media law banning platforms from moderating content really require you to listen to this episode? Well, it's on Twitter so now you're compelled! Frustratingly, this reasoning is just as stupid as the Fifth Circuit's crayon-scratched opinion rubber stamping the statute. It's an opinion so bad that Justice Alito immediately swooped in to get the appeal rolling. Meanwhile, we also talk about the changing nature of in-house counsel and the growth of "legal operations" as the chief operating officers of legal departments, a judge with a penchant for handcuffing lawyers, and the latest law school dean hypocrisy. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.

A leaked draft opinion informed the world that the far-right wing of the Supreme Court has broken from Chief Justice Roberts and intends to overrule Roe v. Wade outright based on... "we've got five votes now, so suck it." The gang discusses the opinion, the demise of stare decisis, the obsession with the leaker, and a law professor's problematic response to it all. Joe didn't even use the sound board this week, so you know it's serious. Special thanks to our sponsor, Posh Virtual Receptionists, LLC.