Law Firm Passive Aggressiveness On Parade

0:00Hello, welcome to another edition of Thinking Like A Lawyer on Joe Patrice from Above the Law. I am joined by Katherine Gravita. Hey, friend. And we are here to talk about some of the big stories from the week that was in legal as we are want to do. Yeah. But first though, we begin with a little bit of... Yeah. To the smallest of talking going chat. I'll tell you what, I'm sick. My kid just started school a couple of weeks ago and I feel like that has started the annual plagues. I've heard so much about. Yeah. I think I will now be participating in all of those things. So pardon me if my voice sounds a little less than its normal chipper self. I'm sorry to hear that too bad. I am also under the weather, but my under the weather is had heart surgery yesterday.

1:02So, you know, you got a one up me. That's the... That was the goal. Yeah. That was the one I was saying. Oh, yeah. No, I'm fine. It was a routine repair. I don't think that heart surgery is routine for most people. But look, I mean, it's not like they held me overnight. Like that's where we are with this stuff. I had heart surgery. They let me out that afternoon. So you okay, buddy? I am. But you okay? Yeah. No, they just had to replace a part. I'm part cyborg. Well, I guess whole cyborg. Part of machines. Part of machine. You're a machine in man. I'm still more man than machine, I think, is just my heart that has a... You have an artificial heart. A piece of... Well, I mean, couldn't you tell? I'm glad you made the joke and I didn't. Yeah, but yeah. So they had to repair one of the little wires that keeps my heart from going haywire. It's not like I need it to keep the heart going. It's to keep the heart from going haywire.

2:04Okay. And they went in and did that and then let me out. So I'm just kind of... You know, you can take... I mean, I did take yesterday off. I mean, I took yesterday off because I was under anesthesia most of it. But you know, I can ask... You're not asking me legal decisions when you're under anesthesia. Yeah, but... Or write about them as the turns out. You do say that, but most of my decisions are illegal decisions. So... No. But you know, you can... I did wonder if legal commentary counted as a legal decision when they gave me that warning. No. I didn't think so. You know, so... But yeah, no, I'm fine. My shoulder sore is basically the only... I mean, I would imagine, you know, having had heart surgery, etc. Yeah, it's not great, but whatever. Hey, so... Yeah. So I'm glad that you've won up to me, but neither I started it at 100 percent to you. No, we're not at 100 percent, but you know what? That's not going to deter us from giving a great show for the... We will give 100 percent for the following 23 minutes. Yeah, you know what I mean? Like that's what we're here for. It's your year for.

3:04Yeah. Because you all, as listeners, come first. I keep plugging in for the next 22 minutes. Yeah. Another small talky thing that I wanted to mention, just a story that wasn't worth a full conversation, but I thought was worth flagging. Last week we had a story. Have you ever seen... And, you know, I wrote about them before. Minor character theater is a YouTube TikTok channel. You... I think, I think, as a general matter, you watch more YouTube than I do. Point is, minor character theater has a channel. It does some fun stuff, but one of the characters who has shown up in the past and we covered in the past was what he plays a character doing a documentary of his time as Willie Wank is general counsel and all that he had to deal with. That didn't work out great. It did not. We covered that with a lot of liability. That was a while ago and we covered it when that happened, but he has a new one out where he's working. He's moved on and he works in-house for John Hammond and he's covering the events of

4:07Jurassic Park 2. So as in-house counsel. And it was fun and so I put it up and I... Not like merit for a whole conversation, but I think people, if you enjoy kind of legal humor like that and have some pop culture interest, which I would assume is the core, the Venn diagram that finds you at this show. Sure. You might want to check that out. I put it on, put this link on above the law and you can read about the poor in-house counsel for these terrible movie companies anyway. We will get into our first topic, which is let's talk about a while who... Let's talk about some lateral partner, Mania, right? Like a lot of... Listen, there's a lot of partners that have been moving firms. We're right about it occasionally, but there's so many of them and it's not always super interesting, right? It means interesting theoretically and if there's a big movement, we write about it or something

5:07like that, but a lot of times these movements of ex-partner to wife firm is not really something we cover all the time and above the law. You know, there's not too many jokes here. We never tell a joke. This one, I really stopped when I read this one. So Mike Iello, formerly of a while, it moved to Kravath. He was the corporate, the partner in charge of the corporate department, whatever. So he moved and as is typical, the firm that they're departed from puts out a statement. See if you can... You get what? Why I thought this was particularly interesting. The firm in a statement, while said, Mike Iello and his team have informed us that they are leaving the firm for a smaller platform. Yeah. Yeah, I mean... Listen. You don't hear Kravath describe that way often. No, no, you don't. No, you don't. Does it have physically fewer attorneys for sure? I still wouldn't call it a smaller platform. So yeah, no, I mean, this is the topicality of definition of is it size defined by the

6:13number of people or the reputational quality of the work. Right, like there's a joke, right? You never get fired for hiring Kravath, right? Yeah. Yeah, no, it is very much not a smaller platform on that front. You know, this reminds me of the, you know, we make fun of the National Law Journal 500 quite a bit, which is their ranking system, which is... Is it literally just lighting up a size order? Yeah, where they just say like, we're going to rank all the law firms by size. And it's like, okay, cool. That's not really a ranking that I think anybody has any interest in other than people who are just addicted to rankings, like an opioid and just can't get enough of them, which unfortunately is a lot of people. We know this because US News and World Report has become US ranking and World Report and they've done just fine for years. They haven't done actual journalism. I don't think in any of it. What's weird is I think they may actually have, still have some journalism, but I don't think anybody goes there for anything but a ranking.

7:14Sure. Sure. But I also thought it was interesting. And listen, there is some actual push and pull here and actually we're going to getting a follow-up story to this actually yesterday because while is very much in growth mode, right? Last year they added, over the last two years, they added 51 lateral partners. Like, that's a lot. They're really growing in Kervath. Say what you will. The Kervath system is you build from within. Occasionally you bring lateral partners in. Obviously, I.L. I was one of those. But their system is, you know, we build the best lawyers. More than anything else. And apparently there is a lot of tension internally between those at wild that just want to grow and get bigger and, you know, kind of make it, make a splash that way and those who want to kind of grow from within. And I.L.O. seems to have been on the other side because Bloomberg law actually wrote a piece that I mined for some content here. People anonymously kind of shading I.L.O. Something that he was, you know, a really big personality.

8:15And there are some at the firm that are relieved that he's gone, that he had sank some lateral hires that went onto other firms that he had sank some expansion opportunities that wild had that then other firms were able to benefit from. And that there was some real tension back and forth between these folks. And what I said was, you know, you don't normally hear a lot of this. People usually allow more circumstance back in big law. They don't really even anonymously talk shit about, you know, such a powerful partner. Yeah. That was Roy Strong and Megan Tribe co-wrote that piece. Yeah. No, really. Yeah. That was that was that was the sort of thing. I mean, good for them, but you know, back in the day, that was the sort of story that would come directly to us. People would have wanted to drop that kind of tea directly. Yeah. It was for them for digging it up. And as I said, it's messy, but also fun for the rest of us.

9:16Well, so yeah, well, what a while has had a few departures throughout all of this. They have gotten some people and mangled them as the phrase goes. Yeah. While Gachold Mang will get you in Mangalia is that not everyone is familiar with those times. With the hit the hit the ways in which we make fun of all firms. Yeah. Wow. That's sorry, you're old. Was it the night you were the head of heart surgery? You were listening. Listen, enough of this. Yeah. No, so there were definitely some people talking about like what is going on. I don't necessarily think it's a long trip thing. I think as you said, there are a lot right now there's a lot of people who have philosophical differences about how firms should be structured and they're moving on it. I took it more as a, especially we saw the Wachtell situation where people left it. We see this. I think we're still losing partners. Right. Yeah. We are in the midst of a very robust and well lubricated lateral market where people feel

10:23free to just pick up and bolt all over the place. It's not just the associates like not and not just partners. Heds of departments are just like let's go with this. That's what the Wachtell said. Yeah. It actually reminds me of a piece that you wrote as well. We talked about the potential influx of PE capital into the markets. But one of the things that you clocked is that there's some thinking in the brain trust that's contemplating PE deals is that this, that the splitting off into MSO would allow there to be non-compete for partners. Yeah. The aren't obviously within the legal profession per se because that would be against the ethical rules of the profession. But that if you spit it off to an MSO, you might be able to enforce some non-compete as it applies to partners that are able to sort of bolt at a moment's notice. Yeah. Which struck me and I talked about this bit on the legal tech week, Journalist's Roundup last week, or two weeks ago. But yeah, no, it worries me.

11:25I think if you are creating a new business structure for the express purpose of getting around an ethical rule, you are not violating the letter of that ethical rule. But that sure feels like the spirit of it. Sure. Sure. And maybe it just means it's time for the profession to update their ethical standards. Well, but with that story, and part of the reason I talked about it on the tech show, this part of that story is AI twins, this model that the private equity people are very much talking about when they talk about law. You can't hold a lawyer forever necessarily, but if you set AI on them long enough and deep enough, they claim they are wrong about this, but they claim they can reliably map out and copy a lawyer's knowledge base and judgment and then create an AI twin of them that would then be owned by the MSO. So even if that human lawyer leaves, they would have the right to continue using that human

12:28lawyer for their, for stuff as a service. Okay, but like why if you're a partner in a firm, don't let them do that. You can say no. Well, that's the issue. You can say no actually. Well, and this goes to, well, I mean, theoretically, you would say no to being locked into a non-compete too. It would be set up in sort of way that that's a condition of making the money. But yeah, I think it's, I think it's dumb, but I also think that look, I was first pitched the idea of one of these AI twins in like 2014, 2015, a company that I'm not going to name was like, we're going to, we're going, we're only a couple years away from fully cloning David Boyz's brain with AI. And I was like, no, you aren't. And if you were, that would also be an authorized practice of law. Yeah, sure. But that's what they, that's what they're talking about. And it goes further than, of course, law firms retain some of the lawyers judgment after they leave to the extent they leave work product behind. And you can charm that work product and reverse engineer some judgment, but you cannot

13:31actually create a fully operational twin that is not a thing that AI does, even though all the AI companies say that they're about to terminate us, it is, that is not true. And they, you know, they still can't make flight reservations reliably, right? So we're going to be okay. And also they're not going to twin, but that comes back to the private equity thing to bring us full circle is that these private equity companies think one of the reasons for these MSO structure is that they would be able to do that. By the way, let's take a quick break. All right. Very legal professional wants to put their clients first, but billing, payments, and case management get in the way. 8 a.m. is the professional business platform that helps law firms get paid faster, manage cases more easily, and grow with confidence. Trusted by over 260,000 legal professionals, 8 a.m. integrated solutions like 8 a.m. law pay and 8 a.m. my case, help simplify the business of running your firm so you can actually

14:33put your clients first. Visit 8 a.m.com slash legal talk to learn more. That's my impression of the hold music your callers here right before they hang up. Smith AI pairs AI with real live agents to answer calls, qualify leads, book consultations, and even send retainers 24-7. Enter intake fewer missed opportunities, no more hold music solos. Try it free at Smith.ai. Mention above the law or use code no hold at sign up to claim 20% off your first two months of service. We're back. Let's talk about another story. Missouri has been constitutional crisis thing. It's constitutional crisis thing within Missouri over the map that they want to gerry

15:33mander as one knows Missouri is a red state, but you know, sure, still with a purplish hue. I mean, like they, they, it's not all that long ago that they had democratic senators. So it is, you know, little purplish, they are divided kind of a six to map as far as their house membership. They decided the legislative, GOP legislature after Trump made the call for states to gerry mander themselves to try to stave off a midterm loss that now is looking like no amount of gerrymandering can avoid. But after he made that call to mid cycle, draw new maps, Missouri went ahead and drew a seven one map that eliminated black jurisdiction in Kansas City. So Kansas City basically doesn't get to have a representative. They split it all up into other rural, among other rural districts. So Kansas City, Missouri's biggest city. They're only the place people really know.

16:34People know St. Louis. Okay. Sure. Yeah. It's where Panera's from. Is it really? Yeah. I didn't know that. The St. Louis bread company. That's, that's, it's official name. Yeah. I didn't know that. I mean, I'm not a, I'm not a huge Panera user, but yeah, I didn't know that. Yeah. Now, the more you know, guys, the more you know. Anyway, but you'd go to Kansas City because you wanted barbecue. Anyway, they want to get rid of that rep. That doesn't pretty go barbecue to be fair. They, they drew up a new map to avoid, to do that, to get that gone. The Missouri Supreme Court, which is majority Republican, ruled that, no, you can't do that. The reason that they can't do that is the legislature can pass that. However, under the Missouri Constitution, dating back to like 19, amendment and like 1909 or something like that, they have a rule in the Constitution that if people get together, and Missouri citizens get together and there's like 300,000, some percentage of signatures, they have the right to demand a bull state ballot measure that can veto the new map.

17:36Sure. And the map is held in a dance until they can have that vote. Okay. Seems seems pretty straightforward. The Secretary of State and the Attorney General of the state conspired to not run any kind of special election to resolve this. They just wanted to delay it, delay it, delay it. Then they rejected this petition out of hand and said, we're going ahead with the new maps. The Missouri Supreme Court said, well, one, can't do that. Two, because you've delayed all this, that statewide ballot measure has to be on this year's midterm, which means you can't use that map for this midterm. That is honestly, see law question. Any what it is a state law question. That's it. Anyone who is remotely viewing this as a non-cynical actor has to say that is very much what that state constitution says. Yes. So, here we are. And look, from the Republican's perspective, they're probably going to win this statewide ballot measure because there are more Republicans there slightly. Right.

18:37Play the long game, friends. Play the long game. But that doesn't help them now in what Trump wants right now. And so they're very mad. And so they decided to appeal the state Supreme Court decision to the US Supreme Court, which is of course, legally the only court you can appeal that decision to. Sure. US Supreme Court said no, specifically Brett Kavanaugh who is the justice for that circuit said no. That was theoretically the end of it. However, there's so much more. However, yeah. So this is so much more. So anybody, any law students out there or people who are traumatized by your Sib Pro issue spotters, you know, triggered warning because we're going to this is going to be all sorts of Sib Pro issue spotter. So they then not the actual not not the Secretary of State themselves. Other people, this is important, took the case to the federal courts and found the chief just chief judge of the Eastern District, I think Eastern. Yeah. Anyway, who is a Trump appointee?

19:37They went to the federal court and said, you need to stay this. And so the federal court said you federal district court judge, the lowest of the court judges said they have to use the new map. Now that means the Missouri Supreme Court said you are enjoying from using the new map and the district court says you must use the new map. Now do these are these conflicting orders? Some people will say dumb people will say no, but real people will say, of course, they're conflicting orders. Yeah, because you can't do both outside of the realm of quantum mechanics. So I don't even understand an argument that they're not in conflict. The conservatives who are pushing all of this are saying, well, they're not they're not conflicting orders. They're totally different parties, which gets to the whole Rooker Feldman problem here, which is you can't use a state court to collateral attack. Yeah, or you can't use a federal court to collateral attack a state decision. However, the Supreme Court has been kind of lax about that in recent years and said,

20:38oh, you know, if the parties are different, I guess, whatever. So that's why this was set up with different. Partitions. The Secretary of State filed in Mekis in this joined this district thing like, yeah, we support it, but they aren't actually the party. So it is very much an attempt to back to what we said. You may be following the letter. This very much violates the spirit. Sure. I will also note that election law decision like this should have been heard by a three district court. Judge panel, you're not allowed to hear it by yourself. They violated that too. And if you had done it by three judges under the law, how you're supposed to handle election decisions, that three judge district court decision is appealable directly to the Supreme Court, not the circuit. As it was, they didn't go to three judges. So it went to the eighth circuit. Right. So it went to the this this one did it in seeming violation of all the rules went to the eight circuit, the eight circuit, said, cool, we love this. The US Supreme Court, then in a shadow docket decision said, no, of course not.

21:40No, no no. No, no, no, no, no, no, no, no, no, no, no, no, no. The Missouri Supreme Court at this point, part of the reason why that that's the U.S. Supreme Court was so important there is the Missouri Supreme Court had already issued an order to the an order to show cause to the Missouri Secretary of State going, you need to show up here and explain to us how you aren't in contempt right now. Because you're definitely in contempt right now. Ultimately right after the US Supreme Court ruling, the Secretary of State wrote a letter saying, well, in light of the US Supreme Court ruling, we will use the correct map. So we don't really even need to have a hearing about contempt. And the Missouri Supreme Court said, no, we do. You should do. And the Missouri Supreme Court said that while they aren't going to issue any punishment because the violation has been cured, they wanted the record to note that this was in fact contempt. It was. Now, as it turns out, the, the named litigants in that lower court thing, even though the Secretary of State has now theoretically said in this letter represented to the Missouri Supreme Court, we're going to go ahead and do it the right way. In the federal, a federal court case, those litigants are still going.

22:43And the eighth circuit is like, we're expediting briefing on this so that we could get a merits opinion. And then we can ask the US Supreme Court again. It's like, dude, dude, there's not the charm. It's not happening. Like, look, Alito and Thomas are very willing to write descents to, to these sorts of shadow duck and decisions. We just saw that in the post office case. They are willing to say that they did not hear. That should be a glaring flag that this is a losing issue. Yeah. And yet here we are. So that is catching you up on everything in Missouri. Woohoo. Yeah. Wild times. All right. Well, let's take a break and we'll be back in a second. All right. Well, now we have a legal writing topic. You know, for you, are you okay? Yeah. Everybody loves talking about legal writing. Do we? No. But I do. So the first circuit has an opinion that caused a little bit of a hubbub on social media because Judge Roger Thompson is 75 years old, but is not afraid of some good old fashioned

23:49Gen Z writing. Okay. I mean, I think I've just begun a recent opinion. Well, I guess it's the second paragraph. The second paragraph of this 40 page opinion, unanimous opinion, is we'll fill in the deets shortly, but the spark notes is this. Amazing. Yeah. No notes. It's breezy. It has a lot of informality. It is, it caused a uproar of traditionalists online who there are people actually saying that he should be impeached for this. She's senior status. First of all, poor shit. Yeah. Okay. First of all, senior status, one thing, two is that is not an impeachable offense. Writing something in a tone that you do not like is not an impeachable offense. This is not offensive in a way. This is not like what's his name that was insulting his colleagues in a decision. This is not using vulgarity. Well, that's the thing. That's less formal writing. And the fact that those same people who are now mad at this first circuit judge because

24:51she said, check the deets later. Those are the same people who are like, yeah, it's totally cool. The Venn diagram of people who say that and people who say that it's okay that we have opinions calling the rest of the court crooks and stuff. Yeah, it is. Well, that's not a perfect circle. I will say the first person that I read on social media calling an impeachment was clearly doing it as a joke. It'll be the style blog. They were doing it as a joke. But then I actually did read other people who were seemed to be deadly serious about the idea. I don't look. So I'll read another segment here. Here's a, like here's an example of something from the statement of facts. While Instituto's bankruptcy plan was being worked out, Instituto and Oriental got into it about how much Oriental should be paid, but they worked it out. And then it moved on from there. But like really informal, you know, that's not at all how somebody would expect a legal decision to write it. But honestly, look, I'll be honest.

25:53I thought I was going to hate this opinion when I first saw the out of context. Check the, do the deeds and well, this is the spark notes. I was ready to make fun of it and be against it. But then I read the whole thing. 40 pages of a bankruptcy opinion are often not fun to read. This was a perfectly pleasant read. And at the end of it, I understood the facts because the facts were written in a very conversational manner that allowed you to understand what's going on. I thought it was actually kind of, I mean, is cringy in places. Sure. I mean, but I thought it was pretty good. Yeah. And listen, there are people who get mad whenever some judge makes a pop culture reference in their opinion, you know, Calvin ball gets used. People say, oh, this is obviously the worst thing that's ever happened because you're referencing Calvin and Hobbes. You know, there are people who will always have things to say. But language is also malleable and evolves over time and things that were, quote, proper or no longer proper anymore.

26:53And it's okay. Language, it's okay for language to evolve. And the only thing that I think the judges have a responsibility to do is to accurately and honestly interpret the law and the language that used in order to do that, I think is beyond the point. Yeah. But honestly, one of the things that I made, my initial reply on social media, which to the original legal style blog joke was I responded with, first you people say you hate AI writing. Now you hate humans doing stuff. What's going on? But, you know, to take it to the AI front, if people are worried about AI training off of all of these opinions and, you know, becoming, you know, a non-human arbiter of legal writing, this is definitely an attempt to mess with that algorithm. This is definitely going to screw up that AI. And so, you know, if you're one of those people who wants to screw with the AI, you should be very happy about this opinion because it is, yeah, like, I don't know. I also appreciate, I appreciate, wow, I don't, I also appreciate all of the definitions,

27:59you know, the standard legal writing, you write out the name of a thing and then you put in parentheses quote the shortened version of it, whatever. Yeah, like it's standard. It often is stupid. I, I many a times as a young lawyer took those out of drafts because we would do, the firm would do that and then never use that term again. I was like, you don't need to define it. If you don't, if you aren't using it again. Sure. But it's a nasty habit. She, she's great. She puts like the final plan, parentheses, which we uncreatively christen the plan. Yeah, like it just, it's, it's fun and enjoyable and like, they're, I don't know, I just really feel like, hey, everyone should enjoy their job as much as the judge does. Yeah. And, you know, I, an often harsh critic, the typos of the New York Times, who is a very harsh critic of language always on social media, even wrote a thing saying, look, this is how Judge Thompson has always written.

29:01It works for her like, I don't like it, but it is, it is technically correctly written. And so, you know, that, that's what it is. And I did think contextually it worked. Like this was, this was a really naughty, gnarly case with a lot of twists and turns. I mean, it dated back to the 1980s, the like back and forth between these parties. And, you know, like that was going to be a real slog to understand what happened. It was instead told with kind of this very human, very easily readable format that you understood what happened. And at the end of the day, that's what court opinions are supposed to be. There's a post to tell you what happened. You know, and I compare it in my piece to the shadow docket. Look, I would much rather read an informal opinion where at the end, I understood what the judges were doing than a two sentence shadowdocket opinion that takes away people's rights to vote and just goes, see you later.

30:02Peace. Yeah. Yeah. No, you're right. Yeah. Oh, I mean, I know, I know I'm right. But I just like, come on, man. No, you mean we regret saying that. I mean, I figured you've regretted it as soon as you said it. I don't think you did it. Yeah, but yeah. So, that was, that was our last story that we were going to talk about. Any closing thoughts? Not really. All right. Well, then thanks everybody for tuning in. If you hopefully are all subscribed to the show, but if not, you should get in there. And you should leave reviews, say some things, give some stars, all that stuff kind of helps. Let's try to get another, another point one star. Like that's our goal for the, that's the goal I want all listeners to set for yourselves. Help us get. Beare as the minimum, yeah. Yeah, help us get there. I mean, we took a real hit. I don't know if I ever do. I think I mentioned this on a past show, but we took a real hit during the Interregnum when Ellie had left and before you joined the show and it was just kind of me by myself doing mostly tech interviews, which you would understand heard our numbers a little bit.

31:03It's not what the show is or was. Yeah, it was bad, but we didn't really have an alternative at that point. So we're still trying to dig ourselves out of that run where people basically wrote this show used to be good, but now I don't like it was was the response. So yeah, I mean, I, you know, we weren't happy about it either. But we're here now. And so we are, we're going to, so yeah, give us some stars and reviews. Help us out with that. You should be listening to the Jibbo, Catherine's other podcast. I'm guest. I'm a constant panelist on the legal tech week journalist frowned table. You should be listening to the other shows by the legal talk network. Read above the law. So you can read these and other stories before we talk about them here. Social media. It's above law.com. I'm at Joe Patrice. She's at Catherine one. All on blue sky on Twitter. I'm, it's the same except I'm, it's except its ATL blog and I'm Joseph Patrice. Very formal on Twitter. Well, I had Joe Patrice at one point, but I was like, I was on Twitter like a month after

32:06it came out and then nothing was going on because it was a month after it came out. And then I just kind of forgot about it. And I have no idea how to get back into that account. So I have just anyway. Yeah. So when, with that, we're done. Peace. Bye.