2026 Prediction Time!

0:11Welcome, everybody, to the first 2026 edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by both Catherine Rubino and Chris Williams. We are here as we often are to talk about some big news from Above the Law. But this time, we're not going to talk about the week that was and we aren't going to talk about the year that was because that was last week's episode. So instead, we're going to talk about our thoughts about the future. From the future, future, future. Yeah, this is. You're so delightful, Joe Patrice. I'm glad I'm glad that the new year hasn't changed that at all for you.

0:50Aw, thanks. Yeah. We are coming to you from - I'm here, by the way, just saying hi. Fair, fair. We're coming to you from 2026. How was everyone's new year been? Are you still the same you or new year, new you? Oh, my new year was pretty good, actually. I spent it at Kung Fu Necktie, which is a bar in Philly, and they had an emo night. So it was a bunch of like Panic at the Disco and Fall Out Boy, stuff like that. And it wasn't smart to be there with all those people because I did get sick. But that is also the best place to get a fever you can't sweat out, which is hilarious for anybody who appreciates Panic at the Disco, but everyone else, you know.

1:35There you go. Well, I know, Joe, you must have already had a good new year. You are famously an Oregon Duck alumni, and they took care of business on New Year's Day. They did. They did. We shut out Texas Tech and their very expensive roster. And yeah, so we're moving on to a rematch against our only loss of the season against Indiana, who continues to look dominant. So who knows how that'll turn out. One year ago today, if you had said the most dominant team in college football is the Indiana Hoosiers, you'd be like, oh, I'm sorry, you mispronounced basketball. And the year as a – I mean, to be quite honest, the team that they dispatched with extreme prejudice on New Year's Alabama is in fact a better basketball team.

2:31Yeah, a little switcheroo going on there. But yeah, no, that was – I gather that was – so that was good. I also watched, even though my team was in it, and while the playoffs continue in college football, the People's National Champion was already crowned because that's the winner of the Pop-Tarts Bowl. What a freaking delight that is. The greatest bowl game in America at this juncture. Pop-Tart Bowl, is that a Stephen Miller thing? No, because he famously thinks that Pop-Tarts make people gay. uh but in this instance uh and that means he you know he clearly has not seen the the glory that is the pop tarts bowl which this year they they were planning to sacrifice three mascots at the end uh in by immolating them and turning them into edible edible food but one of the mascots escaped so you know we'll see what happens with that this is some high drama yeah a story arc for next year.

3:34It just it really is in an era where people worry that the bowl games are getting overshadowed by the continually stupid expansion of the playoff. It is it is nice that the Pop Tarts people have decided to lean into what makes made the sport great for so long. Yeah. And it seems likely that it's only going to expand even further after in the aforementioned Indiana was the only team over the course of two years that had a bye that managed to win their even being the higher seeds. Yeah, it's going to have to go to a 16. Yeah, I think that seems likely. You just can't have buys at this juncture. Yeah, and I think it also sort of dulls the point of the new Notre Dame deal after getting all their feelings hurt for being a less good team than the semifinalist Miami.

4:25They decided to back out and... And they refused to be in the Pop-Tart Bowl. That was where they were going to go. There you go, but they did make a deal with the playoff committee saying that if they are ranked in the top 12, they have to be put in the playoffs, even if because there are some teams that are lower ranked that are conference champions that have to get in. But if they expand it to 16, that's not that big a deal. Yeah, well, we'll see how this goes. I've never liked it. I actually like the smaller versions. Plus one? Well, even though it's benefited my team, I miss the era of playing an entire season on a tightrope.

5:06And one loss ruins everything for everybody. Like, I loved that. But here we are. I mean, in some ways, I would say that Oregon losing one game to Indiana in the course of the season actually put them in the best possible position this year because they were the five seed, got to beat up on JMU. The five seed is the best place to be. Yeah. All right. Oh, well. Let's actually talk about predictions for the year. which is what we were planning to do today so we talked about we recapped last year last time let's talk about this year this time uh so whose bingo card had the the department of justice was going to kidnap the leader of a sovereign nation anybody congratulations if so you're already paying off somebody had it uh i saw that on polymarket some account got opened dropped 30 grand into that bet and got paid off 400 grand.

5:58That is not suspicious at all. Yeah, there's no way that that's somebody actually with knowledge of what was about to happen. Well, did you see the thing? Journalist asked Trump if anyone was notified outside of Congress and was like, oh, we told the oil companies before. Yeah, before. So maybe it was somebody at X-Sign was like, told the New York Times and the Washington Post. Yeah. Yeah. Basically, everybody but Congress was let in on the conversation. This actually kind of dovetails perfectly into my top legal prediction for 2026. I'm going to go out there and say that Pam Bondi does not have the job of attorney general by the end of the year.

6:38And I think that there's a couple of reasons. First of all, despite the fact the Venezuelan invasion was ostensibly a law enforcement action, right? Pam Bondi was not in the situation room. And I think that cutting her out, particularly when it's theoretically related to a DOJ enforcement action, I think it shows where she kind of falls on the depth chart currently. And so that's the first bit of evidence that I'm looking towards. But also a lot of the legal positions that she's being forced to take in courts are big loser positions. And I think that eventually that's going to become too much and she's going to get ousted for that.

7:15I think there's a couple of big L's coming down the pipe for the Department of Justice. First of all is continuing the big law executive orders. They have routinely and repeatedly been rejected by every court that has looked at them so far. I think that will continue in 2026. And I also think that the backdoor appointments that the Lindsey Halligan, the Western District of New York, et cetera, I think all that is going to play into it as well. Yeah, I mean, I don't think any of that's going to play into it. I think that it's kind of the flip side is that those illegal appointments, which I don't think are necessarily her doing, the fact that those are creating L's is the problem that she becomes the scapegoat for.

7:59Yeah, I think that's true. Like, yeah, the problem for her is she's the only person basically in the cabinet for whom taking illegal actions runs into a brick wall. Everybody else can kind of get away with it. But she, by virtue of her job, has to, you know, the illegal actions the Department of Justice takes has to run into grand juries who are going to no bill and judges who are going to rule the other way. And that puts her more precarious than an interior department who just decides that we're, you know, getting rid of Juneteenth and now making Trump's birthday a holiday for national parks, which is a thing that's happened.

8:41Right. Yeah, that's less likely to be routinely dismissed. You can't stop that. Yeah, I mean, of course, the flip side of this is that the Supreme Court has given Trump unprecedented wins, both on the shadow docket and sort of in signed opinions as well. And there's always a risk that that would be a very public victory, you know, on any of these matters that could potentially, you know, pull her ass out of the fire. But I think that it's a it's a good prediction to think about. My money is on, again, not$30 ,000 worth, but my money is on the Supreme Court blessing events that look like the Maduro war action without congressional support.

9:22I've always thought that it was a weird quirk of the Constitution that Congress has to give permission for war actions. Like it makes sense as far as like a checks and balances. Oh, we don't want to focus too much power in the executive. But whenever I thought about it, I was like, what about pseudo acts of war like espionage or deciding to flood the Internet with Russian bots or what have you? You know, like things that things that so. Well, no, no, no. Well, also America anyway. But, you know, things that so discord, what have you, because I don't think this is the first time that a war action has been done in America's history by a president without congressional approval.

9:57It just isn't. Right. Well, yeah, but we we have statutes that are specific about all of this. And, you know, the espionage does run through Congress. Like there is there are intelligence committees and stuff like that, that that set the parameters for that. There is a war powers resolution, which requires votes on this sort of stuff. And, you know, past actions. It is true that we have not had a constitutionally required declaration of war. but we have these statutory half measures that have been that have been followed the all of the like bush admin w bush administration's tear assing around the world was authorized by a use of force statute that said go after terrorism generally uh now that probably was not constitutionally specific enough one would argue but it it was a thing that happened uh here though So telling Exxon and the Washington Post what you're going to do and not the head of the Armed Services Committee is a different – we're in a different game at that point.

11:04Like that does – that is a new step up. I don't know as though there's any legal recourse for any of this stuff. I mean, this all the problem with all of these serious constitutional breaches is it's they're all the sort of things that the courts have built up a whole series of doctrines around saying, not our problem. You guys work it out yourselves. Work it out amongst yourselves. They're like they're like the really bad teacher, like a really lazy teacher who's like sees a fight. It's like, why don't you two work it out amongst yourselves? Actual prediction. Trump will auction off Maduro's Nike track suit.

11:39It's sold out. Social media. Yeah, yeah, but imagine getting his. Yeah. You know, I saw him. Harlan Crowe's going to buy it. Harlan Crowe's going to buy it. I saw Maduro fly over my house because I am. You're in the flight path? I am in the flight path. I'm very close to where they took off from. And, you know, late at night, there were just three military helicopters strafing my house. And I felt like that probably was what it was. There you go. So, you know, I didn't get a good look, you know, since they were thousands of feet in the air. But I assume he was still in his tracksuit. Although maybe not.

12:17It seems like every picture they have is a different suit, wearing something different. And it's like, how many times did they change his outfit in 10 hours? Let's face it. You didn't become a lawyer to stress over summaries and analysis. You could hand it off, but you need an assistant you can trust. Co-counsel handles those important but tedious tasks that keep you from being a lawyer. And because it's trained only on expert legal content from Thomson Reuters, it's as precise as you are, which means less stress and more confidence to focus on what matters. Head to tr.com slash co-counsel to discover AI that lawyers swear by.

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13:54Okay, so we're going to go back. I actually wrote a whole post about predictions. So So while we're all making predictions, I'm the only one who took the time to commit it to paper. Digitally. Yeah, whatever. But my article kind of took a different take, which was I made a bunch of predictions that I don't think are going to come true. So low stakes there when you're – It was sort of, I mean, what I intended with the article were things that all the pressures should suggest would come true this year, but probably won't because lawyers can't have nice things, basically. The one that I am going to throw out there, just because I find it a fascinating topic, and we've talked about it a bit before, is somebody might stop the accelerated recruiting pipeline.

14:45Yeah, we've talked about this in the past in the context of the walking around money issue with big law. But for those of you who might be non lawyers or people who finished law school a long time ago and are well along in your careers, you may be shocked to learn this. But it used to be that you would get your job on the basis of maybe your first year's grades that, you know, that you would take into your, you know, your on-campus interviewing. You'd get your summer job for your next summer. You know, you don't do anything crazy at that, like bite a bunch of people, and then you end up getting your job forever.

15:23Now, it will shock you to learn that the current system is they're hiring people before they get their first semester grades now. Yeah. People have callbacks before the end of their first semester of law school at big law schools. I feel like there had to be some venture capitalists that suggested this. Like, it just feels like one of those explaining economic system through cows line of jokes. Like, what is capitalism? You buy a cow, you sell the milk for more than it's worth. You buy another cow, what have you. Or what is socialism? You take your neighbor's cow, blah, blah, blah. Okay. Well, yeah, it just feels like such an absurd level of recruitment.

16:02Like, we're not even just recruiting people now. We're just recruiting future interests. Like, there's no, like, it's a venture aspect to the recruitment. And it puts a lot more of the actual recruitment responsibility onto the law school's acceptance policies as opposed to the actual big law firms, which is, you know, a wild bit of deferred responsibility. Well, I mean, I think that's the biggest issue here, which is that so hiring people is always to some extent a gamble, right? You don't really know how they're going to practice even after 1L grades. But 1L grades operate as some sort of a indicator.

16:39Without those, you are now shifting from what you think the quality of education they've received at the law school is entirely to their undergrad and LSAT score. And by extension, the prestige involved in the law school accepting them off of their undergrad and LSAT score. You know, we joke about, you know, as a publication, we have always had kind of a love-hate relationship with U.S. News' law school rankings, which we developed a counter-ranking solely because we thought it was ridiculous that they are so obsessed with inputs and not with outputs of legal education. But honestly, now the firms, by blowing up this system and starting to hire where they are, have made the U.S.

17:32news rankings the old way that they did them actually the most relevant thing you could look at if you're a prospective student because all that's going to matter is prestige. Apparently, all that matters is that you have Harvard right there, and then you're going to get a grade regardless. Well, I do think it's also interesting because, you know, even amongst the top law schools, you know, not every member of a Harvard class or an NYU class were getting the offers from the tippy top of big law, right? They were all getting big law offers probably, but not from, you know, how do you make that level of distinction?

18:06You know, just between, you know, okay, they're in Harvard, but there's, they weren't making offers to 100 % of people. Is it personality then? Is it all these sort of inadvertently discriminatory, you know, biases that come into play? And I think that there's a real and especially now that we live in a world where the EEOC doesn't care about discrimination in a real way. You know, I think that there's a legitimate risk that big law of recruiting takes a giant step backwards. Well, this was this is what you were talking about with the walking around money. One story that we had last year was that it came out that some of the big law firms were giving money to students on campus who they had already gone through their summer to, you know, find people.

18:50To recruit on their behalf, yeah. Yeah, recruit on their behalf and find people who are cool to like whatever. The problem with that, of course, is that – I mean that's the invitation to buy us right there, right? Like you are now using non-professional people to go through and basically select based on no grades who they want to hang out with. Yep. It makes big law even more of a frat. Yeah. It's the further fratification of big law. The fratification of big law. I like that term. We should use that. Yeah. So my prediction was that something would be done about this. I don't know as though that's going to happen because, as I said, lawyers don't deserve good things.

19:26I did see that law students themselves have called upon the ABA to do something about it. The ABA is an institution that I believe has the best intentions but limited resources. Not only that, but they are very much under attack right now. And so I think that going to a new area is just super fraught for them, and it seems unlikely as a result. You know, to go to, as Chris was saying about explaining capitalism and stuff like that, I don't know as though it's a capitalism versus any other market-based situation. But it is a failure of a distributed market decision-making process because there's no incentive.

20:09No one wants to hire this way. Firms don't want to be taking a crapshoot on hiring. Law schools don't want people to be hiring people that devalues what they do. But there's an incentive to get ahead of the person next to you by blowing up the system and going early. And that will always push – the incentives will always push this way unless there's some sort of regulation. The problem is who's the regulatory actor? Is it the law schools? We think the ABA is incapable of doing it. Wish they could. NALP has been hands-off for the last seven or eight years. The law schools can't do it or they might be seen as colluding.

20:48The law firms can't do it or it seems like colluding. Like we went through this with the clerkship stuff in the past. And here we are again just now with the firms who we historically had thought would be better behaved than federal judges. But here we, you know, but yeah, nobody likes it, but nobody can stop it. My hope is that the results encourage discursive changes about the utility of grades as a forward-looking mechanism or forward-looking assessment mechanism. And the way I see this happening is like it won't work for like Carver. I don't even think Carver has grades. But for the schools that do have grades, they get the students get a little prestige.

21:27They do well at whatever firm they're appointed to go back to school, get grades below the curve, but still go back to the firm, end up being great workers there. Like, I wonder if there will be some incentive for firms to care less about grades after people already have their foot in the door and what it will look like over a period of time if this continues. That make sense? Yeah, like that it's going to be more of a spin. Yeah, and I mean it does – you're right. It does kind of speak to the Harvards and Yales, the people who gave up on real grades and went with their goofy half-grade kind of universe because if grades weren't going to matter really, then maybe that's – they were inviting all this.

22:13But, yeah, like there needs to be some sort of distinguishing characteristic or else you get a situation where people are taking – honestly, I compare it. Put aside all of the capitalism, whatever. This is the NBA draft when they were allowing people to grab high schoolers. Like you're taking people based on very little other than raw – Vibes. Physical attributes and vibes. And you saw lots of busts in that universe because people were incentivized to grab the possible magnificent ceiling of a LeBron, which worked out, obviously, rather than grab somebody who was three or four years into college and who you knew had honed skills.

23:01And that blew up some teams who made some real busts. And I think that's where we are with this. And that's why I think everybody wants this system to change, but nobody's in a position to do it. I feel like this is, we mentioned it tangentially, and we had this conversation before, but how do you think that boutique firms will play into the selection of students before there's any proof of it? Because I think that when you think, like, who's going to be the actor that has an incentive to change it? And I think it might be them. might be them oh no i think they i think they're kind of the opposite yeah because boutiques tend to not hire directly from law school and if anything i think they're benefiting from this system that's what i was gonna say i was gonna say to continue the basketball analogy since they're the ones who grab rebounds off the board uh like the the whole system is set up for big law firms to grab a bunch of people whoever turns up rising to the top the boutiques then run up and go we'll give you a little bit more money to come to us uh so now with people kind of all over the There is something to be said, though, that they kind of are in the same position.

24:03Like an elite boutique is sitting around waiting to see the Cravath person or the insert other elite firm there, Wachtell person or whatever, who excels and then they go recruit them. Now, if the system is such that it's a little shaky whether or not those firms have picked the right people, it might open up the board and make it a little harder for the boutiques. But I think that boutiques are still in a better place because there's more data points at that point in their career. And you're also seeing more people deciding to lateral earlier in their career because not even that they hated big law, but like, oh, it turns out I didn't actually know what kind of a lawyer I wanted to be three weeks after I started law school.

24:42But now I do. And this law firm is no longer a great fit for me. So you're having people leaving, I think, a lot earlier. And I think that's going to continue. Yeah, I mean, not to continue belaboring the sports analogies, but it was –

25:19if you jumped around a ton. And now that seems to be breaking down. And part of the reason that's breaking down is that it's become purely mercenary. Yeah, the transfer portal, the justification for it largely is that the coaches were doing it all along in a power grab, in a money grab. And here we are. And it's not just that partners are doing it, but the move to minimize equity partnership and create these non-equity tiers that allow the existing equity partners to refuse to share the wealth. Well, that just increases the incentives and the justifications, frankly, for people to jump more. If they're not going to get an equity ring, then they may as well jump.

26:00And those are people who probably would have stuck around. So yeah, no, I think it's, the whole system is broken. All right, so what do you want to do for our last kind of prediction? Do you have a fun one? I mean, they're all fun. They're all about law. Do you want to talk about the billable hour? Fun for normal people. Sure. Let's talk about money. We'll talk about the billable hour. I think that we've certainly seen in the legal media in the beginning of the end of last year, beginning of this year, people saying the billable hour is dead. Long live the billable hour. Yeah. So the billable hour has not been disappearing as quickly as one would think based on the pressures upon it.

26:44that's because the legal industry is you know complacent in a lot of things but i do predict that the billable hour is going to take some severe hits here uh i don't know when it's gonna people are going to come around to it but the the problems are mounting for the billable hour is this sustained answer to how we make money in legal uh the ai stuff you know there's lots of problems with it. But one of the things that's not a problem with it is it reduces the amount of time low-level people have to do low-level tasks. And that's where a lot of leverage is. Since we have a firm money-making model based on leverage, that's a real problem.

27:27And you can't bill for time that didn't happen. You are going to need to figure out how to make that money back. There proposals to have like$10 ,000 billable hours. I don't think that that's particularly justifiable. I think that clients are going to balk at that. We have seen clients grow, according to some surveys this last year, grow more and more comfortable with alternative and value-based arrangements. I think that's got to be, it's got to happen. And I would say it would have happened last year uh it didn't really get to that point there was a few cracks my prediction is that it gets to that point this year but maybe it'll but it probably will be just cracks but a certain but at some time here in the near future we're getting there is what you're saying yeah like there will never be well it's not going to go away completely because there's always there are always certain tasks where the hourly model makes more sense you know you're you're in trial for x number of hours like you're physically there.

28:32Those sorts of things make sense for that kind of billing. But especially at the big firms where volume happens, you know how much it costs to draft X agreement within margin of one way or the other. You know how much work goes into a summary judgment motion within a range. If you can offer clients a definitive, this is what it's going to be, you're going to need to do that because when the AI stuff comes along, it means that, you know, those tasks that currently are, insert value, worth$200 ,000, let's just say, discrete tasks that's worth$200 ,000 now, when it can be done 15 % faster, are the lawyers going to accept 15 % less money?