A Riot By Any Other Name...

0:10Well, happy November to everybody. This is Thinking Like a Lawyer, where we hear it above the law, get together and talk about the big stories from the week that was in legal. I'm Joe Patrice, your master of ceremonies for this dark, dark, you know, staring into the abyss of the legal industry. So we're going to go with a cheerful note for today. I mean, like whatever. They're not much cheerful to be talking about, I suppose. Anyway. You know, denial is not just a river. But I'm not in denial. We want you to be in denial. You should lean into it. That's not how that usually works. Correct. But we live, as you mentioned, in dark times.

0:56So that's Catherine Rubino, who is also here. Chris has not really piped up, but Chris Williams is here too. I just like watching trees burn. That's what's happening here. I'm observing. Oh, exciting. It's small talk time. Small talk. yeah so you're watching you're watching trees burn i hit that i hit the sound effect before you started that sentence oh no just to be clear i was referring to that exchange that exchange was like watching trees burn fair yeah well i mean i i've been in an existentially bad everything's existentially bad feel since i attended the rule of law conference that we talked about a little bit last week uh but i did some more coverage from it and yeah it's still still haunts me you know, in ways that Halloween has not.

1:43Thank God. I heard you do like a chopped up when looking into the Abyss reference. I was like, is Joe reading Nietzsche wrong? Like, this is supposed to be a hopeful work. Yeah. It's just legal tech. You're actually applying the nihilism correctly. So carry on. That wasn't a tech conference. We will get into tech a little bit here, though, as we talk about our main stuff. Tech is Joe's eternal recurrence. It just always comes back to. No, there we go. Small talk wise. Yeah. How's everybody doing? I'll tell you, as a non-government employee, I was actually impacted by the government shutdown the other day.

2:20Interesting. Your SNAP benefits were eliminated. I don't know. No, I just – I met up with folks from law school who have government jobs who – you develop a rhythm with friends over the years where you know that, oh, this is a person who's going to have a relatively low-key, will have a couple of conversations and then move on. But no, they kind of went on a rage because they're currently – They don't have to go to work tomorrow morning. They don't have to go to work tomorrow morning. I mean, they had a time to. Yeah. So that is. So you were the responsible adult in that situation? Yeah. That seems wild.

3:00Yeah. No, I had just conversation kept going, kept going, kept going over everything because we had the time to have a big download, which is good, but also not what I had been planning on. And so therefore I had to take the late train, which, you know, that is always a brutal train. But there's probably a joke there or some sort of a setting of like the late train. I don't know. But what time is the late train? Midnight. So, yeah. Where are you going to Georgia? No. There you go. In the spirit of government layoffs, my Halloween costume, completely unrelated, but I will still make the connection.

3:43I was a freelancer But in the like historical sense of the word Because it comes from people that were like Basically hired guns In like the 1800s So like they were men with lances And they didn't have like a lord that they were attached to So they were literally freelancers So I was telling people that little tidbit As I had what it was effectively It looked like something Shrek would wear Just like a linen shirt Some black pants And I happened to have these So they look like Burks but the top of them looks like a knight's shoe. Like a clog. Yeah, so I was a freelancer, and that was nice. That's good.

4:23That's good. I transitioned this weekend from Halloween to Christmas. There we go. I can hear Mariah Carey beginning. All I want for Christmas is November. The better holiday as an adult is Thanksgiving, which is food Christmas, and i wish there was more there was there was more cultural appreciation of it was a of that i mean i love thanksgiving this is not an anti-thanksgiving space here i just i have a lot of christmas trees and a lot of stuff that has to get done so i want to really i want to appreciate it for two full months so you know don't you have christmas trees up in your house in march like it's not like christmas trees are like a month dependent thing for you no i thought for a while i was going to try to do like a tree that changed decoration every month, like for the different holidays throughout the year.

5:15But eventually we had to we had to get rid of it. It was not sustainable. There's a viral social media post who I don't remember the original author, but who says that the war on Christmas will continue until it ends its illegal occupation of November. And I thought of that while we're conversing here. I would be very happy. We should move Christmas to January 25th, I think, because I think that it's really much sadder in January than, I mean, I get that like it's closer to the equinox and all that kind of stuff, but really January is the most depressing month. So if we had something fun to look forward to, I think that would be a W.

5:57Congratulations, you invented Eastern Orthodox. We're going to do all this in January. To your point, but further, I just think we need to bring back Saturnalia proper. Yeah, sure. First off, to be frank, it would probably make our supreme leader happy because, you know, like in Saturnalia, the king, which he is now, will like parade down the street. So he'd be like, oh, parade. And they probably just highlight the IQ test from him while it's going down. It could be fun. I think Saturnalia was a holiday during the Republic era, which would predate a king. I thought it was just a class, a whole class thing, but I thought it predated the Imperium.

6:39But that's neither here nor there. But yeah, no, what we've just proved though. So the Roman Empire is your Roman Empire? That's exactly what I was about. That's the joke I was going to make. What we proved is that Chris also can only think about the Roman Empire. Did you hear that there was like some history exam that 140 students got exempt from because they were taught about the wrong Caesar? Yeah, I did see that in England. Right. Yeah. Wild, wild, wild stuff. Yeah. It's a problem. They all kept using the same name over and over again. I spent all this time studying and there's no mention of croutons.

7:12There you go. You know, we got off of the Halloween conversation, which was sad because I was prepared to talk about that more. And then we just kind of. What did you have to say about Halloween? And on that note, we, sorry, we've got to get to the, we've got to get to the reason we're here, which is to complain about the week and passing. Oh, Chris brought the trumpet into existence there. Yeah, so what do we want to talk about? We, after that extended, and I thought pretty fun. You know, we don't have to end small talk. Like, we don't have to talk about the horrible things in this world. Okay.

7:49Fine. All right, fine. We will. Listen, if you're going to if you're going to wear a Catherine costume, that was that was that was the Catherine statement.

8:00So we have a few stories. One, there are a couple of lawyers. You know, we're talking about lawyers who are out of work because the government shutdown. The DOJ does not actually has not actually laid off a bunch of people over that because they still need to prosecute things. But they did suspend a couple of lawyers out of the D.C. U.S. attorney's office because they told the truth. Yeah, it's not even in like, oh, they dared to say the things that no one else will say. You pull the, you know, curtain back from the wizard. This is just like facts. So there's a guy who was convicted of bringing a bunch of illegal guns and a machete to Barack Obama's house immediately after.

8:46Not encouraged. We as a society should discourage that sort of behavior. He went there and, you know, filmed himself saying, like, we got him surrounded. This was in response to Donald Trump putting out on his social media Obama's current address. That man is still alive? The man that went with the weapons to Obama's house? Yes, very much still alive. Well, we'll get into that. So he does that. He also threatened to blow up a federal building. So, you know, he's being prosecuted for that. He was one of the many people who was involved in January 6th who got a pardon. Obviously. Who got a pardon from the from Trump.

9:27So in his sentencing memo, I don't know if anybody like has written a sentence is familiar with sentencing memos. These are. Okay, white collar criminal attorney. You are obviously our in-house expert on sentencing memo. There's no reason for that attitude. I'm setting up the conversation. That's what he's saying. He's saying, I have reason to be aware, but you know. Right? Like, come on. And Catherine, just to be clear, Catherine, just to be clear, don't you ever make me defend Joe again. Yeah. You have one a year. So with sentencing memo, This is where the government will lay out what they think the sentence is.

10:04Obviously, the conviction has already happened. Obviously, there are quote unquote guidelines and a range that they don't necessarily have to follow these days. Sure. But so they laid it out and said that he should get 27 months. The argument for that was not only the severity of the crimes of trying to blow up buildings and going outside a former president's house with a bunch of illegal weapons. but uh criminal past criminal history plays into this too and while he was pardoned for january 6th he you know participated in it and so they said as part of his criminal history this is a guy who took part in a riot and now he's doing this maybe it should be 27 months this was signed off upon by the u.s attorney for dc judge janine uh who seemed to have no problem with it probably because it was accurate.

10:56But then the White House got involved. They appear, according to senior, according to sources, senior folks at the White House found out that this happened, immediately suspended those lawyers, kicked them out of their offices, locked them out of their emails, and then resubmitted a new sentencing memo that does not reference the riot, that erases any reference to the fact that the guy went to Obama's house because Trump had doxed Obama and put out the address and ultimately it put the judge in a position where the judge sentenced the person to time served which in fairness was 20 20 months or something like that because he's been held that long so they it was kind of in that right even if the 27 had been imposed it was only going to be really like another seven months or something like that i just i just want to compare and contrast their reaction to this to when some person was outside of Kavanaugh's house.

11:54Right. Not even outside. When some person was several blocks away from Kavanaugh's house with weapons. And that person got, I believe, eight years. Is that what they ended up with? Yeah. And the right wing was absolutely melted down over putting somebody in prison for only eight years for the wildly inchoate crime of being in the neighborhood. And that's because that person, you know, said they were wrong, showed contrition, had no criminal history, you know, didn't partake in a riot to overthrow the government or anything like that. And so, therefore, eight years seem to be a reasonable, reasonable amount of time.

12:33And eight years is a long time. Here's the other thing. Yeah. That gets me about this story is the Streisand effect of it all. If they didn't fire these people, if they weren't trying to micromanage the shit out of the Department of Justice, would we even know? It certainly wouldn't be a story because, as we said in small talk, the world is freaking ending out there. This would not even—oh, a rioter got sentenced to 27 months— Nobody would have blinked. It would not even be on page A27 of a newspaper. It would not be mentioned. There's too much other shit happening. Well, just to clarify on the points of the discussion.

13:15So just so I understand it, the issue is that a thing that he was pardoned for factored into prior experience sentencing. Okay. That sounds like a legitimate issue. Because like, I would imagine that like, what is a pardon, if not a blank, a slate cleaning? Right? That's a great point. So I think that that was a good move to make. Because, again, I don't know the general jurisprudence stance on the weight of a pardon. But, for example, I would imagine if a person was, for some reason, like, say, convicted of a felony at a federal level, of course, and for that reason they were no longer able to vote, and then the president decided to pardon them, I would assume that they'd be able to vote again.

14:00Right? Because, like, the pardon is a slight cleaning in my mind. Is that not the case? So that's a great question, and it is a disputed one. Generally speaking, people take the stance that if you're pardoned, you are – you have to acknowledge that you had been convicted and that you had received post-conviction clemency for it, which means that you are still there and it should still factor in. Other people, though, think that that shouldn't be how it works. But generally speaking, the tradition has been that you are still a convict. You, however, have been pardoned your crimes because it's not in theory.

14:39It's not given to somebody because they've decided that the conviction was wrong. It's given to somebody in the logic of this person was convicted, did do this thing. But we don't I, as the president, believe that they should not continue to be punished for it is how it's supposed to be structured. But you're right. Now we're in a position where we're issuing, for instance, preemptive pardons for people, which like Biden had to because he was afraid of the weaponization of the Department of Justice under Trump. What a weird theory that he had. And so now that we're in that world, it does raise that question of is that what we should think of pardons as anymore?

15:18Yeah, no, absolutely. But beyond like the beyond the easy like jabs, ha ha ha. I do think it is a I do think it is honestly an interesting question. And like personally, I would probably have to look into the. Let's not let's not seen wash what happened. Right. Because none of none of the reason why they fired or suspended these DOJ employees has anything to do with the esoteric meaning of what a pardon means. Right. And you know that because it was signed off on, you know, initially. Right. It is not about that. And also we know it because the parts of the sentencing memo that talked about what Trump did that led to the actions were also scrubbed from the filing.

15:58This is everything to do with the micromanaging of the historical record of what we think of January 6th in 100 years. Right. Well, and that gets to, I think, Chris's point, which I think is true. I think both things can be true, though. Yeah. No, I agree. And I think Chris's point is true. Like, what does that mean? But also, it's not like the fact that he pardoned those people means that the action didn't happen for understanding. it's all this gets to a deeper criminal justice question to what extent does prior criminal history you know properly weigh into this sort of stuff right like you can't be convicted of something because you've done stuff bad stuff before like crimes are supposed to be treated independently that said in sentencing we say if you've already beyond a reasonable doubt committed the second crime now we look at that within a greater context of recidivism and whether or not that changes how the standard is different and so to that extent whether or not it's a slate cleaning the fact that it happened does speak to whether or not you're a person who's going to commit more crimes in the future and so you know like it really is a deeper philosophical question that is interesting i do think you're right catherine that it has nothing to do with that but chris is right that you know there's a philosophical question here and this may be a stretch.

17:25But so the person issuing the pardon doesn't become a separation of powers issue if the person operating in an executive function says this thing should no longer be a factor, but the judiciary is like, no, it should still be a factor into determining if prior action factors into how we are regulating this particular behavior at a later point. Interesting. So the pardon power is exclusively executive, but whether or not it should count, whether or not pardons erase history. Yes, whether or not prior actions factor into future rulings is a judiciary function. But if the pardon is a slate wiping, which is an executive function, the executive should be able to say you cannot factor in this prior event into future judgments.

18:17So there's a tension there. I think this goes back to how the proper way to view them historically was right, that you view it as, yes, you are a convict, but you don't get punished for that anymore. And then it fits in, and then it all works. But yeah, like this is a question. I will say at that conference I was at, the rule of law conference, this wasn't the subject of a specific panel, but there was definite – more than once people referenced taking away the pardon power from the president is a high priority to restoring the rule of law because at this juncture, it is no longer being operated.

18:55And one example that somebody made was that – what was it? They gave an example just to show the distance that we've come as far as pardons go. Now we're giving them to like Binance's chief because Binance helped create a meme coin for Trump. But 30, 40 years ago, it was something like the president gave a pardon for someone who gave – and the example I don't remember, but it was the most mundane of possible crimes. It was like somebody forgot to put a stamp on something. And that's what it used to be for. And here we are. All right. Well, we should move on. We've been on this for quite some time.

19:32We'll take a break right here. Oh. Okay. Full credit.

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21:13All right, well, we're back. Let's jump ahead to another topic just to kind of break up the conversation about the government a little bit. The billable hour. You know, it's something that people have been saying is about to die forever. Ever. Ever as long as I've been involved in the legal industry. Sure. But also the stodginess of the legal industry very much militates towards keeping, if it ain't broken, we're going to bill$1 ,800 for it. So we have an ain't broke, don't fix it situation. We have just general laziness. Wait a minute. Is it ain't broke, don't fix it? Or is it broke, we don't care?

21:57Well, I think it's ain't broke, don't fix it. because so we in my my conversation about this was occasioned by well I'll get into that in a second anyway I begin in my conversation about this in my article from a specific premise which is lawyers like to make a lot of money yes all right let's let's let's hold that as a golden rule let's assume that is an inviolable value here proceeding from that value they like to make a lot of money, the billable hour allows them to make a lot of money in ways that meet ethical rules and so on and so forth. My contention here, and this was occasioned by a new report that came out about AI and adoption of AI and concerns that lawyers have over it.

22:43One of the things that happens is a lot of people are chattering about this is going to make legal services so much more affordable because they won't, when it doesn't take 10 lawyers a month to do something. It takes AI five minutes, you know, that all that time is picked up and then, you know, clients don't have to pay for it. And that's the thing. You can't charge for time that didn't happen under a billable hour model. Of course. Right. But you don't need to use the billable hour model. Yeah, exactly. You don't have to use the billable hour. You can do something else. And that's why I think we've lived in a world where the billable hour has been.

23:27Wait, wait, wait, wait, wait. Yeah. That's why I'm rolling that back. Is that true? Like, is there really no fluffing that can happen under the billable hour model? Correct. Ethically, correct. Ethical rules in all jurisdictions would say you can't start billing for hours that didn't happen. So you can't say, oh, you know. It should have taken me five hours, but I was lickety split. Now, that said, what you can do is you can charge, you can say, we aren't charging by the hour. We charge some sort of specific fixed price for something. You can say, oh, you have a document review that involves X number of documents.

24:05We can charge by the document or whatever and be - Or the review will cost$5 ,000. And, or, yeah, well,$80 ,000 or whatever you set it as. Yeah, and you can set it at that and you can make that be what you assumed the amount of billable hours would have been under the normal system. But you have to like set a fixed price. And I think there's lawyers who think have historically clung to the billable hour because, oh, what if we're wrong? And what if we end up wasting a lot more resources than we than we predicted on this? And, you know, then we lose money. And that's true. But the flip side is also true.

24:43And that's where I think you're right that like fundamentally the stodginess of the industry was part of it for sure. But the we might make less money was the actual reason. And now that they might make less money because of other factors, they're going to be fast to change. So like as I see it, if AI, and put aside whether or not it continues to evolve and do the tasks that people think it can do, but just the tasks that it can accomplish pretty effectively now, things like accelerating document review, things like helping – Poisoning the environment. And I mean, not really, not in any like big, you know, something was like eating one hamburger is like a million, a million queries of AI.

25:32So let's slow our roll about how about where it fits in that. It's still, it's still not great. But in the grander scheme of things, we put that in perspective. And remember, I have the AI skeptic hat of I think a lot of this industry is going to explode because I think it's stupid and it's a bunch of money that is being wasted on things. But the tasks that it can accomplish very well will reduce a lot of time. There are three things then that a law firm can do. It can either accept that it makes less money and pass savings on to a client. Lol. it can change its hourly rates such that it retains its current revenue stream with fewer resources going into it.

26:21And remember, this isn't just hours. It's also leverage. It's not just the hours. It's the people you have doing those hours, because right now you have 10 associates working around the clock to get that done. If it's one associate who pushes a button and gets it done in a day, that's, you know, bigger too. So you can up the billable hour such that you're billing out$10 ,000 an hour for that associate or something like that to get that money in. Even if that's the same amount of money, I think that's something that clients are going to find ridiculous and have a hard time justifying. And so even if it's the same amount at the end of the month, they're going to prefer something that is fixed.

27:03And I think that's why I feel like the billable hour for some tasks, some tasks you can't get around it, right? You don't know how many hours you're going to be in trial and you're going to bill for the time you're in trial. But four tasks, document review, first drafts of motions, stuff like that, that AI can and does currently accelerate. I think you're going to see a push towards more value-based. Otherwise, firms are just giving up money to the clients. Yeah, and let's be clear. I don't think that they're going to get a ton of pushback from clients because they're still that fixed amount of money so they can plan their budgets more effectively.