Bonus Season Begins In Earnest

0:11Gobble, gobble. Welcome to a special Thanksgiving edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by some of my colleagues Catherine Catherine and Chris Williams are here. And we are talking like we usually do about the big stories of the week that was in legal. This is obviously a holiday week. You're probably getting this episode right as you're trying to jet out of the office or more accurately hunkering down to spend the weekend looking at choice of law clauses or whatever it is you're going to do all weekend. But we are here to talk about the big things that happened in legal.

0:46And we will begin as per usual with a little bit of small talk. Small talk. All right, I got a question. Go for it. You mentioned it is, in fact, Thanksgiving week. What side or just like holiday treat are you most looking forward to? I feel like we've done this one the last couple of years, right? I know, but I'm also cooking this year as I usually do, but I'm also just always searching for inspiration. You know, like obviously the main dish I love a lot, but I'm a big stuffing fan if it's done well. Can I tell you what I do for stuffing? You may. I do stuffing muffins. Is that cute? The best part of the stuffing is the crunchy outer bits.

1:25Okay. So I make the stuffing and then I like form it into balls and I put it in a muffin tin and pop it in. So everybody, every bite, everybody, every serving of stuffing is ideal. It's got the crunchy outer bits. It's got the mushy middle. It's a great combination and I feel like it is sort of the egalitarian version, right? Like everybody gets the best version of stuffing. Huge. Stuff and muffins. And also it sounds really cute. I don't know. That feels wrong. I feel like one of the good things about stuffing is like it absorbs the juice. Like I like when it has like a nice. And he's gone, which I assume was the Thanksgiving, the Thanksgiving spirits mad that he was slandering the concept of stuffing.

2:10It's not actually a muffin, but right. It's got like all the crispy outer bits. And to pick up on what Chris was starting before he was cruelly cut off there. He was saying that like one of the good things about stuffing is to suck up the juice, which I agree with him on. But I actually think that militates a little bit towards what you were saying because if it's crispy, then it stands up a little bit better to that. And so it'll soften. Yeah, that's a really good one. Yeah. I mean gravy also kind of an essential part of the whole thing. As one of the cooks for Thanksgiving, I find the most stressful part of it because everything else, I don't know.

2:45you can like prep or cook or do so much in advance that like you kind of if something goes wrong you have time to plot and plan but because you use like the drippings from the turkey you can't you can't do your gravy until after so like everyone's starting to mill around appetizers have already been served and you're just like whisking for your life right there trying to make sure there are no lumps so there was a conversation on um one of the various shows i can't remember if they shut down full cast or one or vacation Bible school, like shows done by Jason Kirk over there, where he and his wife were having a conversation about sides.

3:24And one of them, she was talking about that everyone else was confused and bewildered by, but I was with her. I do think of it as a side and I haven't had it in years because I understand her pain that like it is very regional and not really a thing elsewhere. But noodles is very much what I would think of too, like homemade noodles cooked in the broth. Yeah, cooked in some of the turkey broth that comes out. But that is definitely a thing in like a I think she said she was from Kansas or something like that. Midwestern? I had it from Iowa. On Thanksgiving you had noodles. Yeah. I mean I generally like the noodle thing more with beef but it can be with turkey too.

4:06I mean listen, I grew up on Staten Island. Everyone talks about you have to have lasagna for Thanksgiving, which I do not do. I have holidays that are made for Italian food. It is Christmas Eve. It is not Thanksgiving. Having served his penance for slandering stuffing, Chris is now back with us. What were you saying about stuffing? Well, the thing I hate the most about stuffing is Zoom failure, but no. So I just kind of grew up with this idea that stuffing is, you know, stuffed in a turkey, not a— Oh, you're an inside. So that is a constant battle. all we have at my house too because my mother is obsessed with putting in the turkey but i have watched too many cooking shows that tell me all of the foodborne illnesses that are more likely when that happens that i well what pays better homage to the history of thanksgiving but getting sick um but no um i'm i'm i'm a i guess i'm a traditionalist in this sense i mean joe knows i think the better bird here is ham but if you're going to have stuffing it should be stuffed in something and i don't i don't really think of it as being stuffed in the uh cupcake dressing right yeah well there's that fight too yeah well yeah i mean stuffing is when it's in the bird dressing is the same thing but when you cook it outside the bird yeah it's like it's like the lava magma distinction and as a like i think words are fun in that regard um also to be fair it's never been a big piece for me so when people say stuffing whenever they move outside of like the the box stuff which i'm assuming you do um i really don't know how they season it so part of it was like a gut check refusal but it may actually be good i just don't think about stuffing muffins let alone i don't think about stuffing let alone stuffing muffins so part of it was just a being scared of a new concept so i will give you that well all right also quick uh non-thanksgiving related thing saw the eddie murphy documentary very good kind of reads like an advertiser for his career but that's also what documentaries are it was really nice check it out if you get a chance to okay so after that let's talk about the you know the big story of the week it's bonus time money money money money yes uh last week uh cravath announced it's a year-end bonus scales, the first major big law firm to announce their year end bonuses.

6:33And they did the same scale as last year and the year before that and dot dot dot. So it's a pretty familiar scale. But in addition to the year end bonus numbers, they also announced special bonuses, which sound fancy and nice, except that they also just matched the Milbank scale. Milbank, If you recall, we talked about it over the summer, did special bonuses then. And I predicted correctly that the major big law firms would wait until year-end time, but then pony up that same amount of money as part of their year-end numbers. And that is exactly what happened. So we're looking at numbers that range between$15 ,000 for people who just graduated law school.

7:20So prorated$15 ,000 bonus to$115 ,000 for your most senior associates. in addition to the special bonuses, which range from$6 ,000 to$25 ,000. Yeah. Yeah, so Milbank, who has been establishing itself as something of a leader on compensation, still, you know, they're going to get washed in conversation, washed out a little bit by the fact that Cravath led the drive of the annual bonuses, but they shouldn't be because they are the ones who drove the summer bonuses that while their associates have had it in their pocket now for a few months, everyone else is going to get because delay all you want.

8:00Milbank is as inevitable as Thanos. And eventually you're going to have to match what they gave over the summer. Sure. That is absolutely true. And I think it's interesting because Milbank, we're recording this on the Monday before Thanksgiving. It's interesting to note, as of right now, Milbank has not yet announced their year end bonus numbers. And a lot of the chatter kind of going on in big lost circles is will they push the envelope? Will they raise it in some way for some or all of the classes. You know, the longer they wait, the more it feels like that's something they're going to do. Because again, they've spent a lot of time and effort to trying to make themselves be known as the leaders in this space.

8:39And that's, to me, what the leader would do. Yeah, I mean, it is interesting. It has a lot to do with what people predict the financial outlook to be. So we're obviously, despite the administration's attempts to claim that it's not true, including over the weekend and they're firing of all the people who count the stuff so that we can't get accurate numbers about it we are absolutely in an inflationary period which means people need more nominal cash but we are also in a period where that i think a lot of folks me included have suggested is probably an ai bubble on the brink of bursting which when you dig into it it seems as though those companies are are mostly holding up the entire economy by themselves and if that bubble does falter which i guess we had earnings report last week from nvidia that actually beat expectations which i mean we'll see how accurate it all was there's some indication uh there was a pullback as soon as they came on they came out the stock rallied and there was a pullback when some people started digging into the report a little bit more i mean I mean, not much, like a 1 % pullback, but there's some reason to believe that maybe they're counting some revenue that is – that's kind of those IOU kind of revenues that may not materialize.

9:58I mean the entire AI industry appears to be based on a series of AIUs. Yeah. Yeah, but assuming they are doing well, that certainly pushes off the fear that it's about to burst in the next month or so. But there is serious concern that that's what's holding up the economy and could be a problem. And if you are a law firm, do you want to start committing tons of resources to people when you know there's about to be a possible recession? Well, I hear you, but let's not forget that a lot of this cash is not – this is not future – this is not raises. This is bonus numbers, right? So if not to the associates, they probably get dispersed to the partnership.

10:38They don't get kind of reinvested in the firm for the most part. So that's also – it's not like they're being miserly towards the future. you know it's it's other people are getting the cash to the inflationary point remember at this point so like a couple years ago this discourse about quiet quitting on the one hand it's hard to feel sorry for these people because they're like oh no you're only getting the same 25 000 whatever you got last year but knowing that inflation has happened and that they're paying the same amount as they got last year once you factor in inflation they're getting paid less yeah um so you know and i don't understand the thinking that like oh milbank is gonna has a potential coming in over what was already being established but even if you're gonna factor that in why not just account for cost of living increases you know because you know it doesn't cost that much for an individual their individual bonuses have gone up because it's the it's the scale that has remained stagnant but in each individual as you go from being a first year associate, you make a$20 ,000 bonus.

11:38The next year, you're a third-year associate, so you make a$30 ,000 bonus. But the scale remains the same. Yes, your point remains, but as for the individual, each individual is making more money. But no, it's a great point that in an inflationary cycle, you are essentially getting a pay cut when things stay the same. And it's also true that, to your point, Catherine, about the, this isn't compensation, it's a bonus, and that's a way in which you can take action now without committing yourself to the future. But query how much that's true. I feel like it is hard to go backward on bonuses. Once a bonus is set one year, going backward is a signal in and of itself.

12:19And so I don't think anybody really wants to set a bonus number that they fear they might be under next year. Yeah, and that's what the special bonuses kind of have been for is to kind of say, we are promising this next year. It may or may not happen next year, but it's happening this year. This is kind of our extra money. The kind of year-end bonuses are the countable, you know, what you can kind of bank on. The special bonuses are not. Maybe that's what Milbank will do. Maybe they'll have a second special bonus, a special, special bonus. Yeah, and this is the Christmas vacation theorem that we've talked about in the past.

12:54Several years ago, Vivi Chen, who writes the Ex-Careers blog and writes for Above the Lock, an article from time to time, I had an article several years ago at a different publication about bonuses and whether or not attorneys should think of those as something they're owed because it really is a bonus. And I've always referred to that conversation as the Christmas vacation logic because in that movie, one of the points is that he counts on the idea that he's going to get his bonus. Even though the word bonus is attached to it, it is something that you count on. And there is a difference between a bonus, which is, oh, you did well, and here's some gratuitous money and bonuses that are so institutionalized that you count on them.

13:38And that is the debate about these. And I think you are right that Milbank, who I don't think necessarily intended it this way, has kind of created a market for the gratuitous bonus being that summer bonus where other people add that on not in the summer and call it the gratuitous part, which allows them some flexibility to pay without changing what people bank on. I'm starkly with the uh waiter rule like you're a dick if you don't tip and whether it's called a dip or a bonus is discretionary but you know it's it's functionally the same thing yeah and I mean this is a function of how like kind of New York Wall Street save situation this grew out of works you know like the financial industry operates largely on people being paid quote unquote bonuses at the end of the year which is you know massive amounts of their actual compensation uh it's just kind of the way some of this works.

14:35And yeah, I think people do rely on it to some extent.

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15:16All right, we're back. Let's have a conversation about – we were talking about very good lawyers who are getting bonuses for the year. Let's talk about very bad lawyers. uh lindsey halligan who is the i don't even know what the correct title is is an interim act they don't even know what the correct title is a big old faker i think is what we're technically calling her yeah so the the current squatter in the u.s attorney's office in for the eastern district of virginia squatters rights yeah who has has that job query whether or not it has any authority to sign anything the department of justice understands she does not yeah and they're like backing the things up uh brought into this job because she's a real hardcore trump loyalist she's actually an insurance lawyer she has no experience or seeming competency in running a criminal prosecution uh and it shows uh so what the new we already had low expectations for her but last week Somehow she managed to go even lower, which – How low can you go?

16:21So in the Comey investigation, she – they indicted James Comey, and things were off the rails early, right? Like early on we knew there was some conversation very early where the judge was like, what is this with the indictment? Because the indictment – there was a version with three counts and another with two, and one of these is real. And that was brushed off at the time as she's just kind of weirdly incompetent, but like whatever. It turns out that that was the canary in the mine moment. And that what had actually happened is they had rejected one of the counts. The grand jury had indicted on the other two, but they didn't get that appropriately signed.

17:05Then they drew up a new version that just had the two counts that the jury agreed to. But then the grand jury was gone at that point, so they couldn't sign it. So then they just went to the foreperson and said, hey, can you just sign this saying that the grand jury agreed to these two? Which, quote unquote, they did if you believe that the new version accurately reflects what was in the old version. But, you know, the reason that you can't do that is because the grand jury actually has to look at the version and make sure all of them agree that it says that. So they turned in an indictment that was illegal, and the argument – at first they kind of came clean.

17:50Ultimately, they kind of came clean that that's what was going on. They had a timeline of events that made it clear that that's what happened. Now they are backtracking and claiming that, oh, no, the grand jury really did see this, but the timeline that they already swore under oath was there. It was not – it doesn't fit. But they are – yeah, they're saying on the record that they're under orders not to talk about certain aspects of this. It's really, really bad. So I don't want to be a Lindsay Halligan apologist. You don't have to be. Good news. Good news. But here's the thing. This is why even though we're all called lawyers, there's a difference between an insurance lawyer and a criminal lawyer.

18:38Yeah. Right? Like these specialties, like you don't get a different title. You're still the same thing. But like you can't just – we might have 25 years as a very good trust and estates attorney. That doesn't mean you could do IP tomorrow. It just doesn't. They're different. Good lawyers know that about themselves and know that what they're good at, what they have experience in is not the same. Yeah. And this is someone who was elevated well beyond her capabilities. Clearly. And not even just capabilities like, oh, you know, there's there's some people in the Trump world who are might eventually develop those expertise, but only been in that area for a year or something like that.

19:19This is just kind of cross porting somebody into a wildly different arena. I don't even think she knows what she doesn't know. And that's not even her fault that she doesn't know it. It's not like she's a bad insurance lawyer because she doesn't know this. but it does mean she's wildly unqualified for the position she's been put in well to put blame on her i think there was a point where she should have been like this is beyond me oh sure and i don't know if that's been the case but it looks like her case was weaker than the sandwich case oh it's real bad yeah yeah it's terrible it's based on very little uh well and part of the issue also less than mustard yeah it doesn't pass the must okay guys it doesn't cut the mustard yeah there we go that was horrible also also joe one thing uh to point out for people that didn't read the article there was a point where in like the caption underneath the title he could have been like hey this is her handling of the case was lackadaisical instead he threw a six seven reference yeah so like shouts out for like gen z brain rot but also why listen i uh i have my fingers on the pulse of the new generation i understand today the youth listen considering this administration it should not be the time to admit that you're fingering the youth yeah oh okay wow i was gonna make another sandwich joke before that now now i don't know but i was that in bad taste yeah oh yeah no i mean i understand you're relishing this but but uh no really really stopping these food puns okay okay all right uh but you know i only get So, of course, the big problem here, of course, is that one could have, for instance, called the grand jury back and gotten this done.

21:08But they couldn't do that because the statute of limitation was going to go. So they didn't have time. So they just haphazardly threw this all together. Again, the statute of limitation was about to run out because multiple career prosecutors were like, there's no crime here. All right. Well, we should we should move on real quick. Let's take a break and finish this show out. All right. So for the Rick and Morty fans out there, this is not that Jerry Smith. There is a Judge Jerry Smith. Yeah, no. Although all of my pre taping prep is out the window. Although I'm rolling away like pickle Rick. This Jerry Smith has a little more a little more confidence, but it's equally undeserved.

21:53Ill placed. Yeah. So Judge Jerry Smith of the Fifth Circuit is an old Reagan appointee. He always he's got a bit of the drama in him. Even when he's written opinions that I think are correct, but even when they are correct, they are self-indulgent and drama-filled. In this instance, he was put on the three-judge panel in the Western District of Texas, which, of course, voting cases have a whole procedure to them, about the Texas redistricting effort. And that case involved a Trump district judge and an Obama-era judge and Smith. And it was a 2-1 that struck down Texas's maps as illegal gerrymanders.

22:35Obviously, you can partisan gerrymander all you want, according to the Supreme Court, but you cannot racially create gerrymanders for the purpose of racial discrimination. And there was a whole lot of legislative evidence to suggest that's what happened here, up to and including. The legislature originally said when Trump said, hey, I want you to redistrict all this, they said no. and then he started talking. He had his civil rights division of the DOJ say, oh, you should do it because we can get rid of some of the Latinos in this district and move them over here. And they were like, oh, okay, we can do that.

23:11So there's a lot to suggest this was that way, which is why the Trump judge, who is a deeply conservative judge who was formerly on the Texas Supreme Court, ruled that, yeah, these maps are illegal. And Jerry Smith decided, no, they're not. And he wrote a several, you know, over 100 page dissent in this case, but large swaths of it. Well, there were two there. It kind of came in two modes. There was whining snowflakery and then wingnut. So the whining snowflakery is he goes at great length to attack Judge Brown, the Trump judge who wrote the majority opinion, accusing that judge of horrible misconduct and the gravest abuses of his entire judicial career that he's ever seen.

23:57And what that boiled down to was they made the decision, they wrote the opinion, and Smith said he just wanted more time to write his 104-page completely useless dissent. Because that's the thing with a dissent in this sort of a case. It does nothing. That is not true, Joe. Oh, yeah. It is an audition piece for future elevations. No, it's not. Not for a judge who is already. Well, he's too old, yeah. Yeah. No, this is just, so he was complaining about that. Now, of course, what it does do is asking for more time like that allows one to drag out the decision in a way that prevents the decision from having any effect.

24:38The Trump election strategy. Yeah, it was dragging his feet. And he claims, oh, no, I wasn't trying to do that. But I mean, that's the only actual explanation for any of this. The decision came down so fast because under the Purcell principle, we mandate that courts should make these decisions quickly so that they don't interfere with the actual election. This normally meant you don't change the rules right before an election. The Supreme Court has taken the stance that they can drag that out and be like, don't do it a whole year before when it helps gerrymandering. In this instance, it was before the filing deadline for candidates.

25:15So the judge was like – the majority of the panel said we got to get this done now so that if any appeals are going to happen or whatever, they can get done and decided and dusted long before the filing deadline. He wanted to go the other way. He wanted to drag this out basically to create a situation so that future – as it went through the appellate process, eventually they'd say, well, this is too close to the election even though that election is not until November of 2026. and we can have a gerrymandered map and not worry about it. So he wanted to basically bless the illegality by running out the clock, which, I mean, the Supreme Court's going to bless the illegality anyway, so I don't know why he's worried about it, but that was that part.

25:57He's doing his part. Yeah. And then the wing nuttery came in when he spent a lot of the decision talking about George Soros, who is not in this case, but is a useful anti-Semitic trope on the right. And so we got 17 references to George Soros being the evil string puller behind everything here and behind the effort to make sure that people get to vote that dastardly plan. One quick tie-in. Didn't mention this in small talk, although I thought it was kind of medium talk because, you know, got distracted by stuffing, which matters, you know. I do wonder how much of all of the radicalized judiciary we're seeing is because of the success of foreign nations intervening in American politics.

26:45Like you saw the thing recently over the weekend where Trump's – no, not Trump. I get confused. Elon's dumbass decided to show where all the accounts were that were doing like these like big MAGA content, pushing all this stuff that probably are also pushed and stuff about George Soros' like a proxy for anti-Semitism. All that's coming from India. All that's coming from Russia. All that's coming from Georgia. Yeah. You know, so I wonder how much of this is, you know, granted, I doubt that this is one of the judges that's frequently on Twitter, but it it trickles down. I wonder how much of this judiciary nonsense is because of successful psyops from foreign governments.

27:22I mean, certainly it certainly brain hackery is going on, whether it's through mainstream cable news or through that. But, yeah, no, that story was fascinating. Basically, all those accounts that are like Katie from Texas, who wears a MAGA hat, is like a supermodel wearing a hat in her car, is her profile picture. That actually is coming from, we found out, was coming from like Thailand or whatever. Some like bot farm that's being run by foreign counterintelligence operations or whatever. Anyway, or not counterintelligence operations. Anyway, so that was the other half of this opinion. My real takeaway on it is, though, which segues to what Chris was saying there, it really is getting disturbing the level of brain rot that some of these folks have.

28:08Now, normally, I think it's the younger judges who have that, the people who were kind of picked as ideologues last time around. It is interesting that an older judge is like that because while it's certainly possible, the stereotype tends to cut the other way. When we talk about like the old uncle at Thanksgiving who is is kind of captured by all of this, that tends not to be the case amongst the judiciary. Yeah, there was there was some work done saying that Reagan judges, judges, federal judges appointed by Reagan are actually some of the most aggressively against some of the Trump policies and writing the most, you know, vociferous responses to a lot of this.

28:48So Jerry Smith is unique. Yeah. Yeah, look, he got in a fight several years ago with Judge Ho that was hilarious, where I thought he was on the right of it, which was complaining about— Broken clocks, listen. Yeah, I mean, it was a question about whether or not you could force a private company to not have a vaccine mandate. And Judge Ho was like, well, I don't know, like, seems like it, blah, blah, blah. And Smith was like—well, I mean, Smith's real reason was he was standing up for corporations. So I should you don't necessarily want to ascribe a ton of nobility. But he was like, of course you can.

29:22Why couldn't a corporation do that? And it was full of shade and probably questionably professional swipes. Then this one is even more so. Anyway, so that was that was the week in questionably professional judge. You need to like a little bit of decorum. I don't know. like that's that's a whole question for maybe another episode of where we have an evergreen topic like where is that line of you know engage in the decorum or like when does the decorum shield you from like admitting what's really going on you know well all right while rolling this quickly yeah you brought up decorum and you know which is worse this show off a 104 page opinion or a judge showing up in an elvis costume on halloween yeah that was another quick thing Which is a bigger break.

30:15Unfortunately, I think the costume might have been. Just ridiculous has become so commonplace. All right. Well, you need to get going. So thanks, everybody, for listening. You should subscribe to the show. Get new episodes when they come out. Give us reviews and stars. I know that everybody always says that and hears that and they go, oh, whatever. But you really should. I mean, it's a real quick thing to do, and it helps out. Check out other shows. Catherine is host of Jabot. I'm a guest on the League of Tech Week Journalist Roundtable. We'll check out other shows from Legal Talk Network. Read Above the Law.

30:44That way you can read these and other stories before we talk about them. Follow on social media, at ATLBlog on the X Twitter, and at AboveTheLaw.com on Blue Sky. I'm at Joe Patrice. Catherine's at Catherine1. Chris is at Rights for Rent. And yeah, talk to you then. Bye. Bye. Peace.