Collateral Damage Across The Legal Industry

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by my colleague, Catherine Rubino. And we come here every week to talk to you a little bit about the week that was in legal professional news. But we begin, as usual, with a, you know, a quick... Small talk? Small talk. Yeah. Do you want to do a dun-da-da-dun? I guess I have to. I'm still having trouble figuring out how to get the soundboard to work. I feel like it's a victim of sabotage. I don't know who would have done something like that. I assure you I have not had access to your computer or your soundboard.

0:52I don't even know if those are separate. That's how little I know about this operation. I am a full participant, but, yeah, I don't know that information. So probably not me. Likely story. So anyway. So sad when you do it. Well, yeah, no, it is sad when I don't have the ability to use my sounds. I like them so much. Anyway, well, why don't you transition into talking small? Talking small. I went to the movies this weekend, and that was a good time. I saw live-action Moana, which, I don't know, it's kind of an interesting thing. I've never been a particularly large proponent of the live-action genre of movie.

1:37It seems like a – listen, I'm a Disney fan, admittedly. Let's clarify. It's not that you hate live-action movies. You hate these, like, Disney remakes that are quasi-live-action. Exactly that. Yeah. They remake the movie in an effort to get another kind of cash grab without having to pay new people to write songs and, you know, write scripts, et cetera, et cetera. It seems like a pretty easy way to just generate more revenue for the company, and I've never been a fan of it, to be honest. Still not a giant fan of the practice as a whole, but Moana is probably a perfect Disney movie. And they remade it, and my kid's super into Moana.

2:16So we went to go see that. It was her first ever movie theater experience. I mean, she's watched movies a lot, and so we know that she loves Moana. But in a theater, no, this was the first time we did that. Had it go. Good, good. Yeah, she didn't really act up at all. She went to the bathroom in the middle of it. She wasn't upset that I couldn't pause the movie, which is always a worry. You know, she's newly potty trained, so it's always a worry. But, you know, that actually worked out really well. But I thought one of the interesting things, I had read some discourse online about it, and people were upset because they're like, oh, it's a shot-for-shot remake of the cartoon.

2:54They don't really add any extra scenes. That is not, I think, completely fair to say I think there were a couple of changes. but there's no extra backstory or kind of additional information in there. And some people are like, that makes it worse. And I was like, that's why it was a good version. I don't need to reinvent the wheel. I mean, I know they did that with some of the other movies, kind of closing some of the plot holes that people have been focused on. For example, in The Little Mermaid one, the live action version adds an element where Ursula, part of the curse is that Ariel doesn't know that she's supposed to get kissed in three days so that she can't sort of communicate that.

3:35So I guess it's kind of a plot hole that people have been talking about for years. They kind of close that up in the live action version. And maybe just because Moana, as I've said, is the perfect Disney movie and they didn't have a need to do that. But I actually thought it was a superior version because they didn't add anything to it. Yeah. I mean, to be kind of legal about it, these, you know, there's a misconception that these new remakes extend the copyright life of the originals, which they don't. They're an independent work. However, it's a little more complex than that because what prevents you from taking something that's not in the public domain and messing with it is if it looks, you're taking something from the original like the costumes and stuff and creating a character that can be a copyright issue.

4:27So when you make a new remake that pushes the years out where the characters wear the same thing, you now you have not avoided, say, Snow White entering the public domain after those years. But you have now given yourself a bite at the apple to use a Snow White reference. You're a big fan of Snow White. And it just seemed like, well, it's the closest to entering public domain. You now have given yourself something of a bite at the apple to say that a future person trying to use that later public domain piece as the basis of something, you could say, oh, well, they're copying off of our later remake, actually.

5:05So it's a way in which you can kind of muddy the waters intellectual property wise, even though you cannot, despite what some people say online, you cannot actually extend the copyright of the original. Sure. Well, I mean, online is pretty much known as the height of legal analysis. Right. but anyway that is not surprising to me that the troll version of the law is not the actual version of the law yeah but but you know there's let's be fair like there is there's a there's a nugget of logic to what they're saying uh in there yeah and and kind of as what i was alluding to before the legal issues that i always see is like the contractual issues where you know when you are contracted with disney to create a score then disney has the right to use that score and a whole bunch of different things, including a brand new movie without paying you any additional money than what your original amount was, which, you know, listen, the Lin-Manuel Miranda is obviously one of the composers for Moana, and he's doing just fine.

6:02He's got a long-term deal with Disney. It's fine. And they usually, with these, they bring back the composer to write an additional song. Right, so they can be nominated for an Oscar. Right. So they aren't really getting out of it completely. They are paying to get another song. More in terms of the script writers who are less famous, you know, tend to not get the same notoriety as the songwriters. But yeah, they did write a new song. That is something they did new for Moana. But it was in the credits, so it was like didn't really affect the thing. But it was actually good, I thought, because they brought back the original performer who did Moana, who's, well, too old to play a 16-year-old girl anymore, you know.

6:38Fair. 15 years after the original came out. So they brought her back and did a duet with the current Moana who played in the movie to do a song as the as the closing credits were rolling. And I'm sure Lin-Manuel Miranda will be nominated for an Oscar and get his shot at closing that EGOT gap for him. Yeah. All right. Well, we have now belabored this for a really long time. But because we had a little legal interlude in there, it almost almost qualifies as actual content. Yeah, I mean, listen, this is billable hours as they say. Yeah, right. Okay, well, actually, I'm going to do the thing where we're going to take a break from small talk and take a real break here.

7:21Yeah, because we've gone on so long. All right, we'll be right back. That was worse. That was just sad. I mean, look, I'm doing what I can. You want to know what else is sad? What is sad? We talked about billable hours at the end of the last segment. Could you imagine just in your head, you're an associate, you're doing your thing, you're billing your time, and someone tells you you have to review the last six months of your time entries? That sounds awful. It doesn't sound like fun at all. Look, that actually sounds like the old days where we didn't have the same kind of tracking software, and you would often find yourself at the end of a two-week run going, oh wait, I need to enter my time for the last two weeks, which was horrible.

8:06Listen, I was always on like their list of people who had not entered time for the month. And I'd be like, oh, wow. Wow. Sean's fired. I'm shocked by that. I'm saying. No, you're not. But yeah. And I used to have like a notebook that I would like write like notes in and whatever to try to keep track. And then, but like even having to go back and kind of recreate like, like you're saying two weeks, three weeks ago, you're like, oh my goodness, what does this mean? Could you imagine I'm going to go back to January? Yeah. Yeah. This is not just some hypothetical that I've come up with. This is because of the whole of Cadwallader merger as they're moving over to an updated timekeeping system.

8:43All of the legacy Cadwallader timekeepers have to review six months worth of time entries to assure that they have not been corrupted, that they are correct. So that's not a great homework assignment that they have to do, which is also not billable, right? This administrative work is not actually billable. So that's kind of double shitty. So it's an issue of when two firms come together, we imagine that there will be there will always be administrative issues with it. But we usually think of them as being redundancy of staff or, you know, conflicts of interest. We do not often think of the fact that they have two different billing softwares that do not necessarily, you know, fold into each other correctly.

9:27Yeah. Yeah. Yeah. And it's even like more insulting because I believe it's actually the same system, but it's like slightly different proprietary versions. that just aren't speaking to each other perfectly. Listen, maybe this is, for some people, it might be a very quick little just double-check kind of thing, but could you imagine if those February time entries are all jacked and you've got to be like, I don't even know what I meant to say. What's extra confusing about it is one would have hoped that all of those bills have already been sent out. Right. So you should be able to - Maybe it's just like to double-check.

10:01We don't have more details except that all of the timekeepers were given and were sent an email letting them know that this was on their to-do. This is part of your July to-do list. So who knows sort of the intricacies of why. But you would imagine bills go out more frequently than every six months. Yeah, but you've got to mark – there are markdowns on bills and stuff like that. Maybe they need the raw stuff because they do count the raw stuff for – you don't count what actually goes out in the invoice for your bonuses. You count like the actual – Isn't there one firm that actually does it? It's like they get bonuses based on the money collected as opposed to which the associates have no control over, which is, you know, not great.

10:40Yeah, that would be extra onerous. Billing is one of those categories that I've always – like when I go to these legal tech conferences and see the software that they're working with, I find fascinating and really do think that it is one of the – one of the aspects of this job that clearly benefits from technology. You know, we have these providers who build packages that watch what you do on your screen, keep track of when you're logged into things, keep track of what you're on the phone. Obviously, the surveillance aspect of it is unfortunate, but it does allow you to not find yourself at the end of a couple weeks trying to reconstruct everything that you did.

11:20Now, again, I personally think that that sort of surveillance will continue for internal benchmarking and maybe internal bonuses and stuff like that. And I think, though, the days of it as a way in which we get paid are probably numbered. I'm a big believer that the billable hour is in real trouble, assuming the AI industry doesn't fall off a cliff, which it might. For sure. But listen, I think that that's certainly true. But the death of the billable hour has been foretold for many a decade at this point. And listen, it will happen eventually. It will not be a shock whenever it does happen. But the other thing that the technology fights against is sort of the little c conservative nature of the legal industry.

12:05Lawyers are the epitome of if it ain't broken, don't try to fix it. And also, if we've done it for 30 years, this is how we should continue to do it. And there is definitely a lot of that, which I think will continue the practice far beyond sort of the efficiency of the new technology. I just think the real problem it runs into, as I've said several times, is it's going to run into an ethical problem. You can't bill for time that didn't exist. And so if you're utilizing tools that take nine hour tasks and do them in half an hour, there's only a few paths you can go. You can go the route of just accepting that you're going to make less money, not what lawyers are going to do.

12:49You can raise the individual hourly rate to something like, as Lexis said in a kind of infamous conference appearance, the$10 ,000 billable hour. Sure. Ultimately, that seems like something that people aren't going to enjoy. Or you can move to a system where you say the output we create, this motion, this contract, this deal is worth X amount. And however much time we take doing it doesn't matter. It matters to us internally for staffing, yada, yada. But those are the three options. And you've got to pick out of those three. And I don't think it's going to be taking less money for lawyers. And I don't think it's going to be charging ridiculous hourly rates because we already see every time it creeps up another hundred bucks, every client in the world comes out screaming.

13:44And the irony is if you told them it's a five hour task and it's$10 ,000 an hour, pay me 50 grand, they'd be like, that's ridiculous,$10 ,000 an hour. But if you told them this motion costs$50 ,000, they'd go, sure. And that's why I think ultimately it goes that way. Anyway, we've gone off of this topic. Sure, but just a little housekeeping note before we get off this topic. I did find the firm that I was referring to, it's Goldberg. Sagala pays bonuses based on realized hours. It means that the firm actually has to have collected the money that you have billed out before you get these additional bonus hours.

14:22At least that was true as of their 2020 memo that we wrote about. We good to move on to another topic? Yeah. Yeah, all right. But I'm always, you know, we're fairly loose on this show. We don't really have. Loosey-goosey. I don't really know when the segment ends. All right. So we will take a break here and be right back. Should we continue talking about technology and what they're doing in law schools? Sure. Nothing I would love more. So law schools have to deal with AI as well. I mean, everyone does. I have a bunch of friends in academia. And I think that that is one of the places where the crunch is happening the most acutely right now because there's a lot of essays and stuff that they have to grade.

15:08And some of them are very obviously including like has the prompt at the end, you know, kind of stuff. So I think that academia is certainly I think the place where they are dealing with it. I don't know if you – yeah. Well, there was kind of infamously in the last few days on social media, a professor posted the results of they sprung on their class at the last minute that while the midterm had been take home, that the final exam was going to be handled in person. And multiple people quit the class. I mean – Some people then didn't take it. And then of the people who did, the professor posted the the delta between their midterm grade and their final grade.

15:47And there was shot. You know, the professor even said, you know, shout out to three of the anonymous students, one who had gotten like a 97 and then a 95. But then the other two that got credit were somebody who got like a 50 on the midterm and a 52 on the final like that. But there were two who had done badly on both and one who did well on both, and they got the most credit. But more or less, it was a massive gap, like 40 percentage points. Listen, I think there's a couple of things. First of all, I do think that academia is going to move more and more towards in-person, live writing of essays, exams, et cetera.

16:23But also, there's a difference even in pre-AI world. There's a massive difference between – there's a different skill set involved in writing a paper and being able to perform on a test, I think. Well, now, this is a good segue to the actual topic we're supposed to talk about. You're welcome. Yeah. So what are law schools doing with their AI policies? And one of the – a few weeks ago, Berkeley came out with their new AI policy. Their new AI policies, you can't use it ever for anything. Which that seems like very unrealistic. Outlining, ideation, nothing. That's like putting your head in the sand in the worst possible way because that's not realistic.

17:03Absolutely. That even I, who has a reputation as being kind of in the, you know, a little more skeptical of AI than most people who cover it as a tech perspective. But more than the average person. For a tech journalist, you're a skeptic. But in the real world, you're a true believer. I'm in this weird world. I'm a child of two worlds, much like Moana. Yeah, no, so I... I was going to say, no, you're like the original Gen X, right? Like you literally like are in both worlds. Are you saying that I'm old? Yes. Okay. Anyway, so the, but the, yeah. So, so that, that policy made no sense. The University of Chicago just released its new policy.

17:43It is a much more robust policy than the Berkeley one. It is thoughtful. I think some of its thoughts are very wrong. But I've been thinking about it. But it is thoughtful. And some of the thoughts are right. So as opposed to don't use AI ever, Their position is they don't want AI to be utilized in the classroom. They don't want it on exams. So there is a push to do more in-person exams, as Catherine already suggested. There's a push to have more reliance on the Socratic method of professors grilling and torturing students because that is a time-honored tradition, Joe. It's a time-honored tradition, yeah.

18:20That said, to talk about – before we talk about the bad stuff, we'll talk about the good stuff. they also though say that their legal writing courses that everyone has to go to are going to be much more ai forward uh even though the process of writing is going to be taught without ai first they're going to layer ai on top of that because they recognize and i think this is correct that all the firms that these they're going to go to as summer associates are not going to be impressed as i put it in my piece they're not really going to be impressed that you know the eerie doctrine off the top of your head they will be impressed if you could figure out how to use westlaw's co-counsel.

18:56And so they need you to understand these tools. And I think that's useful. I also think it's really important to have it in an academic setting because there's an ethic to it that we've talked about. I mean, listen, you write extensively about all the ways in which lawyers use AI incorrectly and don't check their work and have all sorts of legal ethics issues as a result. But I think putting it in this academic setting and teaching people the proper way, they're going to use AI. The question is, can they use it correctly? And I think that putting it in this setting is the best chance of having the next generation of lawyers be able to ethically and properly use the tools that are available.

19:29I agree. Now, to talk about the bad stuff and what's really kind of become the headline of it, the Chicago rule will now ban laptops, phones, and tablets from the classroom. I mean, good luck. Good luck. This seems wildly backward looking. I mean, Catherine's already said that I'm old. I will go ahead and say that when I went to law school, laptops were already everywhere. And I took notes by hand because that was how I kind of came up back to the old thing. But, you know, like everybody else was using laptops. First of all, there is definitely research that suggests that writing by hand helps you remember information better than type.

20:11It's not that's not an AI thing. That's not an internet thing. That is the difference between making your fingers write out the words and using your fingers to type out the letters. There's a, your brain just reacts to those inputs differently. And I think it's great to have that skill regardless. But the other thing, which I think is interesting is that the sort of phones and laptops, because you're seeing a tremendous push against banning phones in high schools where it is kind of taking off. And there are reasons why high schools should not have phones in school. But there's a big like, what if something terrible happens?

20:42Well, I mean, that's always been my take about the school, the high school policies that are like, don't have phones. I was like, Like we've tragically, because we can't, you know, ban guns, we're going to ban phones. But we have seen situations where the kids with the phones are the only ones who are like letting people know what's happening. People to call 911. Yeah. So not having laptops doesn't make any sense to me because I don't think it has anything to do with the AI problem. I mean, what in the world is AI going to do? I don't think anybody – like if a professor asks you a question, you do not have time to ask ChatGPT for an answer.

21:19And when you give that answer, because Socratic method is usually not a one-off moment, once you give that answer and then the professor proceeds to ask you a series of follow-ups while you start realizing that Hemlock's not a bad idea, That whole process, you don't have access to the ability to use AI to solve all of those questions. So taking the laptop out of the class doesn't seem to add to provide any real benefit to me. I think that it adds a whole new layer of accessibility issues that have to be dealt with. And the school says, of course, there will be ways that they address that. But, you know, it's very becomes very obvious, right, when somebody has an exemption to use a computer, but no one else can.

22:06Which and that's going to happen on exams and stuff, too, probably. But yeah, no, it agreed. So it's a real problem. I think that this is a bad decision to get rid of the electronic devices, I think. And, you know, you talk about the writing things out improves memory, which the science is very good on that. I agree with that. But on the other hand, I wonder to what extent that is based on the fact that we grew up knowing how to write. And so our brains are hardwired that way. So us going to computer means it doesn't work that way. But a digital native may not think that way. I don't know. But it's worth considering anyway.

22:45And also the other thing I think to note in terms of both Berkeley and Chicago's policies is that it's a lot easier for a T-14 school to make these sort of controversial policies because if you get into a T-14 school, you're probably going to go. Well, so now that's actually a great segue to the next question, which is – so I saw Chicago professor social media post about how the school's position is that this may not be popular, but we believe that students actually will want to come to a school that is more rigorous in that way, and they will view this as a positive. I don't know as though that's true.

23:23I mean the younger generations really hate AI, to be fair, so there's that part of it. Sure, hating AI, but the laptop aspect of it, I don't know as though they're going to like that. And I think where students choose to apply may be impacted by this. And I think your point, and this is why I thought it was a good segue, if you get into the University of Chicago, you are probably also getting into Harvard, Yale, Columbia, NYU. I don't know. I think that there are very few people I think are getting into the full complement of T14 schools. Not the full complement, but you're getting into at least one of the others.

23:57Like I got into a few T14 schools, right? You got into a few T14 schools. Like if you're in that world, you're likely to end up at more than one. Yeah, well, yeah. But I think there are other reasons why people would probably choose UChicago over some of the other T14 schools that may think that having it on their resume long term is more important than whether or not they can, you know, stroll Instagram in the middle of class. Sure. I don't know. I think if I'm a digital native kid and I'm told, well, if I go to this school, I can't take notes on my laptop, but I can go to Yale and do so. If you get into Yale, go to Yale.

24:36Well, sure. Hey, projections are that Yale is going to be ranked below Chicago. Sure, but if you get into Yale, go to Yale. Well, anyway, so with that said, well, especially to the extent that Yale Law School is fighting their university, another story that we wrote about. We'll just segue real quick. Like Yale Law School is pushing back against the university as the university's leadership is trying to settle and make concessions to the Trump administration. The law school is like, you guys got to be kidding me. Listen, I will repeat what I just said, which is if you get into Yale Law School, go to Yale Law School.

25:12So anyway, even Harvard has figured out that that's not what you're supposed to do. So normally in the old days, Yale would not like let Harvard get moral superiority over them. But I guess they don't care as much anymore. It's going to make for some really wicked signs for college game day. I love that that's where you went with it. You know, like sometimes they ever gone to Harvard, Yale. They occasionally go to non-marquee locations like they'll go to Army, Navy or random Army. But Army, Navy is because it's the only thing that goes on that week. Again, yes, again. Yeah, that's not – I was stopping myself.

25:49They came to Army to do like a random mid-season game, and then there was a thunderstorm, and so they couldn't broadcast. But they did do it. Do they go to Harvard, Yale? They should. That seems like one that would be fun to do. I mean, it's probably on Rivalry Week when there's a million better locations. But I just feel like the signs would be worth it. Okay. Like, they're just going to be, it's going to be in such a different level of sign, I think. That's a lot of faith. You put a lot of faith in people's willingness at the Harvard and or Yale campuses to get up at five o 'clock in the morning, write signs and camp outside of college game day.

26:26It's not on the West Coast. It wouldn't be five in the morning. But yeah. Well, to get a good spot, it would be like it starts broadcasting at nine. Sure, sure, sure. I'm not sure. I'm not sure the spots will be at a premium at the Harvard. That's what I'm saying. I think they can roll in at nine and they'll be fine. precisely my point anyway but they'll have signs whatever with like references to greek literature and stuff on it you really are putting a lot of faith in students who are mostly legacies yeah oh well fair all right well do we have anything else to talk about i'm neutral we'll lightning round it uh well sullivan and cromwell is uh useful for a lightning round okay sullivan Donald Cromwell has represented Donald Trump in a couple of his Second Circuit appeals.