Judge Orders Law Firm To Write Lesson On How Not To Be Naughty Lawyers

0:11Welcome back. It's another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by my colleague, Chris Williams. Hello, hello. And we are here to talk about some of the big stories from the week that was in legal, as we usually do. Let's take a second to begin our small talk section. So it was a cold and rainy Memorial Day weekend for me. I don't know. How was it down where you are? It was good. not the best occasion to meet but it was still nice to see everybody we had um a mentor from when me and a bunch of my peers were in high school she passed recently oh shouts out to shouts out to dana and we had a vigil for her on memorial day and it was it was nice she's one of those people that was a a model for good behavior without trying to be like one of those people like wait well like one of the one of the um things when our friends wrote is like a facebook status was like wwdd like what would dana do and everybody was like that's that's a good one like you know so it was nice to see people and honor someone um on memorial day which is which is yeah feels kind of feels kind of thematic but yeah and uh did a lot of cleaning of the house the rooms look like people actually live in them now rather than um rather than their storage units which is nice um yeah i had a really good um meaningful fulfilling weekend good good good i uh also also engaged in the cleaning process but more in a radical reorganization sort of process like it wasn't that it wasn't clean but it was just like everything wasn't where i wanted it to be and so i did the rip everything out and start over sort of process which is always grueling I do like when somebody uses radical in a way that suggests they know that it has to do with roots.

2:09Okay, fair. Wasn't being facetious. I generally appreciate if you use radical there. It's like my hang-up whenever somebody uses decimate and it doesn't have anything to do with a 10. You didn't kill one of every 10. You killed all of them. If you decimated our future, we could do it 90%, 10 % less, but you did everything. Oh, I actually saw, speaking of people who are, there should be a whole category, good pedantic and bad pedantic, I feel like. And I feel like we're kind of aligned on the good side. I saw somebody. Well, no, prodantic. Yeah, okay, okay. Yeah, yeah, yeah. I saw somebody, to bring this a little legal, I saw, you know, Charlie Pierce Esquire had written an article, which quotes me in it, which is nice.

2:58But he wrote this article, and one of the things he said was that he was talking about a professor at Georgetown, and he wrote Georgetown Law School. And he got pushback on social media from someone who – an account who I enjoy but is very pedantic was like, there is no such thing as Georgetown Law School. And I was like, yeah, but also – yeah, like, no, sure. It is the Georgetown University Law Center. I don't even think people there would stop them, stop anybody from saying it's Georgetown Law School, though. Like, it's just. I feel like the technically right but fuck you response would be to find just any sweater that says Georgetown Law and just be like, what school did they go to?

3:43I don't know. How can I ever figure this out? Yeah. No. So. Yeah. All right. Well, so we should probably get to real topics. Let's begin. And the biggest story of the week actually was about the law firm Quinn Emanuel, which found itself on the nasty end of$3 million worth of sanctions in California, which, you know, not great. Very not great. It comes out of the representation of a firm in an advertising case, and the opinion refers – let's just say there are some blinds in this decision which are more than you would normally see. Implicates a culture of lawyering that is deeply disturbing is one of the lines from the judge.

4:34At virtually every juncture in this misadventure, these attorneys turned a blind eye to the truth, deliberately failed to exercise diligence, violated their duties of candor to the court, and then attempted to justify it without basis. You know. This is like the opposite of the feel-good Sussman-Goffrey story. Yeah, right. So, yeah, we talked last time about Sussman allowing a young associate to argue, and they were applauded for it. I think that probably was because the young associate did it correctly and with all proper professional guardrails. This team in this particular case seems like they had some issues.

5:12The ultimate sanction is to pay$3 million in compensatory damages,$100 ,000 in a punitive fine. There's sanctions for some of the partners individually. And then there is a requirement that they have to complete an eight-hour ethics course. And then because, you know, to add, you know, a little extra level of insult to it, the judge ordered the firm itself to write the ethics course that they have to take, which I get I get that that's making them do a little extra work. I feel like if you really believe that there's a culture of a deep seated culture of problems, maybe they shouldn't be the ones doing it.

5:55Right, right, right. It's funny. I just imagine the I don't know if you ever experienced this when you're writing. I'm sure you have. You've been doing this for a while. But like as you're writing the story, you're like, what's the dumbest way this could be resolved where they're just making it work easy for me? So I just imagine the next because I think in skits, I just imagine like the next headline is big law firm in trouble for having Chad GPT make access course. Oh, right. And associates have to take. Well, I mean, yeah. And I'll say, you know, not to transition this, that's going to happen.

6:27And because the AI tools are actually getting reasonably good at that. If you wanted to create a CLE course about legal ethics, I mean, you should not rely on what it gives you. But with the plugins that it has to legal research these days, you would create a not terrible outline. I mean, you can't just do the regular chat, whatever. But if you have a professional account, you turn it on to the deep learning and research modes. you have all the connectors to Westlaw or Lexus or whatever you need. It's going to come up with that stuff. And then it's going to be incumbent upon the lawyer themselves to make sure that it hasn't hallucinated or done anything bad.

7:13But that's where this is going to be. The work involved is going to involve AI, in some ways, not even in a way where the lawyer necessarily intends it. I mean, the AI is getting baked into the legal research tools now. So you're not going to be able to avoid it. It's, yeah, it's going to happen. And eventually, someone's going to screw up with it and not exercise the proper diligence and the proper correction of the research that it comes up with. I was going to take this for some Reddit thread to sneak in and then you ask them, is it okay to embezzle? And then the AI is like, well, it depends.

7:50That's a good question. A great question, even. I mean, the answer to every legal question is it depends that that is that is that is fun to say and i wish one thing we talk about more the answers to some legal questions is hell no and if you and if you're and if you're and if you're the the culture of accountability or what or not existing is such that you have to pay three million dollars the answer should have been hell no there was too much depending for this to happen oh yeah i know that the thing that i think is interesting and And Catherine put it up to be like, oh, three million is a lot.

8:29And it is generally. But when you consider the firm, that's a surrounding error. You know, like I do wonder, like, at what point, what do you think the sanctions would have to be to be meaningful? Because like at the end of the day, like this is sure, this is bad press, but they'll be fine. They can they can charge it to some matter over a couple of over a while and they'll get this money back. Do you think three million matters? It doesn't. And obviously the attention that this has garnered is far worse. And like, look, it's also true when you talk about how it's a rounding error. I think it should also be considered that as part of it being a rounding error is this is a firm that's much bigger than one litigation team.

9:10And so, you know, this doesn't necessarily, even though the reputational damage is being taken by the whole firm, this doesn't necessarily reflect on the whole firm. Different teams run differently, whatever. What happened here, I guess we should clarify what happened here, is the real crux of it was about expert witness work and how they basically had the expert had access to embargoed results, and then they jumped in a supplemental report late. and it seemed like the underlying data in there was not supposed to be in there and they got it and that seemed like it was being done behind the back of the court.

9:53So, you know, it's not great. What is it, ostriching? Or you like, do you literally put your head in the sand? Yeah, some burying your head in the sand, yeah. Yeah, burying your head, yeah. And I think one of the partners was like, I don't want to know how they got that data or something along those lines just to, you know. So, you know, it was it's exactly the sort of statement you'd expect a partner at a law firm to not have written down somewhere. Yeah, that is the you know, we just talked about this firm just recently with John Quinn stepping back from the leadership role. Right. Kind of unfortunate that this is what this is what eclipses the I'm finally going to have a little bit of time to myself kind of work.

10:38is that this story takes over. But good luck on your CLE, everybody. All right, let's take a break and we'll be back in a minute.

10:51You like legal podcasts because you're curious and want to be the best attorney you can be. I'm Dave Scriven-Young, host of Litigation Radio, produced by ABA's litigation section with Legal Talk Network. Searching your favorite podcast player for Litigation Radio to join me and my guests as we examine hot topics in litigation and topics that will help you to develop your litigation skills and build your practice. I hope you'll check out Litigation Radio and join the ABA litigation section for access to all of the resources, relationships, and referrals you need to thrive as a litigator.

11:26All right, we're back and let's talk about an incredibly stupid thing that's going on. the federal circuit just released a theme song for themselves and a music video to go with it oh yeah no way this could be uh in bad taste no i wonder who the audience is for these sorts of things because like i'm looking at it i'm like it has clear you know schoolhouse rock vibes but like i assume like for everybody i would pick up with that they're they're past the age where that would be a touchstone. But like for anybody that's like under 20 or so, it's like, what is this? You know, so it's like, I mean, those things that feels dated.

12:04I'm sure it, it was, well, you know, like I'm sure it does speak to, yeah, you're right. I guess I don't really know. It was unveiled, you know, kind of as to practitioners before them, which would be the generation where it would be a touchstone, at which point you would think it's pulling on those strings. But the content of it substantively is almost like they were aiming at an elementary school kid. So like explains how courts work in a very juvenile way. I don't know. You know, you sit down, you think it would be nice if judges and the court system was more accessible to the people and not completely up its own pretentiousness.

12:48Robes. Yeah, up its own robes with pretentiousness. but then they do something like this and you go maybe maybe it's bet for the best that you stay that you stay up your robe especially when the display reads as a sneak dissing with a gavel in hand um i i know that it's it's a it's a mouthful the united states court of appeals for the federal circuit in my mind in my mind i'm like i'm like the first circuit but i'm like that's that's not the that's not the full name yeah no this is not the first this is uh yeah this is the the it is a first of its kind this was the court created in the 80s to take ip issues and some trade cases all away from the the regional circuits uh which is why ronald reagan is in the video right dancing dancing ronald reagan as as he was ought to do there's a monkey in the beginning on a rocket ship which i was not ronald reagan just to be i assume it was bonzo i don't know although wasn't bonzo was bonzo a monkey or a chimp i feel like he's got to have been well what or like well remember that we were having the conversation earlier about uh distinctions that matter yeah that's fair uh but they to get kind of serious about this and to tap into some coverage that you've had uh for a long time among the lyrics in this song uh they explain that judges are appointed and they serve for life that's an interesting thing for the federal circuit to be putting out there when they have you know just kind of shadow impeached one of their own judges yeah if you if you look at the if you watch the whole video at the very end there's an asterisk please do not show to a Pauline Newman you know oddly enough it doesn't it doesn't say please don't show to Pauline Newman but it actually does not show Pauline Newman because there's a point where they're like little like I don't know if they're little drawings of all the people on the court currently and you'd think she'd be one of them because not only is she an active judge she's one of the first for that particular court and they just happened to leave her off the historical record which is in my mind i think very petty but you know they're judges so you can't you can't describe them you know moral intent like they're actually people you know you have to think of them as disembodied opinions i mean it's full stalin airbrushing people this is such a goofy workplace spat like this is the shortest shit where you're like can you imagine what sydney from accounting did like this isn't the sort of stuff that you would expect of judges and it's been years this has been going on for years so to catch everybody up so judge paulie newman uh on this court uh still active on this court uh legally she's you know in her 90s almost 100 at this point right she's i don't know exactly but i think lawyers are known for math on upper end of 90s i believe uh but still active she has not taken senior status the rest of the court uh has despite the fact that she continues to produce reports from doctors saying that she is in fine health abnormally healthy abnormally not even like in fine health it's like they're like they're like wait something's wrong with her brain in the good way yeah uh despite the fact that she's doing this her colleagues have suspended her and prevented her from hearing cases uh Basically, they have thrown her off the court despite the fact there is not a constitutional way of doing that at this juncture.

16:17She is fighting it. This case probably is on its way to the Supreme Court. I believe they filed the petitions for that already. We'll see what happens on that. So this is all going on. This is the major controversy going on with the Federal Circuit. And into that context, the federal circuit decides to put out a song that talks about how judges are there for life and then at the end have caricatures of the active panel and several senior judges, too. It's more than just the active panel in that caricature. So they're putting on just kind of everybody involved with the court, and they leave her off of it on top of all that.

16:55I said the Stalin thing earlier. It really is like that famous picture of Stalin where they have the picture of him with the guy and without the guy. Yeah, like we don't talk about Newman. And it's not like she's some juror. It's like Pauline Newman is Pauline Newman. Like it's one of those loud absences. Yeah, in that kind of intellectual property world, like this is a court that she's basically shaped. She's been there the whole time. I know you've spent time with her, and your report after you spent some time with her was that she was the most with it person you've ever met, and she's in her 90s.

17:33She was more with it than me. And to the regular listeners of the podcast, I might not be saying much, but listen, I'm a dude in my 30s. She's a woman in her 90s. She walked faster than I did. This was a couple years ago, which, again, this has been going on for so long. But yeah, I was like, she spoke on panels. Like, there have been very public opportunities for if things are as bad as the court is saying for people to see this, you know. And one of the more interesting things is as interesting as the due process and the disappearing issues as it pertains to her are the spillover effects. Because so there's been a noted dip in the amount of dissents that have been happening on the federal circuits.

18:17one because she's not writing anymore so the the no saying that she's been doing isn't part of the data set but also in other courts other judges have been dissenting less so as far as the the consequences of what this means for other judges having a video where you just get disappeared for any judge that that that has a mind towards their legacy it's like well if i don't if i want to be part of the propaganda i guess i better you know say what the docs is don't want to veer off too much i mean it's it's not good and it the the standard that they're trying to do this under and why it's kind of becoming uh it could be a supreme court case here is the standard the idea that your colleague if you got a majority of your colleagues to vote that oh we think we think you're you're not fit uh whether or not there's any evidence of that becomes basically unreviewable, which is the argument that the federal circuit's making.

19:14That becomes a incredibly dangerous situation in a world where we have these off-balanced courts that one might think in the future there will be new people brought on to change that balance. And if the standard is that the existing majorities can start excluding people on unreviewable fake claims, that's a problem. It moves the standard from amorphous good behavior to even more amorphous vibe check. Yeah. And the thing that gets me, I know that there's a founding mythos that judges are callers of balls and strikes, what have you, that they're like the neutral branch of the government. They just do their job.

19:57But this is one of those things that shows this really just people who are making decisions with their feelings. Because the thing about this that I think is so jarring, even among people that are like that have questions about if a person should be a judge at this age or not. The thing is, like at the level of law, that should not be a factor. Like at the level of law, this should be about due process, which in the fact that there's so much asking people to pay attention to procedure and they're just going along with it. Just show that this isn't happening at the level of reasoned analysis or anything that could be – like a track record could be like, okay, good decisions were being made here.

20:38Yeah. Which looks bad for the judiciary in my mind. Yeah. Well, all right. Let's take a break with that and be back in a second or two. All right. Well, horrible story out of Brooklyn that's led to some back and forth is there was a woman who gave birth in a courtroom, which, you know, sounds like that might be a good story. It is a horrifying one. She gave birth in a courtroom because the cops had arrested her for trespassing on her own roofs. Well, I mean, I guess technically the building's roof, but the roof of the place where she lived. And they brought her down. Oh, well, they brought her in.

21:18she is pregnant at this point she asks for some medical help she's taken to a hospital the hospital discharges her she's handcuffed and brought into the courtroom and then goes into labor and then gives birth don't worry the arraignment went on without her seems like at no point did anybody think maybe we can put this one off for a little bit right it's a compounding series of abuses and problems with the fundamental system. The first of which being that she's brought in on charges that could otherwise be for, you know, be a ticket. The argument of the cops is that she had an outstanding warrant for other stuff, and that's why they couldn't just give her a ticket.

22:05Seems like if you're pregnant, maybe that's a time where you make an exception, but whatever. She's handcuffed at least at some point of the labor. There's some distinction here. over if she was decuffed or not. Her own attorney said, and the court itself, say that once it became clear she was about to give birth in a courtroom, they took the restraints off. A legal aid lawyer who was also there at the time says that that is not true. And in an interview, that legal aid lawyer says that the reason for the discrepancy, she says, is that the defendant's lawyer was not even in the room at this point, probably because they were going ahead with the arraignment in another room.

22:51That's why he had to be there. But the argument was that this is not, that they were not actually let go, let out of restraints, which, if true, goes back to an even more fundamental issue in New York. This has been going on for a while. New York has a statute about this, actually, because there were a number of high-profile cases where the police were having people give birth while they were handcuffed. There's a statute to ban that. There were amendments to that statute because it wasn't working, and these cases were still going on. The city of New York has paid out over a million dollars in various settlements to people who they have forced to give birth while shackled.

23:37Usually in a hospital they're shackled, but here it's even worse. Yeah. This is one of those things where all the individual states are like laboratories of democracy. It just comes to your mind. I'm pretty sure, and I'd say check me on this, but listeners, what are you going to do? Get back to me on email? Maybe. I'm pretty sure New York is one of those days where like for intentional infliction of emotional distress is like really high. So just hearing that, like they've had multiple attempts to like say, hey, you can't hang up women giving birth. Oops, we got to we got to modify that law because you're not listening.

24:14It's one of those like I get why I get why the city needs Batman. Like because if they're not even following the laws, then what are you going to do with the criminal? It's not great, but this is just another instance of how the criminal justice system is broken in really deep and fundamental ways. It's almost one of the situations where we talk about the big ways in which it's broken, but there are so many little ways where it's broken, and those little ways are arguably the roots to get back to the root of the problem. Arguably, it's all of those little violences that are kind of the root of how it gets to being bad up at the top.

24:51but this is gonna continue for a while certainly whoever her lawyer is going to be for the case about being shackled that person is probably in for a for a good contingency fee before this is all over so is that everything I think so I think that's our docket for the day thanks everybody for tuning in, you should be subscribed to the show to get new episodes as they come out. You should be giving reviews, stars, and written reviews, because all of those things help trigger those algorithms to tell people that we're a valuable legal podcast. Actually, on that note, Catherine had to do a side project the other day to do a search of various ranking services of what the biggest and most important and impactful legal podcasts were.

25:49We were on the list. Oh, look at that. Yeah, obviously. I thought the only list we were on was Epstein-related. Oh, yeah. Well, that is true. But no, we were on there, so we should keep it going, everybody. The more you can do, the better. You should check out Read Above the Laws so that you read these and other stories before they come out. Check out Captain's show, The Jabeau. I'm also a guest on Legal Tech Week Journalist Roundtable. There are other shows by the Legal Talk Network to listen to. We're at social media, theabovelaw.com. I'm at Joe Patrice. He's at Rights for Rent. And with all that, we will talk to you next week.

26:28Peace.

26:45Thank you.