Law Firm Passive Aggressiveness On Parade

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by Catherine Gervito. Hey, friends. And we are here to talk about some of the big stories from the week that was in legal as we are want to do. Yeah. And first, though, we begin with a little bit of. Yeah. The smallest of talking going. Chat. I'll tell you what. I I'm getting I'm sick. My kid just started school a couple of weeks ago. And I feel like the that has started the the annual plagues. I've heard so much about. Yeah. I think I will now be participating in all of those things. So pardon me if my voice sounds a little less than its normal chipper self.

0:54I'm sorry to hear that. Too bad. I am also under the weather, but my under the weather is I had heart surgery yesterday. So, you know. Okay. So you got a one-up me? That was the goal. Yeah. Okay. That's all right. That was what I was doing. All right. Yeah. No, I'm fine. It was a routine repair. I don't think that heart surgery is routine for most people. But look, I mean, it's not like they held me overnight. Like, that's where we are with this stuff. I had heart surgery. They let me out that afternoon. So you okay, buddy? I am. Buddy, you okay? Yeah, no, they just had to replace a part. I'm part cyborg.

1:34Well, no, I guess whole cyborg. Part machine. You're more machine than man. I'm still more man than machine, I think. It's just my heart that has a - You have an artificial heart. A piece of, well, I mean, couldn't you tell? I'm glad you made the joke and I didn't know. Yeah, but yeah, no. So they had to repair one of the little wires that keeps my heart from going haywire. It's not like I need it to keep the heart going. It's to keep the heart from going haywire. Okay. And they went in and did that and then let me out. So I'm just kind of. You know, you can take. I mean, you can take time off.

2:10I did take yesterday off. I mean, I took yesterday off because I was under anesthesia most of it. But, you know, I took yesterday off. You're not allowed to make legal decisions when you're under anesthesia. Yeah. Or write about them as it turns out. They do say that, but most of my decisions are illegal decisions. No. But, you know, you can. I did wonder if legal commentary counted as a legal decision when they gave me that warning. Nah. I didn't think so. Yeah, no. So, but yeah, no, I'm fine. My shoulder's sore is basically the only lingering symptom. I would imagine, you know, having had heart surgery, et cetera.

2:44Yeah, it's not great, but whatever. Hey, so, yeah. So, I'm glad that you've won up to me, but neither of us are at 100 % here. No, we're not at 100%, but you know what? That's not going to deter us from giving a great show for the audience. We will give 100 % for the following 23 minutes. Yeah, you know what I mean? Like, that's what we're here to do. Yeah. Because you all, as listeners, come first. I can plug it in for the next 22 minutes. Yeah. another small talky thing that i wanted to mention just a story that wasn't worth a full conversation but i thought was worth flagging last week we had a story have you ever seen and you know i wrote about them before uh minor character theater is a like youtube tiktok channel uh you i think i think as a general matter you watch more youtube than i do point is uh minor character theater has a has a channel uh it does some fun stuff but one of the characters who has shown up in the past and we covered in the past was uh what he plays a character uh doing a documentary of his time as willie wonk as general counsel and all that he had to deal with yeah that that didn't work out great it did not well we we covered that with a lot of liability that was a while ago and we covered it when that happened but he has a new a new one out where he's uh working he's moved on and he works in-house for john hammond uh and he's covering the events of Jurassic Park 2 as in-house counsel.

4:11And it was fun. And so I put it up. And not like merit for a whole conversation, but I think people, if you enjoy kind of legal humor like that and have some pop culture interest, which I would assume is the core, the Venn diagram that finds you at this show. Sure, sure. You might want to check that out. I put it on, put the link on Above the Law and you can read about the poor in-house counsel for these terrible movie companies. Anyway. We will get into our first topic, which is let's talk about Weil, who... Yeah, let's talk about some lateral partner mania, right? Like a lot of... Listen, there's a lot of partners that have been moving firms.

4:58We write about it occasionally, but there's so many of them and it's not always super interesting. right? Like, I mean, it's interesting theoretically. And if there's a big movement, we write about it or something like that. But a lot of times these movements of X partner to Y firm is not really something we cover all the time at Above the Law. You know, there's not too many jokes here. We never tell a joke. This one, I really, I really stopped when I read this, read this one. So Mike Aiello, formerly of Weil, it moved to Cravath. He was the corporate, the partner in charge of the corporate department, whatever.

5:31So he moved, and as is typical, the firm that they're departing from puts out a statement. See if you can, you get why I thought this was particularly interesting. The firm, in a statement, Wiles said, Mike Aiello and his team have informed us that they are leaving the firm for a smaller platform.

5:53Yeah. Yeah, I mean, listen. You don't hear Cravath described that way often. No, no, you don't. No, you don't. And listen, does it have physically fewer attorneys? For sure. I still wouldn't call it a smaller platform. So, yeah, no, I well, I mean, this is the the topicality of definition of is it is size defined by the number of people or the, you know, reputational quality of the work. Right. Like there's a joke, right? Like you never you never get fired for hiring Kravath. Right. Yeah, no, it is very much not a smaller platform on that front. You know, this reminds me of the, you know, we make fun of the National Law Journal 500 quite a bit.

6:33Sure. Which is their ranking system. Because it's literally just lining up in size order. Yeah, where they just say, like, we're going to rank all the law firms by size. And it's like, okay, cool. That's not really a ranking that I think anybody has any interest in other than people who are just addicted to rankings like an opioid and just can't get enough of them, which unfortunately is a lot of people. We know this because U.S. News and World Report has become U.S. ranking in World Report, and they've done just fine for years. They haven't done actual journalism, I don't think, in any of that.

7:06what's weird is I think they may actually have, still have some journalism, but I don't think anybody goes there for anything but a ranking these days. Sure, sure. But I also thought it was interesting, and listen, there is some actual push and pull here, and I actually ended up writing a follow-up story to this actually yesterday, because Weil is very much in growth mode, right? Last year they added, over the last two years, they added 51 lateral partners. Like, that's a lot. They're really growing. And Cravath, say what you will, the Cravath system is you build from within. And occasionally you bring lateral partners in.

7:37Obviously, ILO is one of those. But their system is, you know, we build the best lawyers more than anything else. And apparently there is a lot of tension internally between those at Weil that just want to grow and get bigger and, you know, kind of make it make a splash that way. And those who want to kind of grow with it from within. And Aiello seems to have been on the other side because Bloomberg Law actually wrote a piece that I mined for some content here. People anonymously kind of shading Aiello, saying that he was, you know, a really big personality. And there are some at the firm that are relieved that he's gone, that he had sank some lateral hires that went on to other firms, that he had sank some expansion opportunities that Weil had that then other firms were able to benefit from, and that there was some real tension back and forth between these folks.

8:36And what I said was, you know, you don't normally hear a lot of this. People are usually a lot more circumspect in big law. They don't really even anonymously talk shit about, you know, such a powerful partner. Yeah. That was Roy Strom and Megan Tribe co-wrote that piece. Yeah. No, really. Yeah. That was the sort of thing, I mean, good for them. But back in the day, that was the sort of story that would come directly to us. People would have wanted to drop that kind of tea directly. Yeah. But good for them for digging it up. And as I said, it's messy, but also fun for the rest of us. Well, so yeah, while has had a few departures throughout all of this, they have gotten some people and mangled them, as the phrase goes.

9:27Yeah. While gotcha and will getcha and mangle you. Not everyone is familiar with those kinds of - With the hip lingo. The hip lingo. Which we make fun of law firms. From the 90s, yeah. Wow. Sorry, you're old. What? It's not the - I mean, you're the one who had heart surgery. It wasn't the 90s. Listen. listen yeah enough of this uh but yeah no so there were definitely some people talking about like what uh you know what is going on uh i don't necessarily think it's a long-term thing i think as you said there there are a lot right now there's a lot of people who have philosophical differences about how firms should be structured and they're moving on it but i took it more as a you know especially we we saw the walk tell situation where people left and we see this And they're still losing partners.

10:12Right. Yeah. We are in the midst of a very robust and well-lubricated lateral market where people feel free to just pick up and bolt all over the place. And it's not just the associates. And not just partners. It's heads of departments are just like, let's go. That's what this was. That's what the Wachtell situation was. Yeah. And it actually reminds me of a piece that you wrote as well. We talked about the potential influx of PE capital into the markets. But one of the things that you clocked is that there's some thinking in the sort of brain trust that's contemplating PE deals is that the splitting off into MSO would allow there to be non-competes for partners.

10:59because they aren't obviously within the legal profession per se because that would be against the ethical rules of the profession, but that if you spit it off to an MSO, you might be able to enforce them non-competes as it applies to partners that are able to sort of bolt at a moment's notice. Yeah, which struck me, and I talked about this a bit on the Legal Tech Week Journalist Roundup last week, or two weeks ago. But yeah, no, it worries me. Like I think like if you are if you are creating a new business structure for the express purpose of getting around ethical rule, you are not violating the letter of that ethical rule.

11:37But that sure feels like the spirit. Sure, sure, sure. And, you know, maybe it just means it's time for the profession to update their ethical standards. Well, but – and with that story, and part of the reason I talked about it on the tech show is part of that story is AI twins, this model that the private equity people are very much talking about when they talk about law. you can't hold a lawyer forever necessarily but if you set ai on them long enough and deep enough they claim they are wrong about this but they claim they can reliably map out and copy a lawyer's knowledge base and judgment and then create an ai twin of them that would then be owned by the mso so even if that human lawyer leaves they would have the right to continue using that human lawyer for their getting for stuff as a service okay but like why if you're a partner at a firm don't let them do that well you can say no well that's the issue you can say no actually well and this goes to well i mean and theoretically you would say no to being locked into a non-compete too like it would be set up in such a sort of way that that's a condition of making the money but yeah i think it's i think it's dumb uh but i also think that look i was first pitched the idea of one of these ai twins in like 2014, 2015, a company that I'm not going to name was like, we're going to, we're only a couple of years away from fully cloning David Boise's brain with AI.

13:09And I was like, no, you aren't. And if you were, that would also be an unauthorized practice of law. Yeah, sure. But that's what they're talking about. And it goes further than, of course, law firms retain some of the lawyers' judgment after they leave to the extent they leave work product behind. And you can form that work product and reverse engineer some judgment, but you cannot actually create a fully operational twin. That is not a thing that AI does, even though all the AI companies say that they're about to terminator us. It is – that is not true, and they still can't make flight reservations reliably, right?

13:46So we're going to be okay. And also they're not going to twin. But that comes back to the private equity thing to bring us full circle is that these private equity companies think one of the reasons for these MSO structure is that they would be able to do that. By the way. Let's take a quick break. All right. Every legal professional wants to put their clients first, but billing, payments, and case management get in the way. 8AM is the professional business platform that helps law firms get paid faster, manage cases more easily, and grow with confidence. Trusted by over 260 ,000 legal professionals, 8AM integrated solutions like 8AM LawPay and 8AM MyCase help simplify the business of running your firm so you can actually put your clients first, first.

14:35Visit 8AM.com slash LegalTalk to learn more.

15:00Thank you.

15:12Mention above the law or use code NOHOLD at sign up to claim 20 % off your first two months of service. We're back. Let's talk about another story. Missouri has been— Constitutional crisising. It's constitutional crisising within Missouri over the map that they want to gerrymander. As one knows, Missouri is a red state, but, you know— Sure. Still with a purplish hue. I mean, like they it's not all that long ago that they had Democratic senators. So it is a little purplish. They are divided kind of a six to map as far as their house membership. They decided the GOP legislature after Trump made the call for states to gerrymander themselves to try to stave off a midterm loss that now is looking like no amount of gerrymandering can avoid.

16:07But after he made that call to mid-cycle draw new maps, Missouri went ahead and drew a 7-1 map that eliminated black jurisdiction in Kansas City. So Kansas City basically doesn't get to have a representative. They split it all up among other rural districts. So Kansas City, Missouri's biggest city. The only place people really know. Yeah. People know St. Louis. Okay. Yeah. Yeah. Yeah. It's where Panera's from. Is it really? Yeah. I didn't know that. The St. Louis Bread Company. I didn't know that. That's its official name. Yeah. I didn't know that. I mean, I'm not a huge Panera user, but yeah, I didn't know that.

16:50Yeah, yeah, yeah. And the more you know, guys. The more you know. Anyway, but you'd go to Kansas City because you wanted a barbecue. Anyway, they want to get rid of that rep. That is some pretty good barbecue, to be fair. They drew up a new map to do that, to get that gone. the Missouri Supreme Court, which is majority Republican, ruled that no, you can't do that. The reason that they can't do that is the legislature can pass that. However, under the Missouri Constitution, dating back to like 19 amendment in like 1909 or something like that, they have a rule in the Constitution that if people get together, Missouri citizens get together and there's like 300 ,000, some percentage of signatures, they have the right to demand a bull state ballot measure that can veto the new map.

17:36Sure. And the map is held in abeyance until they can have that vote. OK, seems pretty straightforward. The secretary of state and the attorney general of the state conspired to not run any kind of special election to resolve this. They just wanted to delay it, delay it, delay it. Then they rejected this petition out of hand and said, we're going ahead with the new maps. The Missouri Supreme Court said, well, one, can't do that. Two, because you've delayed all this, that statewide ballot measure has to be on this year's midterm. Sure. Which means you can't use that map for this midterm. That is honestly— State law question.

18:16It is a state law question, and anyone who is remotely viewing this as a non-cynical actor has to say that is very much what that state constitution says. Yeah. So here we are. And look, from the Republicans' perspective, they're probably going to win this statewide ballot measure because there are more Republicans there slightly. Play the long game, friends. Play the long game. But that doesn't help them in what Trump wants right now. And so they're very mad. So they decided to appeal the state Supreme Court decision to the U.S. Supreme Court, which is, of course, legally the only court you can appeal that decision to.

18:53The U.S. Supreme Court said no. Specifically, Brett Kavanaugh, who is the justice for that circuit, said no. That was theoretically the end of it. However – Oh, there's so much more. However, yeah. So this is – So much more. Anybody – any law students out there or people who are traumatized by your SibPro issue spotters, trigger warning because we're going to – this is going to be all sorts of SibPro issue spotter. So they then, not the actual – not the Secretary of State themselves, other people – this is important – took the case to the federal courts and found the chief judge of the Eastern District – I think Eastern.

19:34Yeah. Anyway, who is a Trump appointee. They went to the federal court and said, you need to stay this. And so the federal court said you – So a federal district court judge. The federal district court judge. The lowest of the federal judges. Said they have to use the new map. Now, that means the Missouri Supreme Court said you are enjoined from using the new map, and the district court says you must use the new map. Now, are these conflicting orders? Dumb people will say no, but real people will say, of course, they're conflicting orders. You betcha. Yeah, because you can't do both outside of the realm of quantum mechanics.

20:14So I don't even understand an argument that they're not in conflict. The conservatives who are pushing all of this are saying, well, they're not they're not conflicting orders. They're totally different parties, which gets to the whole Rooker Feldman problem here, which is you can't use a state court to collaterally attack. Yeah. I mean, you can't use a federal court to collaterally attack a state decision. However, the Supreme Court has been kind of lax about that in recent years and said, oh, you know, if the parties are different, I guess whatever. So that's why this was set up with different litigants.

20:44The secretary of state filed in this, joined this district thing like, yeah, we support it, but they aren't actually the party. So it is very much an attempt to back to what we said. You may be following the letter. This very much violates the spirit. I will also note that an election law decision like this should have been heard by a three district court judge panel. You're not allowed to hear it by yourself. They violated that, too. And if you had done it by three judges under the law, how you're supposed to handle election decisions, that three-judge district court decision is appealable directly to the Supreme Court, not through the Eighth Circuit.

21:21But in fairness, it didn't go to three judges, so it went to the Eighth Circuit. Right. So it went to the – this one did it in seeming violation of all the rules. It went to the Eighth Circuit. The Eighth Circuit said, cool, we love this. More for us. U.S. Supreme Court then in a shadow docket decision said, no, of course not. With no noted dissents. With no dissents on that one. Now, the Missouri Supreme Court at this point, part of the reason why that that's the U.S. Supreme Court was so important there is the Missouri Supreme Court had already issued an order to the an order to show cause to the Missouri Secretary of State going, you need to show up here and explain to us how you aren't in contempt right now.

22:02Because you're definitely in contempt right now. But ultimately, right after the U.S. Supreme Court ruling, the Secretary of State wrote a letter saying, well, in light of the U.S. Supreme Court ruling, we will use the correct map. So we don't really even need to have a hearing about contempt. And the Missouri Supreme Court said, no, we do. You sure should do. And the Missouri Supreme Court said that while they aren't going to issue any punishment because the violation has been cured, they wanted the record to note that this was in fact contempt. Because it was. Now, as it turns out, the named litigants in that lower court thing, even though the Secretary of State has now theoretically said in this letter represented to the Missouri Supreme Court, we're going to go ahead and do it the right way.

22:40In the federal court case, those litigants are still going. And the Eighth Circuit is like, we're expediting briefing on this so that we could get a merits opinion and then we can ask the U.S. Supreme Court again. It's like, dude, dude. Third time is not the charm, actually. It's not happening. Like, look, Alito and Thomas are very willing to write dissents to these sorts of shadow docket decisions. We just saw that in the post office case. They're willing to say that. They did not hear. That should be a glaring flag that this is a losing issue. Yeah. And yet, here we are. So that is catching you up on everything in Missouri.

23:15Woo-hoo! Yeah. Wild times. All right. Well, let's take a break, and we'll be back in a sec. All right, well, now we have a legal writing topic. You know, for who are you? Okay, yeah. Everybody loves talking about legal writing. Do we? No. But I do. So the First Circuit has an opinion that caused a little bit of a hubbub on social media because Judge Roger E. Thompson is 75 years old but is not afraid of some good old-fashioned Gen Z writing. Okay. Began a recent opinion. I guess it's the second paragraph. The second paragraph of this 40-page opinion, unanimous opinion, is, we'll fill in the deets shortly, but the spark notes is this.

24:06Amazing. Yeah. 10 out of 10, no notes. Nice. It's breezy. It has a lot of informality. It caused a uproar of traditionalists online who there are people actually saying that she should be impeached for this. She's senior status. First of all, horseshit. Yeah. Okay, first of all, senior status, one thing. Two is that is not an impeachable offense. Writing something in a tone that you do not like is not an impeachable offense. This is not offensive in any way. This is not like, what's his name that was insulting his colleagues in a decision. This is not using vulgarity. Well, that's the thing. This is just less formal writing.

24:47And the fact that these same people who are now mad at this First Circuit judge because she said, check the deets later. And those are the same people who are like, yeah, it's totally cool. The Venn diagram of people who say that and people who say that it's okay that we have opinions calling the rest of the court crooks and stuff, yeah, it's not a perfect circle. I will say the first person that I read on social media calling it impeachment was clearly doing it as a joke, the legal style blog. They were doing it as a joke. But then I actually did read other people who were seemed to be deadly serious about the idea.

25:22I don't look. So I'll read another segment here. Here's a like here's an example of something from the statement of facts. While Instituto's bankruptcy plan was being worked out, Instituto and Oriental got into it about how much Oriental should be paid. But they worked it out. And then it moved on from there. But like really informal, you know, that's not at all how somebody would expect a legal decision to write it. But honestly, look, I'll be honest. I thought I was going to hate this opinion when I first saw the out of context. Check the do the deets and this is the spark notes. I was ready to make fun of it and be against it.

26:03But then I read the whole thing. 40 pages of a bankruptcy opinion are often not fun to read. This was a perfectly pleasant read. And at the end of it, I understood the facts because the facts were written in a very conversational manner that allowed you to understand what was going on. I thought it was actually kind of – I mean it was cringy in places. Sure. But I thought it was pretty good. Yeah, and listen. There are people who get mad whenever some judge makes a pop culture reference in their opinion. You know, Calvin Ball gets used. People say, oh, this is obviously the worst thing that's ever happened because you're referencing Calvin and Hobbes.

26:41You know, there are people who will always have things to say, but language is also malleable and evolves over time and things that were, quote, proper are no longer proper anymore. And it's okay. Language – it's okay for language to evolve. And the only thing that I think the judges have a responsibility to do is to accurately and honestly interpret the law. And the language they used in order to do that I think is beyond the point. Yeah. Yeah. Honestly, one of the things that I made my my initial reply on social media, which to the original legal style blog joke was I responded with first you people say you hate AI writing.

27:20Now you hate humans doing stuff. What's going wrong? But but, you know, to take it to the AI front, if people are worried about AI training off of all of these opinions and, you know, becoming, you know, a non-human arbiter of legal writing. This is definitely an attempt to mess with that algorithm. This is definitely going to screw up that AI. And so, you know, if you're one of those people who wants to screw with the AI, you should be very happy about this opinion because it is – yeah, like, I don't know. I also appreciate – appreciate? Wow. I don't – I also appreciate all of the definitions.