No, Your Honor, I Didn't Call You That, I Was Talking About, Um, Bundt Cake

0:11Hello. Welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by some of my colleagues. I got Catherine Rupino here. Hello. And Chris Williams. Greetings. And we're doing what we do every week, which is a little recap of the stories from the week that was in legal over here at Above the Law. But we, as usual, begin with a little bit of not, you know, talk about things that aren't worthy of a complete story. A little small talk, if you will. Small talk. Yeah. It's not just stuff that isn't worthy of a full story. It's also just, you know, catching up, proving that we're not AI generated.

0:50Yeah. Yeah. Again, I yeah. All right. I know you're you're a workaholic and just want to talk about work. But, you know, we are people. Yeah. Well, so we're also people that saw each other this weekend. We did in real life person. Yeah. We are all in the same place. Yeah. And no one was no one got into a fight, which is part of the course. But it's still nice to acknowledge. Have we ever? No, no, no, no, no. But it is true, as regular listeners know, the three of us have a background in policy debate. And there was a policy debate tournament this past weekend at the United States Military Academy that we all were there for.

1:36We all judged and helped run the tournament. Yep. Obligatory go Army beat Navy. Woohoo! Navy was not able to attend, but yeah. I mean, the strongest way to lose is to not even show up. But no, it was fun. So as you might be able to gather from the fact that the tournament was at the United States Military Academy in West Point, there were cadets there. And one of the things that I'm a troll at heart. People know this. People that have interacted with me. Pleasure being my friend. Burden by being my friend. They know this. I was as I was figuring out what I was going to wear over the weekend I was like oh it's cold out I know what I have to do I have to wear my sweater that says you're probably DEI too and on the back of it there was like a short list of all the people that qualifies being DEI candidates but that wasn't enough I think like so like on a Sunday when we was being dropped home a cadet was kind enough to drop us off at a train station so I can get back to my home and go sleep in my bed got time to kill it's like a 20 minute drive so I asked him hey do you ever think about yourself as being a DEI hire and this is like a presumably white heterosexual male he's like no why would I do that I'm like well you're a veteran every time well yeah presumably at some point hopefully but like you're going to be a veteran like every time you go past a restaurant and it's like a 10 discount for veterans that's DEI like they're deliberately trying to include you workplaces are made more diverse by having veterans there sort of the sort of the measures that might carve out jobs specifically for veterans that's an equity endeavor like he was like because he was like i guess in a i guess in like a general sense like no specifically like y 'all are literally y 'all are literally dei hires and it's always a fun experience for a person who thinks of themselves as being at the center realizing or like being the norm realizing that they actually have fringe benefits um but yeah that was that was just a fun exchange.

3:39Yeah. And that's been a big part of this whole anti-DEI push. I like these folks just really don't grasp that it is so much broader and absolutely centers veterans as part of it. When you look at the, at the literature around it. Yeah. I, I will throw in just cause it's not full story for us, but I was at a convention last week. No way. That's such an unusual experience for you to be at a legal technology convention. I am begging and I am begging. And yeah, no, I am begging anyone to move their conference out of September and October. It is just a brutal run of conference attendance. I have been on the road pretty constantly this whole time.

4:22But yeah, no. So I think there's like a real benefit for these big legal technology companies, because whether they have their own sort of user conference or something like that, but in terms of building their year around big announcements or whatever to have them all back to back they can make me maybe announce at one but then talk about the big thing that they've doing weeks you know a couple weeks after that kind of thing is that part of no why they do it it's just i i understand it logistically like there just isn't a lot of good times to schedule other than right now there are 12 months right and some of those months are super expensive some of those months are summer months where people are like, I want to go on vacation with my kids who are out of school.

5:03Some of those months are the holidays. And like, when you really boil it down, September and October are the best months to do it in. Well, and that's April. Spring break is March, so it's less expensive, you know, that you don't have the family thing. One of the conferences that I have been to in September and October did tell me that they were looking at May. So they might Justin Timberlake it. Yeah, I was going to say they might have just been a boy band fan. And that conference is going to be May. But no, yes, but there really aren't a ton, and that's what's made it so difficult. But I was at the Clio conference, and kind of wild.

5:41They seem to be moving massively up market. I don't think your definition of wild is the same as mine. Or most people's actually. It may not be, but it is. Yeah, no, I think it is. Winnow, T-wild? no uh absolutely wild uh moving across the business of law practice of law moat horizontally as well as vertically up to the big law uh market investing in a whole new division to do enterprise work like it yeah no really crazy conference i'm not saying that that's not a big announcement but wild yeah i've never heard such a wild explanation making want to go to sleep No, it was sort of like a fire hose being pointed in your face and turned on as far as the shocking and overwhelmingness of it.

6:32But yeah, really interesting. All right. Well, do we ready to talk about some of our stories from the week? I was born ready. All right. Well, you had one of the bigger stories of the week, Catherine. It was a conversation. I we do have an explicit tag, but maybe we maybe we guard ourselves a little bit. Let's talk about professional etiquette. So just maybe somebody listening is newer to the practice of law. This might not be completely obvious. Don't call a judge an FNC. Hmm. OK. Yeah, that's that's the that's the lesson that I learned. A fiery counselor. or I mean do you will not want that if you want things I'm happy to say okay all right we can say it now okay there we go I've been waiting on this ever since no but um Michigan attorney Marshall Tauber uh was in a zoom hearing for his client and And Judge Yasmin Pohl fooled against his client.

7:46And this is also interesting because it also has sort of a tech component to it. But the screen went blank for he was in his car doing the Zoom call, by the way. So maybe not the most robust setup that you might be used to. And the screen went blank. He thought he says, who knows, he thought that he was no longer connected to the Zoom. And after saying, judge, thank you, let his FNC fly. And the court was not amused. Really? Not amused. Thankfully, the readers were. Well, sure. One of the best stories of the week. Pretty quickly, you know, said that there had to be a motion for contempt hearing, criminal contempt hearing.

8:33We've said that the attorney participated in willful disregard to the court's authority that you shouldn't refer to the court that way. Also noted that the attorney's client who was in the courtroom had a visible reaction to hearing the term of term of art, question mark, being being used to the court. the Michigan Appellate Court found that the contempt charges could stand against him. He had his attorney had argued that it wasn't willful, that it was sort of just an utterance, that they didn't intend for the judge to hear it. Therefore, they shouldn't be held in criminal contempt. Also said that, you know, the taboo was kind of a if contempt falls in the woods and no one could hear it.

9:23Does it exist? Is that their argument? Yeah, that they didn't intend to call the judge a slur. They might have felt it and wanted to utter it, but they didn't mean for them to hear it. And the court said that willful for these purposes does not require the intention for the judge to hear it, but rather that you said meant to say the thing and that it did, in fact, have an impact on the court's authority in the moment. Sure. This reminds me of a prior story you wrote where at least that person had the tact to hide it behind the CU next Tuesday. Yeah, that was another one. Well, I was just going to I was going to compare it to another story, too.

10:07So a lack of respect can manifest in multiple forms. And obviously this is different than calling the judge honey accidentally. But here we are. Right. Yeah. He said that he's going to appeal this to the Michigan Supreme Court. So we'll see if they have any different thoughts about this as the case moves on. But, you know, the Tauber said that the comments weren't directed at the court. They weren't intended to be insulting, but they were just my thought at the moment. And those two halves of that statement seem like they are in direct opposition to one another. Because why are you having that thought right now, right after the judge ruled against you?

10:49If not in order to insult, if not the judge, at least the decision that they made. But probably the judge, because it wasn't like, that's a f***ing dumb thing. It was f***ing noun, right? That is a slur against women. And it was a female judge. Seems pretty, I also would not be amused in Judge Pol's position. Maybe it was a sort of like the Queen's deal where it was just like a generalized, you know. You know, the royal, the editorial. Yeah. He just got finished watching Peaky Blinders. He was just in a British vibe, you know. It just doesn't have the same connotation over there. I mean, it does.

11:37Yeah. But also, like, why do you need to, why? Like, this isn't necessarily part of the decision, but why do you need to think that even? Like, I'm not trying to be thought police over here, but like you need to do some work as to why this really offensive slur is your go to when you have a setback professionally. Like what? Like do some work as to why you're why is that your. Oh, that's how it's feeling in the moment. And it is something that is wildly offensive. That's an appropriate use of the word wild as well to half of the population. you know and and at this point there are more women in law schools and big law and all that kind of stuff this is more than half the profession or will be someday and it's really wild that this is your go-to oh bad things were happening kind of moment also you can think things and you don't have to utter them like you can keep some things on the inside i i tell people that all the time wait i don't know if lawyers are good at that like the not speaking thing it's kind of like he was in his car right it's not like he had an audience he's not trying like you know you hear them the same if you say them out loud or you think though yeah like the same you have the same benefit or or impact regardless you could just keep some stuff on the inside well all right actually you know i'm gonna switch around our order from our planning document a little bit just because we'd already uh we already kind of previewed a dei conversation uh chris you had a story this week a follow-up on a story we we've dealt with in the past uh there's an organization that's going around suing places uh and what what's going on with their their attempt to go after michigan oh they're they're they're losing they're losing a lot they're really good They should change their name to Luzorp.

13:33But I think it's Faculty and Students. It's Fasorp. And yeah, I'm not altogether sure what all it is. It's Faculties and Students blah, blah, blah, blah, blah. Something. I do want to kill the time to actually say the acronym. You look it up and I'll kind of talk while you do. They're like wokeness ambulance chasers. They just kind of like go around and point and woke and try to file lawsuits. No, they're like they're like Bloom and Company if they weren't successful. Yeah. Bloom's Bloom's Bigotry Brigade, as I like to call them. But yeah, they're doing that. Faculty, alumni and students opposed to racial preferences.

14:14There we go. Yeah. And the thing about the racial preferences, it also factors in. I mean, they didn't they must have not thought it was important enough to mention that they also don't like gay and queer folk. but they're not safe either but you know one di category that doesn't get any flack from fast or veterans but that's what's like but yeah so i think it's interesting because from jump this case was obviously uh on the thinnest of premises but that does not necessarily mean anything in the year of our lord 2025 let's let's at least set the tone and say like exactly what this case was Yeah, this was they went after.

14:52Yeah. Oh, you got it. Yeah. So they were targeting Michigan for alleging that they were using race and, you know, other disqualifying factors and selecting who a got onto law review and be which members of faculty or professors who were able to get their papers published in law reviews. So it is generally a law review focused thing. In the first article I wrote talking about FASOR, I was like, OK, here's why. Maybe maybe you didn't get into law review because of lesser qualified black women. Shots out to Kataji. But maybe it's just because you suck. And then I gave an example, concrete examples of like, say, how their arguments against the use of race clearly didn't move off an understanding of the directions of the law review sample packet.

15:43They missed the point where the law review said that race wasn't really a factor, that grades aren't the end all be all. And a lot of the fast work were like, hey, these people with lower grades got in. It's like, well, you know, and it's also like the practical matter of if you're going to be working for hundreds of hours on top of your law school experience, you'd want to be in community with people that you can bear working with. And fast work just generally gives a very strong, unbearable vibe. I wouldn't be surprised if the people that were unable to be affected, maybe they didn't get in just because who wanted to be around them.

16:15Yeah, this is this is what they do. They file these lawsuits against organizations. They complain about they find like some Becky with bad grades who doesn't get on the the web. But often have them anonymously. Right. So it's not even like somebody or prospectively. The one that the one that they tried to do against NYU, they didn't even have a person who'd even applied yet. Right. The thing I love about all these, hey, y 'all are using race as an excuse to not get on merit is they're not even meritist groups. Like, yeah, that's what has nothing but a chain of losses. Like, yeah, like I think the one you just mentioned, it was it was a suit on behalf of white male professors, but no white male professors actually like applied to be in the thing.

16:58That's actually a separate one, but yes, I forgot about that one until you just mentioned it. Yeah, there was also that one where they argued that white professors hadn't had their articles published in the Law Review, and then the white professors who were complaining had never even attempted to send their manuscripts to there. Like if you're going to ignore threshold standing issues, you have to be on the Supreme Court. Oh, there we go. Well played. Yeah. I mean, it goes to, though, a level to which and, you know, you don't want to make the legal system less accessible to people, but they do actually.

17:37Well, no, no, no, you don't want to do that. But filing fees might actually be and filing fees and the American system of covering your own costs as opposed to the British system of loser pays encourages this kind of bullying of a lawsuit. I don't think these folks even imagine that they can possibly win any of this garbage. What they want to do is drag a law review into court and force them to dick around and spend a bunch of money and then maybe give up and throw a bone to these causes. And you don't want to make that worse. It's bigger than that because they also get to get like propaganda sites like Fox or what have you to cover this story.

18:20right so it's its own um so i i think of these i think of things like this like um when like when kim kardashian wore marilyn monroe's dress like sometimes these are just fabricated events and even if there's no like real likelihood that they'll win the fact that it became a news story is sufficient to color public perceptions to slide the window towards all this dei shit is happening Even if they aren't successful in the merits, even if it's a loss of money, they gain the social capital to be able to continue bearing the horn. 100 percent. And also, you know, as I was kind of alluding to earlier, that there are plenty of unsuccessful or should be unsuccessful lawsuits, bad idea lawsuits filed by Donald Trump that have instead of being thrown out and wound up with great concessions and some deals on the side, you know, CBS.

19:15Yes, but nine big law firms, you know, these are all things that shouldn't or should be thrown out of court. And instead, they're getting just wild concessions. The big law things were executive order, like, yeah, but but the ABC, Stephanopoulos, which we'll talk about in a minute, actually. But yeah, you're right. So there probably needs to be some level of reform to create a situation where it is harder for folks to do this. And I wanted to add to Chris's point about the news jacking that goes on here. You know, before he became the de facto president, Stephen Miller was pursuing a lot of these sorts of cases.

19:53And it was a pattern. It was like, find whatever the news story is going to hit SEO of the week, and he would file some kind of weird lawsuit about it. Yeah, like he did a Macy's. He sued Macy's. Because of Thanksgiving, because of the parade. The week of the Thanksgiving parade. And yeah, stuff like that. So it's definitely a PR thing, like Chris was saying. All right. So this story is tangentially related to George Stephanopoulos made a remark a while back where he referred to Donald Trump being found civilly liable for raping author Eugene Carroll. That resulted in a defamation suit from Donald Trump because the actual finding in that case was he was found liable of defaming E.

20:39Jean Carroll when he said she was lying about the rape. That may seem to like a normal person like a weird semantic distinction, but it's, you know, legally relevant. Trump sued over that even though Stephanopoulos was quoting something that, you know, a normal person would read those two things as being somewhat related. Ultimately, ABC settled anyway and gave Trump's like$16 million, something like that. The reason this comes up is that Stephanopoulos is also still hosting news shows, and he was involved in an interview recently that I found worthy of writing about, which is we're looking at a situation where the administration is trying to mobilize troops for law enforcement purposes, which is not legal under the Posse Comitatus Act of 1878, whatever.

21:35But there is an exception, which is the Insurrection Act, which can be invoked to say because there's some sort of an insurrection going on, you can send troops to be thrown at domestic – at citizens and just used domestically. Trump apparently – Trump has not invoked this yet, but there is conversation that he is preparing to, especially as he keeps losing court cases in Chicago and Portland over these efforts. It's here's what gets me about this on an episode of a show that Stephanopoulos hosts. They had brought on Sarah Esker, who used to work for the Jeff Sessions Department of Justice as the spokesperson, you know, a lawyer kind of works over at the dispatch conservative, but not, you know, not not as fully Baga.

22:25But my issue with this interview was that it felt as though it felt as though the beginning of the apology tour already. And what bugged me about it was it was sort of it's wrong if Donald Trump were to invoke the Insurrection Act, but he totally can. And it's legal that it can. And even going to fill out your bingo card, she even goes to say that if Donald Trump were to, you know, push the limits of the Constitution and vote the Insurrection Act, the person you should blame for it is Joe Biden. Whatever. But. Cool, cool. Cool, cool. But my takeaway about this is there are many talking heads who say lots of crazy things, but the more insidious form of a talking head is one that says, I personally think this is bad, but because that I think is the most chilling form of commentary because it is the one that allows somebody who might be in the middle, somebody who is the person that you need to mobilize to stand up to these sorts of situations.

23:27And it preemptively chills their belief and it gives them permission to say it's acceptable to say I'm against this personally, but I can't do anything about it. In reality, her analysis is what's the technical term? Bullshit. Yes, that is the technical term I was looking for. Absolutely. This is not how any of this works. She says that, like, in this interview, like half of all presidents have done this. That is not actually mathematically accurate even. she says that numbers lie stephanopoulos points out you know because he could he now having his turn to be hyper technical about something after his his brush with the administration points out but to the extent they've done it they don't do it over the objections of governors and her response to that was absolutely 70 years ago it was used once over the objection of a governor it was actually used a couple times back then but it's one of those things where like she presents It as though this proves that it can be used this way as opposed to the exception against the rule.

24:31Additionally, of the Insurrection Act's prongs explaining why you can do this, when Eisenhower, her example, deployed it in Arkansas, it fell within the text of one of those exceptions, which this would not at all. Trump's attempting to send folks in to like help out with help out ICE and stuff like that. So none of this is legally justified on any measure of the text or spirit of the law, but we don't even need to get there. We can live in the perfect conservative world of believing in textualism, and there's no justification for this. But my takeaway was you we have a real problem in this world, and the problem is not necessarily the crazies.

25:17It is this sort of apology tour, this sort of, well, I'm still OK. This sort of I still want to be able to attend polite society and go to cocktail parties by saying I'm personally opposed, but I'm going to do the work on the administration's behalf by laying the groundwork and sane washing this incredibly destructive breach of. I love that term scene washing. But I think the other sort of really key piece of this that links to our previous conversation is that so much of these battles are being fought in the court of public opinion and people aren't really realizing it. It's a PR battle. And, you know, that's why folks that's why some folks think it's OK for Trump to try to send troops to Portland because they think it's on fire.

26:05It is not. It is not. It is not. You're from there, Joe. You're well aware that Portland is not, in fact, on fire. It is a delightful place to get a craft beer. That is about it. But there is a sense that that is not true. And when you try to say, but but hey, it's not actually on fire. You're told by the far right. You're crazy. You believe the lies. That's all fake news. And there is really, you know, it is happening in people's hearts and minds as opposed to in courtrooms. And people are creating the framework that is that is allowing this to happen. And it really needs to be called out in this way.

26:48It's funny reading stuff in undergrad and I have people like, oh, postmodern, postmodern philosophy is like bullshit in the real world. But it's hard to look at this and not interpret it as, oh, we're living under conditions of post-truth. Because, like, well, one, I was going to say I can see videos of the biggest threats in Portland being naked cyclists and people in Tyrannosaurus Rex costumes dancing. Inflatable, yeah. But then at the meta level, can you even trust the videos? Because we have things like Sora 2 or have you, you know? And I think that I've seen a couple of them. And I've had interactions with people walking down the street.

27:27If you take away that watermark, they wouldn't know the difference. So I do think that the post-truth aspect of it is becoming far more prescient and non-theoretical. Like I think about – I think about like there's a section – this is getting a little too heady. I'll stop soon. But there's like these sections where Beauger is talking about pataphysics or being like the solutions to imaginary problems. And I think about the notion of educating and informing people as being the way to fix the problem that we're in as pataphysics. Because what I see is that people are confronted with the truth. And what happens is it actually reifies their positions.

28:08They get more committed to the things that they were saying, even if they're false, because it's not about the truth of the matter. It's about the ego positions that are entrenched by the things that they're affirming. said in English, if you had an uncle that denied vaccines and you handed him 30 peer-reviewed essays on why vaccines, there's no connection between vaccines and autism, the response wouldn't be, oh, this is informative. It would be, you're trying too hard. Yeah. It must actually be real. And then they'd burn the papers. You know, that's post-truth. I think about that in the context of like what Joe was saying about how she's norming and like sane washing.

28:44Yeah. I don't think that he's wrong, but I think that the problem might be grander than that. Like, it still presumes norms were like things like civility matter. Like, it doesn't matter as much in my mind that she's making the absurd positions seem more reasonable. What matters is that there's no clear way to fight the insane positions through the imposition of sanity. But that's. I think that I think that's I think there's something to that. I mean, as troubling as it is that you're making us all remember Baudrillard. Well, you could forget Baudrillard, but that's also a link. But actually, I think that is a good description where I kind of sit.

29:23I'm so fresh off a debate tournament, man. No, no, yeah, yeah. I think there is something to be said for the uncle who it reifies everything, and so there's not really a point. What bugs me, and that actually speaks to why I'm more concerned about this sort of an interview than even somebody going on Newsmax and saying crazy things. Because I think this sort of an interview is speaking, especially when they begin it with, I personally don't think this, but. They are targeting the people who possibly are persuadable, who do not have an entrenched ego position. And that's what makes it so much worse because I think there is a post-truth problem, and there are people who are lost.

30:04We saw it again this weekend. There was that rally, the King stuff. And if you go on social media right now, all that they're doing is saying that all the video is fake and from 2017. None of it is. In fact, it is all from this weekend. But if you look on X right now, the artist formerly known as Twitter, that's all they're saying is they're trying to say that this is all fake video. And I just do want to clarify, I do I do agree with your point about the sane washing. The way that I think about it, it's like when the person in school, the person in undergrad is saying, yeah, man, the moon is made of cheese and you don't have to believe me.

30:40You can go look at it for yourself. It's like that appeal to reasonability or like that appeal to the notion that the things can be verified is a great cover to say non-verifiable things, you know, like at the meta level. All right. Well, I think that should probably be the end for this week. Thanks, everybody, for listening. You should subscribe to show so you get new episodes when they come out. You should leave reviews and stars. All that stuff's good and useful and helps other people find it. I know that's an ask everybody does on podcasts and so on. But not every viewer does it. And then nobody does it because it is, you know, I mean, it is a thing.

31:18But, you know, please do it. Help us out with all that sort of stuff. You should be listening to the Jabot, Catherine's other podcast. I'm also a guest on the Legal Tech Week Journalist Roundtable. You should be listening to the other shows on the Legal Talk Network at the Clio Convention. I talked to some of the other hosts of some of those shows who were there. So it was nice to chat with some people. So check them out. You should be reading Above the Law every week. So read these and other stories before we talk about them here. Follow on social media. It's AboveTheLaw.com on the Blue Sky. It's ATL blog on Twitter.

31:52I'm at Joe Patrice. Catherine's at Catherine1. Chris is at Rights for Rent. and with all that said we will check in with you again next week peace