The Sandwich Is Mightier Than The Sword

0:11Welcome back to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by my colleagues, Catherine Rubino and Chris Williams. Hello. And, you know, we're here, as we usually are, to talk about the big stories from the week that was in the legal industry. It was a big week at Above the Law. We had some interesting stuff to talk about, and we're going to recap a lot of that here. But first, so that we can confirm that the AI hasn't taken over our jobs, we're going to show that we're human by having a little bit of small talk. Small talk. Yeah. Unlike those AI podcast companies which struggle with this, we are going to have awkward, often meandering conversations.

0:56Only as awkward as you make it, Joe. That's how we're proving we're human. If we are totally polished in this small talk section, then you know the robots have taken over. So that's why we're doing this. Like, this is how we fight back. This is the boring Terminator prequel. Where people attempted to be really awkward. Amazing. Amazing. I'm also reminded that one of the things that sets us apart is that we have the world's greatest audio engineer. I've received that note. So we should make note of that. We do have polished audio engineering, which a lot of those robots don't. I was trying to come up with a different word than AI or robot because those are going to come up a lot.

1:39You should be like the bots? The bots. I have a word. I'd also like to comment on it. I feel like clanker rolls off the tongue for too many people, a little too easy. Yeah, no, I actually have been hearing about that. That's like, well, let's set the stage for this. So that term is going around, and there's now a potentially insightful, but also potentially you people have too much time on your hands on social media, backlash saying that having negative terms for robots is a signal for our as a society's overconfidence in slurs generally and that it's therefore a continuation of prejudice as a whole.

2:20People indicate our over. That's what I always think, too. But I mean, yeah, I mean, miss the point there. Yeah, that was the stage. Chris, my thing is, I I like to think I'm a student of history. I still like to think of it from the history of the slur, the way that it's being used just feels like the N-word. So I don't know if y 'all know, but the word robot comes from a Czech word that means forced labor or servitude. So given that history of what the history that robots come from and coming from a line of people who were seen as being advanced farming tools. I just feel a strange kinship in seeing Clanker get thrown around willy-nilly.

3:07Yeah, it was from a play, I believe, R-U-R, I think it was the name of the play, that coined the term. And it obviously was... I've seen that play, actually. Well, La-Dee-Dah, aren't you cultured? You do more than just legal tech. You do legal in the theater, too. Yeah. So anyway, yeah, obviously it was kind of a, at the time, Marxist expression of the way in which the alienation of labor was being moved on to these devices. I'm kind of partial to the Futurama robot. The robot. I can't help it. I think it's really funny every time. The robots are coming. See how less threatening that feels? Then the robots are coming.

3:51Yeah. Hey, hey, hey, hey, hey. My uncle was a robot.

3:58Yeah, I mean, I definitely find it fascinating as a linguistic conversation that, you know, the way in which the way in which we choose to attack new and other eyes things, you know, manifest itself in the way that we've realized everything else, creating slurs and stuff like that. Yeah, no, but I think there is something to the the idea that this is extenuation of that. Also, the desire for a slur. Well, right. That's what I mean. That I think is super fun. Yeah, that's exactly what it is. Yeah. That said, I also am sympathetic to the point that Catherine is making that I feel like we could just concentrate on the slurs that already exist rather than worry about the new one.

4:40We need a stronger slur for billionaires. Everybody's talking folks about the potential for like a robot uprising. The billionaires are actively killing you. You need to slur them. Orca bait. Yeah. There we go. There we go. Anyway, so yeah. So you see now this was what I actually envisioned small talk being as a general matter. Like this is the kind of small talk that I love. You all get annoyed when I don't have good things to talk about from the weekend. Well, no, but it's like that's just a way to talk that, you know, frequently leads to non-work discussions. I think both Chris and I's concern, Joe, is that you talk about work things during this segment.

5:20Your small talk contribution seems to be this week in AI or anyway, onto the resource. Which is, of course, perfectly good small talk because it is not about the stories of the week, which are the important things that we talk about here. Oh, jeez. What? Just, you know, you're... You're doing it. Yeah. Having a good segue, you're right, because that's what makes me the sort of great host who can't be replaced by AI. Segwaying to the important stories of the week, What do we – so as I call this one-up-by-land, two-up-by-sandwich, what's going on? So I think everybody at this point is aware of the attempted takeover of Washington, D.C.

6:03by federal agents. Yeah, yeah, yeah. Attempted. Well, yeah. So that obviously is going on with the all sorts of federal agents being deployed to the District of Columbia. And of that, one thing that sort of went viral is a man in a pink button down throwing a Subway sandwich at a federal agent. It is pretty funny, pretty low stakes in terms of, you know, risk to anyone, because, again, it's a Subway sandwich. It's not like hard, crispy bread. Right. I will say I read your depends on the subway. I've been to some bad Subways. I read your I read your piece. I actually thought it was really good.

6:48It was a cold cutting analysis of the issue. Cold cut. I see. That was good. Did I write that? Yeah.

6:58But what really sort of, that's just kind of the baseline tyranny that we've come to live with in 2025. Not necessarily something that above the law gets involved in, but it became an ATL story once that person was ID'd. It is Sean Charles Dunn, and he is a now former employee of the Department of Justice, worked for the criminal division. And so, you know, that became that became a whole thing. So after he was chased down, after launching the salami at a federal agent, he was taken to a D.C. Circuit Superior Court and no trials, no charges were filed. And then it went viral. And then there were federal charges that were launched against Mr.

7:52Dunn. And not only that, but his ID and his employer became well known. And so he was also fired by Pam Bondi herself, the attorney general. as his lawyer was in the midst of trying to negotiate a peaceful surrender. They instead put 20 armed officers at his door. Yeah. It's a shame that even fast food is being politicized. Well, so there's a few things to break down. Now, when you say federally charged, as I understand it, there's just an information here which is a critical distinction because, of course, that means they were unable to actually get a grand jury to indict him over any of this, which makes sense, right?

8:36Like, obviously this is stupid. Obviously this is the sort of thing that is unlikely to get a bunch of D.C. residents to think that it deserves 20 years in prison. But it does force us to come to grips with that old maxim, like that a grand jury could indict a ham sandwich. A ham sandwich, well, yeah. But maybe not this one. Well, the ham sandwich was not in fact indicted. So, right. Right. So this is unlikely to to work because to make this into a felony to get to that point, they will need to get a grand jury to sign off on that. And that seems hard to imagine. I mean, even if it did, I have to imagine more than even the most sort of egregious case.

9:20This just screams for jury nullification. I can't imagine 12 folks in D.C. coming together and being like, yeah, that definitely deserves 15 years in prison. Well, in firing him, Pam Bondi made the point that anybody who attacks a law enforcement officer has to understand that they would receive the harshest possible penalties from this administration. Unless you did it on January 6th. Yeah, it does seem like her words were a little awkwardly phrased since they had already, this administration had already decided to pardon people who tried to beat cops to death with fire extinguishers and flagpoles.

10:00So somehow the sandwich is worse, I guess. Yeah, well, because it was it was what the administration wants. And I think that, you know, you trying to point out the logic and inconsistency here, funny, though it may be, misses, I think, the broader authoritarianism kind of point, right? It's it's about what the administration wants. The people who are acting in advancement of the administration's goals will be forgiven and exalted. The people who don't, even if it's just with baloney, won't be. Oh, yeah. Speaking of baloney and news coverage, one thing that I saw that I thought was dead on, people are talking about this sandwich thrower more than the person that went around impersonating a cop and assassinated Democratic politicians.

10:48And I mean, there's that. But I also think and I think this is actually essential to the whole the whole context of what's happening here. People are talking about this sandwich situation more than whether or not Trump is mentioned in Epstein's files, which is the actual reason. There we go. The actual reason I think that we're seeing the National Guard mobilized in D.C. Yeah, I think that it's really interesting, though, the folks that have turned on the Epstein files. You know, Joe Rogan the other day was literally saying exactly what you're saying. And it is stunning that that sentence exists, that Joe Patrice and Joe Rogan were saying the same thing.

11:29Yeah, well, Joe's of the world unite, I guess. There you go. He got Biden on board. So, yeah. So I will say of this. So having been in the D.C. area last week as this was all going down, I will say that the the argument is that they need military troops to stop the crime that putting aside the crime is down in D.C. Even if that was the situation, it seems that it is undermined by the fact that the presence is only in traditionally low crime areas. They're hanging out in the parking lot of Union Station and stuff like that. They're going to Georgetown. Nobody goes to Georgetown anymore. They're really just doing things for maximum visibility and low actual effort.

12:20Yeah, photo op stuff. Yeah. Apparently they abandoned Union Station because of an ever growing protest, which as far as reports suggest was just like a lady with a sign. However, I think they probably abandoned it because I don't know if you've been to Union Station lately. I, of course, went in and out of there last week, and I think that they probably left because the guards were screaming, move, move, come on, let's go, get out of the way, move, move, which is what they do with an alarming amount of energy at all times. And that like there is no second that they aren't screaming at some cab for taking more than the exact bare minimum to get a gas, get a passenger out and out of the way.

13:06So I think that's probably what it was. Well, we all have our theories. And my guess is this case will not will continue, at least in the court of public opinion for a lot longer than it actually takes to get through the legal court system. Quick mention, while we're still in the tangible area of military takeover of D.C., big balls. Remember the guy who was appointed to doge by Trump, him allegedly being beat up in a car tracking? It's part of the reason why it's the basis for this being a legal or moment that's exceptional that justifies overriding the police department. But yeah, I just wanted to mention that.

13:47Yeah, no, I think that is useful. And obviously this isn't to diminish that there is an ongoing carjacking issue, even though overall crime is down in D.C. Carjacking specifically, it's weird how sometimes there are cities that just, you know, everything's going one way and then one particular crime just like takes off there. And that is an issue in the city. That said, is it an issue that requires the deployment of the world's premier military force? Probably not. uh and big balls a i i do have not for nothing i i the when the big balls thing originally happened the administration story was that he got in a fight trying to defend a woman outside a bar or something like that and then it later became carjacking i don't know maybe that was misinformation in the first instance or maybe i don't know like just just worth noting that there was a weird moment where it meant one thing like the story kind of changed along the way which is curious almost that it changed to something that seemed a little more plausible for the administration's purposes but whatever i did see that the administration is pushing back against the idea that crime is down which is you know supported by all statistical evidence uh but they did push back by releasing a statement comparing and contrasting what's going on there with some other places noting that uh you know and accusing the left-wing media of lying and pointed out that washington dc's murder rate is 18 times higher than that of communist-run cuba and i gotta be honest they've got they got me let's put the communists in charge i'm ready i i'm fully prepared i think they also mentioned islamabad and like voldemort's house yeah like the whole the whole parade of bad places yeah no uh so they got me it's time for communist leadership in america's cities that'll work okay so we are back and we have some financial data about big law firms to crunch uh this is that end of quarter the q2 ended now we're finally getting the you know the repercussions of what happened uh we had the first the tr a law firm financial index report uh and then now uh breaking kind of like as we're talking we have sit the city groups law firm an estimate uh they're a tale of they're kind of a tale of two interpretations uh while the numbers are largely the same between the two reports it was interesting that the tr report which i tended to trust a little bit more as far as its analytical take interpreted the numbers as more of a calm before the storm uh well they actually said an eye of a hurricane uh and i i pushed back against that because the eye of the hurricane means you've already had trouble and then it's going to get worse and then it'll get better uh i don't know that we were in any trouble and now i think that trouble is about to begin so i'm going calm before the storm so you're just criticizing it as a literary analogy.

16:57As a meteorological device. I blame the firing of all the National Weather Service people. So what they did note, though, was that demand is up among the firms, which is a positive after a lot of it being down for several—well, not down. It's always kind of up, but it's up not in the big numbers. That said, year over year, it is looking worse than it did last year. The whole thing was driven largely by counter-cyclical practices like litigation, which is not great. And it was also – yeah, M &A seems off the charts at the moment, which is the sort of thing you would expect in an uncertain environment where tariffs keep popping up and disappearing.

17:39And a lot of the revenue growth seems to be sucked up by costs. it's a lot of charge billing more and the charging more and on the other side the costs are up everywhere that ain't good those are all figures of course that we've seen before a recession hits the legal industry so there's and there's just not a lot to suggest that it gets better I will say the city report was much more positive saying oh look at this and look at this and M &A is not here and that will inevitably pick up. And I felt the word inevitably was carrying a lot of undue weight there. I don't know why it would inevitably go up unless you take the sense that enough bankruptcies start happening that they get sucked up.

18:26Yeah, no, I really did. That was my takeaway, that this is not a great place for firms to be sitting. Yeah, I mean, I think it's interesting. You know, one of the big sort of drivers was also increase in rates, which, you know, we're going to always see. And I don't know, I always think it's pretty interesting because clients get really mad anytime lawyers raise their rates, even though, you know, inflation and everything gets more expensive every year. That's literally just the state of the world. And so I think that that's really interesting that so much of it was placed on increasing rates, but overall productivity is down.

19:05Not a ton, but enough that, you know, makes you really start to wonder about these overall models. Yeah, remember when AI was supposed to increase everyone's productivity? It doesn't seem like that has happened here. Yeah, listen, I think that, you know, AI's adoption in the legal industry is definitely hampered by things like the billable hour. And I think that perhaps over the long term, plenty of folks will stop charging by the hour and start charging by the matter and because they sort of have these historical historical uh examples that they can sort of build off of but things just take less time to do if you're using ai tools and that's not great if you're billing by the hour right theoretically yeah and that is yeah and that is and there's an ethical component to it too you can't you can't bill for time that didn't happen so if you get sped up at a certain point you get sped up so much, you either increase your billable hour rate, which is what at Legal Week, Lexus made the claim that we're staring down the barrel of a$10 ,000 an hour lawyer.

20:15That is a way to overcome that time difference. The other way, of course, is to, like you said, do more value-based billing because the ethical rules do allow you to charge for the value of your service as opposed to time uh but if you try to mess with the time uh and do estimates on what the time would have been that's bad but you can do it this way so that's the differentiator there and yeah no i think that's true one other aspect of the i will say on tech's front uh like a pro tech comment uh one aspect of the lffi anyway uh the tr report was that the positive gains for the industry as a whole, a lot of it was being driven by the AMLAW 200 and the mid-sized firms.

21:04They're doing really well right now. In fact, demand was actually slightly down, slightly negative for the AMLAW 100. Interesting. That suggests we're seeing those firms take business, right? That's what that means. That suggests, A, that clients are trusting them. The positive story is they're trusting those firms to take on more matters. The downside of it is it suggests that clients are feeling cost conscious enough that they are taking business away from bigger firms and moving it down. When you start tightening the belt like that, that's usually a sign that you have a low consumer confidence, which would comport with the rest of the statistics we get or got, I should say, before we fired the Bureau of Labor Statistics and all of the financial reporting people.

21:53So who knows? I would be very concerned, I guess, is my takeaway from this report. And we'll see what Q3 brings. But that's that was my takeaway. way i do have a practical question because i'm not familiar with how this would work if a firm were to switch from assigning costs to consumers from hourly rates to matter like per matter how would they establish that about being ethical because the way you want to be is like well whatever they're willing to play pay minus one cent that's what we that's what we're charging per matter with with hours you at least had some time increment you could point the cost to but if you to say per matter?

22:30Like, how do you justify that? All right. There are no ethical problems with just assigning it that way. The issue with time is that if you assign your bills as time multiplied by whatever rate, and that's the thing that right now they can just make up whatever, how much their hour is worth. If you do it that way, you are bound to respect the time part, because it's a false claim basically if you say I spent time that I didn't. Whereas value really is just that we believe this product was worth this to you and you will pay that or you will find another lawyer. And it has existed for years. It just is obviously dwarfed by the number of firms that are on the billable hour.

23:16But, I mean, folks like Wachtell and stuff have been doing this for a long time in certain matters. Even when I was a young lawyer at Cleary, we, you know, I billed by the hour in litigation, but there were certain, certain discrete, repeatable tasks like in the structured finance group and stuff like that where they were able to work out that like, oh, you want us to create and file this form? that's 40 grand. We know that it always is 40 grand. And, you know, sometimes you're more efficient and it's a little bit cheaper internally to the firm. But sometimes there's thorny issues and it's more for the firm, but you're only charging the, yeah.

23:56And listen, internal in-house folks like it because it's super predictable. And one of the things that I will say of the AI stuff, one of the things that's actually interesting about AI when it comes to this billing is, If you have done decades worth of work on the same kinds of matters, one thing AI is actually pretty good at is here's every matter and every bill we ever sent on this kind of assignment. Crunch that number, and it'll come back and be like, to do that based on 50 years of us crunching your numbers, it takes you X number of hours at a blended rate of whatever adjusted to inflation.

24:40and you can sit there and go, great, well, then that's what I'm going to charge for it going forward, which is a task that by hand takes a long time. But the AI is actually pretty good at that. All right. You know, this week, last week, I actually got, you know, one of those Facebook memory things where it like reminds you of stuff you were doing a long time ago. And you were like, oh, yeah. And it was a cable TV hit that I had. I just had taken a screen cap of me as the floating head on a cable TV hit. And it was when I was brought on to discuss the implications for a time when I was doing a lot of the Supreme Court analysis for cable network.

25:21And it was when we were talking about Obergefell and what a revolutionary change that was. And that'll be an interesting image for me when that no longer exists. Yeah. So that was a story that I wrote this week, and it is sort of planning for the fall of Obergefell. And I think that it's a pretty interesting question because there are certainly legal commenters who have a different opinion. sort of the background on this is that Kim Davis, remember her? Remember her? She's the Kentucky clerk that refused to issue marriage licenses for same-sex couples. She was sued as a result of that and has to pay or is ordered to pay$100 ,000 to the couple as well as legal costs.

26:08And she's been appealing that. And in her most recent appeal based on that case, she also or her lawyers, legal groups, are also asking the Supreme Court to grant cert to also certify the question about whether or not Obergefell should be overturned. I think it's interesting. A lot of people are panicking about this, and I am sort of partial to the panic. I think that certainly Sam Alito has been real mad about this case since jump. Obviously, also Clarence Thomas agrees with that explicitly. Thomas wrote in his concurrence in the Dobbs case saying that same-sex marriage should be overturned. And in the majority opinion that Alito wrote in that case, in the Dobbs case, drew parallels between overturning reproductive freedom and same-sex marriage as neither were deeply rooted in history.

27:10So and that was the majority opinion. So we had five justices who agreed with that overall position. So the question has not yet been certified. And plenty of people are sort of taking the less panicked route and saying they're not going to. They're not going to certify this question. The chief doesn't want to revisit this. And there's some reason to believe that Kavanaugh and Gorsuch also are not interested in revisiting this particular case. But I don't know why you would preach anything but utter panic right now. You sort of wouldn't go poor if you're just betting on the Supreme Court to ruin everything.

27:47And this is, I think, pretty high on their list of things to ruin. I mean, it's not like a conservative majority will overturn Roe. They even said they'd respect precedent, you know? Yeah, that's what a lot of this people preaching caution right now sort of feels like to me. And it also, similarly to sort of the same-sex marriage, another right that was established by the court that I think is getting a side eye from the majority at this point is birth control. And there is a recent case out of, I believe, the D.C. courts saying that, of course, you know, the Trump era rule saying that any employer could not provide birth control if it was against their morals or whatever.

28:33that that was too broad. And as much as I think that's the right decision and accurate in all those things, it does make me really nervous as it kind of gets appealed and moves up the courts that the Supreme Court will see it as an invitation to overturn Griswold as well. I do think there's something to be said for, you know, the comparison to Roe, that they ground it down for a long time first and then took the real swipe. Sure. And so there may be an appetite with some of these justices. Obviously, as you said, some are ready to pull the trigger now. There may be an appetite to do some hemming and hawing to weaken protections for a while before they feel like they whittled it down to a point that they can attack.

29:22I mean, I think that's an interesting take that you have here, but I do wonder if there's just sort of less opportunity to do that when it comes to same-sex marriage, right? Because it seems very much on or off as a switch, as opposed to even the initial Roe decision was a matter of splitting, not splitting the babies seems a little vulgar. Yeah, yeah, yeah. No, that is the wrong one. Yeah, but they were already kind of creating lines in the sand. Well, this trimester, well, viability. There was already lines that they were creating from the jump. See, I'm pushing back and saying that I think the way in which you do this is you start saying things like, oh, well, this state's law that allows these couples to adopt kids, that passes reasonable muster.

30:12Or you can start taking away the ways in which a health insurer doesn't have to treat them the same. And once you start saying, sure, you're married, but you don't get any of the benefits of being married, guaranteed. Sure, that's fair. And that changes things. And I, you know, back to that cable news hit, I will say that one of the points I made in that hit at the time was I was deeply concerned that the way Kennedy did it left open a lot of these doors because it, you know, obviously we've learned that the Supreme Court will do whatever it does regardless of whether or not the law backs it up.

30:49But it is a lot easier to reverse an opinion like Kennedy's that was like, it's kind of based on this free floating idea of liberty as opposed to the equal protection argument that a lot more folks were arguing for. Yeah, I mean, I guess that's not inaccurate. And maybe this particular Kim Davis case is that opportunity where they say, well, sure, you can get married, but an individual clerk doesn't have to do anything about it. They have also have liberty interests and religious freedom. And that in that instance, when they're in conflict with one another, you know, there's no reason why same sex marriage would prevail over the individual clerks rights.