Welcome to another edition of Thinking Like A Lawyer.
I'm Joe Patrice from Above The Lot.
I'm joined by Chris Williams, and we're here to talk about the, you know, like we usually
do the big legal stories of the week.
In this case of the two weeks since we were not around for the Independence Day in the
US holiday.
So we're back and ready to go, and we'll have some small talk now, which we always introduce
with a little bit of fanfare.
All right, hey, welcome back to the country.
It's nice, you know, once it was nice to land, that's usually the best part of going
back in the States when you're on a plane.
I was then in media made better than crashing.
Yeah, at least in theory.
I thought so until I saw the prices, and I realized I wasn't ready.
Everything costs at least three to four times more than, you know, in respectable countries
like Cambodia.
It's because in those days, these shithole prices in the States already, already miss,
you know, not being here, but other than that, it's nice.
Yeah, no.
So, yeah, it's good to be, good to be back.
I haven't left, so I don't have any problems with the prices.
I know people complain about inflation, but I also track the real numbers and see that
it's mostly leveled off and stopped.
So we don't really have too much bad going on on that front, but don't worry, there are
more people got jobs last month, so they're going to jack up interest rates anyway, because
they're not going to stop until they trigger a recession.
We'll see when that happens, how that impacts law firms, though.
So, oh, one other small talk thing in the week that I've been back in the States, there
have been more mass shootings here than in the five months that I was in Cambodia.
So, it's good to know that bad didn't change, and it was a warm welcome.
Yeah, that is definitely going to be the case.
Yeah, bad knees all the way around.
We had some flash flooding here yesterday, but seems like everything's returned normal,
but just a massive amount, the day loose.
Yeah.
Anyway.
I like the last little, the little LSAT word there, SAT word, day loose.
No.
Well, yeah, no, the, well, I write for a living, actually, I got a fan letter, but with
a snarky aside where somebody was correct, it just was thanking me for an article, but
pointing out that I used a word wrong, and I was like, yeah, but what got me was like,
you should look up the difference between these two words, and I'm like, well, I understand
the difference.
I don't understand why people thought the mistake was because I didn't know the difference
as opposed to, I typed it up over the course of 30 minutes because it was breaking news,
and I used the wrong word.
I don't know why people would jump to the conclusion that I must not know basic SAT words
despite the fact that I, you know, have a law degree, but let's say, well, when you see
the people with that practice, it's hard to be surprised.
Yeah.
I'm not, like, I thought it was great that this person pointed out because we rely on
that sometimes because we are churning out content so quickly that it's difficult to keep
a top of the editing.
It's not like writing a law firm brief where you go over it four or five times word by
word to make sure everything is right before you file, like this is a lot faster.
So I appreciated that somebody pointed out to me, but, you know, it's not that we don't
know the words.
Anyway, cool.
Is that all?
Yeah, that was, that was a nice small talk for me.
Let's get on it.
So let's open up with the article that had that word problem, actually, as well, and it
was part of a bunch of articles that were writing about this subject.
So let's go back to talking about Elon Musk and his Twitter misadventures for those of
you who have been following this all along, you know, this all began with his attempts
to buy Twitter, which seems like a tech story.
But it's really a legal story because he ended up having to buy Twitter as we covered
at the time because he didn't listen to his own lawyers and made a bunch of incredibly
stupid giveaways in the merger agreement that forced him then to go through with the
deal when they sued.
The most recent run of issues though are a couple of legal problems, which was last week
he sent a very mean spirit, his let it technically Quinn, a manual, his attorneys sent very
mean letter to meta, the artist formerly known as Facebook, accusing them of stealing
Twitter intellectual property in developing their new threads app, which is being touted
as a Twitter killer to the extent that there is such a thing other than Musk himself.
So have you were you tracking this one, did you have any thoughts on this?
My thoughts on threads is what I think everyone's thought is there was a TikTok and it was
like, find me on blue sky, find me on Macedon, find me on threads and it's like, I'm out of
it.
I can't do this anymore.
I can't do this anymore.
I just need to be on one thing and stick to it.
On that note, actually, on the legal tech week, journalist roundtable, which I'm a panelist
on where we talk about tech stuff, we actually did talk about some more broadly tech folks
who are taking the sense that, you know, this whole micro blogging thing is over.
It worked because there was one, the benefit of a monopoly, it worked because Twitter was
the only one doing it, but now that it's not, it's just never going to, that community
is just never going to coalesce again, which was an interesting take.
Well, to that point, I mean, I do think it's interesting that as there was, they hit
a point where everything became everything, like Snapchat used to be interesting because
we would have, you'd have stories of the last 24 hours and an Instagram adopted that and
in Facebook, it used to be interesting because you could have like a little poll, I mean,
Twitter was interesting because you could have like little 40 character posts and even
before threads, Instagram had this feature where it was like a little story thing, like
you could say like a short little thing.
I think we've already hit a phase of saturation where the really thing that's different is
just like what the user in a face looks like, but we've hit a point where like maybe like
for a couple of years now, they've all been kind of the same thing.
Well, I mean, I just think that again, this is a field of it, but I just feel like it's
the audience was the actual money, the user base being ubiquitous and now that it's
getting fractured into different places, it's going to be a problem.
Anyway, to get back to the complaint, the accusation is that Facebook stole IP.
When you read this actual letter, though, there's not really what you would assume to see,
you would assume you would see in a letter from a big law firm actually threatening a major
corporation for stealing their intellectual property.
There's no, you know, actual specific, you know, specificity here.
It's a bunch of vague claims that they don't think Facebook could have been, you know,
a multi-billion dollar corporation would have been able to build something that allows someone
to type in 140 characters without, you know, the deep, deep help of a bunch of former Twitter
employees.
So the Elon right of himself, which of course were all on the market because Elon fired
everybody because he said none of them were good engineers and he didn't need any of them.
So it's interesting that now his comeback is these deeply vital people to the companies
IP are now switching sides to Facebook, which of course there's no real articulation of what
they would be doing wrong even if they did go over there to the extent that they stole
documents or something that would be bad, but there's no real indication that they did
anything like that.
What they took was their talent there, but, you know, California doesn't really love
non-compete agreements that prevent people from performing their profession and they really
don't like non-compete agreements when you're the one firing them.
So with all of that, there's not really much to suggest that this is real.
I assume Facebook's lawyers laughed heartily when they received this and will soon reply
with an equally snarky response depending on who they hire, but, you know, that's, that's
where we are.
I mean, Elon today says that he's going to, he wants to have a public dick measuring contest
with Mark Zuckerberg.
So, you know, I guess of things that none of us want to see, this lawsuit is the better
of the two, I guess.
So is that metaphorical for the M and A fight or is this literal at this point?
Oh, no, he's gone literal.
He's remembered.
He wanted the, he wanted the M and A fight, but his mommy wouldn't let him do it.
So now he's about, he's trying to post meat on Maine.
Yeah.
I got to be honest, it is tough talk to be doing this after your mommy stopped you from
getting in a fight.
So I don't really know why his mom will see this.
Oh, I mean, yeah, well, I mean, the thing is we assume Zuckerberg has already seen this
because right, like it, like he has access to everyone's posts.
It's known.
He knows.
Anyway, but and he and unlike Zuckerberg, he, a, no, and unlike Musk, he is, Zuckerberg probably
does do diligence, um, wait, a lot of Musk, Musk knows that like Photoshop exists, right?
Like if he post any meat, even if he has gargantuan shlong, the photo edits that will come
out will make this horrible for it.
Like no PR team will be able to scrub this from the internet.
I wonder if he saw the meta demo and thought that Zuckerberg really doesn't have any legs
that like he really is just a floating.
I mean, maybe that's his logic.
I don't know.
Anyway, so with that, we have, we have this fight going on.
We also have a slightly more serious fight.
I shouldn't say slightly a, a more serious, but probably not really a big deal fight.
Twitter's parent company is X, of course, uh, now that it's privately held it and X is
suing Wachtel, uh, their argument being that Wachtel received $90 million as a fee at the
end of the days of Twitter because Wachtel is the firm that Twitter hired to force Musk
to buy Twitter when Musk tried to, you know, ignore the contractual obligations he had put
himself in by ignoring his own lawyers, uh, Wachtel secured a $90 million fee for that.
They are now being sued by X in California courts arguing that that success fee should
be clawed back on the grounds that the people running Twitter at that point did not have
Twitter's best interests in at heart because they knew they were all going to be fired
by Musk.
Somebody's trying to get money away from Wachtel, uh, that never works, uh, but we'll
see if you don't come between Wachtel and money in my experience, but, you know, we're
talking about the most, you know, the most profitable firm by margin, you know, of the
last 20, 30 years.
So, yeah, no major player.
Yeah.
Yeah.
Is this what Elon had in mind?
He was looking for his hardcore lawyers.
Yeah.
Right.
So, well, I mean, his hardcore lawyers, he's hired, you know, it's interesting speaking
of that.
Now, for almost everything he's done for the last year, he's utilized quit a manual, but
it is a little telling that in this case, he is not employing quit a manual.
I thought that was a little weird given their relationship.
He's got Reed Collins doing this.
So, interested to see what that means.
A quit a manual obviously is a litigation powerhouse and has been doing everything.
So, it's an interesting switch of horses, midstream, especially when quit a manual was
writing the nasty letters last week, but whatever.
Anyway, uh, so yeah, breaking down this complaint, it's interesting.
It seems like there was a success fee, uh, it's unclear other than, I mean, it seems
like there's a lot of hindsight being imputed here, uh, musk is claiming that all of these
executives authorized this payment, knowing they were about to be fired by him.
There's no indicator.
It's true that he fired bunches of people, but there wasn't really an indication that
they were going to be fired by that.
There's not really a good reason why this fee is totally crazy, uh, success fees exist
in this world, and in this case, this was a success fee for making the shareholders
$44 billion, uh, 90 million doesn't seem like it's that crazy, uh, in that context.
I mean, if you think of contingency fees often being around a third of the recovery, this
is, uh, 0.2%.
So, not really all that egregious, uh, it's, it's going to be interesting.
They do have some claims about the propriety under California law of how success fee arrangements
have to be structured, uh, and that this one to the standard didn't wasn't put in writing
at the beginning of the representation shouldn't be allowed, whatever, uh, so there's some technical
arguments that could be interesting to watch play out, but yeah.
So what tell is, uh, the latest person that Elon's trying to beat in court, uh, given
his recent track record, yeah, good luck, I think it's the right answer there.
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All right.
So we, it's been a couple of weeks now.
So it, it mercifully, you might have scrubbed some of these stories from your brain.
But if you haven't, while we were gone, we weren't able to talk about the last, the last
few days of the Supreme court term, uh, yet ended.
Because one would expect in a hail of rough decisions and, uh, then subsequent gaslighting.
But we did get at the end of the term, you know, as expected, kind of the end of affirmative
action, the end of the student loan deal.
So yeah.
So let's talk about the affirmative action one first, uh, here, just because I think that's,
that one ties to more of our stories.
So the affirmative action case, uh, the conservative majority of the Supreme Court determined
that affirmative action was unconstitutional in college admissions, uh, their argument,
they, they try like courts tend to do to claim that, oh, no, this isn't really stopping
it in other contexts.
But obviously we understand how incremental, legislate, you know, litigation works.
This is the first step in an ultimate delegitimizing of it across the board, uh, with that said,
as soon as it happened, you wrote a story about a move being made by, uh, former Trump
rule.
Steve Miller, uh, to ex, to already expand this to another area of education.
Right.
So the, the fancy name besides school, the American, American first legal, they sent out a threat
of litigation to like 200 law schools in the US, of course, we weren't, they sent them
over to, you know, places and Britain.
And they said that they had, did law schools have to immediately renounce, announce the
determination of all forms of race, national origin and sex preferences, which is weird
for them to say you have to, uh, renounce national origin when you refer it called
America first.
But anyway, uh, fact of hiring and law of remembership or article selection, anything
that uses affirmative action for those things.
And a way that was broader than what the actual opinion was, the opinion didn't make any restrictions
on schools using affirmative action and article selection or law of remembership.
But it's one of the things where it's to be expected that if you give an inch, you know,
a mile, you know, is the next income to pass.
My thing is they then go on to say that any proxy actions will also be taken to court.
So if some law schools decide that they want to benefit applicants from this particular
social economic background as a proxy for race, that they will try that in court and have
that be viewed as affirmative action by some other means.
But the thing that I don't think that they understand is this is going to bite them by
hitting their funders children.
It's going to happen because there are so because of take for example, one of the other
things that's currently being litigated affirmative action for white people, which is legacy
admissions.
Everyone knows that's affirmative act for white folks like there was one point where sure
take Harvard for example, there was a point where they were taking white applicants and
black applicants before very long time up to like say like 1950 or so, they were only
getting like say 12 black students a year.
So just like if you look at the numbers, there's the amount of people that qualify for legacy
admissions are overwhelmingly white, which makes sense when the fact that I like say about
70% of Harvard's legacy admissions are white.
So it's an affirmative action program for white folks.
So if you want to look at this for impact, it's a racial program.
This Harvard and North Carolina opinion should just just equally apply to that, you know.
Right.
Well, and this came up in the opinion, right?
Because I was at Gorsuch who like wrote a thing about that, oh well, Harvard says that
this exists.
And if they got rid of legacy admissions, then this would allow, this would allow them
to get back to the same diverse balance without the need for affirmative action and basically
blaming legacy admissions for why Harvard had to have affirmative action, which some people
are pointing to as proof that it has an argument that conservatives would not have a problem
with diversity in admissions if legacies went away, or at least some justices might.
It was a weird inclusion because while that may be true for Harvard, it doesn't do anything
for UNC, right?
Like it's not like state schools have these extensive legacy programs that in on the order
of Harvard, it really weird inclusion, but yeah, we'll see.
So it's very interesting to take there.
The other issues we had where we had, we had the AV, three or three creative case where
a company that had no business or clients or ever done anything managed to secure standing
for itself for the purposes of the Supreme Court striking down protections for public accommodation,
you know, public accommodation law protections, if you start a business, you're free to discriminate
all you want as a person, but when you start a business open to the public, you have to abide
by anti-discrimination laws, Supreme Court struck that down, arguing that this company that
had never actually been subject to any of these laws somehow got to make a court case out
of it.
It is bold and no real basis in that at least anything, any case law leading up to this,
but that hasn't stopped some really disingenuous actors from trying to pretend it did.
I did see Ed Weyland, who's noted, it was not a very smart man, but still manages to
write about law all the time anyway, because no one stops him.
He was trying to argue that the comparison, make a comparison with Roe v Wade saying,
you know, she actually ended up having the baby.
So, you know, standing doesn't, you know, it's the same thing, which obviously is ridiculous
to the extent that you know.
Like that on the con logs and don't do it.
Yeah.
Well, or just bother to read the opinion, a large chunk of Roe v Wade actually deals with
this specific issue because they are, unlike this court, they were very concerned about
the idea that they were being seen as ignoring standing and talked about how, in this instance,
you had someone who had been pregnant and was never going to be able to get a case all
the way up to the Supreme Court before, you know, they can no longer get an abortion at
all.
So, their argument was that given that this is a situation that could be repeated, but
never make it to the end of the line of litigation, we will make an exception for that.
That is not an exception that would exist here, right, like this is a situation where
she, all she needs to do is find some client willing to, you know, who she objects to and
then she can be charged under it and then she can bring her case the normal way.
Now that brings us to the next element of this that became an issue, which is it turns
out that the lawyers in this case tried to create a example of her being asked by a client
to do something she objected to and the new republic did some, did some digging and
called up the person whose name, address, phone number and all are in the filings for
this case and asked about when he asked for a same sex wedding website and it turns out
that this person is a heterosexual who has been married for years and has no idea what
they're talking about.
So, it appears as a lot.
He was two days old when he discovered that he was involved in a Supreme Court case.
Yeah, exactly.
So now the Supreme Court got around this by just ignoring that you needed any kind of
claim, any kind of case or controversy and just issuing an advisory opinion anyway,
but it does show that the lawyers involved were attempting or at least someone had attempted
at the lawyers did not at any point call this out for the court and that's the candor
part, right?
Right.
Even if they weren't involved in setting this up at some point, it came to their attention
that this was an attempted fraud on the court and they have obligations at that point
to share that an attempted fraud is happening upon the court, which they do not appear to
have done at any juncture here.
This is a fairly big deal.
There are people trying to downplay it saying, well, but the Supreme Court decided they didn't
have to worry about that fact, which may well be true.
That does not, you know, there is not really a no harm, no foul when it comes to legal
ethics like that.
Just because the court decides not to indulge your attempted fraud does not actually mean
that you don't have problems trying to commit a fraud, you know.
This may be a bit of a jump, but I wonder to what degree the actions of this court will
have on multi-million dollar, multi-billion dollar contract disputes, because when you're
looking at contracts, you're like, okay, do we mediate this?
Do we take all the way to court?
You tend to look at things like, oh, what are the facts?
Who has standing to sue?
What have you?
It assumes a norm.
The court doesn't abide by any of that.
They're just ignoring facts when it comes to Bremerton.
They're ignoring standing and the things that the Constitution allows, as far as our
article three, like how will this affect companies trying to determine what to do?
Well, so now, if you have a contract all year in a lot better shape, because there's
at least some sense that you've got something written down, which, I mean, that's not to
say that there aren't situations where you try to make arguments based on anticipatory
breach or declaratory judgements, stuff like that, but there's at least something to guide
you.
But you're right.
Robert's court has spent a long time at this point, nearly 20 years at this point, arguing
that standing was the most important thing.
And people who you would normally think, and the precedent had normally said had standing,
he would slam the courthouse door in their faces saying, no, you actually have to have
a lot more before we're even going to bother giving you access to the courts.
This reversal is wild.
It tends, it comports with a change in the politics of the court when the court might have
given these people relief.
He was all about kicking things based on lack of standing.
It seems as though now that the politics of the court have shifted, he's willing to
go along with blowing up the standard requirements that he had pushed for so long.
And you're right, the spillover effect is going to be interesting, right?
Because now there's not really, there's not really any clear check on what it takes to
bring a case to the courts other than you kind of think that it might be something that
a super legislature of a right wing majority, super legislature might endorse.
It's going to be interesting to see what comes out of this because someday the court will
change, but these precedents about what amounts to standing are still going to be there.
And what are we going to do when that happens?
It's going to be very tricky and dicey because very few guards are left on the floodgates
here.
And it's wild because it's not only like what standing is actually, but then also to
what degree of the court can interpret or add facts to their liking to create things.
Well, right.
And in this case, they didn't have to add any facts.
They just ignored the one that was there because it turned out not to be true at all.
But you're right.
Like you're referencing, of course, last year's Supreme Court case about school prayer
where Gorsuch was called out specifically for the fact that most of the stuff, most
of the facts cited to in his majority opinion, were not reflected at all in the record.
And they were critical facts because they were the only justification for possibly making
his opinion, but they just weren't there.
You're just totally made up.
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So real quick now, we have a little bit of bar prep news.
I don't know how many of the graduated law students out there are still listening to
us.
They're probably very hunkered down right now if they're in the bar prep mode, which I understand.
So you may not even be hearing this, but for everyone else's benefit, it's worth just
kind of tossing out there that this has happened.
Femus, one of the major bar prep organizations out there has been struggling over the last
few months with shutdowns in the middle of prep.
We get a lot of angry examinees writing to us about it.
We understand we hear you.
At first, I warned everybody, you know, it's okay.
It's very early.
You don't need to, you don't need to stress about every single second.
It's the test is two and a half months away, don't worry about it.
But now it is not two months away.
Now we are in the last couple of weeks and we had a shutdown again last week.
So this is becoming a problem.
You didn't ultimately, but you've considered taking the bar, like, how would this feel
about, you know, as you were going through it?
I mean, I would be pissed.
I mean, I would ultimately just start using like the textbooks would have you like.
But I feel like if I'm paying for the online service and like, you know, being able to
procrastinate easier by opening up another tab and going on YouTube, then that's what
I want, you know?
Well, that has certainly been a bit of my take too.
And I feel bad about it, but I had also, I agree with you.
I'm kind of like, they also send you a bunch of written materials and you also have taken
notes of the lectures theoretically.
If the website's down for a few hours, you can also read those things.
I don't know.
Maybe it's a question of how studying works these days, whether people just don't do
that anymore.
I don't know.
But also, I'm like, I'm like, oh, fate has given me a study break.
Who am I to turn down?
Good fortune.
I would just go cash up on Netflix.
Well, that was certainly, I mean, that was the crux of my article back in June.
I feel like I'm a lot less sympathetic to that idea now.
But yeah, it's important to note that this isn't just the Mrs. Fault.
This seems to be a problem with bar prep courses generally when they happen to have too
much capacity for the bandwidth, because themus has so many customers this year reportedly,
because barberry had a series of these shutdowns and failures last year.
And a lot of people, I see writing to us.
A lot of people say they chose themus because barberry had so many issues last year.
I guess so.
Kaplan's, Kaplan's looking at this and his, Kaplan, that the meme of the hand rubbing.
Yeah.
I mean, I don't know, like, I feel like it's just going to fluctuate between the three of
them over and over again for a while until everyone gets to the heart of this, but
until Zuckerberg comes in with a studies in the
studies.
All right.
Well, that is pretty much our time.
Thanks for everyone for listening.
You should be is subscribed to the show to get new episodes when they come out.
You should be writing reviews, say something, put some stars up, but always helps.
You should be following folks on social media.
I'm at Joseph Patrice on Twitter for to the extent that matters.
I'm Joe Patrice on Blue Sky.
I think, I think I'm Joe Patrice on Threads.
I can't even remember Chris is at writes for rent as in he's writing on Twitter.
And I assume Threads is what's what's that for you?
I have to make one.
Well, I mean, what's your Instagram, right?
Like it's tied to your Instagram.
Yeah, I don't have a, I don't have a work.
People don't, people don't need to be on my personal Instagram.
They don't, they don't need that.
I don't need that.
So yeah.
Oh, so you need to come up with a whole separate.
Yeah, that's a thing.
It's all messed up because if you do tie it, then yeah.
Anyway, so I'm Mr. Days of having a finster.
You know, about the fake Instagrams or you know where you keep your co-workers off it?
Yeah, you know, but you know, Threads kind of ruined that for people.
So the, the blog is at ATL blog on Twitter and Threads, I believe.
So with that, all said, you should be reading above the loss.
You read, hear these and other stories before they happen.
You should be listening to the, this show, but also the JAPO,
which Catherine hosts.
You should be checking out the Legal Tech Week Journalist Roundtable,
which I already cited, which I'm a panelist on.
She'll listen to the other shows on the Legal Talk network.
And with all of that, I think now we're done.
Peace.
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