Federal Judge Turns Law School Event Into Pro Wrestling Style Spectacle

Welcome to another edition of Thinking Like a Lawyer. How are you, Joke Treat? Pretty good. Yes. I am good, but that five was not prepared for you to try. I enjoy that I seem to have thrown you off your game. Yeah. No, no, no, nothing makes this seem more like a professional podcast than constantly trying to throw everybody off balance. It makes you unhappy. That is true. I mean, when is the win? People describe long as a fast workplace environment. This actually feels unbrand. Yeah. Well, yeah, I'm Joe. Everything starts about the law. Yeah. And that was Chris Williams from above law. We've been interrupted before that by Katherine Rabino. We are here to talk about some of the big stories of the week in the legal universe. Though first, as always, we begin with a little bit of a section of the show we like to call Small Talk. Small Talk. Okay. So that sounded super evil. And with that. So, yeah. We are all kind of dealing with the fallout of some bank collapses. One that's getting more attention. We don't need to worry as much about. But one that's getting a little less attention is signature. So how's that going? This is small talk, even though it's kind of legal related. It's not at all small. It's just not a full segment. But it is absolutely related to our jobs, which is not small talk. Medium talk. Medium talk. Yeah. We've been partying like it's 1930s up in here with banks collapsing. Okay. Let's spend some good times. Obviously Silicon Valley Bank collapsed on Friday. And on Sunday, regulators in New York took over Signature Bank, which, you know, is not a ginormous bank. You may not have heard of it. But it's New York based bank and does a lot of business with law firms, a lot of other professional services, some real estate, and a fairly traditional kind of mix of business, one might think. But you'd be correct up until about 2018, which is when Signature in addition to sort of doing all this law firm work started to get heavily involved in crypto. Oh, no. Yeah. And one of the things that I've been tracking on this is that obviously a lot of these bank clothes, these three bank closures with, as of recording in a week that we're talking about, a lot of them have collapsed because the Dodd-Frank protections that were originally created were then loosened in 2018, largely at the lobbying work of Barney Frank himself, who at that point had become a board member of Signature Bank. Interesting. Yeah. He's certainly made some comments thinking that the regulators take over of Signature was a bit premature. There was a run on deposits on Friday, but the bank seems to, or says at this point that they would have had it under control. Had they been allowed to open for business on Monday? I mean, Sam Bank been freed, says the same thing. Yeah. But the other kind of interesting part, particularly for those who are involved in the crypto industry with Silvergate also sort of going under Silvergate and Signature were the two primary 24-7 solutions for crypto businesses in exchange. So yeah, it'll be an interesting time. Yeah. You know, everybody keeps blaming crypto just because it's completely made up money that's driven largely by Ponzi schemes. And I don't know if that's fair. Fake money has a way of being fake. Yeah. Like that's the subheading to this. That's the corny reason for blaming crypto. I blame crypto because it's fun to say. Like, you know, the dollar boring crypto is serious and it makes me bros angry. Mysterious is really what you want in a financial instrument. Nothing says, in pure trade, like, I don't know how much is this worth. So speaking of how much things are worth, also a quick shout out to the lawyers somewhere in the world who are getting paid for closing arguably the most significant dollar and 20 cent deal in history. The UK, SVB holdings could have become a big problem, but HSBC has stepped in and bought all of SVB UK for one pound. So some lawyers were up all night inking a deal to allow them to take over a lot more than a dollar. One would assume billing more than a dollar 20 at current exchange rate. So congrats to them. So yeah, so is that good for our small talk segment? I think it probably is. Well, no, it's not small talk. It's medium. It's definitely medium. Yeah, medium. But then that's our sound. Our heart. It's a different sound for it. Well, that's why I played the party horn. I thought that that was our medium. I like it. I respect the placement. Yeah, you know. All right. So let's get to the important news of the day. What's going on? Thanks for keeping up with it. I'm pretty sure it was your story, Joe. That's true. I thought you might want to introduce it. And I thought you might invite me to do it. Read the pre-show memo. It's that you've fallen down on the job. You're such a... Yeah, I got you. You're the opposite of a generous improv partner. This is the revenge of small talk here. You saw that little segment felt like the personal interaction. I like it. Just yeah. You know who I don't like? Who? Judge Duncan. Oh, there we go. All right. Thanks for... Thanks for segue. So, yeah. So we have... I know you need help. Yeah. Okay, sure. So this is the most recent episode in the ongoing cancel culture crisis as it is. It is being disingenuously billed throughout the law school world. This time it is not at Yale. Finally. Finally, we don't talk about Yale. This is at Stanford. Judge Duncan, who's probably most... He's involved in a lot of retrograde opinions, but most famously for going out of his way to explain why misgendering people is his part, is his role and that he, as a matter of law, feels that they must be misgendered. This violated his own circuits rules, by the way, but he did it anyway. That's a hot take. Yeah, made him something of a little bit of a minor celebrity among... Well, he's trying to increase that, isn't he? Among kind of the right-wing powers that be, that choose who gets promoted down the road, he does seem to have seemingly decided he'd fallen behind in that and needed a cue boost and decided to go... He wanted some headlines and he's got them. Yeah, so he went to Stanford for an event. There was a protest, as one might expect, from somebody like that going to Stanford. Then yeah, so he's managed to get Stanford at the school to apologize to him in a letter. So what did he do that Stanford had felt that they had to apologize? Well, I mean, there were protesters, right? And the usual procedure of claiming that he was shouted down by these law students acting outrageous behavior where they're not acting like real law students who would understand and civilly debate things, the usual talking points, unfortunately. The extra layer to this is that, say what you will about the Alliance Defending Freedom, who's been kind of driving a lot of these events, the recognized hate group who keeps going to law school campuses, having a protest and then claiming, oh look at all these horrible law students. Judge Duncan took it a new direction and a new direction that kind of... I mean, I would have thought would not have helped him out, but it potentially opens a new chapter in this ongoing discussion because he rolled in and rather than really strive to maintain that moral high ground of, yeah, you don't like me, but I will engage you and I'll listen to your questions and answer and we'll have civil discourse. The problem for him is that these students decided to do that. There were obviously protests and signs and so on and less than civil comments at various points throughout the event, but what ended up happening is several people started asking him actual pointed questions about how he would defend certain decisions that he made. How'd he take that? He did not deal well. He did not like the idea that he might have to actually answer a question, which historically has been kind of the moral high ground that you needed to make this whole thing work. It's kind of the conceit of the whole thing is though like the debate me conceit that these people use, unfortunately. Yeah, I mean fundamentally these sorts of speakers want to paint themselves as the only adult in the room and that falls apart when you're acting like a toddler. Yeah, the victimhood game is problematic when you start yelling at the students' faces that they're appalling idiots. He dismissed a woman telling a story of how she had been raped with nice story. He claims in an update to that that he didn't say that, that what he really said is that's a story not a question. Whether or not that's better in any way, but that is his defense of what he actually had said there. He said a teen question? Yeah, basically. It's more of a comment than a question. It was kind of his take. But still, yeah, he's active, he was asked about, in particular about that, misgendering opinion and asked how he squares that opinion with other canons of legal practice that you're supposed to treat people with respect. Why is it that this situation does not deserve the respect of that? His response to that was just read the opinion. For the reasons in the opinion, all right, that's not really engaging in civil discourse. He was also asked about some voting rights cases, I believe it was. He said, well, which case, site the case, site the case, and when the student didn't have it off top of his head, he apparently berated them that you think you could get away with this in court not knowing, then the student, because the... This is not court, first of all. It's not court. And because the internet is amazing, the student then founded the site and said this one. And he said, was I even on the panel of that one? My question is, does he think that would work in court to not even know whether his job is? Yeah. And then he blew off that question too. The whole thing kind of became an episode where, you know, be careful what you wish for. The conceit of all this is wish to have an open debate where people ask you questions, and then when they did, he was not ready. Yeah. I think this wildly backfired on Judge Duncan. I mean, even I think folks who are predisposed to say things like, oh, these protests have gotten out of hand. This is a problem. But even those folks are saying as bad as you might think, students protesting someone on campus is this behavior is worse. Well, but that's kind of the... I hear that, but... And there are definitely some voices that are generally critical of students that are saying that. The part that I think is a little more scary is that it has seemingly worked. The usual folks, the free beacon and Ed Weyland and all the usual, and Jonathan Turley, your usual kind of clown car folks who trump up these issues, reference totally intended, I guess there. They are not wavering there. Like you one would think if this was really a backfire, they would try to downplay this one as much as possible, but they're leaning into it too. They're very much re-characterizing this as he did nothing wrong and it's all the students and there's some disingenuously edited together video clips that make it seem like they were all out to get him. There are more full clips that some folks, I know Jay Willis of Balls and Strikes have put up that show that this really... This is not the way it went down. This is the edited version. Right. We've got some... Yeah, and I think we kind of made this point when we were talking about James Ho, another federal judge, very much to the right. When we were talking about him, I think that there's a rush to get the most headlines to appear the most. Obviously, despite any legal methods just going to give the political results that the far right wants, and that's how they get promoted. It is resume via trolling. But here's the thing about... Great line. Here's the thing about Judge Ho's situation, Judge Ho parachuted himself into the Yale situation that didn't involve him and started making claims that he was going to boycott them. That's how he kind of got his attention there. But the thing with Ho is he's a lot more clever. I mean, he held on to that moral high ground. He leaned into the idea that I know that... I'm serious. You're not. I'm serious. And yeah, they could have just let... I mean, part of that is the benefit, brilliantly, on his part of he wasn't part of this protest. He was on the outside talking about it after the fact. He didn't have to have the moment where somebody asked him a pointed question and he didn't have an answer. This is where Duncan seems to have miscalculated, but or maybe not. I mean, if there are leaning and letting it happen. But even though his name might be on the top of some lists, I do think that this kind of an incident and the backlash that is coming from some corners affects your ability to be reconfirmed by the Senate to a higher job. I mean, perhaps. I don't know. I view that we are kind of in a zero in a moment of seeing zero gravity to see where this goes. If the narrative ends up leaning more towards the way in which Zillow Ed, as we all call him, because he's the one who tried to... That's a decently old reference. I appreciate it, though. Yeah, that's the one where Ed Wayland tried to prove that Kavanaugh could not have possibly engaged in an attempted assault because he's looked at the floor plans on Zillow. It just doesn't matter. Yeah, if that narrative holds, then maybe you can get away with this. I kind of characterize it very much as a wrestling heel situation. He rolled in like Ric Flair. You all hate me because I'm so pretty. And then you got the crowd that way. I hear what you're saying, but fundamentally, you're going to need moderate Republicans at a minimum in order to pull off the next level. Maybe. Yeah. I don't know. I don't know if you're going to see... This just happened fairly recently to see what the longer term blowback is. I mean, I do think that he is more of a long shot than somebody like Ho anyway. Yeah, I think that's true. So ultimately, maybe you're right. I don't think this gets him ahead of Ho in Leonard Leo's book of wish lists. Workers' Comp Matters is a podcast dedicated to exploring the laws, the landmark cases, and the true stories that define our Workers' Compensation System. I'm Judd Pearson. Together with Alan Pierce, we host a different guest each month as we bring to life this diverse area of the law. Join us on Workers' Comp Matters on the Legal Talk Network. As a lawyer, keeping up with developments in information security, cyber threats and e-discovery is a never-ending process. Fortunately, the Digital Detectives podcast does the hard work for you. I'm Sharon Nelson, and together with John Simick, we bring on industry experts to discuss the latest tech developments that help keep your data secure, only on the Digital Detectives podcast. All right, we're back for anybody who's interested, Elon Musk continues to screw everything up on a legal, if not business level. But he's had another run-in with… Wait, we should clarify. Are you talking about the killing monkeys with the neural link stuff? Oh, no. We already knew he was killing monkeys with neural link. No. Let's talk about Tesla losing hundreds of millions of dollars worth of stock. You know, no, actually, I think we already knew about that one. He did something else that got him into hot water last week. I don't quite remember what it was. Oh, I think he did an ableism. Well, yeah. He did an ableism. There you go. Fair enough. Or for those of you who are more legally inclined, anti-discrimination law tends to say that you don't publicly mock employees for having… E.A. violations of that. Having muscular dypskrophy. But you know, Elon is an iconoclast who… Elon's Elon. You got Elon Musk. He's playing 12-dimensional chess here, friends. This is all part of the plan. Yeah. So tell us a little bit about how this went down. Yeah. Well, manchild billionaire Elon Musk after being contacted by indeterminate, unknown at the time employee contacted Musk directly because after nine days of reaching out to HR, HR never got back to him. He says, hey, do I work for you? And then Elon decides that this is a good time to show his fans how cultured he is. So I think he has some clip from some office comedy, the type of stuff you'd expect. Yeah. People who have bad Elden Ring builds to find humorous. What I'm saying is that humor never compressed past 1993. Anyway, so adding towards that, South Park at Seamer, he then mocks the guy for having muscular dystrophy. He's like, this guy does no work. Never time he didn't find out. Not only does this guy do a lot of work for Twitter, he's also like one of the best people in the world. I'm like, well, it's like 30-stop. But I always do a lot of work at Twitter. He does a lot of work everywhere else. And he has muscular dystrophy. So he's part of working with everyone else, which you can't make fun of for people in Twitter, by the way. So he also got... So there's definitely that. He's also kind of, importantly, he had an employment agreement that includes a $100 million termination clause. Right. So, yeah. But here's the thing. So the guy named Holly, since he had like tapped and common sense, it was never... He never specifically said, run me what you owe me, motherfucker. But he didn't... He did it in like the ways you would expect an adult to do. Am I allowed to talk about this? Is this permission to disclose? Here's what I do, blah, blah, blah. The thing we had talked about, is that still in play? And then the bubbling car monkey guys like, ooh, what are you talking about? I'm smart. I just... He committed the workplace lawsuit equivalent of dumping over a huge truck of ramen noodles. And everybody just like rubbernecking at the crash. Because it's so beautiful to see in real times. Like, oh, he's actively losing money. Yeah. Well, also because he's, you know, a man child who needs all the attention all the time, we saw it all because he's forced his tweets onto everyone's feed. So even when he fucks up, everybody knows it. Yeah, and then once he's like, oh no, what is that on the fan blades? Is that shit? Did the shit hit the fan? And then he goes back and deletes tweets where that was one tweet. Like, this guy is literally the worst person in the world. All the people who he knows hates him because he had a popularity poll was like, should I still run Twitter? And everyone said, no, they take screenshots. So he can't think of the messy debates once he tries to make it. It does raise the question though. What's going on with his legal counsel here? He's fired them all, no. There's been a lot of folks fired. But yeah. This is what happens when you fire all the lawyers. I mean, if the conditions counselor look anything like what any other people that work from look like, if they say anything to either publicly or privately about the bullshit he's shitting about, they get fired. But you don't need to question his feelings to say, you can feel however you want, sir. You will owe $100 million if this happens. How do we feel about that? Like, that's the sort of advice that I think you could give pretty easily. The fun part was that the suspected contract breach, he would pay the guy a hundred, have to pay kind of hundred million dollars because the company that he had was bought it by Twitter, right? Right. Then on top of that, out of speculation, oh shit, maybe instead of playing 4D checkers, Elon is playing chess with checkers pieces. That was stopped then plummeted. And of course, oh wait, this isn't even the first time. There were four other people on Do Not Fire list that got fired. And I'm like, how? Yeah, I thought it was the To Be Fired list. It was a simple reading comprehension issue there. It's bad, but it really does. Even if, even if, and no, I mean, you had a serious angle on this. I do think there's something to be said for how do you manage a client, whether you're in house or not. And if you have a client who is prone to firing people for questioning him, maybe you pick your battles, you don't necessarily give him the primer on how discrimination law works. But you know, you point out the contract. Yeah, of course you can fire him. It's going to cost you a hundred million dollars. You do something because you kind of have an obligation to try. But I mean, the problem is this is how all of this has already happened, right? Like the fundamentally, the reason this guy even owns Twitter is because he told Scadden to stop asking for a due diligence protection in the agreement, and they ultimately acquiesced to that. And then when he decided he wanted out, he had already waived the only way he could get out. Like it's the customer is always right, but also a moron. And at a certain point, where do you as a lawyer draw the line between doing what the client asks and protecting the client from themselves, you know? Very glad. I'm not saying that's on Musk's lawyer, though. I would say thankfully that's not for me to figure out. I just get the correct guy stupid. I think I think is the proper position to be in, you know, that's fair. But that's, but that's just me thinking like a lawyer. Oh, wow. So naming the show. Well done. You get it. You get it. Yeah. Yeah. Yeah. Join us on the road from Legal Talk Network for special conference coverage at ABA Tech Show 2023. I'm your host Lawrence Coletti, recording live from Tech Show's Expo Hall floor. We'll be talking about the future of the legal industry with keynote speakers like Cleo's Jack Newton, Tech innovator, jazz Hampton, legal tech disruptor Aaron Levine. And of course, our good friend Kimberly Bennett, our pre show talk with Tech Show's co chair, Gisak Galakis, is already live. And every day during the conference, we'll be releasing new episodes with insider details. You'll want to hear more about it. So just go to legaltalknetwork.com and search Tech Show 2023 to hear all the episodes or listen on the road with your favorite podcasting app. We'll see you out there on the road at ABA Tech Show 2023. Are you looking for a podcast that was created for new solos? Then join me, Adriana Lanares, each month on the new solo podcast. We talked to lawyers who have built their own successful practices and shared their insights to help you grow yours. You can find new solo on the Legal Talk network or anywhere you get your podcast. All right. The other thing that happened this week is our former host, Ellie Mistol, back when I didn't get interrupted all the time. This is so much better. I agree. Also, also, anybody who listens to an archival episode will know that that's not true at all. I got interrupted constantly then. Ellie Mistol wrote a piece in the nation where he talked about he really blasted Merrick Garland for having not put Trump in under indictment earlier. It is not particularly clear for what. And by that, I mean, obviously he meant for various January 6th actions, but it wasn't very particularly clear what statute he thought would have supported an indictment based on the evidence that at that point was undeveloped. I responded with an article about how you can't really blame Merrick Garland for that because that's just not how the criminal justice system operates. If you, if the various statutes that one could charge Trump under if you were to do that, you would have to either cross lines into what incitement means that would be particularly troubling, or you would have to have rolled in with half proven claims and hoped that the evidence would miraculously appear before the trial or else you'd end up with, you know, giving Trump a double jeopardy protection from ever going after it. Yeah, I mean, I think two things. First of all, as tempting as I think incitement is, and I think that what Trump did was obviously a lot closer, but I think that anything that extends what incitement is, is just more likely to be used against BLM protesters, other protesters. Anytime there's even, you know, two pennies worth of property damage. We already saw this. This already went to the Supreme Court. They tried to go after DeRay for speaking at an event and then later one person at the event through a brick and they tried to put him in prison for that. And even even this Supreme Court thought that was insane. But I'm saying if we extend it to this case without more evidence, particularly at the time that what we knew then, I think that that would have been particularly problematic. I think the other point is that it underplays how valuable an acquittal would have been for Trump. Yeah. If you didn't have all your ducks in a row, if you don't have a slam dunk for sure conviction, I think that Donald Trump getting to get up and scream about how he's been acquitted and how that proves that he's innocent is infinitely more dangerous than not going after him. I mean, that's the Omar line, right? Like if you come at the king, you can't be missing here. Like that's the whole point. It was probably cooler on my set, but I get you. Right. I mean, I was trying to inject a little bit of pop culture cool into this show. Cool question, Mark. All right. Okay. Anyway, yeah. But this was the back and forth of God and Ellie has a lot of fervent fans who have been sending me a lot of very mean mail about me questioning whether or not you could have just kind of magiced Trump into prison. Yeah. And I think that magicing it is the right way also to frame it because it'd be great. I understand the impulse to say, you know, kind of in a, I know it when I see it. I don't know the statute, but I know that shit ain't good. I feel that I viscerally feel that, but I don't think that that is what lawyers won, but certainly most specifically the attorney general should be doing. Yeah. There's a tension between the colloquial use of incitement because like there's no question there, but like thinking about things legally, it really is like, well, what exactly happened here? Because I agree with Joe. I'm like, however, incitement gets stretched here, in this case, how will this affect people protesting pipelines? Yeah. How this affect people trying to draw attention to rapidly approaching climate crisis. And it'll be great for like, what is like contextual irony. Like I think about that there were a bunch of laws that were passed that were meant to like net black lives matter of protesters that ended up getting used against Trump supporters like that happens back and forth. But like, yeah, it's like writing with a scalpel. And they have to be very particular with how you cut and dice up what these words mean in a legal context. And it seemed it kind of felt like a lot of the, a lot of the, oh, we should, we should put him in jail for XYZ. I would try to link that up with a statute that already exists. And I was like, but if these are the elements, you don't, you don't have that. You know, anyway, would be nice though. Yeah. And well, and there's a reason why, you know, like it, there's a reason why mob bosses don't go to jail immediately, right? Like at a certain point, at least I have the two years. Like the whole, like the whole, like the jail for tax evasion. Well, I mean, there's certainly that too. But there's a tax issue with Trump or anything. Yeah. But that's, that's the issue. Like those, those kinds of financial crimes in this classified documents case like are much more concrete issues, but they aren't ones that Ellie was really talking about because he, he's more talking about the, he, his whole goal is that there should have been something that could have triggered the 14th amendments bar on somebody holding public office down the road. Like, like with a mob boss, they don't go to jail instantly either because the whole design of the system is they don't do any actual crime, right? Like somebody else does. And then over time you get up the chain and find out they were ordered to do that thing. But you don't, you can't just jump right to it. And yes, we all know, but that's not enough. Anyway, so that's been, that's been that this week. Any other last items before we begin our, our farewell? I have one. I just wanted to say, this relates to this. It was a billboard I've seen. And by that means price on online is important to keep in mind in this context. Is this lawyer advertising and services? And he said, just because you did it does not mean you're guilty. Nice. Fair enough. So our, our one announcement is we aren't going to be able to have a show next week, just the, the hecticness of legal week and everything is going to force that off. So we will see you in two weeks. Everybody probably talk about legal week and everything when that happens. Stay tuned for the very exciting legal technology updates. That was good. Hey, they are. They are exciting. Fucking updates. That was some good voice. That was a good voice. I was like, what out drugs or anime was this? That was good. That was good. Subscribe to the show so you get new episodes when they come out. Give us reviews, stars, write something. It always helps more people find the show. You should listen to other shows like Catherine's on the, it has the Jibo. I'm on the legal tech week journalist round table. You should be listening to the other offerings of the legal talk network. You should follow us on social media. Elon's pet home is where a lot of us are. The blog is at ATL blog. I'm at Joseph trees. She's at Catherine one as in the numeral one there. Chris is at rights for rent. We are. Yes. Oh, yeah. Good point. Yeah, that has been a common issue. So writes as in he's writing like a, yeah. Okay. Anyway, it's a big cover. Yeah, it is. You should be reading above loss. So you see these stories and others before we chat about them here. And with all that, we will check in with you in a bit. Peace. Yeah. Yeah. Yeah. Yeah. Yeah. Yeah.