Original Jurisdiction (David Lat)

Gary Feinerman served as a judge for the U.S. District Court or the Northern District of Illinois, with chambers in Chicago, from 2010 to 2022. He also served as the Solicitor General of Illinois, from 2003 until 2007, and as a law clerk to Justice Anthony M. Kennedy. In our interview, we discussed why he left the bench, what it was like to clerk for Justice Kennedy alongside two future Supreme Court justices, his most noteworthy case from his time on the bench, how he worked his magic as a Supreme Court “feeder judge,” and the type of practice he plans to build at Latham & Watkins.

In almost thirty years of following the world of U.S. legal education, from applying to law schools in fall 1995 to covering them today as a journalist, I don’t think I have seen as consequential a time as the current one. To explain the whirlwind of recent developments, I sought out two of my favorite observers of the legal academy: Dan Rodriguez, former dean of the Northwestern University Pritzker School of Law, and Anna Ivey, former admissions dean at the University of Chicago Law School.

When I asked them to join me, I selected as our topic the U.S. News law school rankings—specifically, the withdrawal of dozens of schools from the rankings, followed by the announcement of significant revisions to the rankings methodology. But it’s impossible to discuss the rankings in a vacuum, so we wound up having a wide-ranging discussion that touched on two other possible major changes—abandonment of the LSAT (or any other test) as an admissions requirement, and an end to affirmative action—and the future of legal education more generally.

How do Anna Ivey and and Dan Rodriguez really feel about the U.S. News rankings? As former rather than current deans, they spoke freely and didn’t pull their punches. And are they worried or hopeful about what lies in store for U.S. law schools? Find out, in this new installment of the Original Jurisdiction podcast.

What do you know about the U.S. Court of International Trade (CIT)? Are you aware that it’s an Article III court, with life-tenured members who frequently sit by designation on circuit courts across the country? Although I fancy myself an expert on the federal courts, my knowledge of the CIT was pretty sparse until recently.

This began to change last November, when I spoke on a panel about the (problematic) practice of judges getting deeply involved in selecting their own successors. I felt the panel went well, and much of the credit belonged to our excellent moderator, Judge Stephen Vaden (who stepped in at the last minute after the passing of our original moderator, Judge Laurence Silberman). I’ve enjoyed getting to know Judge Vaden over the past few months, and I quickly realized I wanted to have him on the podcast.

Judge Vaden has served on the CIT since 2020. In this interview, he pulls back the curtain on his court, a fascinating cross between a trial court and the D.C. Circuit—and a great place to clerk for listeners interested in clerkship opportunities.

Devotees of the federal judiciary should appreciate this episode for its exploration of the CIT, unique among Article III courts in several ways. But it will also appeal to first-generation lawyers seeking inspiration (Judge Vaden is a farm boy turned federal judge), as well as any lawyers or law students who value sound career advice.

During my two-year detour into legal recruiting, I was struck by how many Biglaw attorneys, both associates and partners, want to make the jump to the in-house side. As a result of this keen demand, the competition for desirable corporate-counsel jobs can be fierce, with hundreds of applicants for a single opening.

What are in-house employers seeking in their hires? In my latest podcast interview, I explored the topic with Sonya Olds Som, a prominent figure in the world of legal search (and, full disclosure, an old friend). We also discussed her interesting and impressive life and career, which took her from a challenging childhood in Detroit to Cornell Law School to law firm partnership to Diversified Search Group, a fast-growing and highly regarded company in the executive-search industry, where she serves as a Global Managing Partner and leads the firm’s Legal, Risk, Compliance, and Government Affairs practice.

If you enjoy this interview, try and meet Sonya in person, since even a podcast can’t do her justice. She’s helping to organize or speaking at several events in the next few months, including the National Summit of Black Women Lawyers in Chicago (March 30-April 1), the National Bar Association Annual General Counsel Invitational in New York (May 11-12), and the National Bar Association Annual Corporate Counsel Leadership Summit in Minneapolis (July 31). In case you’re not familiar with it, the National Bar Association (NBA) is the nation’s oldest and largest national association of predominantly African-American lawyers, judges, law professors, and law students.

My thanks again to Sonya Som for such a delightful conversation.

Show Notes:

Sonya Olds Som bio, Diversified Search Group

Sonya Olds Som Joins Diversified Search Group as Global Managing Partner, Savoy

How Sonya Som Rebounded From The Recession, And Her Advice For Landing Your Dream Legal Job, by Renwei Chung for Above the Law

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NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Are boutique firms the future of litigation? Compared to many of their Biglaw counterparts, they’re often more nimble, innovative, and willing to take risks. Unattached to giant transactional practices, they have fewer conflicts and other client-related concerns, allowing them to take on interesting, cutting-edge cases that Biglaw firms might pass on to avoid controversy.

Founded and staffed by lawyers who left top Biglaw firms, elite boutiques can offer the same if not better lawyering and client service, frequently under more favorable or flexible fee arrangements. And from the perspective of the talent, boutiques often boast enhanced collegiality among partners and partnership prospects for associates.

How do former Biglaw partners build a world-class boutique? I recently spoke with Steven Molo, one of the top courtroom advocates in the country, about how he and Jeffrey Lamken, a leading Supreme Court lawyer, launched MoloLamken in 2009—and turned it into one of the finest litigation firms in the United States, if not the world. We discussed their vision for the firm at its founding, their approach to hiring and retaining talent, how they’ve managed to cultivate diversity in their firm’s ranks, and several current issues in the news, including law school culture wars and the pandemic’s effect on the legal profession. Thanks to Steve for his time, insight, and friendship over the years.

Sponsored by NexFirm, which helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

In the last episode of this podcast, I wondered: are boutiques the future of litigation? If you’re looking to make that case, today’s guest would be a star witness.

Last week, leading litigator Christopher Clark left Latham & Watkins, one of Biglaw’s biggest and best names, to launch his own boutique. Together with Patrick Smith, a former colleague of his from the U.S. Attorney’s Office, and Rodney Villazor, another former federal prosecutor, Clark is a founding partner of Clark Smith Villazor.

For this new podcast episode, Clark and I discussed his time at the U.S. Attorney’s Office for the Southern District of New York, which he joined right after clerking; his time in Biglaw, including Dewey & LeBoeuf during its downfall; why he admires his most controversial client, Hunter Biden; helpful advice for representing billionaires; and, finally, a key skill for success as a lawyer—which, sadly, many lawyers overlook.

Thanks to Chris Clark for joining me, and good luck to him, Patrick, and Rodney, as they launch and grow their new firm.

Sponsored by NexFirm, which helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

If you’ve been defamed, and it don’t look good, who you gonna call?

Clare Locke (if you can afford them). Founded in 2014 by Tom Clare and Libby Locke, who left the partnership of Kirkland & Ellis to build a plaintiff-side defamation practice free from the constraints of Biglaw, Clare Locke has become the go-to firm for major corporations and high-net-worth individuals who have suffered reputational attacks.

I’ve known Tom and Libby for years, and I’ve been meaning to invite them on the podcast for a long time. After they secured what’s believed to be the largest defamation settlement in history—$787.5 million for their client, Dominion Voting Systems, in the landmark litigation of Dominion v. Fox—I couldn’t wait any longer.

So this is actually a bonus episode. I usually post episodes every other Wednesday, I posted an episode last week, and my next episode—which also has an amazing guest—will go live next Wednesday, May 3. But in light of last week’s Dominion settlement, I didn’t want to delay, so I’m slipping in this episode now.

It’s also a double episode, which is why it’s longer than usual—but worth it. I interview Libby and Tom about their interesting personal and professional backgrounds; their decision to leave Kirkland to launch a boutique firm, including why it would be impossible to have a practice like theirs in Biglaw; what it’s like to practice alongside your spouse; how they got involved in the Dominion case, including why the settlement was so darn large; and the future of New York Times v. Sullivan.

In the interest of getting this out in timely fashion, I have not included in a transcript. It’s surprisingly laborious to clean up the auto-generated transcript, since the voice-recognition technology has a long way to go. So if you’d like to get the substance of our fascinating conversation, please listen to our dulcet tones, via the embed at the top of this post or in your podcast player of choice. Enjoy!

Show Notes:

* Thomas A. Clare bio, Clare Locke LLP

* Elizabeth M. Locke bio, Clare Locke LLP

* ‘Brilliant and Lucky’: Clare Locke Makes Headlines by Keeping Clients Out of Them, American Lawyer

* Winning Litigators: Tom Clare & Libby Locke, Clare Locke, National Law Journal

* Clare Locke LLP, Chambers and Partners

Sponsored by NexFirm, which helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Who is the leading public intellectual of the Supreme Court bar? Neal Katyal—Hogan Lovells partner, Georgetown Law professor, and former Acting Solicitor General—would have a very strong claim to the title.

Many SCOTUS advocates focus on winning high-court cases for their clients, but Neal aspires to more: he contributes to our national discourse. His scholarship has been published in top law reviews, including the Harvard Law Review and Yale Law Journal. He writes op-eds for leading newspapers, including the New York Times and Washington Post. He authored a Times bestseller, Impeach: The Case Against Donald Trump. He makes frequent appearances on television and radio as a legal-affairs commentator. He comments on the news of the day to his more than 800,000 Twitter followers. And later this year, he’s coming to Substack—exciting news that he shared in my recent podcast interview of him.

I’ve known Neal for a long time, and I’d been wanting to have him on the show for a while. Now turned out to be a great time, for two reasons. First, just last week, he made his 50th oral argument before the Supreme Court—a major milestone that few SCOTUS advocates can claim. Second, May is Asian American and Pacific Islander (AAPI) Heritage Month, and Neal has argued more Supreme Court cases than any other AAPI lawyer—or, for that matter, any other lawyer of color. Congratulations to Neal on his 50th SCOTUS argument, and thanks to him for taking the time to join me.

Show Notes:

* Neal Katyal bio, Hogan Lovells US LLP

* Neal K. Katyal bio, Georgetown Law

* Neal Kumar Katyal, Oyez

* Neal K. Katyal, Chambers and Partners

* Hogan Lovells Partner Neal Katyal Celebrates 50th Supreme Court Oral Argument, National Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Many readers of Original Jurisdiction, who subscribed to this newsletter because of my coverage of free-speech controversies at law schools, are deeply interested in—and firmly committed—to the First Amendment and free speech. If you’re one of these readers, then you’ll enjoy my latest podcast episode: a conversation with Professor Nadine Strossen, one of our country’s leading scholars—and staunchest defenders—of civil liberties, including but not limited to free speech.

From 1991 to 2008, Nadine served as President of the American Civil Liberties Union (ACLU). She taught constitutional law for many years at New York Law School, where she was the John Marshall Harlan II Professor of Law, and she is the author of Hate: Why We Should Resist It with Free Speech, Not Censorship (2018). Her latest book, Free Speech: What Everyone Needs to Know, will be published this fall.

In our conversation, Nadine and I discussed her fascinating family background, including the fact that her father was a Holocaust survivor; her early legal career, which included time at Sullivan & Cromwell; and her assessment of the state of free speech in the United States today, which faces threats from both the right and the left. We also engaged in a debate in which I played the role of devil’s advocate, presenting what I think are the strongest arguments for speech restrictions—and Nadine eloquently defended free expression and open discourse, as she has done for decades.

I’m so grateful to Nadine—for joining me on the podcast, and for all her work over the years in defense of free speech and other core civil liberties. You can listen to the podcast via the embed at the top of this post or your podcasting platform of choice.

Show Notes:

* Nadine Strossen bio, New York Law School

* Nadine Strossen profile and recent writings, Foundation for Individual Rights and Expression (FIRE)

* The First Amendment Is the Greatest Defense for the Powerless and Marginalized, by Jacob Mchangama and Nadine Strossen for the Daily Beast

* Make Freedom of Speech Liberal Again, by Tunku Varadarajan for the Wall Street Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Tomorrow is the first day of June, LGBTQ Pride Month. Happy Pride!

In honor of the occasion, I interviewed Alejandra Caraballo, one of the nation’s most prominent advocates for—and authorties on—transgender rights. She is a clinical instructor at Harvard Law School, where she and Anya Marino are the first transgender women of color to teach at HLS. Before entering academia, Alejandra worked as a litigator at the Transgender Legal Defense and Education Fund and the LGBTQ Law Project at the New York Legal Assistance Group.

In my “stump speech” about free speech and ideological diversity in the legal profession, I urge my listeners to seek out and engage with people they disagree with. Following my own advice, I reached out to Alejandra, with whom I have frequently sparred on Twitter. She was kind enough to join me for a discussion that covered controversial and sensitive subjects, including trans athletes participating in girls and women’s sports, the access of children and teens to gender-affirming care, and more.

My thanks to Alejandra for her willingness to engage in good-faith debate. You can listen to our candid conversation via the embed at the top of this post, or through Apple Podcasts, Spotify, or your podcasting platform of choice.

Show Notes:

* Alejandra Caraballo bio, Harvard Law School

* Meet the First Trans Women of Color to Teach at Harvard Law, by Orion Rummler for The 19th

* Alejandra Caraballo (@Esqueer_), Twitter

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

I’ve had several current and former federal judges on this podcast (with more in the pipeline), but I have not yet had a state judge as a guest—even though around 95 percent of cases are filed in state court. So I was delighted to interview Justice Rolando Acosta, who during more than 25 years on the bench was one of the most prominent and respected judges in the country. He served as a trial and appellate judge in New York from 1997 until earlier this year, when he stepped down after six years as Presiding Justice of the Appellate Division, First Department. In March 2023, he joined the New York office of Pillsbury Winthrop as a litigation partner.

In our conversation, Justice Acosta and I discussed his childhood growing up in the Dominican Republic, where living under a dictatorship instilled in him a deep appreciation for democracy; his time in college as a star pitcher for Columbia, which led him to seriously consider a career in professional baseball; his community organizing and work as a Legal Aid lawyer, public service that culminated in his judicial career; and threats to judicial independence—including his candid comments on the failed nomination of Justice Hector LaSalle to the New York Court of Appeals.

My thanks to Justice Acosta—or Rolando, as he asked me to call him—for joining me. You can listen to our discussion via the embed at the top of this post, or through Apple Podcasts, Spotify, or your podcasting platform of choice.

Show Notes:

* Rolando Acosta bio, Pillsbury Winthrop Shaw Pittman

* How To Modernize an Appellate Court in Five Years, by Rolando Acosta for the New York Law Journal

* A Sitting Justice Speaks To Troubled Times: An Interview With Hon. Rolando T. Acosta, by Joel Cohen for the New York Law Journal

* As First Department Presiding Justice Acosta Plans to Retire, Lawyers Reflect on His Career and Replacement Process Starts, by Jason Grant for the New York Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

The Supreme Court has never had an Asian-American justice, but that could change with the next nomination, especially in a Republican administration. Several leading SCOTUS candidates on the right are Asian American, and the prospect of a historic “first” could make it marginally more difficult for Democrats to oppose the nominee.

One of the top prospects, and the Asian American who has come the closest to SCOTUS in the past, is Judge Amul Thapar (6th Cir.). In 2018, Judge Thapar interviewed at the White House for the seat that ultimately went to Justice Brett Kavanaugh. And one can see why Judge Thapar was considered: he’s a highly respected jurist with extensive experience as both a trial and appellate judge and an impressive, well-rounded résumé, including experience as U.S. Attorney for the Eastern District of Kentucky and in Biglaw.

Now Judge Thapar has added a new line to his CV: author. Earlier this month, Regnery published his first book, The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him. By looking at the personal stories behind some of Justice Thomas’s most famous cases, Judge Thapar argues that the justice’s originalism often leads to results that favor the powerless over the powerful—which is why Judge Thapar has dubbed Justice Thomas “the people’s justice.”

I had been wanting to have Judge Thapar on the podcast for quite some time, and his book’s publication provided an excellent occasion for welcoming him. In our conversation, we discussed his inspiring personal story as the son of immigrants, his interview for the high court, his success as a feeder judge, and The People’s Justice—including how recent controversies over Justice Thomas affect the case for him as a man of the people. Thanks to Judge Thapar for joining me, and I hope you enjoy listening to this episode as much as I enjoyed recording it.

Show Notes:

* The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him, Amazon

* Potential nominee profile: Amul Thapar, by Edith Roberts for SCOTUSblog

* Judge Amul Thapar On Discovery And The Civil Justice System, by David Lat for Above the Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Last month, in honor of LGBTQ Pride Month, I interviewed Alejandra Caraballo, a leading advocate for transgender rights. After that episode, I heard from listeners who asked me to interview someone on the other side. As a passionate advocate of free speech and viewpoint diversity, I agreed that it would be appropriate to do so.

My latest podcast guest is Kristen Waggoner, chief executive officer and general counsel of Alliance Defending Freedom (ADF), which describes itself as “one of the leading Christian law firms committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.” ADF’s opposition to same-sex marriage, transgender rights, and abortion rights has made it a reviled organization on the legal left.

Although Kristen isn’t popular among progressives, there’s no disputing that she is an influential and newsworthy attorney. For better or worse, ADF has won 15 cases in the U.S. Supreme Court, and three of them were argued personally by Waggoner—including 303 Creative v. Elenis, one of the biggest cases of the just-completed Term. Writing for the six conservatives, Justice Gorsuch held that the First Amendment protects Kristen’s client, website designer Lorie Smith, from being required under Colorado’s public-accommodations law to make websites for same-sex weddings, which she opposes on religious grounds.

In our interview, I posed tough but respectful questions to Kristen about the mission and legal work of ADF, including its designation as a “hate group” by the Southern Poverty Law Center; her recent win in 303 Creative, including an allegation that ADF fabricated one piece of evidence (the “Stewart and Mike” controversy); the next major goal of the conservative legal movement, in the wake of wins like 303 Creative and Dobbs; and her views on “legislating morality” or enshrining Christian views into law (where her comments might surprise you). Despite our many differences—e.g., she opposes same-sex marriage, and I’m in one—I enjoyed and learned a great deal from our conversation, and I’m grateful for her time, insight, and willingness to engage.

Show Notes:

* Kristen Waggoner bio, Alliance Defending Freedom

* Inside the Christian legal powerhouse that keeps winning at the Supreme Court, by Jessica Contrera for the Washington Post

* Meet the Lawyer Who’ll Argue at Supreme Court for Christian Baker’s Right to Free Speech, by Ken McIntyre for the Daily Signal

* The Supreme Court Doesn’t Care That the Gay Wedding Website Case Is Based on Fiction, by Melissa Gira Grant for the New Republic

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Because I was busy welcoming our baby boy into the world, I was unable to procure an outside guest for this week’s podcast. This gave me the opportunity to do something I’ve been wanting to do since the show began: argue with my husband (and not about how to load the dishwasher, which he always gets wrong).

My guest this week is my Dear Husband, Zachary Baron Shemtob. Zach is an academic turned lawyer who has written extensively, for both scholarly publications and the popular press, about the Supreme Court, the federal judiciary, and legal theory. He has provocative opinions and unorthodox proposals about these topics, and whether or not you agree with his views—and in this podcast, I mostly disagree—they’re certainly worth some thought. (As a former academic, Zach could probably write a law-review article about each of his ideas, so this 40-minute podcast can’t do them justice.)

In this episode, Zach and I discuss “judicial celebrity,” the practice of treating judges like celebs (which Zach finds problematic, even if he would readily admit that it’s not the greatest threat to civilization); his plan to Make SCOTUS Great Again, which involves making the Court bigger and more boring; a potpourri of jurisprudential issues, including originalism, Chevron deference, and the major-questions doctrine; and, finally, movies—including but not limited to My Cousin Vinny and Everything Everywhere All at Once.

If you want more confrontation in this podcast and appreciate some good verbal sparring, then this episode is for you. Please let us know your thoughts on this different format, in the comments or by email; if this episode is popular, perhaps I’ll ask Zach to join me again, whether as a guest or a co-host. Enjoy!

Show Notes:

* Judicial Duty and the Supreme Court’s Cult of Celebrity, by Craig Lerner and Nelson Lund for the George Washington Law Review

* Our Kardashian Court (and How to Fix It), by Suzanna Sherry for the Iowa Law Review

* Celebrity Justice: Supreme Court Edition, by Rick Hasen for the Green Bag

* Reflections on Judging, by Richard A. Posner

* The Supreme Court Doesn't Need 9 Justices. It Needs 27, by Jacob Hale Russell for Time

* Testimony Before the Presidential Commission on the Supreme Court of the United States, by Akhil Reed Amar

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

One of the most important developments in the legal world in the past decade has been the rise of litigation finance, which has emerged from relative obscurity—and even illegality in certain states—to become a multibillion-dollar industry. Initially viewed by many with either skepticism or befuddlement, litigation finance has gone mainstream, and today numerous Am Law 100 firms and Fortune 500 companies work with funders for mutual benefit.

But litigation finance remains controversial in some quarters, and its rapid growth has led to calls for greater regulation or disclosure. Based in part on such issues, I have long been interested in the field, dating back to when I covered it for Above the Law. Recent news stories—including litigation between a top funder and a former client, followed by a high-profile trial last month in the Southern District of New York—have brought litigation funding back into the headlines, making now an opportune time to explore it on this podcast.

In picking a guest, I adhered to my approach of going straight to the top, speaking with the #1 executive at the #1 funder: Christopher Bogart, co-founder and CEO of Burford Capital, the world's largest provider of legal finance. In our conversation, Chris and I covered his remarkable legal career, in which he became the general counsel of a Fortune 50 company just seven years out of law school; the early days of litigation finance, including the founding of Burford; attacks on litigation funding, including claims that it makes litigation more widespread, long-running, and expensive; and his own firm’s public beef with Sysco, the food-distribution giant and former Burford client. If you’re not familiar with litigation finance—how it works, how it has evolved, and how it’s transforming the legal and investing worlds—you’ll want to listen to this episode.

Show Notes:

* Christopher Bogart bio, Burford Capital LLC

* An Innovator’s Journey: From Star Litigator to Litigation Finance, by Russ Banham for Carrier Management

* A $16 Billion Wall Street Lawsuit for the Ages, by Eriq Gardner for Puck

* Burford Capital Eyes Billions in Payout for Argentina Suit, Bloomberg Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Are you having a hard time keeping track of all the Supreme Court ethics episodes? You’re not alone—and some of us have to do it as a job.

With the Court out of session and the justices scattered to the four winds, now is a good time to take stock of the controversies, before the new Term gets underway. And I can think of few better authorities on SCOTUS ethics than Gabe Roth of Fix the Court (FTC), who has spent the better part of the last decade focused on this subject—well before it was en vogue. Indeed, Roth seems to get quoted in practically every article about alleged ethical lapses of the justices.

But Roth and FTC have their critics. From the right, the Wall Street Journal editorial page recently took Fix the Court to task for screwing up its own financial disclosures, despite constantly harping on the justices’ mistakes in this area. The WSJ castigated FTC as a “left-wing outfit” trying to “weaponize ethics and disclosures” in order to “diminish conservative influence on the Court.” Meanwhile, some on the left complain that the organization’s “fixes” or proposed reforms simply aren’t bold enough to deal with what progressives view as the systemic rot permeating One First Street.

In our interview, I pressed Roth on why Fix the Court is viewed as left-wing, despite claiming to be nonpartisan, and on whether we are unfairly judging the justices based on new standards. And then we took a deep dive into all the recent—and some not-so-recent—SCOTUS ethics controversies. If you’ve ever wanted an expert to review all nine justices and score them on their “scandals,” then this episode is for you. Thanks to Gabe for his time, insight, and candor.

Show Notes:

* Gabe Roth bio, Fix the Court

* The Fixes, Fix the Court

* Complaint filed over US judge's ‘strange’ Southwest religious liberty training order, by Nate Raymond for Reuters

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

As a new academic year gets underway, many of us are wondering: what law-school scandals lie in store? To discuss current hot-button issues facing legal academia, including free speech, intellectual diversity, and affirmative action, I could think of no better podcast guest than Professor Amy Chua. As a longtime member of the Yale Law School faculty, she’s had a front-row seat to—and personal involvement in—several of YLS’s recent controversies.  

Yale Law insanity aside, there was another reason I wanted to interview Amy, the author of two New York Times bestsellers—most notably, her 2011 memoir, Battle Hymn of the Tiger Mother (2011). This month, Minotaur Books, Macmillan’s mystery- and thriller-focused imprint, is publishing her first novel, The Golden Gate. I devoured it in two days, and I can attest that it’s a great read—a historically rich page-turner that will teach you about California history while keeping you on the edge of your seat.

One other thing: loyal listeners might notice this episode is going up on Thursday rather than its usual day of Wednesday. There’s a good reason for that: my sound engineer Tommy Harron and his wife just welcomed their second child to the world. Congratulations to them on this great news.

Show Notes:

* Amy Chua bio, Yale Law School

* The Golden Gate, Amazon

* All About Amy (Chua), The Law Professor We Can't Stop Talking About, by David Lat for Original Jurisdiction

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

It’s great to have friends that you can have heated discussions with about controversial topics, without worrying about whether it will affect your friendship. For me, one of those friends is Brian Fitzpatrick. We’ve known each other for almost a quarter-century, during which we’ve argued about more sensitive subjects than either of us can remember, and I’ve learned so much from our spirited debates.

This might be because Brian is no slouch. He earned a B.S. in chemical engineering from Notre Dame, summa cum laude, and graduated from Harvard Law School, first in his class. He then clerked for Judge Diarmuid O’Scannlain of the Ninth Circuit, which is where we first met, followed by the late Justice Antonin Scalia. In 2007, Brian joined the faculty of Vanderbilt Law School, where he holds the Milton Underwood Chair in Free Enterprise. In 2019, the University of Chicago Press published his book, The Conservative Case for Class Actions, which won praise from across the ideological spectrum.

In our interview, Brian and I touched on topics that are of great interest to readers of Original Jurisdiction. We covered attorneys’ fees, which Brian is a leading expert on, followed by affirmative action in higher education and free speech in the legal academy. Brian is brilliant and bracingly candid, so I hope you enjoy this discussion—as I know you will.

Show Notes:

* Brian Fitzpatrick bio, Vanderbilt Law School

* Fitzpatrick Matrix Adopted for Setting D.C. Attorneys’ Fees Awards, by Bernie Pazanowski for Bloomberg Law

* The Conservative Case for Class Actions, official website

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Looking back over my time at Above the Law, one of the things I’m most proud of is the talent I discovered. My first full-time hire was Elie Mystal, now the justice correspondent on The Nation, frequent television commentator, and author of the bestselling Allow Me to Retort: A Black Guy’s Guide to the Constitution. My second full-time hire was Kashmir Hill, now at the New York Times, who has a book of her own: Your Face Belongs to Us: A Secretive Startup's Quest to End Privacy as We Know It, published last month by Penguin Random House.

Your Face Belongs to Us is about the future of facial-recognition technology, an incredibly powerful tool with great promise and peril. The book is a story about privacy and technology, but it’s also a story about the law and legal issues. The future of facial recognition will be shaped profoundly by legal responses. Can we craft laws that allow society to take advantage of the benefits of this technology while at the same time preserving the privacy that it threatens?

In my podcast interview with Kashmir, I pushed back on some of the more dystopian elements of Your Face Belongs to Us. I pressed her on whether she might be underestimating the positive aspects of facial-recognition technology, such as its use by law enforcement (such as tracking down January 6 rioters for arrest and prosecution). We analyzed the crucial role played by lawyers in the story of Clearview AI, the mysterious startup at the heart of the book; they include Paul Clement, Floyd Abrams, Federal Trade Commissioner Alvaro Bedoya, and attorneys at the American Civil Liberties Union (ACLU). And we explored stories of facial-recognition technology gone wrong, including innocent people arrested for crimes they didn’t commit because of false positives on Clearview and similar software.

Thanks to Kashmir for joining me, as well as for her important work exploring the legal and policy aspects of a transformative but troubling technology.

Show Notes:

* Kashmir Hill bio, author website

* Kashmir Hill archives, The New York Times

* Your Face Belongs to Us: A Secretive Startup's Quest to End Privacy as We Know It, Amazon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

As the new academic year gets underway, I’ve been having a law-school module of sorts here on the Original Jurisdiction podcast. After interviewing Professor Amy Chua of Yale and Professor Brian Fitzpatrick of Vanderbilt about current issues facing legal academia, I thought it might be useful to get a deanly—actually, the proper word is “decanal”—perspective on these topics.

My latest guest is Professor D. Gordon Smith, who recently completed his service as dean of the J. Reuben Clark Law School at Brigham Young University, aka BYU Law. I’ve admired his work for years, dating back to when we both started legal blogs in 2004—Underneath Their Robes for me, and The Conglomerate for him—and I was pleased to see him become dean of BYU Law in 2016. During his seven years as dean, he was an innovator in legal education—and this was reflected in BYU Law’s dramatic rise in the U.S. News rankings, from #46 when he took over to #22 today.

In our conversation, Professor Smith discussed BYU Law’s unique mission as a school “[f]ounded, supported, and guided by The Church of Jesus Christ of Latter-day Saints,” as well as changes he instituted that contributed to its climb in the rankings. But we also covered broader topics like the bar exam and lawyer licensure, professional development, and our nation’s access-to-justice crisis—so this episode will interest not just legal academics, but anyone who cares about law and the legal profession. I’m grateful to Professor Smith for his time and insight, as well as his contributions to both legal education and the profession more generally.

Show Notes:

* D. Gordon Smith bio, BYU Law School

* Our Mission Statement, BYU Law

* BYU Law Dean to Step Down at End of Academic Year, BYU Law School

* 6 Questions With BYU Law School Dean D. Gordon Smith, by Rose Krebs for Law360

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

When I wrote an op-ed for the Boston Globe titled Big Law’s Cancel Culture, I got an earful from folks who complained about the use of the term “cancel culture” (which was picked by the Globe’s copy editors, not by me). There are many folks who argue the “cancel culture” doesn’t exist or, if it does, it’s greatly exaggerated.

While I have concerns about the term “cancel culture”—it carries baggage, causing some people to stop listening—I still do use it. My approach to language is more descriptive than prescriptive, so if a term or phrase is useful, it’s generally okay by me. When you say “cancel culture,” people know what you’re talking about, and I don’t know of an alternative term that refers to exactly the same phenomenon.

Cancel-culture denial tends to be more common on the left. I wonder, then, whether some progressives might be more willing to acknowledge it now that some on the left are arguably getting “canceled” for expressing pro-Hamas, pro-Palestine, or anti-Israel views. (Please note my use of the term “arguably”; I’m not here to debate the merits of these controversies, which are very fact-specific, and I condemn anything that crosses the line into threats, harassment, and other speech not protected by the First Amendment.)

Indeed, cancellation comes from all sides—a major theme of The Canceling of the American Mind, an excellent new book by Greg Lukianoff, president and CEO of the Foundation for Individual Rights and Expression (FIRE), and Rikki Schlott, a columnist for the New York Post. Lukianoff is left of center and Schlott is right of center, but they agree that cancel culture is real—as they demonstrate in their book, before offering possible responses.

If you’re concerned about free speech, cancel culture, and related issues, then you will enjoy my interview of Greg Lukianoff—one of the most eloquent, steadfast defenders of the First Amendment and free-speech values, for more than 20 years. Thanks to Greg for speaking with me, for writing this book, and for defending the freedom of speech and thought in our great nation.

Show Notes:

* Greg Lukianoff bio, The Foundation for Individual Rights and Expression

* The Canceling of the American Mind: Cancel Culture Undermines Trust and Threatens Us All―But There Is a Solution, by Greg Lukianoff and Rikki Schlott

* Sick of Cancel Culture? One Man Has a Surprising Solution, by Evan Mandery for Politico

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

If you’re looking for something to watch as the weather turns colder and we spend more time indoors, allow me to suggest HBO’s No Accident. This documentary, directed by Kristi Jacobson and produced by Michelle Carney and Alexandra Moss, tells the story of Sines v. Kessler, the landmark civil-rights trial against the white supremacists behind the notorious “Unite the Right” rally held in Charlottesville, Virginia, in August 2017.

One lead lawyer for the plaintiffs, and as such a star of No Accident, is Karen Dunn, one of the nation’s top trial lawyers. I try to make my guests timely, and Karen is a great guest for that and two other reasons. First, last month she became co-chair of litigation at Paul, Weiss—a firm that has been making lots of news itself, thanks to its aggressive hiring of lateral partners. Second, ‘tis the season for presidential debates—a topic Karen knows well, having served as debate coach to President Barack Obama, in his successful reelection effort, and Secretary Hillary Clinton.

If you’re interested in either trial practice or the intersection of law and politics, then you’ll enjoy this episode. I’m grateful to Karen for joining me, as well as for all she does to advance equal justice in our country.

Show Notes:

* Karen L. Dunn bio, Paul, Weiss, Rifkind, Wharton & Garrison LLP

* No Accident, HBO

* Paul Weiss Looks to D.C. to Add Leaders in Litigation Practice, by Patrick Smith for the American Lawyer

* Boies Schiller Expands In D.C. By Hiring Young Legal Superstars, by David Lat for Above the Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

With the holiday season upon us and the end of the year not far behind, now is a time to be thankful for our blessings—and to keep in mind those who are less fortunate. Toward that end, last week I highlighted the new class of Skadden Fellows, who will spend the next two years meeting the legal needs of people living in poverty.

And this week, I’m welcoming to the podcast someone who has devoted her entire legal career to serving the poor: Twyla Carter, attorney-in-chief and chief executive officer of The Legal Aid Society (LAS). Before taking the helm at LAS, Twyla worked as a public defender and at the ACLU, making a name for herself as a leading advocate of bail reform.

In our interview, we explored Twyla’s impressive career, which listeners aspiring to enter the public-interest world should appreciate. But I also posed tough questions to Twyla about some of LAS’s more controversial projects, including its work on New York City’s “right to shelter” mandate, which LAS is defending in court amid claims that it is unworkable, and whether criminal-justice reform, which Twyla has worked on for years, has gone too far. So please do check out this episode—and consider donating or volunteering to support the Society’s important work.

Show Notes:

* Twyla Carter bio, The Legal Aid Society

* Leading Bail Reform Advocate to Take Reins as Legal Aid’s First Black Woman and Asian American to Serve as CEO, by Andrew Denney for the New York Law Journal

* Legal Aid Society Appoints Twyla Carter Attorney-in-Chief, CEO, Bloomberg Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

If you’re looking for a more meaningful New Year’s resolution than losing five pounds, I have a suggestion for you: do more pro bono. To make it concrete, maybe even set a numerical goal for yourself, like 50 hours.

Over the years, as Biglaw firms have grown in size and profitability, many of them have invested more in pro bono. As a result, there now exists a job that really didn’t exist when I graduated law school: “pro bono counsel.” These lawyers oversee the pro bono programs of Biglaw firms, which means they get to work full-time on pro bono, backed by Biglaw resources (and earning Biglaw salaries). Not surprisingly, these roles are some of the most highly coveted jobs not just in Biglaw, but the entire legal profession.

As part of my continuing focus during the holiday season on pro bono and public interest work, I decided to interview a Biglaw pro bono counsel. And as is my wont when picking podcast guests, I decided to go straight to the top: my latest guest is Jacqueline Haberfeld, global program director of pro bono at Kirkland & Ellis, the world’s #1 law firm in terms of both revenue and profits per partner.

In our wide-ranging conversation, Jackie and I discussed her path to becoming pro bono counsel, some of her most meaningful projects, how firms handle political and reputational concerns related to pro bono work, and how to get a job as pro bono counsel today. I hope you enjoy this interview—and I hope that it inspires you to do more pro bono work in the coming year.

Show Notes:

* Pro Bono | Social Commitment, Kirkland & Ellis

* Notable Women in Law 2021: Jacqueline Haberfeld, Crain’s New York Business

* Innovation: Jacqueline Haberfeld, pro bono counsel, Kirkland & Ellis, New York Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Belated Christmas greetings (if applicable). We spent the holiday with my parents, who hosted a Christmas party on Saturday, and we took a family photo in front of their lovely Christmas tree. I also took the weekend off from Judicial Notice, but I should be back this coming weekend with a double edition (so please feel free to send me nominations, since I haven’t been as diligent as usual about following the news).

I did not take the week off from podcasting. Instead, I have a special treat for you: a 2023 year in review—including picks for Lawyer of the Year, Judge of the Year, Law Firm of the Year, and more—plus predictions for 2024 about the Supreme Court, the Trump criminal cases, and free speech and First Amendment law.

I’m pleased to be joined for this adventure by a very special guest: one of the nation’s most insightful and fair-minded legal analysts, Sarah Isgur. She’s probably most well-known to Original Jurisdiction readers as the host of the excellent Advisory Opinions podcast, which I frequently cite in these pages, and she’s also a senior editor at The Dispatch and a contributor at ABC News. She clerked for Judge Edith Jones of the Fifth Circuit and graduated from Harvard Law School.

It was an eventful year in legal news, so there’s tons to cover—let’s get to it. Thanks so much to Sarah for joining me for this rollicking review of the year that was.

Show Notes:

* Sarah Isgur author page, The Dispatch

* Advisory Opinions, The Dispatch

* Advisory Opinions, Apple Podcasts

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

For the past 10 months, the legal world has been transfixed by the Pauline Newman saga. At 96, Judge Pauline Newman is the nation’s oldest active federal judge. Last March, her longtime colleague, Chief Judge Kimberly Moore, initiated an effort to remove Judge Newman from the Federal Circuit.

The complaint against Judge Newman was initially based on her supposed “cognitive decline” and “paranoid and bizarre behavior,” but it later morphed to focus on her unwillingness to cooperate with Chief Judge Moore’s investigation. Judge Newman said she’d be happy to cooperate with an investigation—as long as it’s conducted by a neutral party, namely, the judicial council of another circuit.

As I have written repeatedly, I agree with Judge Newman on her due-process argument. It’s routine for circuit judges to transfer an investigation of a fellow circuit judge—as opposed to, say, a district, magistrate, or bankruptcy judge—to another circuit. And there are some interpersonal issues between Chief Judge Moore and Judge Newman, which I might write about in the future, that make it completely inappropriate for Moore to be leading this investigation.

I was agnostic, however, on Judge Newman’s mental capacity. I read, along with everyone else, the gossipy details in Chief Judge Moore’s various reports that made Newman sound, well, totally out of it. But I also read and heard accounts from other sources—such as journalists who visited Newman in chambers, and lawyers who saw her speak at conferences—stating that she’s just fine.

On January 4, I met with Judge Newman and her clerks in chambers, for about four hours. Last Friday, I interviewed Judge Newman on my podcast, for another hour. I’m now of the view that she’s completely lucid and sane—and I have reason to disbelieve or at least question much of what I’ve read in the takedowns of her. (I’m hoping to publish a deep dive into the drama at the Federal Circuit, which is actually quite fascinating—and if you have information or insight to share, please email me.)

But you don’t have to take my word for it when it comes to Judge Newman’s condition. Listen to our almost hour-long podcast conversation—or watch video clips of the judge that I’ll be posting later this week, at her request—and judge for yourself.

Show Notes:

* Pauline Newman bio, Wikipedia

* Colleagues want a 95-year-old judge to retire. She’s suing them instead, by Rachel Weiner for the Washington Post

* Fed. Circuit’s Newman, 96, Fights Colleagues From Sideline, by Michael Shapiro for Bloomberg Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

I’ve come full circle. A little more than three years ago, I launched Original Jurisdiction with an interview of superstar litigator David Boies, 82, one of the most famous living American lawyers. Now I’m speaking with him again, this time for a special two-part podcast interview.

In today’s interview, part one of two, David discusses current events. Most notably, given his representation of Al Gore in Bush v. Gore, he’s critical of attempts to keep Donald Trump off the ballot based on Section Three of the Fourteenth Amendment, from both consequentialist and constitutional perspectives. He’s also not a fan of most of the criminal and civil cases targeting the former president.

This is just part one; in part two, David and I will focus on his life and career. And fear not, dear listeners: I will “go there” and ask about Harvey Weinstein, Elizabeth Holmes, the near-implosion of Boies Schiller Flexner, and other sensitive subjects.

In the meantime, enjoy part one of my conversation with David Boies. Whether or not you agree with him, he always has interesting things to say.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

In part one of my two-part interview of David Boies, I asked the famed trial lawyer to do what he does best: analyze cases and controversies. In part two, we turned to a topic that’s closer to home: David Boies.

My husband Zach tells me that I’m too soft as an interviewer. Trying to prove him wrong, I asked David some tough questions about sensitive subjects. Do you rue the day you met Elizabeth Holmes? What do you regret about your work for Harvey Weinstein? Why doesn’t Boies Schiller Flexner have an anti-nepotism policy? What will be in your Times obituary?

I’ve interviewed David on multiple occasions over the years, and we’ve never had any tense moments—until now. If you usually read my podcast interviews, you might want to listen to this one.

David fielded my aggressive questions thoughtfully, eloquently, and graciously—which is exactly what I expected of this legal lion. But listen for yourself and reach your own verdict on David Boies.

Show Notes:

* David Boies Pleads Not Guilty, by James B. Stewart for the New York Times

* The Bad, Good Lawyer, by Andrew Rice for New York Magazine

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

What does it feel like to call out Donald Trump—with Trump sitting five feet away?

Not many lawyers have had that experience, but Shawn Crowley has. Along with Roberta Kaplan, a previous guest on this podcast, Crowley represented writer E. Jean Carroll in her defamation lawsuit against former president Donald Trump. Delivering a closing statement that the New York Times called “an animated and passionate rebuttal,” Crowley called on the jury to “make him pay enough so that he will stop” defaming Carroll—which the jury did, issuing an $83.3 million verdict.

The 40-year-old Crowley is one of the country’s leading trial lawyers. During her six-plus years as an assistant U.S. attorney in the Southern District of New York, she worked on several headline-making cases—including the trial and conviction of the so-called “Chelsea Bomber,” Ahmad Khan Rahimi, for perpetrating a terrorist attack in the Chelsea neighborhood of Manhattan in October 2016.

You’ll be hearing a lot more about Shawn for years to come, so get to know her through this wide-ranging podcast interview. And congrats again to her and her colleagues at Kaplan Hecker & Fink on an epic win.

Show Notes:

* Shawn G. Crowley bio, Kaplan Hecker & Fink LLP

* Jury Orders Trump to Pay Carroll $83.3 Million After Years of Insults, by Benjamin Weiser, Jonah E. Bromwich, Maria Cramer, and Kate Christobek, for the New York Times

* E. Jean Carroll attorney: Trump verdict proves ‘your lies’ catch up to you, All In With Chris Hayes

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Would you leave a thriving law firm to strike out on your own? Many risk-averse lawyers would not, but David Elsberg has done so—twice.

In 2018, David left Quinn Emanuel to launch Selendy Gay, later Selendy Gay Elsberg—which today is one of the nation’s top litigation boutiques. Then last month, he made the news again with the launch of Elsberg Baker & Maruri, which he co-founded with former colleagues from both Quinn Emanuel and Selendy Gay.

David is one of the country’s leading commercial litigators—according to Chambers, Law360, Lawdragon, and Benchmark Litigation—and in this new episode of the Original Jurisdiction podcast, we discussed his career as a trial lawyer. But I was just as interested in getting his thoughts on two topics that have been on my mind a fair amount lately.

First, why are so many great lawyers, especially litigators, leaving Biglaw to launch boutiques? And second, if you could design a law firm from the ground up, how would you structure it? David and his new partners have put a lot of thought into institutional design—and their firm bucks Biglaw trends in several different ways, as he explained to me in our conversation.

Congratulations and good luck to David and his colleagues on the launch of their new firm. Based on his track record as both a litigator and a founder, I’m predicting great success for David and Elsberg Baker & Maruri.

Show Notes:

* David Elsberg bio, Elsberg Baker & Maruri PLLC

* Wall Street Litigation Firm Starts With Selendy Gay Recruits, by Tatyana Monnay for Bloomberg Law

* Selendy Gay Founder, Quinn Emanuel Partners To Form New Law Firm, by Sara Merken for Reuters

* Selendy Gay’s David Elsberg, Quinn Emanuel Partners To Launch New Litigation Boutique, by Dan Roe for the New York Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

Chris Christie has had an interesting and eventful career in public life. He served as U.S. Attorney for the District of New Jersey from 2002 to 2008, then as Governor of the Garden State from 2010 to 2018. And he was a candidate for the 2024 Republican presidential nomination, until his January withdrawal from the race.

People tend to have strong opinions about Christie. Some respect his outspoken criticism of Donald Trump, which was the centerpiece of his presidential campaign. Others do not—perhaps because they support Trump, or perhaps because they can’t forgive Christie for having been for Trump before he was against him. (In some ways Christie is his own harshest critic for this, admitting in his speech withdrawing from the race that he endorsed Trump because he put personal ambition over what he knew was right.)

I’m not a neutral observer when it comes to Chris Christie. I worked for him as an assistant U.S. attorney from 2003 to 2006, and I like and respect him a great deal. As we discuss at the start of this podcast episode, I’m especially grateful for how he dealt with me in the wake of the scandal over my very first blog, Underneath Their Robes. But that didn’t stop me from asking him difficult questions on the podcast, including his biggest regrets—yes, he talks about Bridgegate—and whom he might vote for in the presidential election. We also review his legal career, including his advice for law students and his three biggest cases as U.S. Attorney.

Congratulations to Governor Christie on his latest book—What Would Reagan Do? Life Lessons from the Last Great President, which we discuss on the podcast—and thanks to him for both his past kindness and willingness to join me today.

Show Notes:

* Chris Christie bio, Christie 55 Solutions

* What Would Reagan Do? Life Lessons from the Last Great President, Amazon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

How many Supreme Court advocates wind up with three or more arguments in the same Term? Some of my past podcast guests—like Lisa Blatt, Paul Clement, Neal Katyal, and Kannon Shanmugam—can claim this distinction. But it’s very, very rare (especially if you don’t work—or have never worked—in the Office of the Solicitor General).

What’s even more rare is having three oral arguments in your very first Term arguing before the Court. But Easha Anand, the 38-year-old co-director of Stanford Law School’s renowned Supreme Court Litigation Clinic, just pulled off this feat—which is why I was so eager to have her as a guest on the Original Jurisdiction podcast.

How did Easha wind up in law school, after a promising journalism career that included stints at the New Orleans Times-Picayune and the Wall Street Journal? How did she wind up with three Supreme Court arguments in the same Term? And what are her three pieces of advice for first-time SCOTUS advocates?

Listen to our podcast interview to find out. Congratulations to Easha on the unanimous win in her first argued case, thanks to her for joining me, and good luck to her in what I predict will be a long and successful career arguing at One First Street.

Show Notes:

* Easha Anand bio, Stanford Law School

* Stanford’s Anand Argues Whistleblower Case in High Court Debut, by Lydia Wheeler for Bloomberg Law

* Supreme Court Bar’s Breakout Lawyer This Term Started Out in Journalism, by Jimmy Hoover for the National Law Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Would you want to be a law school dean in the year 2024? The once-coveted post seems less fun, given the tension and polarization on university campuses these days, as well as more challenging than ever. One misstep or missed goal—a free-speech controversy gone viral, a fundraising target unmet, a double-digit drop in your school’s U.S. News ranking—and you could be out of a job.

Surviving to the end of one’s term as dean is already an accomplishment. Concluding a deanship with multiple achievements unlocked is even more impressive.

It’s difficult, but not impossible—as reflected in the record of Dean Risa Goluboff (pronounced REE-suh GOL-u-buff, in case you’re wondering). When her eight-year term as dean of the University of Virginia School of Law ends on June 30, she can take pride in around three dozen new faculty hires, completion of a $400 million capital campaign (more than a year ahead of schedule), and a #4 ranking in U.S. News—the highest in the history of the school.

What are some of the secrets of Dean Goluboff’s success? What does she view as the two biggest challenges facing American law schools today? And what is her excellent advice… about how to respond to advice?

Learn all this and more by listening to our podcast conversation. Thanks to Dean Goluboff for joining me, and congratulations to her on such a successful deanship.

Show Notes:

* Risa Goluboff bio, UVA Law School

* Dean Risa Goluboff To Step Down in 2024, Concluding History-Making Tenure, by Mary Wood for UVA Law School

* Common Law (hosted by Dean Risa Goluboff), Apple Podcasts

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

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NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

It might seem odd to bestow the title of “titan” upon someone once described in the New York Times as standing five-foot-two and weighing 100 pounds wet. But if you know anything about banking M&A and regulatory work, you know that H. Rodgin Cohen, senior chair of Sullivan & Cromwell, is a true giant of the field.

For more than 50 years, Rodge Cohen has practiced at the pinnacle of financial-services law. He’s played a role in many historical events over the decades, including New York City’s fiscal crisis, where he helped rescue the city from the brink of bankruptcy in 1975; the Iran hostage crisis, where he counseled American banks that released frozen Iranian funds, part of the deal that led to the 1981 release of the hostages; the 2008 financial crisis, where he represented the buyer or the seller in seemingly every major bank deal; and efforts last year to save Silicon Valley Bank and First Republic Bank.

In my latest podcast episode, I interview Rodge about his remarkable career, including his involvement in the aforementioned, headline-making events. But we also cover his childhood in West Virginia, his advice for how to succeed as a deal lawyer, and even his theater and reading recommendations—because despite his demanding practice, Rodge somehow finds the time to see numerous shows and read tons of books. (One recent work we both recommend is Paula Vogel’s Mother Play, which yesterday snagged four Tony Award nominations, including Best New Play.)

For my first-ever interview of a corporate or transactional attorney (as opposed to a litigator), I wanted to get a big name—and Rodge Cohen is one of the biggest and best in the business. I guessed that he would be “too big to fail”—and if you listen to our enjoyable and wide-ranging conversation, you’ll see that I was right.

Show Notes:

* H. Rodgin Cohen bio, Sullivan & Cromwell

* H. Rodgin Cohen profile, Chambers and Partners

* Trauma Surgeon of Wall Street, by Alan Feuer for the New York Times

* The Banking Industry’s Go-to Crisis Adviser, by DealBook for the New York Times

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

After my fascinating conversation with Rodge Cohen of Sullivan & Cromwell, I wanted to interview another transactional lawyer for the Original Jurisdiction podcast. But to mix things up, I wanted to speak with an up-and-coming dealmaker rather than a senior statesperson. And because May is Asian American and Native Hawaiian/Pacific Islander Heritage Month, I was hoping to feature a lawyer of AANHPI descent.

Meet Shanu Bajaj, a mergers and acquisitions partner at Davis Polk & Wardwell. Although she hasn’t been a partner for long, Shanu has already been recognized as a star of the M&A bar. In February, she took the #3 spot in the MergerLinks ranking of Top Female M&A lawyers in North America. In March, The American Lawyer named Shanu one of its 2024 Dealmakers of the Year, based on her representation of ExxonMobil in 2023’s largest transaction, the oil giant’s $59.5 billion purchase of Pioneer Natural Resources.

What drew Shanu to M&A as a practice area? What are two abilities that she views as especially important for transactional attorneys? How does she describe her personal style as a dealmaker? And what are her tips for making partner in Biglaw, during a time when the rewards are richer—but the odds are longer—than ever?

Thanks to Shanu for taking the time to tackle these and many other topics with me, and congratulations to her on the well-deserved recognition of her talents. And with decades of deals ahead of her, she’s just getting warmed up.

Show Notes:

* Shanu Bajaj bio, Davis Polk & Wardwell

* The 2024 Dealmakers of The Year, The American Lawyer

* Which M&A Attorneys Drove the Most Business as Deal Leads?, by Patrick Smith for The American Lawyer

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

Continuing my M&A miniseries here at Original Jurisdiction, I wanted to welcome another dealmaker to the podcast. And as Asian American and Native Hawaiian/Pacific Islander Heritage Month draws to a close, I wanted to interview another AANHPI attorney, including some discussion of their family’s story and how their identity might have shaped their career.

So I was delighted when Paul Shim agreed to join me. A partner at Cleary Gottlieb since 1996, Paul is an established star of the M&A bar, Chambers-ranked in that elite specialty for more than two decades. And we share a few things in common: we’re both the children of Asian immigrants, we both grew up in New Jersey, and we both live in the Garden State today (in neighboring towns, in fact).

Paul’s parents immigrated to the United States after the Korean War. Following in the footsteps of his father, who holds a Ph.D. in engineering, Paul studied the subject at MIT, earning a master’s degree in chemical engineering. So how did Paul end up in M&A as opposed to, say, IP law? What skills does he credit for his success in this high-stakes, high-stress practice area? And how has his AAPI background contributed to everything from his choice of firm to his style as a dealmaker?

Listen to our conversation for the answers to these questions and more—including one of my favorite responses to the final question I pose to all my guests, a request for career or life advice. We can all benefit from Paul’s wisdom, and I’m so glad and grateful that he was able to join me.

Show Notes:

Paul Shim bio, Cleary Gottlieb Steen & Hamilton

Paul Shim profile, Chambers and Partners

Lawyer Limelight: Paul Shim, by Lawdragon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

What’s the most widely cited legal book in the world? If you guessed Black’s Law Dictionary, then congratulate yourself. Henry Campbell Black published the first edition in 1891, and today it’s a must-have for every lawyer and law student. I even make an appearance in Black’s as the coiner of the term “benchslap,” defined as “a judge’s sharp rebuke of counsel, a litigant, or perhaps another judge.”

Who decides whether a term has gained sufficient traction to make it into Black’s? That would be Bryan Garner, the prominent legal lexicographer, lawyer, and legal-writing expert. In the latest episode of the Original Jurisdiction podcast, he explains how he and his colleagues determine whether a neologism has made the cut.

This is actually a bonus episode of the podcast, since I posted an episode last week and I’ll have another episode next week. What’s the occasion? Today marks the publication of the twelfth edition of Black’s Law Dictionary. If you’re looking for a graduation or back-to-school gift for a law student, or maybe a Father’s Day gift for a #LawDad in your life, order your copy today.

Thanks to Bryan for joining me, and congratulations to him and his team on the latest edition of Black’s Law Dictionary.

Show Notes:

* Bryan A. Garner bio, LawProse

* Black’s Law Dictionary (12th ed.), Amazon

* Black’s Law Dictionary: An Interview with Bryan A. Garner, by David Lat for Above the Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

I’ve been honored to have some of the nation’s leading litigators on this podcast. But I have not had a guest who’s both a renowned courtroom advocate and parent of 11 children—until today.

Meet Michael Williams. After graduating from Georgetown Law, summa cum laude and first in his class, he clerked for then-Chief Judge Douglas H. Ginsburg of the D.C. Circuit and Justice Anthony M. Kennedy of the Supreme Court. Mike then joined the D.C. office of Kirkland & Ellis, where he is a share aka equity partner. He has won numerous honors and accolades over the years, recognized by Chambers and Partners, the Legal 500, and The American Lawyer, among others.

Despite his dazzling legal career, Mike is most proud of being a dad. He had his first child while still in law school, two children during his clerkships, and eight children during his time at K&E. In our conversation, we talked about his contrasting clerkship experiences; what it’s like being a litigator at Kirkland, including how the firm has evolved over the years; why at heart he’s more of a trial rather than an appellate lawyer; and most importantly, how he balances his busy practice with the demands of parenthood (although note that he’s not a fan of the term “work-life balance”).

Kudos to Mike on all his professional and personal success, and early wishes for a happy Father’s Day to him and all the other dads out there.

Show Notes:

* Michael F. Williams, P.C., Kirkland & Ellis

* Michael F. Williams profile, Chambers and Partners

* How Does He Do It? Kirkland Partner at Home With 11 Kids, by Vivia Chen for Law.com

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Happy Pride—and happy June 26. As the Supreme Court hands down its final decisions of the Term over the next few days, it’s worth reflecting on how June 26 is the day the Court issued three of its landmark gay-rights decisions: Lawrence v. Texas (2003), United States v. Windsor (2013), and Obergefell v. Hodges (2015).

Obergefell was issued in 2015, the same year that my husband Zach and I got married. And I would say that we—and really all married same-sex couples in the United States—owe a debt of gratitude to my podcast guest for today: Evan Wolfson, founder of Freedom to Marry, the groundbreaking campaign that won marriage equality in the United States and ignited a global movement. Evan has garnered many awards for his work over the years, including recognition as one of the 100 most influential lawyers in America by The National Law Journal and one of the 100 most influential people in the world by Time Magazine.

What led Evan to focus his career on the fight for same-sex marriage? What was his thinking in launching Freedom to Marry? What are some secrets of the success of the marriage-equality movement? And what lessons can it offer to other struggles for social justice?

Check out our conversation to learn all this and more. Thanks to Evan for joining me—and for his decades of work in advancing marriage equality and LGBTQ rights, both in the United States and around the globe.

Show Notes:

* Evan Wolfson bio, Dentons

* What the Freedom to Marry Campaign Can Teach Middle East Peacemakers, by Evan Wolfson for U.S. News & World Report

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Are we all originalists now? Definitely not; originalism has no shortage of critics.

But as the latest Term of the U.S. Supreme Court made clear, originalism is the dominant mode of constitutional interpretation at One First Street today. As the justices debate the doctrine’s finer theoretical points, such as the proper use of history and tradition, it’s clear that the debate is no longer “originalism or not originalism,” but “which originalism” or “whose originalism.”

So it’s more important than ever to understand the originalist mindset. And if you’re looking for help on that front, I have a book recommendation: Professor Randy Barnett’s new memoir, A Life for Liberty: The Making of an American Originalist. As promised by its subtitle, the book provides excellent insight into originalism as a theory—but as an engaging and enjoyable memoir, it’s far more fun to read than any casebook or treatise.

What drew Randy Barnett to originalism? Why does he view his losses in two landmark Supreme Court cases—Gonzales v. Raich, a Commerce Clause challenge to criminalizing medical marijuana, and NFIB v. Sebelius, a nearly successful effort to topple the Affordable Care Act—as victories of a sort? Why did he decide to write a memoir—and why does he think you should, too? All this and more is revealed—on the latest episode of the Original Jurisdiction podcast.

Show Notes:

* Randy E. Barnett bio, Georgetown University Law Center

* A Life for Liberty: The Making of an American Originalist, Amazon

* Libertarianism Updated, by Randy E. Barnett for Law & Liberty

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

One of the most consequential developments of the last Supreme Court Term was the overruling of Chevron v. Natural Resources Defense Council, Inc., the 40-year-old precedent directing courts to defer to agencies’ reasonable interpretations of ambiguous statutes. It came about through two cases: Relentless, Inc. v. Department of Commerce, argued by Roman Martinez, and Loper Bright Enterprises v. Raimondo, argued by former U.S. solicitor general Paul Clement (a past podcast guest).

Today I’m pleased to be joined by Roman Martinez. One of the leading Supreme Court advocates of his generation, Martinez, 45, has argued 14 cases before the Court. But none has been as consequential—or controversial—as the aptly named Relentless.

How does Martinez respond to claims that Relentless will have relentlessly negative consequences for American society? We explore the implications of the overturning of Chevron—along with Martinez’s clerkships for then-Judge Kavanaugh and Chief Justice Roberts, his thoughts on the old versus new SCOTUS argument formats, his style as a Supreme Court advocate, and his “secret weapon” in preparing for high-court appearances—in the latest Original Jurisdiction podcast.

Show Notes:

* Roman Martinez bio, Latham & Watkins

* Roman Martinez profile, Chambers and Partners

* 40 Under 40: Roman Martinez, Washington Business Journal

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!

By next Thursday, August 16, creditors must vote on whether to approve the Chapter 11 liquidation plan of FTX, the once high-flying cryptocurrency exchange. FTX’s former CEO, Sam Bankman-Fried aka SBF—the son of two Stanford law professors, who went on to become one of the world’s youngest billionaires—is behind bars. He’s in the process of appealing his convictions for fraud, conspiracy, and money laundering, as well as his 25-year prison sentence.

Ryne Miller served as general counsel of FTX US, one of several corporate entities that was part of the sprawling FTX empire. Working out of New York, he was not part of SBF’s high-living, Bahamas-based inner circle. But after a fateful phone call in November 2022 from SBF’s father, Joe Bankman, informing Ryne of a multibillion-dollar “liquidity hole”—some $8 billion to $10 billion in FTX customer deposits that had somehow gone missing—he played a crucial role in responding to the situation. By the end of that week, FTX was in bankruptcy.

Why did Ryne leave a partnership at Sullivan & Cromwell, one of the world’s leading law firms, to become the GC of FTX US? Should he have noticed certain red flags at the company, such as the lack of a board or a weak compliance function? What lessons does he draw from his time at the company? And how is he putting them to work today at his new law firm, Miller Strategic Partners, which marks its one-year anniversary next month? Ryne and I covered all this and more, in the latest edition of the Original Jurisdiction podcast.

Show Notes:

* Ryne Miller bio, Miller Strategic Partners

* Former FTX general counsel starts his own law firm, by MK Manoylov for The Block

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Here’s a trivia question for devotees of Original Jurisdiction: excluding Supreme Court justices and Judge Aileen Cannon, who has been most frequently recognized in these pages as Judge of the Week? It’s a tie between a pair of four-time honorees: Judge James Ho (5th Cir.), whom I’ve previously interviewed, and Judge Kevin Newsom (11th Cir.)—my latest guest on the Original Jurisdiction podcast.

This month marks the seventh anniversary of Judge Newsom’s appointment to the U.S. Court of Appeals for the Eleventh Circuit. And although seven years is not a long time by the standards of judicial service, Judge Newsom has already developed a national reputation as one of the sharpest thinkers and writers on the federal bench.

How has he put himself on the map? Many of history’s most celebrated jurists have done so through dazzling dissents, such as Justice John Marshall Harlan, often called “The Great Dissenter,” and Justice Antonin Scalia.

But Judge Newsom has done so through a more unusual vehicle: the concurrence (including the occasional self-concurrence, i.e., a concurrence to his own majority opinion). In a series of thoughtful and scholarly concurrences, he has tackled some of the messiest doctrinal areas and knottiest problems in American law, including standing, nondelegation, complex First and Second Amendment issues, the burden-shifting analysis of McDonnell Douglas v. Green, and jurisdiction under Bell v. Hood.

Judge Newsom and I discuss why he writes these concurrences—plus Justice Elena Kagan’s critique of superfluous concurrences, how to hire great law clerks (and feed them to the Supreme Court), and the potential utility of AI for originalism—in the latest episode of the Original Jurisdiction podcast.

Show Notes:

* Judge Kevin C. Newsom bio, U.S. Court of Appeals for the Eleventh Circuit

* Remarks of Judge Kevin C. Newsom, Harvard Journal of Law & Public Policy

* Interview of Judge Kevin Newsom, by David Oscar Markus for For the Defense

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Defamation law and copyright law: I have a keen interest in both, which shouldn’t be surprising given what I do for a living. So two litigations I’ve been following closely are (1) the various defamation lawsuits brought by Dominion Voting Systems—including its case against Fox News, which settled for a whopping $787.5 million—and (2) the copyright lawsuit brought by The New York Times against OpenAI and Microsoft.

Besides being fascinating cases with the potential to reshape the modern American media landscape, what do these matters share in common? The plaintiffs have the same lawyer: Susman Godfrey partner Davida Brook. Although she’s only 40, she has already been recognized as one of the nation’s top trial attorneys by Forbes, The American Lawyer, Law360, Lawdragon, and many other publications.

Davida and I first met years ago, when I spoke at Stanford Law School and she was a student (yes, I’m that old). So I thought it would be fun to catch up by having her on the podcast—and it was.

We discussed her impressive career path; the Dominion and Times cases, including their possible societal implications; and what it was like to work with and learn from the late Steve Susman, founder of Susman Godfrey and an all-time great courtroom advocate. You can tune into our conversation, covering these and many other subjects, in this new episode of the Original Jurisdiction podcast.

Show Notes:

* Davida Brook bio, Susman Godfrey

* Meet America’s Top 200 Lawyers (2024), by Liane Jackson for Forbes

* Lawyer Limelight: Davida Brook, by Katrina Dewey for Lawdragon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Where do I get my story ideas? Most arise organically out of the news, but some come from topic suggestions aka “pitches.” Sometimes pitches come from lawyers in the news, and sometimes they come from a lawyer or law firm’s public-relations or communications team—media-savvy professionals who work for attorneys and firms to help them secure favorable press (or avoid negative coverage).

Over the years, one of my best sources of pitches has been Dawn Schneider. After graduating from law school, Dawn worked in communications for two major corporations, Johnson & Johnson and Altria. She then combined her legal and media expertise and pivoted to focus on law firms, serving as director of communications at Boies Schiller Flexner. And then, ten years ago this month, she launched her own media-advisory firm, Schneider Group Media—where she continues to work for leading lawyers and law firms, as well as clients beyond the legal realm, helping them navigate a challenging, rapidly evolving media landscape.

I have a fair number of readers who are interested in “alternative careers”—roles that don’t involve practicing law, but where legal education and experience are valuable. So I thought it would be enlightening and enjoyable to interview Dawn, who has deployed her legal training and talent for communication in a cool and unusual way.

Thanks to Dawn for joining me, and congratulations to her on Schneider Group Media’s tenth anniversary.

Show Notes (Dawn doesn’t have much of an online presence—she prefers to keep the focus on her clients—but here’s her bio, as well as pieces I’ve written that resulted from her work):

* Dawn Schneider bio, Schneider Group Media

* On The Retirement Of Miles Ruthberg And The Rise Of Litigation At Latham & Watkins, by David Lat for Above the Law

* A Leading Litigation Boutique Turns 25, by David Lat for Original Jurisdiction

* Boies Schiller Star’s Ski Accident Tests Strength—and Builds It, by David Lat for Bloomberg Law

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Our independent judiciary has been described—accurately so, in my opinion—as “the crown jewel of our constitutional republic.” And when it comes to the federal judiciary, few of its members are as independent-minded as Judge Jed S. Rakoff.

Judge Rakoff, 81, has served on the Southern District of New York since 1996. During his almost three decades on the bench, he has authored more than 2,000 opinions—many of them groundbreaking and headline-making, and some quite controversial.

In addition to his prodigious judicial output, Judge Rakoff is a leading commentator on the American legal system. He contributes regularly to The New York Review of Books, and he wrote an excellent book of his own: Why the Innocent Plead Guilty and the Guilty Go Free, and Other Paradoxes of Our Broken Legal System (2021).

With a new Term of the U.S. Supreme Court starting next week, I thought it would be interesting to interview Judge Rakoff about his latest column for The Review, which discusses the current Court—and doesn’t pull any punches. And in our conversation, Judge Rakoff didn’t walk back any of his criticism. When I asked him if he respects the Court, he artfully dodged—and later on in our interview, he described the Court’s rulings on gun control as not only “misguided,” but “immoral.”

We found time to discuss fun stuff, too. We talked about his approach to clerk hiring—being in FedSoc is not a black mark—as well as his hobbies. In his spare time, he enjoys participating in international ballroom dance competitions (with his wife Ann), writing satirical lyrics to musical compositions, and officiating at weddings (91 and counting). Check it all out, in the latest Original Jurisdiction podcast.

Show Notes:

* Judge Jed Rakoff bio, U.S. District Court for the Southern District of New York

* Hon. Jed S. Rakoff, by Luke McGrath for the Federal Bar Association

* The Most Conservative Branch, by Judge Jed S. Rakoff for The New York Review of Books

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

On Monday of last week, the customary first Monday of October, the U.S. Supreme Court kicked off October Term 2024. So I thought it might be a good idea to offer my listeners an overview of the 2024-2025 Term—and I could think of no better guide to the new SCOTUS Term than Morgan Ratner. I met Morgan this past July, when we participated in a Supreme Court “Year in Review” panel together, and I was struck by her talent for explaining complicated cases with exceptional clarity and accuracy.

Morgan’s knowledge of the Court shouldn’t come as a surprise. She has argued before the Court in nine cases, first as an assistant to the U.S. solicitor general and more recently as a partner at Sullivan & Cromwell. She clerked for two of the Court’s current members: then-Judge Brett Kavanaugh, during his time on the D.C. Circuit, and Chief Justice John Roberts.

Morgan graduated first in her class from Harvard Law School. Current and aspiring law students will be interested in—and perhaps surprised by—her advice on how to succeed in law school.

So listen to this episode and learn more about Morgan Ratner. For SCOTUS devotees, she’s someone you should get to know.

Show Notes:

* Morgan L. Ratner bio, Sullivan & Cromwell

* 40 Under 40 - Morgan Ratner of Sullivan & Cromwell, by Lisa Helem and MP McQueen for Bloomberg Law

* 12 Lawyers Who Are The Future Of The Supreme Court Bar, by Jeff Overley and Katie Buehler for Law360

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

With a contentious election just around the corner, tensions are running high, and it’s easy to focus on what divides us. So my latest podcast interview, featuring Judge Kenneth Lee of the U.S. Court of Appeals for the Ninth Circuit, is quite timely. The son of immigrants from South Korea—and an immigrant himself, who came to the United States at age four—Judge Lee still believes in the greatness of America.

In our conversation, Judge Lee and I discussed his parents, including the challenges they faced after arriving in the U.S.; his high-powered legal career, including stints at Wachtell Lipton, the White House Counsel’s office, and Jenner & Block; the best and worst parts of being a judge; his philosophy of legal writing; and his approach to law clerk hiring. We also looked back on our time together at Wachtell, which is where we first met, some 23 years ago—and where Ken racked up billable hours that you’ll find hard to believe. But as his former colleague, I can attest that he works incredibly hard—now in service to the Constitution and laws of the United States.

Show Notes:

* Kenneth K. Lee bio, Wikipedia

* Kenneth Lee, Senate Judiciary Committee questionnaire

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

If you ever get prosecuted by the U.S. Attorney’s Office for the Southern District of New York, I wish you luck—because you’ll need it. “The Office” has a very high conviction rate—and, like most U.S. Attorney’s Offices, the vast majority of its convictions get affirmed on appeal.

If you want to maximize your chances of either prevailing at trial or on appeal against the S.D.N.Y., then you should call Alexandra Shapiro (if you can afford her). She’s the rare lawyer who can go up against The Office and win—whether at trial, in the Second Circuit, or before the U.S. Supreme Court.

An alum of the S.D.N.Y. herself, as well as a former law clerk to the late Justice Ruth Bader Ginsburg, Alexandra is the co-founder (with Cynthia Arato) of a thriving boutique, Shapiro Arato Bach. Having her own firm allows Alexandra to take on cases and clients that she might not have been able to handle back when she was a partner at Latham & Watkins—whether because of client conflicts, the desire of large firms to steer clear of controversy, or Biglaw billing rates (because even if she’s expensive, she’s not Latham expensive, plus she enjoys more rate flexibility than a large firm).

Speaking of controversy, Alexandra currently represents two high-profile defendants going up against The Office: FTX founder Sam Bankman-Fried, appealing his fraud convictions to the Second Circuit, and Sean “Diddy” Combs, scheduled to go to trial in May 2025 on sex-trafficking and racketeering charges. She discusses these cases (to the extent that she can)—as well as her own interesting and impressive career, her approach to crafting appellate briefs, and her legal thriller, Presumed Guilty (2022)—in the latest episode of the Original Jurisdiction podcast.

(Programming note: as some of you might have noticed, this episode is a week early, based on my usual every-other-week schedule. But between now and the end of the year, the schedule might get a little funky because of the demanding schedules of my next few guests, plus the holidays. I will try to stick to Wednesday as the drop date, but I can’t guarantee much beyond that.)

Show Notes:

* Alexandra A.E. Shapiro bio, Shapiro Arato Bach LLP

* Shapiro Arato Bach’s Dynamite Trio: A Head-Turning Alternative to Big Law, by Emily Jackoway for Lawdragon

* Presumed Guilty, Amazon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Veterans Day was last week, so it was very fitting that I interviewed Beth Wilkinson, one of the nation’s top trial lawyers and founding partner of Wilkinson Stekloff. After graduating from Princeton and UVA Law, she began her career as a lawyer in the Army JAG Corps. She then continued her public service by working as a federal prosecutor, where she successfully prosecuted the Oklahoma City bombers.

Over the decades, Beth has handled—and won—many other consequential cases. Earlier this year, she led the trial team that secured judgment as a matter of law for the NFL in the multibillion-dollar Sunday Ticket litigation. Last year, she served as lead trial counsel for Microsoft in the FTC’s challenge to Microsoft’s acquisition of Activision—and her victory allowed that $68.7 billion deal to go through. And she shows no signs of slowing down: she was recently retained by Visa to defend the payments giant in a bet-the-company antitrust case.

Thanks to Beth for joining me to discuss her fascinating career and cases—and, of course, for her many years of service to our nation.

Show Notes:

* Beth Wilkinson bio, Wilkinson Stekloff

* Beth Wilkinson bio, Wikipedia

* Beth Wilkinson profile, Chambers and Partners

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Early wishes for a happy Thanksgiving. As the holiday season gets underway, those of us who have so much to be thankful for should think about—and reach out to help—those who are less fortunate. So as I did last year, I’m using my Thanksgiving podcast episode to shine the spotlight on a lawyer who has devoted their entire career to working in the public interest.

Amol Sinha is a nationally recognized civil-rights leader who has dedicated his career to advancing racial justice, holding institutions accountable, promoting and defending rights and liberties, and spearheading impactful work to protect democracy. Since 2017, he has served as executive director of the ACLU of New Jersey (ACLU-NJ)—which has doubled in size, and tripled in terms of its budget, under his leadership.

In our conversation, Amol and I discussed his long career in public-interest law, including his past positions at the Innocence Project and the New York Civil Liberties Union; what he’s most proud of during his time at the ACLU-NJ, including groundbreaking decarceration efforts; his response to critics claiming that the ACLU has abandoned its commitment to free speech in favor of “woke” causes; and, in a very timely discussion in light of the recent election, what he and his ACLU colleagues across the country are focusing on as Donald Trump returns to the White House.

For the past seven years, Amol has been working in my home state of New Jersey. As someone who grew up in and currently lives in the Garden State, I was especially interested in hearing about what he’s been up to—and I hope you will be as well.

Show Notes:

* Amol Sinha bio, ACLU of New Jersey

* Our Roadmap to Protecting Democracy and Holding Trump Accountable, by Amol Sinha for the ACLU-NJ

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

As 2024 draws to a close, I’ve been reflecting on the most important topics and trends that shaped the legal profession this year. At or near the top of the list, of course, was artificial intelligence. How will AI transform the practice of law and the legal profession? How will it affect employment opportunities for attorneys? What changes will it bring to legal education and the training of young lawyers?

I tackled all of these topics in the latest episode of the Original Jurisdiction podcast, in conversation with Ross Guberman. One of the nation’s leading authorities on legal writing, Ross has conducted thousands of writing workshops and has written two authoritative books on the topic, Point Made: How to Write Like the Nation’s Top Advocates and Point Taken: How to Write Like the World’s Greatest Judges.

Ross’s most recent venture is BriefCatch, a legal-tech startup that produces an amazing writing and editing tool of the same name. It harnesses the power of technology, including AI, to help lawyers produce their very best written work product.

And as Ross revealed in our conversation, BriefCatch has used AI to address one of legal writing’s most annoying aspects: Bluebooking, i.e., adherence to the copious, complex, confusing conventions for citing authorities of different types. If you hate The Bluebook, then you’ll love this forthcoming addition to BriefCatch. Congrats to Ross and his colleagues on this incredible innovation. (Disclosure: I’m on the BriefCatch board.)

Show Notes:

* Ross Guberman bio, Legal Writing Pro

* BriefCatch, official website

* Point Made: How to Write Like the Nation's Top Advocates, Amazon

* Point Taken: How to Write Like the World's Best Judges, Amazon

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Are you familiar with the world of private credit? If not, you should be. The rise of private credit—sometimes referred to as non-bank, alternative, or direct lending—is one of the most important developments in the American economy since the financial crisis and Great Recession.

Private credit is also one of the hottest practice areas in Biglaw. I’ve been meaning to have a podcast episode about it—for quite some time. And after The New York Times published a lengthy exposé on “the shadowy world of private credit” last month, on the front page of the Sunday business section, I decided the time had come.

I was therefore delighted to interview one of the country’s top private-credit lawyers, Jennifer Daly. A Chambers Band 1 lawyer for this field, Jenn leads the private-credit practice at Paul Hastings, a Chambers Band 1 firm in the space.

Our conversation offered an excellent overview of private credit. But even lawyers who are knowledgeable about the subject will enjoy hearing about Jenn’s unusual career journey, including several years away from the practice of law; why she and her group joined Paul Hastings, a magnet for lateral partners these days; her defense of private credit, in response to claims that it lacks sufficient regulation or transparency; and her predictions about the field’s future, which she believes to be bright.

Show Notes:

* Jennifer E. Daly bio, Paul Hastings LLP

* Paul Hastings Adds Premier Restructuring and Private-Credit Team, Paul Hastings LLP

* Wall St. Is Minting Easy Money From Risky Loans. What Could Go Wrong? (gift link), by Rob Copeland and Maureen Farrell for The New York Times

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.

Three years ago this month, in January 2022, the constitutional lawyer and scholar Ilya Shapiro almost lost his job at Georgetown Law—over a tweet. The controversy, which I covered extensively in these pages, was followed by disruptive protests of speakers at other top law schools, including Yale and Stanford.

According to Shapiro, these events reflected the “illiberal takeover of legal education”—the subject of his new book, Lawless: The Miseducation of America’s Elites. I interviewed Shapiro—about Lawless, whether the intellectual climates at law schools have improved since his near-cancellation at Georgetown, and what can be done to protect and promote free speech and intellectual diversity in higher education—in the latest episode of the Original Jurisdiction podcast.

Show Notes:

* Ilya Shapiro bio, Manhattan Institute

* Lawless: The Miseducation of America’s Elites, Amazon

* Shapiro’s Gavel, Substack

* Ilya Shapiro Resignation Letter to Georgetown University Law Center, June 6, 2022, Foundation for Individual Rights and Expression (FIRE)

Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment at nexfirm dot com.

Who is the top trial lawyer in America? The question would trigger a fierce debate. But Alex Spiro of Quinn Emanuel is definitely up there—and he’s probably the only one on the shortlist who’s under 40. His famous clients include Jay-Z, Kanye West, and Elon Musk, whom he's defending in the $44 billion Twitter v. Musk lawsuit.

I'm delighted to welcome Alex Spiro as my first guest on the Original Jurisdiction podcast. What’s going through his head right now as the Twitter trial approaches? What’s the secret of his success in front of juries? What trial-lawyer conventional wisdom does he reject? And how much sleep does he get a night?

To learn all this and more, listen to the episode. If you enjoy what you hear, please be sure to rate, review, and subscribe, so you'll be notified of future episodes of Original Jurisdiction. Thanks!

Who is the nation’s top Supreme Court advocate?

If you were to poll the SCOTUS bar, many members would name Paul Clement. The 43rd Solicitor General of the United States and a veteran of over 100 arguments before the Court, he has argued more Supreme Court cases since 2000 than any lawyer in or out of government. Former Acting Solicitor General Neal Katyal described Clement as “the preeminent advocate in his generation,” while SCOTUSblog founder Tom Goldstein dubbed Clement “a god.”

And Clement, 56, has been having quite the year. He won two of the biggest cases of the last Term: New York State Rifle & Pistol Association v. Bruen, the landmark Second Amendment case, and Kennedy v. Bremerton School District, the case of the praying football coach. Despite his win in Bruen, his law firm at the time, Kirkland & Ellis, announced that it would be withdrawing from all Second Amendment cases—on the day that Bruen was handed down. So Clement and his longtime colleague Erin Murphy withdrew from Kirkland, leaving to launch Clement & Murphy, their own appellate and Supreme Court boutique.

After I had a top trial lawyer, Alex Spiro of Quinn Emanuel, as my first podcast guest, it seemed like a logical next step to welcome a leading appellate advocate as my next guest—especially since the episode would air during the first week of October, the start of the new Supreme Court Term. I invited Paul Clement to join me, and I was delighted when he agreed.

In our conversation, we discussed a wide range of topics, including his high school and college debate career, his advice for appellate advocates, some additional backstory behind his departure from Kirkland, his concern about Biglaw’s increasing unwillingness to take on controversial cases and clients, and the time he may or may not have attended a Green Day concert with Elena Kagan. You can check out the episode by clicking on the embed at the top of this post.

Show Notes:

* Paul Clement bio, Clement & Murphy PLLC

* The Law Firm That Got Tired of Winning, by Paul Clement and Erin Murphy for the Wall Street Journal

* You Won Your Gun Case. You’re Fired, by the Wall Street Journal Editorial Board

* The Legal Wunderkind Challenging The Health Law, by Nina Totenberg for All Things Considered/NPR

* The Paul Clement Court, by Jason Zengerle for New York Magazine

Prefer reading to listening? For paid subscribers of Original Jurisdiction, a transcript of the entire episode appears below.

On the morning of July 18, 2014, Dan Markel pulled into his garage in the upscale Betton Hills neighborhood of Tallahassee, where he was a law professor at Florida State University. Seconds later, the 41-year-old father of two was shot twice in the head. Taken to the hospital, he was pronounced dead less than 12 hours later.

Dan Markel was a friend of mine. We worked together as editors of the Harvard Crimson in the 1990s, and we reconnected in the early 2000s as the founders of two prominent legal blogs, PrawfsBlawg for him and Above the Law for me.

As both a friend of Dan’s and a journalist covering the legal profession, I have closely followed the years-long quest to bring his killers—all of his killers—to justice. And so has litigator turned bestselling true-crime writer Steven B. Epstein, author of Extreme Punishment: The Chilling True Story of Acclaimed Law Professor Dan Markel's Murder. As I write in the foreword, “Meticulously researched and beautifully written, Extreme Punishment is now the definitive account of Dan’s life and death, the standard against which all future tellings will be measured.”

I invited Steve to join me as the third guest of the Original Jurisdiction podcast. We talked about what inspired him to tackle the Markel case, how he went about researching and writing the book, his email correspondence with Dan’s ex-wife Wendi Adelson (who some suspect of playing a role in the murder), and his predictions for what might happen next in the case. To listen, please click on the embed at the top of this post.

Show Notes:

* Extreme Punishment: The Chilling True Story of Acclaimed Law Professor Dan Markel's Murder, Amazon

* Extreme Punishment: The Chilling True Story of Acclaimed Law Professor Dan Markel's Murder, Barnes & Noble

* Steven B. Epstein: True Crime Writer, author website

* Steve Epstein bio, Poyner Spruill LLP

Prefer reading to listening? A transcript of the entire episode appears below.

Two quick notes:

* This transcript has been cleaned up from the audio in ways that don’t alter meaning—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.

* Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.

You’re listening to the third episode of this podcast, recorded one week ago, on Wednesday, October 12. My normal schedule is to post episodes every other Wednesday.

For the first episode, I interviewed Alex Spiro of Quinn Emanuel, one of the nation’s top trial lawyers. For the second episode, I interviewed Paul Clement of Clement Murphy, one of the nation’s top appellate and Supreme Court lawyers.

At the end of the second episode, I mentioned this third episode would be a bit different, and it is. Like my first two guests, my latest guest is a friend, but he has made his name outside the realm of practice.

Steven B. Epstein is a lawyer turned bestselling true-crime writer. After earning his bachelor’s and law degrees from the University of North Carolina at Chapel Hill, both with highest honors, he clerked for Judge Earl Britt in the Eastern District of North Carolina. After a few years in legal academia, Steve turned to civil litigation, practicing for more than 30 years and handling dozens of trials and appeals in federal and state courts. Since 2010, he has been a partner at Poyner Spruill in Raleigh, North Carolina.

But I had Steve on the show not to chat about his legal career, but his career as a writer. In 2019, he published his first true-crime book, Murder on Birchleaf Drive: The True Story of the Michelle Young Murder Case, which became a #1 bestseller on Amazon in the true-crime genre. In 2020, he published his second book, Evil at Lake Seminole, about the murder of Mike Williams in Tallahassee. And this month, October 2022, Steve published his third book, Extreme Punishment: The Chilling True Story of Acclaimed Law Professor Dan Markel’s Murder.

As many of my listeners and readers know, this is a case to which I have a personal connection. Dan Markel was a friend of mine from college, when we worked together for the Harvard Crimson, and we reconnected as early entrants to the field of legal blogging, when he founded PrawfsBlawg and I founded Above the Law.

In 2014, Dan was brutally murdered, shot in the head after pulling into his garage. Dan’s murder—and the years-long quest to bring all of his killers to justice, which is not yet over—is the subject of Steve’s book, Extreme Punishment. As I write in the foreword, “Meticulously researched and beautifully written, Extreme Punishment is now the definitive account of Dan’s life and death, the standard against which all future tellings will be measured.”

Without further ado, here’s my interview of Steve Epstein.

DL: Welcome to the podcast, Steve, and congratulations on the publication of Extreme Punishment, which I think is some of your best work yet. And on behalf of those of us who knew and cared about Dan, thank you for writing it. Before we dive into the book, can you introduce yourself to the readers—or listeners, I should say?

Steve Epstein: Sure—and thank you for those kind words, David. For those who don't know, you've been along this ride with me for the last couple of years. I appreciate all of your encouragement. I appreciate the foreword to the book, which is beautiful, and I’m thrilled that that’s the introduction my readers are going to have to my writing, so thank you for all of that.

I'm a native of New York. I grew up mostly on Long Island. I then went south to go to college at the University of North Carolina and decided to stay there for law school. I clerked for a federal judge in the Eastern District of North Carolina. A couple years later, after I was done with the judge, I was off to the University of Illinois, where I was actually teaching on the University of Illinois law faculty for just two years. I've been back in North Carolina ever since 1996, when I finished up at Illinois, and I've been practicing law ever since then at two different private law firms. And as you said, I've also written three books.

DL: And what is the focus of your legal practice, or what has it been over the years?

SE: I was a civil litigator. I started as a personal injury lawyer and then became more of a commercial civil litigator, mostly on the defense side, mostly working for self-insured large corporations. Then over the years, I drifted into actually doing family law, which is about two-thirds of my practice now, and has been the majority of my practice for the last eight years.

DL: As I mentioned in the foreword, you have multiple connections to this story, which we'll explore in a minute. But before we do that, for those of my readers who are not familiar with the subject of your book, Extreme Punishment, which is the murder of law professor Dan Markel—many of my readers are familiar with it, but for those who are not—can you give a quick overview of what this case is about?

SE: Sure, and we'll start with the subject of the book, Dan Markel. Dan was a young, very hungry, very intellectually gifted law professor when he joined the Florida State faculty in 2005. He had two Harvard degrees, undergraduate and law school. He had a master's degree from the University of Cambridge. He was also somebody who took his Judaism very seriously, so that was part of his DNA. And he was very successful as a law professor.

He was married to a woman named Wendi Adelson, who was from South Florida. Dan himself was from Canada, which is where he grew up—he actually never became an American citizen before his death, he was a Canadian. Wendi Adelson grew up in South Florida in a town called Coral Springs, which isn't too terribly far from Miami, and they wound up becoming a couple while Wendi was still a law student at the University of Miami, while Dan was practicing law at a boutique firm in Washington, D.C.

Wendi actually went to Florida State with Dan when he got his gig as an assistant law professor, and Wendi finished up law school at Florida State University. Even though her degree says University of Miami, she actually finished up in classrooms in which Dan was teaching law school at Florida State.

On July 18th, 2014, which is when my book actually begins—in fact, that's part of the title to chapter one—Dan was murdered by a gunman who showed up in his garage, shortly after he had dropped his two young boys off at preschool and gone to the gym for a workout. Two bullets penetrated the front window of his car and went straight into his head. He was pronounced dead at the hospital, Tallahassee Memorial Hospital, about one o'clock the next morning.

So this is a story about Dan's life, Wendi's life, and how that all led to that fateful morning, and then the march to justice that has literally been going on now for eight-plus years, with four different people involved in this crime now behind bars—three convicted, one awaiting trial—and a significant possibility of more arrests and convictions later on.

DL: That's an excellent overview of this really tragic, horrific event. And for those of us who knew Dan, it was just insane. As I write in the foreword, he was a law professor. He was part of our legal-nerd circles. I knew him from college because we worked on the Harvard Crimson together. I reconnected with him in the mid-2000s because we were legal bloggers.

I remember the morning, that July morning, where there was just furious calling, texting, Facebook messaging among his friends, saying, did you hear what happened to Dan, did you hear what happened to Dan? And we just could not, for the life of us, figure out who would want to kill our friend who was a law professor. It just seemed so crazy….

SE: And it was. And so investigators who started investigating this crime, literally within an hour of the shooting, were faced with this very puzzling dilemma: why would someone want to kill this 41-year-old, extremely successful law professor, who had made hundreds if not thousands of friends, colleagues, and acquaintances, across the legal academy and across the world? He was enormously popular. He was extremely well-known. Who would want to kill him?

DL: What I would add there is—as I've written in Above the Law and Original Jurisdiction covering Dan, as your biographical portrait of him makes really clear—he was a very complex guy. He wasn't boring, he wasn't vanilla, some people he didn't rub the right way. He had strong opinions. He was outspoken. But again, to us it just seemed that there was nobody who'd want to kill him. It just seemed like such a crazy thing.

I will pause here for any listeners whose interest has been piqued by the discussion so far. Feel free to hop off the podcast at this point and get the book, Extreme Punishment by Steven B. Epstein, and you can always tune back in after you've had the chance to read the rest of it.

Now, for those of us who are familiar with the case, let's take a deeper dive. We talked about or alluded briefly to your personal connections to this story. What inspired you to tackle the Dan Markel murder for your third?

SE: Well, it's a story I really didn't initially want to write because I had just written a book about Tallahassee. I'm not from Tallahassee. I've been there a few times. My daughter was actually very interested in attending Florida State University. We visited Florida State University. She wanted to be a theater major. She wanted to audition there, and she was crushed to not be invited to give a live audition at Florida State University. She wound up at the University of Alabama.

But you know, even then I noticed some things about Florida State. We actually did go down there when a friend of hers was in a play in production down there, and it's very interesting how seedy it is. It's almost like Yale, which you have a little familiarity with—it’s odd that a university of that stature is in a town where, literally once you walk off campus, you don't feel safe. And that's definitely true about Tallahassee. It's got this very unique vibe to it for a capital city of the third-largest state.

So I didn't want to write another story about a murder that happened to somebody who lived in Tallahassee. But the mother of the victim of my second story, Cheryl Williams, who is a fantastic human being—and I encourage you also to read my second book, Evil at Lake Seminole, where you’ll learn a whole lot more about this incredibly courageous woman—we continued having conversations long after I finished that book. She's been a fan, she's been a friend, and she's been a confidant. And we were talking about what I was going to write next, and I was literally searching for the right true-crime story to write next when she encouraged me to think about writing about Dan Markel.

At that point, all I knew about this story was stuff I gleaned from reading the pages of the Tallahassee Democrat, which I was doing as part of my research for Evil at Lake Seminole. And so I knew just a little bit about this law professor who was killed, and there was a suspicion that maybe his wife's family was involved, and I knew that there had been a trial, and that's literally all I knew.

And then mysteriously within a couple of days of speaking with Cheryl and her encouraging me to write this story, on my DVR—we have Direct TV—on my DVR in my saved shows, a Dateline appeared, a Dateline about the Dan Markel murder. I don't know how it got there to this day, but I was like, okay, this is a sign, this is a sign from God. I'm going to watch the Dateline episode.

I watched it, and I was mesmerized. And the thing that led me in the next direction was one of the talking heads, a guy named Matt Shaer. Matt did a podcast, which a lot of your listeners probably have listened to, called Over My Dead Body—sort of like the Serial podcast that is now getting a lot of attention because the person who was convicted of that crime in Serial has just been exonerated, released from jail after nearly 20 years. Well, this podcast sounded a whole lot like it had the production value of Serial, Over My Dead Body, and I listened to all eight episodes, and I was absolutely at that point convinced this was a book that I was meant to write.

And so I started, and I reached out to Matt Shaer to get some assistance, I reached out to you because you were also interviewed in that podcast, and then I literally just started figuring out who was involved, sending emails. I made a visit to Tallahassee. I met with Dan Markel's next-door neighbor, Jim Geiger, who was the person who found him slumped over behind the steering wheel of his Honda Accord, the fateful morning of July 18th, 2014. I started realizing the enormity of Dan's circle of friends, and I basically had to start picking and choosing who I was going to talk to because there were far too many to interview. I wound up interviewing probably three dozen or so of Dan's friends, and then all of the lawyers involved in the case, and on and on and on.

DL: One thing people will be curious about is did you reach out to or hear from Wendi Adelson, Dan's ex-wife—who some have suspected of involvement in the murder, other people have disagreed—but did you ever hear from her?

SE: Yes, I did. So I actually have [these emails] in front of me, because I want to get it exactly accurate. At some point I wanted to reach out to Wendi's circle of friends, which was a lot smaller [than Dan’s], and easily identify who the people were who I needed to talk to. The first person I reached out to is a woman named Jane McPherson, who was a Ph.D. candidate in the school of social work at Florida State. Why did I want to talk to her? She actually wound up in the interrogation room with Wendi the day Dan was shot, and she was there for about half an hour, and some of what happened during the time she was there was very significant, so I wanted to talk with her.

I also wanted to talk with somebody who was a professor on the main campus named Daniel Sack. Ironically, Daniel Sack became Wendi's boyfriend not long after she broke up with Dan Markel—so the two Dans. And so I reached out to both Daniel Sack, who by that point was a professor in Massachusetts, and Jane McPherson, who I think at that point was a professor in Georgia, because their emails were easily accessible from their faculty websites.

I began both emails—and this is significant—“My apology for this intrusion.” Each of the emails I started that way, and I explained who I was, explained I was working on a book about Dan Markel. I didn't hear from either of them. This was March 20th, 2021, it was a Saturday.

So that Monday morning, at 10:53 a.m., I had this surprise email in my inbox, and all I could see in my inbox was only the name of the person sending me the email and the subject line, I saw the name was Wendi Adelson and the subject line was “Central character.” And it began, “Dear Steve,” and here are the magic words: “My apology for the intrusion”—which right away I found to be somewhat passive-aggressive.

It's quite clear she was literally stealing my words that I used in the emails to her friends, Jane McPherson and Daniel Sack. She continued, “My apology for the intrusion, but my friends”—and I knew who they were—“have contacted me about your interview requests. As a central character in your writing, I am curious why you haven't contacted me. Most sincerely, Wendi.” As if we were on a first-name basis.

I had never had any communications with her up until that point, and the reason I didn't is I knew full well she wasn't going to talk to me. She is implicated, certainly her family is implicated, in the murder of Dan Markel. There's no way she's going to talk to me. So I didn't reach out to her, and I literally said in response to her email, calling her bluff—and I knew it was a bluff—I said, “I didn't think you would talk to me, but if you are interested in talking to me, of course I would love to talk to you, and I won't talk with you about anything related to the murder. I'm interested in your background. I'm interested in growing up in Coral Springs, the relationship you had with your brothers. I'm interested in your appearance on The Weakest Link. So if you're interested in talking to about those things, by all means, let's chat.”

And not surprisingly, I never heard another word from Wendi Adelson. But for some reason I decided, you know what? I'm going to reach out to her again. And I did in October, so some seven months had passed since my interaction with Wendi that she instigated, I didn’t instigate, and I decided to push her a little bit and said, you know, I hadn't heard from her and I was wondering if she had actually gotten my email. And she responded within 15 minutes, and within 15 minutes she said, “Steve, you do not have my consent to use my identity and trauma for your own profit. Best, Wendi.”

DL: “Best.” And I totally agree with you about the wording, the replication of “apologies for the intrusion.” She's trolling you. She's saying, I've got your number, and the people you're reaching out to, they're loyal to me, and I know what you're doing. She's yanking your chain, isn't she?

SE: Yes. And if you pay close attention to her testimony in both trials [of Katie Magbanua], she does that quite a bit. She has little words and little phrases that just, you know, they're needling. She has this habit of needling.

In talking with people who were mutual friends of Dan and Wendi's, that's what they said about her, is that she would needle them about little things. Like one of Dan's friends was a little bit short, and she would needle him about his height—not really appropriate, but as her way of one-upping him, she would bring up his height. And she was friends with him.

I don't think she considers me a friend, and she was doing more than needling me. She was effing with me, in my view, with her emails and reaching out and calling herself the “central character.”

Yes, she is a central character in my book. There's tons of information about Wendi Adelson in my book that I learned from all kinds of sources, not the least of which is Wendi's own writing, Wendi's own CV, which I was able to find, and then friends of Wendi's that I was able to talk with. So you'll learn a whole lot about Wendi Adelson, and you'll learn a whole lot about growing up Adelson in this book.

DL: I thought her veiled threat was really a bit disingenuous because she's a smart lawyer, she knows you're a smart lawyer, she knows that this story is in the public domain, she knows the laws about privacy and defamation, and so the notion that you had to get her consent to write about something that is already out there—as long as you're writing stuff that is true, and your work is very heavily researched—that struck me as a bit rich.

SE: Yeah, but it tells you a lot about Wendi Adelson, that it doesn't matter that I would've recognized right away that her threat meant nothing—which of course I did, I chuckled when I read it and then reread it to my wife and reread to all kinds of other people who also chuckled—that of course she knew that I didn't need her permission in order to write about her, as zillions of other publications have. I’m very careful and very diligent, and I’m confident that everything that I've said in this book is true and well-researched

DL: It's interesting—I will say also, just as a testament to the book, I think that the biographical chapter of Wendi is very fair and does not paint some negative or nasty picture. It's not a hatchet job. I think that you are trying to get inside her world, just as in the earlier biographical chapter about Dan, you tried to get inside his world. I think that later things develop, and we learn more about members of her family who are, shall we say, problematic. But I thought your chapter was very fair. I did not think you were out to get her or something.

SE: If Wendi Adelson was a hideous, despicable monster, why would Dan Markel have fallen in love with her? Why would Dan Markel have married her and had two kids with her and have been beside himself with grief when she left? The notion that she's this horrible, despicable person, or this completely unintelligent person, doesn't make any sense. You have to understand why Dan was so head-over-heels in love with her in order to understand this story.

This story is a love story about the two of them. And when that love fell apart, it's a story about what happens from there and why this becomes not just Wendi's mission, but her parents' mission, and her brother's mission, to do something about the fact that she lives seven hours apart from where she really wants to be and where they want her to be.

That's what this story's really about. As a family-law attorney, we call that relocation. And Wendi tried her very best, mostly at the urging of her family, to relocate with the children to South Florida, so that they would have more access to both Wendi and the boys. And she failed. And the question then became, well, what now?

Now we know the answer. Extreme Punishment is all about the answer, but you have to know the antecedents. You have to know the seeds of what happened, both in terms of the good and the relationship that was good for a long time between Dan and Wendi, and then how that relationship soured, and why it soured, and why the in-laws started getting involved.

And understanding about Rob Adelson, Wendi's older brother, and how his parents got involved in his relationship, is a really telling part of this picture about how those parents of the Adelson children couldn't help themselves from being involved and completely overly involved in what was going on in their children's love lives.

DL: One thing I'm curious about… when I talk about this case to people, they say, “Well, this sounds”—again, I've used this term multiple times in our conversation, but—“this sounds insane.” This is a family of well-to-do dentists, they're well-educated and they have significant assets and real estate investments, and they have lot to lose. And sure, divorces and custody battles and relocation battles can get acrimonious, but would a family that is this well-established and well-respected and well-to-do, would they really hire hit men to take out their former son-in-law? I think your book does a brilliant job of explaining how things came to that point, but can you give a short overview just to anyone who says, “I can't even believe this story, Steve, you're pulling my leg. This is ridiculous.” How did it come to this?

SE: Well, the most telling pieces of evidence, if you're trying to follow the line from, okay, it's a simple divorce, and Dan and Wendi are going their own separate ways, and they're trying to figure out what to do with the boys and custody and all of that, the line from there to two bullets in Dan's head, you can't get there without really understanding four emails that were sent from Donna Adelson to Wendi Adelson, both before and after the relocation battle.

[They make] very clear that Donna believed that there was no limit to what needed to be done in order to make sure that Wendi was able to move to South Florida with those boys—convert the kids to Catholicism, put them in church, have a Christian tutor, teach them about Jesus, make your Facebook photo, Wendi, a picture of the boys and you in front of a church. The goal was to get into Dan's head and make him believe these boys were going to be taken away from him one way or another. And his best bet was to do it amicably and peacefully by allowing them to relocate to South Florida, and he could deal with it then. There were places he could go there. He had a great uncle who lived there. He could stay with him. And Dan actually gave a little bit of thought to that from friends I talked to. Dan didn't consider that completely out of the question. But ultimately he decided this is my life, I've built a life here in Tallahassee. I like my life here in Tallahassee. Wendi actually has a good life here in Tallahassee. She's also on the Florida State faculty, albeit as a clinical faculty member. There's nothing wrong with both of us living here and raising these boys together. And I want to do that in a loving way, and my goal is to do that with Wendi and co-parenting with her.

But the Adelsons didn't see it that way. The Adelsons saw Dan standing in the way of what they wanted. They were willing to spend a million dollars to bribe him to bring the boys to South Florida. And what's notable is that every time they were trying to do these despicable things, it was Wendi who had to play this role, and Donna told her, “You need to do this great acting job. You're a great actress when you want to be, you need to do this for us. It's going to be best for you. It's going to be best for the kids. Put on the best acting job of your life, sweetheart.”

And what's notable is Wendi refused. She didn't do that. She wouldn't go along with the bribe. She wouldn't do her acting job. She lost the relocation battle. And now you're getting closer from just a simple divorce to two bullets in the head of the person standing in the way of the relocation.

DL: She lost the relocation battle. The judge denied her motion to move six, seven hours closer to family. The other ploys that were suggested by Donna, [Wendi] didn't attempt or they didn't work. And so I think then you do get a little bit closer. You can kind of see how it got to this situation.

SE: And let me add one more thing. Dan was doing his own legal writing. He had two different lawyers, and they literally were signing their names to the briefs that he was preparing. In family law—and I can say this because I'm a family law attorney—you don't write briefs to judges that have 47 footnotes that basically are half of each page, or dense footnotes underneath the line, which is what of course you do in law review articles. But that's the way these briefs were written to this family court judge who had, by the way, just recently been appointed as a family court judge.

[Dan] was writing these vicious, scathing attacks on Wendi and on Donna and Harvey, telling the judge that the parents were footing the bill [for the litigation], they were interfering, and telling [the judge] that Wendi was being dishonest, that in fact she should be sanctioned for all of her dishonesty. He came up with every adjective in the book to describe her and her lawyer, even at one point getting the point of suggesting to his friends that he was going to seek to have them disbarred.

So all of these things he was saying about the Adelson family, not surprisingly, the Adelson family clearly took very personally. And then the last straw, which has been widely reported, is that in his final motion before he was killed, Dan asked the judge to take away visitation between Donna and her grandchildren, and that the only visitation she should be permitted to have would be supervised.

Wendi testified at both trials [of Katie Magbanua] that nobody took that [threat of taking away Donna’s visitation] very seriously. That is impossible for me to believe—having read Donna's attacks on Dan, and also knowing that Donna was losing at every turn, lost the relocation battle, there was a battle over whether Wendi would have a second deposition taken, she lost that battle—Donna was watching, and she was pissed at Wendi's lawyers for not doing a better job. So the notion that Donna Adelson was not concerned about this motion that would result in restricting her access to the grandchildren I find completely farfetched. And that was the last thing that was on the table and never got resolved because, again, two bullets wound up in Dan Markel's head and he was killed.

DL: A lot of us who knew Dan, who were his friends, often wonder what could have averted this, or what [other] paths could have been taken. For example, you talk about how Dan came close to getting positions at other universities, including maybe universities closer to Wendi's family, and they didn't work out. And I think that'll be of interest to a lot of my listeners who are legal academics. You also talk about how this battle was litigated. Do you think that if he had not taken such a scorched-earth approach in the divorce or relocation litigation, maybe this wouldn't have happened? And again, I'm not victim blaming—I'm trying to figure out [if] there were off-ramps to avoid this tragedy, maybe in just different worlds.

SE: Well, certainly if things had worked out differently. In his first year teaching at Florida State, Dan was offered a position at the University of Miami Law School and wound up teaching there in a look-see visitor position in the fall of 2006. By a whisker-thin vote against him, he was denied a position on the permanent faculty. It's interesting, Wendi had a full-year position there. She stayed. Dan went back to Tallahassee to teach at Florida State, licking his wounds and moving on, not having gotten that job. And the person that I spoke to at the University of Miami and remembers that vote vividly, he wakes up at night in a cold sweat because he knows that had that vote gone differently, this awful tragedy probably never would've happened because those grandchildren would've grown up within an hour's drive of Donna and Harvey Adelson. But because they were seven hours away, that was a game changer.

And Donna—I haven't even mentioned this—Donna was driving up after Dan and Wendi broke apart. Donna was driving up, sometimes with Harvey, sometimes on her own, every other weekend. Every time Wendi had the kids, Donna was there. So she was living basically both in Tallahassee and in South Florida, and yet she was the office manager for the dental practice, and Charlie now owned the dental practice, and she didn't think that was fair, and she wrote in her emails that she wanted Wendi's lawyer to say how unfair it was that Donna had to drive up and Harvey had to come, and that the family had to spend all this time in Tallahassee when the easy solution was just to move the children down to where their loving family was. So that was one of the things that could have happened differently.

Dan had three offers, actually, during the first five years he was at Tallahassee. He had three different offers. Take it back four years—he was there for four years, and within those first four years he had three different offers: one at the Washington University in St. Louis, one at Miami, and one at the University of Houston.

Washington University in St. Louis wound up revoking his offer, and that story is told in the book. University of Houston occurred while Wendi was pregnant with Benjamin, and a very pregnant Wendi got on the plane with Dan to explore the University of Houston. Wendi actually described the position she was offered in the immigration law clinic as her dream job, but the timing just wasn't right.

So there are all kinds of things that could have transpired differently. But certainly Dan getting under the Adelsons’ skin—he basically was getting almost as vitriolic in his writing in those legal briefs and legal filings as Donna had been in her emails to Wendi—the acrimony was reaching a level that would've, I think, had a lot of people very upset on both sides. But no one could have predicted that this was how it was going to end.

DL: No. Absolutely. Absolutely. And again, I think in some ways this was a story, terrible as it is, that you were just born to write, having been a matrimonial lawyer, having been a law professor, having been the author of two prior true crime books, one of them set in Tallahassee, the Mike Williams story. So again, I urge readers to check it out.

SE: Yeah. To any of your listeners who have ever been to the “Meat Market” [academic job fair], I'm a three-time veteran myself. I describe the Meat Market in all of its gory detail. And what most people would not even suspect is that Dan was an abject failure at his first Meat Market. He had over two dozen interviews lined up and literally struck out, got nothing. And he learned about himself a lot through that process. And the second time he went through the Meat Market, he actually had a callback interview at Berkeley and came close to getting a teaching position at Berkeley.

So there's a lot in this book about Dan. Dan had many facets to him, some weaknesses, and I don't try and hide Dan's weaknesses. Dan was well aware of his weaknesses and relied on Wendi as his wife to help him through some of his own social quirks—and Wendi did for a while. But that was one of the thingsthat chafed at her, along with how Jewish Dan was compared to the way she was brought up, and many other things. It got to the point where it was clear this marriage was not going to work, and then the thing in the divorce that really set the tone was they had very different ideas, not only about how to be married, but how to be divorced.

Dan felt that the lines between them should be as blurred as possible. Dan felt that the more he was able to see the kids during Wendi's time, the more she was able to see the kids during his time, the more contact that they had with each other, the better off it would be for the kids. And Wendi didn't want that more than she wanted to be hit by a speeding train. She wanted nothing to do with Dan Markel. She realized she had to have something to do with him because they were raising their kids together. But the idea he had, the concept he had about what divorce should look like, could not have been more diametrically opposite as to what she thought divorce should look like. And that was one of the things that was also causing heightened acrimony between the Adelson family and Dan.

DL: You have such incredible details in the book that capture these things. Take the scene where she is thinking of taking the kids to Whole Foods and it's during her time, and then she sees Dan inside and then she says, oh, I don't want to go in there because then we're going to see him and then he's going to want to talk, and then it's going to be like our shared time, and she goes somewhere else.

SE: That was two days before he was shot. That was the Wednesday before the Friday of the shooting.

DL: It's just amazing. One thing I'm curious about—and you do this so well in your other books too—you do all this research, but then what I love really about the writing, and I guess it's also true of the genre of true crime, is it's told in a narrative nonfiction way. It’s told as if we are inside the heads of these protagonists. Is that difficult? And at times, do you find yourself having to take some poetic license to imagine what was going through people's heads? I remember you talk about Wendi putting her hair in a messy bun. And again, I know you can look at these things, you can look at the interview footage from her police station interview, and you can see her hair or what have you. But how do you do this? I think it's amazing.

SE: There is definitely creative license that has to be taken to fill in very small, inconsequential gaps where I, as the writer, clearly don't have access to what was happening in Wendi's home the morning that Dan was shot. I know what she described in her interview with the police investigator, but I have to obviously fill in those gaps a little bit. So I do take creative license with very small things like that. And to the extent that there's dialogue that happens that there's no recording of, there's no transcript of—for instance, when Wendi called Dan when he was up in New York at a colloquium and she said, I'm leaving you, the exact words that were said, there's no written recording of that. So I'm obviously ad libbing the exact words that they said to one another at the time before Dan got on a plane and flew back to Tallahassee. So little things like that. As a writer, I do have creative license to manufacture. But important facts and things about people that are documented, I have to get those things right, and I work very, very hard, I kill myself trying to make sure I am getting those things right.

DL: And I know it took you a long time to write and you interviewed 50-plus people for it. How long did it take you from when you started your research to the completion of your manuscript, roughly?

SE: There was a little bit of waiting because I was waiting on the second trial and then I got a gift from God when they decided to indict and arrest Charlie Adelson. And I know I got the facts surrounding his arrest right, because I worked very hard to get the right interviews with the right people. That's an interesting story of itself, the arrest of Charlie Adelson. So there was a little bit of a gap there while I was waiting for that trial to occur. And then there was obviously Charlie's arrest. But I finished writing at the end of June, and I had started writing in December of the prior year. So it was a full 18, 19 months of writing.

DL: It's interesting, the scene of Charlie [getting arrested] in his underwear, stoned probably, is… people just need to read it. But let me ask you this. I heard about this in a different podcast, your interview with Judy the YouTube Lawyer, and I thought it was a really interesting point you made. The first trial for Katie Magbanua, the go-between connecting the Adelsons and the hitmen, ended in a mistrial. And for those of us who've been following this case, it really saddened us and angered us to see how that first trial shook out. But can you explain how this might, totally counterintuitively, have been a good thing?

SE: It was a blessing in disguise, as it turned out. So the juror who actually hung the jury, I met with that juror in person in Tallahassee and had an extensive interview. The juror was unabashedly, basically nullifying the judge's instructions, deciding that these two children—not the Dan Markel and Wendi Adelson children, but the children of the hitman, Sigfredo Garcia, and Katie Magbanua, the go-between between the Adelson family and the hitman—that those children shouldn't grow up without two parents. And so although she agreed to convict one, Sigfredo Garcia, she wouldn't agree to convict the other. And that's what hung the jury. And that story is told in the book, in the chapter called Civic Duty.

But as it turns out, between that and Covid, that bought the State Attorney's Office a couple of years to try and figure out how to put on a better case. You've been a prosecutor, I'm sure you've been part of mistrials before, and as a prosecutor, you want to learn from your mistakes and do better the next time and put on a better case.

The one thing in the first trial that left the prosecution unable to put on the case that they wanted to was not being able to use the Dolce Vita video and audio to show that Charlie Adelson and Katie Magbanua, two years after the murder, were basically discussing what had happened in the murder and how to deal with the fact that this perceived gang member was shaking Donna Adelson down as part of the so-called “bump” [undercover operation], and how to deal with that.

There was a lot of valuable information in that dialogue, the State Attorney's Office believed, but it was a noisy Italian restaurant, and if they were going to play it for the jury, the jury wasn't going to be able to make out a thing. So they got the lead FBI agent to literally, on his own, over the course of a hundred hours, prepare a transcript by listening with noise-canceling headphones and using some proprietary FBI software.

And lo and behold, he comes up with this great transcript, and the judge in the first trial, Judge James Hankinson, says no, you can't give the jury that transcript, because that's basically taking the FBI agent's own interpretation of what these people are saying, and the jury's just going to substitute that for the voices that they're hearing in the actual recording. So they put on one minute basically of the audio of the meeting in Dolce Vita between Katie Magbanua and Charlie Adelson, just to show the jury we don't really have anything useful here.

In between the two trials, with all this extra time afforded by Covid, they reached out to several different audio forensics experts and eventually landed one in South Carolina named Keith McElveen, who had spent about 10 years working for the CIA dealing with this whole issue of how to hear individual voices in noisy, what he calls “cocktail party,” environments. And he came up with 12 different patents for proprietary software, and he was able to get a fairly clear recording for 41 minutes. He missed the first 25 or so minutes of the Dolce meeting between Katie Magbanua and Charlie Adelson, but the last 41 minutes he got pretty darn well, especially what Charlie was saying, and it was very clear they were talking about the murder and at one point—this is why Charlie was arrested at one point—Charlie literally says, “Why didn't they know it was me? Why didn't they know it was me?” And at another point he's talking about the money drop, and he asked Katie, “When everyone was there the next day, did anybody take any money? I mean, it's not like you're driving around in a Bentley, you know, riding around in a mega yacht on the seas.”

And there were many other things. I actually have an entire chapter toward the end of the book that is devoted solely to how incriminating Charlie Adelson is in that Dolce Vita record—Katie not as much, because her voice is much softer, and you can't hear a lot of what she's saying.

Why the Dolce Vita audio was so effective for the prosecution at the [second Magbanua] trial was because Katie didn't do anything like run away or say “what the hell are you talking about” or “I don't want to be involved in this.” She participated in this conversation, she chimed in, and you can hear her chiming in several times, basically accepting all of the premises in Charlie's rambling through the course of 41 minutes, and it was used extremely effectively during Sarah Kathryn Dugan's cross-examination of Katherine Magbanua on the witness stand. If anything, that cross-examination is what sealed Katie's fate with the second jury who unanimously found her guilty.

DL: And then, of course, that Dolce Vita enhanced recording was used as the basis for arresting Charlie….

SE: Absolutely.

DL: …. which I know Georgia Cappleman in the state prosecutor's office had been resisting for a while because, understandably, they wanted to take their one best shot at Charlie if they were going to go after him.

SE: And they wanted Katie to flip. They thought all that time that Katie… you know, who's going to spend six years in jail, when they have information that can land a much bigger fish with the prosecutors? Surely at some point they thought she's going to flip. But after six years she never did. And now she's convicted and sentenced to life in prison. At this point, she's made some horrible miscalculations. Maybe she believed her lawyers were so good, they were going to get her off. I don't know.

DL: So you don't really have a theory on what I view as one of the huge questions to this case: why the heck didn’t she cooperate? I know Georgia Cappleman at one point said [Katie] holds the keys to her own cell, or something along those lines. And yet here we are. She's been convicted. She's looking at life in prison. She has two kids. Her husband, or the father of her children, is also looking at life in prison. And yet she still has not said anything, right?

SE: I think that the operative word there is “still.” So I posit at the very end of the book that it's not too late, and I spent some time on the phone with some big wigs, some stalwarts in the Florida criminal bar, to confirm that it is never too late for someone in their position, even after they've gotten a mandatory sentence of life in prison, which first-degree murder is in Florida, that there are ways around that mandatory life-in-prison sentence, and if they wanted to deliver the goods, it's never too late for them to approach the State Attorney's Office. And certainly somebody like Georgia Cappleman and Jack Campbell, the elected State Attorney, would be interested in hearing from Katherine Magbanua about all the stuff that they've been waiting for her for six years to tell them.

What kind of deal she can get now, post-conviction, post-sentence, would certainly be a very different deal than what she could have gotten back then. And even Sigfredo Garcia, you wouldn't think that he's got something valuable to offer. But the reality is that Luis Rivera is not a terribly good witness after having already testified about a dozen times now. There are so many inconsistencies in his testimony. Sigfredo Garcia has never testified, so even if he just repeated the same sort of things that Luis Rivera has said at two different trials, he would be a much cleaner witness than Luis Rivera. So there probably is a deal there even for him, even if he can't point directly at Charlie Adelson.

The obvious reason why he didn't come forward before Katie Magbanua’s second trial was because anything he would've said would've implicated her. She's the mother of his children. She's the love of his life. It makes sense that he was never going to throw her under the bus. And even Katie during the first trial wouldn't let her lawyers say horrible things about Garcia. They had permission in the second trial to do that because he was already convicted and sentenced to life. And they did. They tried to make it seem like this was a direct conspiracy between Charlie and Garcia—they're the bad people, Katie knew nothing. And that never made any sense because the very first thing Sigfredo Garcia would've done upon his arrest, if in fact he had the goods on Charlie Adelson, is he would've run to the State Attorney's Office just like Luis Rivera did.

And even though he didn't have the goods on anybody named Adelson, if Sigfredo Garcia had the goods on Charlie Adelson, especially after Katie Magbanua was arrested, if she knew nothing about it, he would've sprinted with his lawyers by his side to the State Attorney's Office to make a deal, and he never did. Because he didn't know they walled Charlie and the Adelsons off through Katherine Magbanua. That was her whole point. The whole point of Katie being involved was to wall the killers off from the people hiring them.

DL: So you mentioned it's never too late. People are now looking at Charlie Adelson. He's sitting in jail. His motion for bail after the so-called Arthur hearing under Florida law was denied. He's looking at a trial early next year. Do you think he could cut some kind of deal? Any predictions about what will happen next if he goes to trial? Does he have any viable defense, especially in the wake of the enhanced Dolce Vita recording?

SE: Well, according to Daniel Rashbaum, his attorney, his saying five or six times during the enhanced recording “and I had nothing to do with this”—that's his defense. The fact that he fit those words into that conversation, even though there are about 45 incriminating things that he said that belie the notion, such as “why didn't they know it was me”—how do you square those two together? Daniel Rashbaum has his work cut out for him.

And besides that, Charlie Adelson is a very unlikable guy. If he takes the witness stand, the notion that he's going to charm this jury, I mean, they're going to hear all of these conversations that he's had with his mother, with Katie Magbanua, and they paint him in a horrible, horrible light, as does the Dolce Vita recording. So the notion that he's going to charm this jury into believing that he's an innocent victim or that he was only trying to hire these hit men not to kill Dan Markel, but just to scare him and intimidate him, none of that makes any sense. He really has his work cut out.

That said, would the State Attorney's Office make some kind of a deal with him so they didn't have to try this [case]? We're just talking about the number of years, and would he accept 30 years instead of life? Would they do that? That's a possible deal that could get done. As you know, as a former prosecutor, most cases end in a plea bargain, not because the person being convicted is ratting somebody else out, but just because the most economically efficient thing for a prosecutor to do is to see if there's not a way to get somebody to agree they did the crime and accept a lesser sentence than their maximum sentence.

So that's always possible. There are people speculating, you know, is he going to give up his sister? Is he going to give up his mother, his father, in exchange for his own freedom? A, it's hard to believe that anything like that happens, but B, would that even be something that the State Attorney's Office would consider? You’re the person who paid a hundred thousand dollars to get this done. You're the person who had the relationship with Katie Magbanua. The fact that you might also be able to give us your mother or your father or your sister—that's not going to get you a better slice of bread. So at the end of the day, if Charlie's making a deal, he's making a deal to get a lesser sentence, not because he's going to give up one of his family members. And the likelihood of him making a deal increases exponentially if Katie Magbanua or even Sigfredo Garcia flips and turns state's evidence.

DL: Looking at his family members, I agree with you. I don't think that [the government] would give him a good deal just because he can give up somebody else in his family. But do you think that the authorities will eventually move against Donna, who the evidence strongly suggests was involved?

SE: If you remember back to the time that there was a turf war between the Tallahassee Police Department and the State Attorney's Office, even though they had drafted a probable cause affidavit and leaked it only for Charlie, that affidavit points the finger at Donna every bit as much as it points the finger at Charlie.

And remember, Charlie's signature isn't on any important piece of evidence in this case. Donna's signature is on 44 pieces of evidence, the checks that were written to Katie Magbanua to keep her quiet from literally just after the murder happens until just before Sigfredo Garcia is arrested. And those checks stop the instant Sigfredo Garcia is arrested, and Donna is the one who stroked every single one of those checks, and there's no dispute. Both trials made clear that Katie didn't work for the Adelson Institute. There's no reason the Adelson Institute would've been paying her, but Donna was in on that.

And then if you watch what happens in the bump and Donna's reaction to that, and all of the communications that Donna has with Charlie, and then Donna's communication even with the undercover agent who orchestrated the bump as she speaks to him for eight minutes, even that is quite entertaining, hearing Donna protest that she didn't know anything at all about what happened to Dan Markel and is as torn up about it as anyone. So yeah, there's tons of evidence against Donna and the very first thing she says after the bump to Charlie, “who does it involve,” he asks her, “who does it involve”? And she says, twice, “the two of us.” And then she says, “I think you know what I'm talking about.”

DL: Exactly. SE: Those are incredibly incriminating words. And then you add that to the other evidence. You take the emails that she wrote, all of the checks that were written. I would hate to be Donna Adelson's defense lawyer as well.

The only thing she has going for her is that she's in her seventies and she's not the most attractive target because she's got some sympathy on her side because she's in her seventies, she's a grandmother. But when you think about the role that she has played, she was the one who selected Danny for Wendi off of JDate. She was there at the beginning, and the evidence seems to suggest very strongly she was the one who decided not only that it was time for Wendi to leave him, but that it was time for his place in Ben and Lincoln's life to end as well, because Wendi needed to come home with the boys. And Donna Adelson was there literally every step of the way. And if you're the State Attorney's Office, you have to have her within your sights because of the very significant role she played in Dan Markel being part of this tragedy.

DL: Absolutely. I totally agree with you.

I'm so grateful to you, Steve, for taking the time and for writing this remarkable book, which as I say in the foreword is going to be the definitive account of this tragic event and its aftermath. So again, thank you for devoting so much time and energy to giving people an idea of who Dan was and telling the world about this crime and the quest to bring folks to justice. I believe this would've been, this month, Dan's 50th birthday?

SE: The book was released on October 9th, and it was released on that day to be a further tribute to the late Dan Markel—that would've been his 50th birthday. Yes, and we are speaking, I don't know when this is going to drop, but we are speaking on Ruth Markel's birthday, so happy birthday to Ruth. She has her own book out, The Unveiling, and it comes straight from her heart, everything she's been through since that awful day in July of 2014.

I've gotten to know her very well. She's an incredible human being. Two of my favorite people in the world now are Cheryl Williams and Ruth Markel, and I actually connected them at one point because they have so much in common. They've lived through so many similar things, and they're both incredible, incredible women.

And that's one of the things that I love about true crime, is that you learn about just incredibly tenacious human beings who care so much about justice. And Ruth and Phil and Shelly [Markel] are not done getting the justice that they so richly deserve. Stay tuned. There's a lot more to be written even after folks turn the last page of my book.

DL: That's an excellent note to end on. I agree with you that Ruth Markel is amazing and I urge people to check out her book, The Unveiling, just to see what she has endured and how she has tried to turn it into something for good, to protect the rights of grandparents who wind up in horrific situations like the one that she's faced. Again, it is a testament to the human spirit.

So again, Steve, thank you for writing the book. Thank you for joining me, and we will continue to hope and pray for complete justice in the case of Dan Markel.

SE: Thank you, David. Thank you for having me on. I really, really appreciate it.

DL: Thanks again to Steve for joining me. As I wrote in the foreword to Extreme Punishment, “I wish nobody had to tell this tale. But since it is being told—and should be told, to honor Dan’s legacy—I am thankful to Steve for doing so with such thoughtfulness, understanding, and skill.”

As always, thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you'd like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram, at davidbenjaminlat. If you enjoyed today's episode, please rate, review, and subscribe to Original Jurisdiction. Since this podcast is new, please help spread the word by telling your friends about it. And if you might be interested in sponsorship opportunities for either the podcast or the newsletter, please reach out to me.

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Depositions are a crucial part of discovery—and they can also be, in the hands of a talented litigator, torture for the witness. So I suspect that many lawyers on the left—and beyond—might be jealous right now of Roberta “Robbie” Kaplan, the iconic lawyer and founding partner of Kaplan Hecker & Fink (“KHF”). Last month, Robbie had the pleasure of deposing former president Donald Trump—not once, but twice.

I’m guessing it wasn’t a fun experience for the Donald. His niece Mary Trump, who hired Kaplan Hecker to sue her uncle for fraud, described Robbie to Bloomberg as follows: “She’s brilliant, she’s unrelenting, she can’t be intimidated, and she’s not going to back down. She eats bullies… for lunch.”

Deposing the president twice in the same month is only the latest distinction for Robbie, known for handling some of the most high-profile and high-stakes cases in the country. She’s most well-known for representing the late Edie Windsor in United States v. Windsor, the landmark gay-rights case in which the Supreme Court held unconstitutional section 3 of the Defense of Marriage Act. But Robbie is also the lawyer of choice for major corporations like Goldman Sachs and Uber, who hire her and KHF to handle their most complex legal problems.

On Monday, I was delighted to speak with Robbie for the fourth episode of the Original Jurisdiction podcast. She wasn’t able to say much about the Trump depositions, but she did talk about her multiple cases against Trump in broader terms. We also spoke about what makes her unique as a litigator; her epic victory last year in Sines v. Kessler, in which she won damages of more than $25 million from the white supremacists behind the violent “Unite the Right” rally in Charlottesville in August 2017; her vision for Kaplan Hecker & Fink, the thriving litigation boutique she founded after more than two decades at Paul, Weiss; free-speech and cancel-culture controversies in the legal world; and whether she’s a tough boss.

Please check it out by clicking on the embed at the top of this post. Thanks!

Show Notes:

* Roberta A. Kaplan bio, Kaplan Hecker & Fink LLP

* Then Comes Marriage: How Two Women Fought for and Won Equal Dignity for All, Amazon

* A History-Making Litigator Leaves Biglaw To Launch A Boutique, by David Lat for Above the Law

* Roberta Kaplan Builds Progressive Firm Suing Trump, Defending Wall Street, by Erik Larson for Bloomberg

* 2020 Attorney of the Year: Roberta Kaplan, by Jane Wester for the New York Law Journal

* Lady Justice and Charlottesville Nazis, by Dahlia Lithwick for Amicus/Slate

Prefer reading to listening? A transcript of the entire episode appears below.

Two quick notes:

* This transcript has been cleaned up from the audio in ways that don’t alter meaning—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.

* Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by going to davidlat.substack.com.

You’re listening to the fourth episode of this podcast, which airs every other Wednesday. Today I’m honored to be joined by one of the nation’s most celebrated, successful, and significant litigators: Roberta “Robbie” Kaplan, founding partner of Kaplan Hecker & Fink. She is most famous for winning United States v. Windsor, the landmark case in which the Supreme Court held unconstitutional a key provision of the Defense of Marriage Act, paving the way for nationwide marriage equality a few years later. But she has worked on many other fascinating cases over the course of her career, including two pending cases against Donald Trump in which she deposed the former president—twice in the past month.

Robbie was born in Cleveland and grew up in Ohio. After graduating from Harvard College, magna cum laude, and Columbia Law School, Robbie clerked for Judge Mark Wolf of the District of Massachusetts and the late Chief Judge Judith Kaye of the New York Court of Appeals, the state’s highest court. Robbie then practiced for more than two decades at the major law firm of Paul, Weiss, where she built a thriving commercial and pro bono practice, including her big win in Windsor.

In 2017, Robbie left Paul Weiss to launch Kaplan Hecker & Fink (“KHF”), one of the nation’s top trial boutiques, known for handling both complex commercial and white-collar cases and landmark public-interest matters. One of the first such cases filed by KHF was Sines v. Kessler, a high-profile lawsuit under the Ku Klux Klan Act of 1871 against twenty-four neo-Nazi and white supremacist leaders responsible for organizing the racial- and religious-based violence in Charlottesville in August 2017. That case went to trial, and a year ago this month, the jury awarded a total of more than $25 million to Robbie’s clients.

In our conversation, Robbie and I talked about her various Trump cases, how she knew she was destined for a legal career from a very young age, two qualities that have made her so successful as a lawyer, how KHF has managed to be so financially successful while also doing so much public-interest work, and her vision for the firm’s future. Without further ado, here’s my interview of Roberta “Robbie” Kaplan.

DL: Thanks so much for joining me, Robbie—it's an honor to have you!

Roberta Kaplan: It's a pleasure to be here.

DL: To start with what's in the news—and I feel like you're always in the news—what can you tell us about your latest high-profile case, namely, E. Jean Carroll's lawsuit against former president Donald Trump? I know that you recently deposed him. Is there anything you can say either about the deposition specifically or about the litigation more generally?

RK: Sure. We actually have two litigations that are very active against Donald Trump, and I actually deposed him in both, on two successive weeks. So it was a relatively exhausting period for me. I literally went to Mar-a-Lago two weeks in a row to depose him. That's about all I can say about it, in terms of the depositions themselves.

But in terms of the cases, it's very interesting. The E. Jean case, which you asked about, is on the fastest track. Right now, trial is scheduled to happen on February 6th. Right now we have one case against Donald Trump for the defamatory statements he made in June 2019. That case is currently certified to the D.C. Court of Appeals as to the question of whether when he made those statements, he was acting within the scope of his employment as president—sounds like kind of a crazy question, but that's the question. And the D.C. Court of Appeals, I believe, recognizing the need for speed here, has scheduled that case on a very, very expedited schedule, with oral arguments to be on January 10. So I think it's entirely possible that we have a ruling from the D.C. Court of Appeals before the trial before Judge [Lewis] Kaplan starts.

Even if that's not true, however, we have a second case that we've told everyone in the world, including Judge Kaplan and Trump's lawyers, that we intend to file on November 24, which is the first day we can file it. That is a case directly for battery, the common-law cause of action by E. Jean against Donald Trump, based on a new law that was passed in New York called the Adult Survivors Act. It’s patterned on the Child Victims Act, and it gives people who were survivors of rape that happened a long time ago basically a free one-year period to bring claims, notwithstanding statutes of limitations. That case we're definitely bringing out November 24th, and I don't think anyone will be surprised to learn that we probably will add to that case some new defamatory statements that Donald Trump made on Truth Social against our client—again, none of which are subject to any Westfall Act issue at all, because he wasn't president when he made them.

So big picture, it's highly likely, particularly given the judge we have—Judge Kaplan, no relation—that we will go to trial on all or at least some of those claims in February.

DL: Wow.

RK: And the new case shouldn’t really delay anything because it's basically the exact same facts. As we told the court, the only thing that's different about the new case is the damages theory, so we will have different experts. You obviously have different damages for being raped than you do for defamation. But that's really it. Everything else has already been done in discovery. Fact discovery is closed, and I see very little reason for any additional fact discovery, again, because the facts are totally overlapping.

DL: So what are the two depositions? What was the difference between the two depos?

RK: The first deposition, which happened the week before, was in our fraud case. Before Judge [Lorna] Schofield in the S.D.N.Y., we have a nationwide class action, on behalf of people who invested—I'm using the word “invested” in quotes—in a business opportunity—I'm using “business opportunity” in quotes too—that Donald Trump endorsed and heavily promoted before he was president, known as “ACN” or “American Communications Network.”

It's a multilevel marketing scheme—I don't think even they deny that—in which people pay $500 or $1,000 to become part of this opportunity. Then the goal is to sell video phones. The idea of selling video phones when Skype and other software was already heavily in use—not really the smartest idea in the world—and when I say video phones, I mean big, standard-looking video phones, like I haven't seen since I was a young associate, probably.

The only way to make money as part of this multilevel marketing scheme is to recruit other people in it. You don't make money from selling the phones, you make money from bringing other people in, which is the classic hallmark of a multilevel marketing scheme. Trump was paid a lot of money, at least $11 million or so, from this entity over a period of years. He went to conventions where these people were recruited, and he had huge crowds going nuts for him that kind of looked like his conventions now, honestly. And he said it was the greatest investment he's ever heard of, he did tons of due diligence, he knew it was a great company, a great business opportunity, “people think I do this for the money, but I just like being here.”

I gave you a sense of the kind of the statements he made, and we allege those were all fraudulent, in that they were untrue and he knew them to be untrue. In that case too, fact discovery is closed—there are a couple of exceptions that the magistrate judge ordered, but it's essentially closed. But in that case, given how much bigger the scope is, we are about to go into expert discovery and then class certification. So that case is behind the E. Jean Carroll case for those reasons, although we're very eager to try it before the next presidential campaign for sure.

DL: Oh, interesting.

RK: Because we don’t want to lose our defendant.

DL: Indeed. Totally, totally.

So to rewind a little bit… as I know from having read your wonderful memoir, Then Comes Marriage, you knew from an early age that you wanted to be a lawyer. What can you tell us about your childhood or your upbringing that might have shed light on your future career or that shaped your career choice as a lawyer?

RK: When I was a kid, I liked to talk a lot. I still do. I spent a lot of time with my maternal grandmother, who was a very wise, very smart person. And there's a famous story in my family that when my uncle was in the Peace Corps in India at the time, and there is a series of letters between my mom, my grandmother, and my uncle from India, and in those letters—we still have copies—my grandmother is talking about how I just keep talking all time, and how at one point she said to me, ‘Robbie, you know I love you, but can you just be quiet for like three minutes? Can you stop for three minutes?’ And I said something like, ‘No grandma, I can't. I just can't help myself. I love to talk.’

DL: Ha!

RK: And at a certain point, at a pretty young age, because I liked to read, I realized that if you're a lawyer, you got paid to talk. And I was like, “Okay, that's the job for me!”

Then Sandra Day O'Connor—this is going to show my age, but she was made a Supreme Court justice, I believe when I was in high school. And that had a big impact on me at the time, because prior to that I don't think a lot of women thought they really had—not that I wanted to be a Supreme Court justice, but after that [women] thought they really had a future in the law. I remember that to this day, when that happened, what a big thing that was.

And I just told everyone that I'm 85 years old….

DL: Did judicial office ever cross your mind? Was that something you might have been interested in, in the past?

RK: I certainly have a lot of friends who are judges and I admire what they do, and I think it's a great job. But I like to be a fighter. I like to be an advocate, and obviously I can't do that as judge. I think I would find it too quiet probably for my taste, even at the district-court or trial-court level. But there's no question that more and more we need great judges, and it's probably the single—at least in my job, in my world—the single most important job anyone can have. The only legal philosophy that ultimately works for me is legal realism, which means that often how a case goes—the pace of the case, how it flows, and ultimately what the result will be—is going to be based not only the philosophy but also the life experiences and understanding of the judge. That's just crucial. So the more people who are people of high character and great experience become judges, all the better.

DL: I totally agree with you, totally agree.

Looking at your remarkable career as a lawyer, what would you say is your superpower that is unique to Robbie Kaplan? Obviously, we know about how hard you work and how much you prepare, and of course your tactical brilliance, but is there something you would regard as a little different [about yourself]?

RK: So I have a son who's now 16, but when he was little, one of his favorite books that I used to read, hundreds if not thousands of times, was called Dog with a Bone. And I think the reason I liked that book so much probably said something about me, which is that, as a lawyer, I really am like a dog with a bone.

I do not give up as a lawyer. Our firm doesn't give up. And if I don't succeed on something the first time for a client, I succeed the second or third time, and it's that stubbornness maybe—stubbornness isn't usually considered a good quality, but it's that ability to keep on fighting, our resilience, that is our number-one quality.

Then I'd say, second, creativity. I'm the least creative human being on the planet. I can't draw. My son goes crazy if I try to sing in the car because I'm so off key. I could never do creative writing. My pottery teacher basically kicked me out of class in high school because he asked me why every single pot I made look like a bong. And I wasn't even trying to make a bong! I was like, “I don't know what you mean!” So I have no artistic talent. But to the extent I have any creativity at all, I apply it to cases and the law, and how to achieve what we want to achieve for our clients in a creative and often unusual way.

DL: That makes me think of the Charlottesville case, and your case against the individuals who caused such violence there and how you used a very old statute that was designed to be deployed against the Klan to go after these white supremacists, which was quite brilliant and creative. How did that theory come to you?

RK: We saw what happened in Charlottesville, and we knew something had to be done about it. We were very concerned—and my firm had four people at the time, four lawyers—we were very concerned that the Department of Justice, then headed by Jeff Sessions, was not going do anything. Which we turned out to be right about.

Pretty quickly after Charlottesville happened, someone got into the Discord servers that the organizers used and leaked a whole bunch of messages. This made it very clear that this was a conspiracy. So okay, great, we have the facts, we have clients, we went down there—but what law do we use? And there's not a lot, frankly, of current law to deal with this, in part because no one—I hope we're not going back to those times—but at least in my lifetime up to now, no one ever thought this was a huge problem. No one ever thought that we would have private conspiracies that were racially motivated, that planned, promoted, and engaged in violence. That may be changing, and that's one of the most disturbing things about our country right now, but that's generally been true for decades and decades.

We had to go back and look for a statute called the KKK Act of 1871, which was passed to do exactly what it says it was passed to do, which was to try to curb the growth of the then-new Ku Klux Klan in the Deep South. Arguably it didn’t have great success in that regard, but there were cases in the 1870s when it was passed trying to curtail or slow or stop the growth of the Klan.

When you think about what happened in Charlottesville, though, it really is the modern-day version of what that Reconstruction Congress was trying to deal with. Back in the 1870s in Alabama, mostly men would don white robes and white hoods, and they would meet in the forest, and they would plan, tragically and horribly, a lynching or whatever they were going do.

Today it's much easier. All you need is a hashtag on Parler or Discord or one of these dark websites, and it's like whack-a-mole—the minute one of the sites stops hosting these people, another one will take over. So all you need is a hashtag—that keeps your anonymity for the most part, unless you self-identify in your hashtag—and you don't have to go into the woods. Literally the guys who organized Charlottesville are from all over the country, and they all were able to plan nationwide and even internationally.

When we filed the Charlottesville case—this is going to show how naive I was—I thought it was a terrible one-off, but it was a one-off, and we needed to bring the case so that it would never happen again. How wrong, in humility, I have to say I was, because not only was it not a one-off, it was really a harbinger, a kind of a road map to a lot of what has happened since then. Even this guy who attacked Nancy Pelosi's husband, while there weren't 20 guys who went to the house, everything that he believed and everything that he was motivated to do was based on these same kind of dark-web, white-supremacist, violent channels, which again, if you're interested or if you're a lonely guy who's looking for a community, it's pretty easy for you to get online and get indoctrinated in their thinking.

DL: Absolutely. And I know this is perhaps a little far afield from your work as a lawyer, but maybe just even as a concerned citizen, how do we deal with this problem? How do we get ourselves out of this? It seems that it's just getting worse and worse.

RK: I wish I knew. It's something I think and worry about all the time. We obviously—and I'm as committed as anyone to the First Amendment—we obviously have a right to free speech in our country, and we should have a right. But it may be both with the [Communications] Decency Act and with the case law, the developed case law in the First Amendment context, maybe [it] does not make sense in the modern day. For example, under Brandenburg, when you're doing something that wreaks havoc in a crowded theater, that may be translatable to things that people do online today in the dark web almost every single day. And whether our standards need to change to deal with that is a very, very serious question. Of course, whether or not this Supreme Court as currently constituted is open to hearing any of those arguments, I don’t know.

DL: That's very interesting. I wonder—because there are definitely some conservatives out there who want to revisit First Amendment doctrine as well—I wonder if this might be some weird area where maybe you agree with some of them?

RK: We obviously have separation of church and state, though I'm a religious Jew, and Judaism going all the way back to the destruction of the Second Temple, in 62 AD or 66 AD, has been obsessed with speech. It's obsessed with speech because it understands that a lot of the damage that people can do to other people is through speaking. If you look at history, there's no question.

Now, I'm not saying that we give up our right to free speech. It's embedded in our Constitution for good reason, and it came out of a world where people were severely restricted in what they could think and what they could say. But the link between certain kinds of speech and violence at this point is uncontroversial, and how we deal with speech that may not be committing violence, but is no question prompting and encouraging and invoking other people to commit violence, is a very serious issue.

DL: Let me ask you this then, and again, perhaps I'm going a little bit out of what you usually focus on as a civil-rights, public-interest, and commercial litigator, but what is your take on what's happening to free speech in U.S. law schools right now? Because there have been speakers who have been shouted down, conservative speakers mainly, but of course, obviously conservatives have no problem going after free speech in other areas.

What are your thoughts on that? Do you share the concern that certain speakers might come to law schools and inflict what activists call “harm” on students?

RK: What I know about this, David, I mostly know from following your column, so that's basically the limit of my knowledge because I've been super-busy lately, but I have the general gist because you're a good journalist and I follow what you write. People have a right to protest. They should. But they don't have a right to protest in a way that stops other people from speaking.

And there's no question that on both sides in our country right now—in fact, both the radical left and the radical right are looking more and more similar every day, which is petrifying because that's what it looked like in Germany in the thirties. So it's petrifying, but people both on the radical right and in the radical left who want to deprive other people of the ability to speak is not acceptable. It's not what the Founders meant. Speech and debate and discourse—even going back to Jewish law—is something to be highly encouraged. And we all make the situation worse, honestly, when we—I hate to use this expression, but when we cancel other people from expressing their views.

Just because you don't agree with someone—I'm sure you and I don't agree on everything—doesn't mean that we shouldn't discuss and debate and argue with each other, and it's terribly distressing because it leads to the kind of breakdown in civil society I think that we're seeing today. And that's also incredibly scary.

DL: Related to these cancel-culture controversies, what are your thoughts on the extent to which advocates can or should be held accountable for their clients? Even though you are most known or most famous for your civil-rights work, your public-interest work, you also represent Goldman Sachs, Airbnb, large companies, and there have been some on the left who have taken this sort of purist approach: “Oh, well, you represent all these progressive causes, but then you represent all these evil companies and defendants and what have you. “ So what are your thoughts on that, the extent to which lawyers should be held accountable for the sins of their clients?

RK: I don't think lawyers should ever be held accountable for the sins of their clients. That's what lawyers do, and if lawyers were in any way held accountable for the sins of their clients, then we wouldn't really have a legal profession. The only exceptions to that would be when lawyers commit the sins of their clients as part of their representation, and that's where, for me, you can't cross the line. I think every lawyer I know weighs these things differently.

Let me begin to say, I don't acknowledge for a second that Goldman Sachs or Airbnb or any of our other clients…

DL: I'm playing devil's advocate—I have nothing against them personally….

RK: … are evil or do anything evil or anything like that.

You have to look at it differently in the criminal context than in the civil context. Criminally, I think my colleagues at Kaplan Hecker would say that everyone is entitled to a defense, and while there may be some criminal defendants that we wouldn't or that they wouldn't want to represent, the breadth of whom you represent criminally when someone's facing imprisonment is different than civil.

Civilly, personally, it's a choice—and we, at Kaplan Hecker, think very seriously about these issues. We talk about them among the partners, and we won't take on a client who we feel somehow contravenes our values in some fundamental way. But that's a choice. I wouldn't judge another lawyer who did that because that's what lawyers do, if that makes sense.

DL: That makes perfect sense, especially as you were saying in the civil context as well, because look, [clients] have a wide variety of lawyers they can choose from, and you have clients that you can choose from, you're very busy, and not everyone is entitled to Roberta Kaplan. I totally get that.

RK: Other than E. Jean Carroll, who's entitled to me.

DL: Indeed, indeed—and Edie Windsor, who was amazing, of course. This might be a dumb question, but is [Windsor] the win that you are most proud of in your long career? And if that is, then do you have a number two?

RK: Charlottesville. Edie would be first, Charlottesville number two. Charlottesville, unfortunately—or fortunately, depending on how you look at it—was not covered that much. And the reason why is there were two highly racially motivated criminal trials going on at the same time. They were both in state court, so they were televised. So for the press, it was very easy to cover both those cases rather than cover Charlottesville, which had no cameras in the courtroom because we were in federal court, with very severe restrictions for Covid, and other things about access to the courtroom too. And I guess sadly in certain ways, the record we made wasn't really the focus of people's attention the way it should have been.

But because of that, I don't think people realize how incredibly difficult it was. We were on trial for about four weeks. We had about a week of jury selection, so about five weeks total. Two of the defendants were pro se, Richard Spencer and Chris Cantwell. Chris Cantwell was then serving a sentence in federal prison for making violent threats against another white supremacist—I think he threatened to rape and kill his wife—but a week either before or after that, he made similar violent threats against me, saying something like, “When this case is over, we're gonna….”

Can I swear on this?

DL: Yeah, go for it.

RK: “When this case is over, we’re gonna have a lot of f**king fun with Robbie Kaplan.” And so we were in trial in this closed courtroom—the whole courthouse was closed, there was no other case going on for four weeks—with these two, with a bunch of defendants, but two of them who were pro se. I think Judge Moon rightly probably let them get away with almost anything they wanted to do because he was very concerned about an appellate record. And in retrospect, he was probably right.

But living through it every day was extremely hard. They would just make incredibly outrageous arguments. Chris Cantwell in his closing started screaming, and I thought threatening the jury. The marshals would say to me, “Okay, you know, if Cantwell gets closer to you, we're gonna stay closer by you in case he tries anything.” It was crazy. And so just as a sheer endurance contest, and for being able to keep our dignity in the face of a trial where literally every day these guys were talking about how much they loved Mein Kampf—the rhetoric was unbelievable—is something I'm very proud of. And it's not just me, it's our entire team. I don't know how we did it so long, but we somehow managed to do it, and getting the verdict we did was incredible.

DL: Absolutely. Congratulations. And Karen Dunn [of Paul, Weiss], Alan Levine [of Cooley]—you had a lot of other amazing lawyers involved as well, and other law firms. Did you have personal security at some point in addition to the marshals?

RK: Yeah, I can't get into it, but yeah, so that made it hard too. We were really kind of trapped in the hotel in a lot of ways for security reasons. So imagine going from this closed-in courtroom to being trapped within the hotel for four weeks and thinking about how you're going to cross-examine someone about Mein Kampf or put on Deborah Lipstadt to talk about why these guys are obsessed with the Holocaust. It was something, for sure.

DL: Yeah. But a great victory, a huge verdict, and a real blow against white supremacists and others who would harm the country.

On a happier note, Kaplan Hecker & Fink celebrated its fifth anniversary, I guess this was over the summer?

RK: Yeah, July 1.

DL: Congratulations. What are you most proud of about the firm so far?

RK: When we set out to create this firm, we had certain specific core values. One, doing work in the public interest together with commercial work and white-collar work. Two, having a paramount respect for maintaining our culture and making sure that we all liked each other and were friends and had the same values. And three, being as non-hierarchical as you can possibly be, in the sense that we hire, I think we now have 10 percent of our lawyers are Supreme Court clerks. That's kind of insane—like, I couldn't get a job with me anymore. But because we bring in such brilliant people, we make sure that we listen to their ideas, from day one.

What I'm most proud of is that we kept to that. We really have to this day kept to that. Our greatest challenge, frankly, is not getting so large that we lose it. That's frankly the thing that we worry about the most right now. There are a number of partnerships where the partners don't know each other well enough to keep that sense of camaraderie and culture, and that's what we face every day. We're not there yet for sure, but that's what we think about a lot.

DL: Right now the firm I think has around 60 lawyers, maybe 10 partners or so?

RK: I think we’re about—well, maybe about 13 or 14 partners.

DL: Oh, okay.

RK: And I think the limit for me, based on my experience, is about 25. Once you get to more than 25, it's hard for everyone to be friends the same way we are now. So we have some room to grow.

DL: And what about total lawyers? Right now you're around 60-ish?

RK: Yeah. Again, we don't know, but I think everyone agrees that at 125 we'd pretty much be at our limits. Again, we're nowhere near that now, but that's kind of what people have in mind, and I'm not sure all of us want to get even that big. We also, I think speaking unanimously for the partners, are not into this idea of having a lot of satellite offices.

DL: That was my next question.

RK: We have New York, which is kind of the main office, and then we have D.C., and I don't anticipate us expanding anywhere else. Before Covid, we might have thought about an office in California. One of the few good things about Covid, of very few good things, is that you see that you can practice across state lines in a much easier way than I ever anticipated. So I can't imagine [opening more offices] anytime in the near future.

DL: Yeah, I totally agree with you. I don't think it's quite as imperative, and in this day and age of remote work, it is much easier.

Let me ask you this question because people have asked me about it, and I'm genuinely curious for the answer. At Kaplan Hecker & Fink, you do tons of public interest work, you do tons of pro bono work, and then, on the other hand, you still pay above the Biglaw salary scale for associates.

Something here is not computing. How do you do it? Maybe I'm being too nosy, but… are you content to just make, you know, a couple million rather than many millions, like you did at Paul, Weiss? What's the secret here?

RK: I'm not going to get into any numbers—obviously, my partners would kill me—but let me put it this way: other than in our first year probably, I have not had to sacrifice anything financially at Kaplan Hecker & Fink.

DL: Wow.

RK: And I think for me and almost all the partners, we are doing appreciably better than we would have at big firms.

What's our secret sauce? For one thing, we are very, very efficient. Even though our fees aren't significantly lower than big firms, our bills tend to be, because we don't have to have four levels of people working on something. The work product that we get from our associates is usually excellent and doesn't take as much work than it might at a big firm.

Two, we're very creative about fee arrangements, which is also not a big-firm thing, at least in the past—it may be more so now. My managing partner, Julie Fink, was a client at Pfizer for years before she came here, and so she really understood this. We're very creative about success fees or contingency fees or flat fees in a way that I think is hard at big firms.

DL: Hmm-mmm.

RK: But suffice it to say that we're doing—knock wood, I’m knocking wood right now—we're doing okay, and we're pleased to be able to pay our associates and our staff the way we do. And money is not the paramount thing. No one comes to Kaplan Hecker thinking, “I want to earn as much as a hedge-fund person or an investment banker or a tech guy.” We do very well, and no one is in any financial distress. But maximizing dollar amounts per share, per partner, is not our number-one goal.

DL: That makes perfect sense. I'm curious, since you mentioned contingency-fee arrangements—do you do a significant amount of plaintiff-side that work that helps generate unusually high revenue per lawyer, perhaps?

RK: We've done some, we're certainly interested in doing more. We probably get, I don't know, I'd have to look at the numbers,.we get between six and a dozen people calling a week [with such cases]. We've probably turned down, I think the numbers have got to be 90, upwards of 95 percent of those. But the ones we take on tend to be profitable, so yes, that certainly helps the bottom line.

DL: And then another thing I've heard about the firm is some of your public-interest work is also paid work, right? That it's not just entirely pro bono?

RK: Yeah, some of it is funded. It's funded at a lower rate, so we have a public-interest rate we use that’s about half our regular rate. We do a number of cases like that—a lot of the election work, cases that Joshua Matz does, are funded in that way.

DL: Okay. So one last question before we go to my little lightning round of final questions. And again, maybe this is a delicate subject, but some people in the law firm world say you're a tough boss. Do you consider yourself a tough boss?

RK: So let me tell you a story. Paul, Weiss had upward reviews. I don't remember when they started, but at some point when I was a partner, they started upward reviews. And my upward reviews—I'm not proud of this—but I would always have maybe one or two associates at a time that I didn't work so well with, and it always turned out that of the people who did the reviews, those would be the people who would turn in reviews. And so my upward reviews were not great. Then I did the Windsor case, and all of a sudden my upward reviews were stellar! I remember my wife saying to me, “Well, look, I don't understand.” Because I don't think I changed as a boss. I think what changed is the way people perceived me as a boss.

DL: Hmm-mmm.

RK: So, I don't know. Those were a long time ago, and I know I was under a lot of stress as a young partner at Paul, Weiss. But I don't think anyone today—you can ask them yourselves—has a problem with me as a boss. I certainly, and we all do, have high standards. We operate in very demanding situations, and our clients justifiably expect a lot from us. But I don't think anyone in the Charlottesville case or in E. Jean or in any of the paying matters for Airbnb or Uber would say I’m tough. If by tough you mean I have high standards, yes. But I’m also mentoring people and giving people opportunities to take depositions and to examine people at trial. We were the only firm in Charlottesville that had associates examining witnesses.

DL: Wow. That's remarkable.

RK: And that speaks for itself.

DL: Totally, totally.

So here are my standard final questions, which are standard for all my lawyer guests.

My first is, what do you like the least about the law? And this can either be the practice of law or law as that abstract system that rules over us all.

RK: I think what I like the least is the tendency of lawyers and judges at times to fail to see that behind all this case law and precedent and statutory language are real people, and that each case affects a real live person. And it's hard to keep those things balanced in your head, but good lawyers and good judges need to. And I sometimes find it very frustrating when people take things to such a level of abstraction that they fail to see the common humanity in what we do.

DL: And I think that is one of your talents as a lawyer, just bringing out the humanity of your clients, whether it's Edie Windsor or Heather Heyer or E. Jean Carroll. I think your storytelling about these very real, flesh-and-blood people is something that just stands out about your practice,

RK: Thank you, because I would like someone to say that about me, so I'm very pleased that you have. That's something we really care about a lot at Kaplan Hecker.

DL: My second question is—and this'll be interesting because I know that from a young age, I think you have a line in your book about how at age 10 or 12, you were plotting out your legal career—what would you be if you were not a lawyer?

RK: Believe it or not, because it's pretty timely, I thought seriously about becoming a Russian historian.

DL: That was your undergrad major.

RK: Yeah, I was a Russian history and lit major, and I spent—I think it was probably the single biggest influence on who I became—I spent the spring semester of my junior year in Moscow, in what was then the Soviet Union, but glasnost had been announced. So it was kind of the beginning of change, although change that didn't last very long. And I think that semester, I was fluent in Russian then, watching and living in what was then a totalitarian regime in, in a lot of ways—we were bugged and all kinds of things—just had a huge impact on the way I see the world. And maybe that made me a good lawyer, because I always expect the worst—which is a good thing as a lawyer in a lot of ways, because you want to be planning for and anticipating all contingencies.

I ultimately realized that there are not a lot of happy years in Russian history, sadly continuing to today, and that if I became a Russian historian, it was going to be pretty depressing. But I originally went to law school just thinking, “Okay, this will be a way to figure out what else I want to do in my life.” And then I fell in love with it. I’d kind of forgotten about what I was thinking as a 10-year-old about getting paid to talk.

Oh, and I flirted with the idea of going to the CIA.

DL: Oh?

RK: I started taking Russian because that was a big period of global crisis between the Soviet Union and the United States. My professor at Harvard was Richard Pipes, who came up with the phrase “the evil empire.” And I thought about it, but at that time, I don't think it would've been very easy for someone who was—I wasn't out as gay, but I certainly had concerns that I was gay and or lesbian, and I was smart enough to know that that probably wouldn't mix too well with going into either the NSA or CIA. So I didn't do it.

DL: Mmm-hmm.

RK: Probably the best for me in a whole lot of ways.

DL: And certainly history has benefited from your choice to become a lawyer.

So my third question is, how much sleep do you get each night?

RK: Believe it or not, I’m probably at the high end of the people you’ve talked to, seven to eight hours a night. I've never been someone who's functioned well with very little sleep. I remember my freshman year in college, some of my friends and I decided as an experiment that we were going to stay up all night and then write some essay that was required for some writing class we had to take, taking a lot of NoDoz, like only freshmen in college would be stupid enough to do something like that. But suffice it to say, I had to ask for an extension of the due date for the essay.

When I’m on trial, I sleep obviously a lot less, but even then I'll go to bed at midnight and wake up at four or five in the morning. I still need to sleep every night.

DL: I'm glad to hear that. I always love talking to successful people who [get decent sleep]. And who are also working parents—you have a son. I think it's great when people can… Look, I know work-life balance may be sort of an illusion or maybe a little much to ask, but I'm glad to hear that you can get a decent amount of sleep.

RK: I've had migraines ever since I was 12. I suffer from migraines, and if you sleep too little, it will bring on migraines. I remember once, when I was working for Chief Judge Kaye, I hadn’t slept enough or I don't know what had happened, but she came into my office and I was curled up under my desk in the fetal position because I had a migraine. And I'll never forget, she thought I would die. She's like, “What is going on?” So since I suffer from something like that, I'm very careful about doing things that won't bring on a migraine, and lack of sleep—or even too much sleep, both sides—can cause migraines.

DL: My final question: any words of wisdom for listeners who look at your life and career and say, I want to be Robbie Kaplan?

RK: I'm not sure anyone should say that because we all have our own lives, and you shouldn't want my life any more than anyone should want anyone else's.

But I would say one, stick to your guts. The single greatest lesson I've learned as a lawyer is to trust your own guts because they often tell you the right thing. There's a lot of distractions that you may listen to or follow instead of following your own inner voice, and that's really important, to hear your own inner voice.

And two, and I alluded to this earlier, your ability to function as a lawyer is based on your integrity, and you should never, ever, no matter what the fee, what the pressure, what the circumstance—and again, we're seeing this today, unfortunately—never do anything for a client that in any way compromises your integrity. I learned that at Paul, Weiss. I learned it from my mentor at Paul, Weiss, Marty London, and a bunch of others. And it's the single most important thing you need to know as a lawyer.

DL: Well said. Thank you so much, Robbie, for joining me. I am so grateful for your time and your insight, and I know my listeners will appreciate it as well.

RK: It's a pleasure.

DL: Thanks again to Robbie for joining me. She’s had such a remarkable life and legal career, and it was wonderful to hear about her landmark wins and what she’s working on today. If you haven’t already read it, I highly recommend her memoir, Then Comes Marriage.

As always, thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe to Original Jurisdiction. Since this podcast is new, please help spread the word by telling your friends. And if you don’t already, please subscribe to the Original Jurisdiction newsletter, over at davidlat.substack.com. This podcast is free, as is most of the newsletter content, but it is made possible by paid subscriptions to the newsletter.

The next episode of the Original Jurisdiction podcast will appear two weeks from now, on Wednesday, November 16. Until then, may your thinking be original and your jurisdiction free of defects.

Thanks for reading Original Jurisdiction, and thanks to my paid subscribers for making this publication possible. Subscribers get (1) access to Judicial Notice, my time-saving weekly roundup of the most notable news in the legal world; (2) additional stories reserved for paid subscribers; and (3) the ability to comment on posts. You can email me at davidlat@substack.com with questions or comments, and you can share this post or subscribe using the buttons below.

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Burying your own child is one of the most difficult experiences to endure. Burying your own child because he was murdered is even more horrific.

Just ask Ruth Markel. She was the mother of my friend Dan Markel, the renowned professor of criminal law who was shot in his garage on the morning of July 18, 2014. At the time of his death, Dan was only 41, the father of two young boys. Now Ruth has written a powerful, deeply moving memoir about her life since that fateful day, The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life.

I was honored to have Ruth as my guest on the Original Jurisdiction podcast. We discussed what the past eight years have been like for her, why she wrote The Unveiling, how she got Florida to pass a landmark law about grandparental rights, and the latest in the Markel case—not just the legal proceedings, which are far from over, but also her struggle to win access to her grandsons, whom she was not allowed to see for six years. You can listen to our conversation by clicking on the embed above.

[UPDATE (11/17/2022, 3:35 a.m.): Yesterday brought big news in the case: after staying silent for the more than six years since her arrest, Katherine Magbanua, who served as the go-between connecting the Adelsons and hit men Sigfredo Garcia and Luis Rivera, has agreed to talk to the authorities. Here’s the order from Judge Robert Wheeler providing for her transfer from prison to the Leon County State Attorney’ss Office for a proffer on or before November 28 to 30.]

Show Notes:

* Ruth Markel, author website

* The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life, Amazon

* Mom’s quest to solve university professor’s murder, by Brad Hunter for the Toronto Sun

* How targeted murder of Dan Markel went down, by Brad Hunter for the Toronto Sun

* Surviving A Son's Murder With Ruth Markel, Surviving the Survivor (podcast)

Prefer reading to listening? A transcript of the entire episode appears below.

Two quick notes:

* This transcript has been cleaned up from the audio in ways that don’t alter meaning—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.

* Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.

You’re listening to the fifth episode of this podcast, recorded on Tuesday, November 8. My normal schedule is to post episodes every other Wednesday.

My plan for this podcast is to have at least two categories of guests. The first consists of high-profile lawyers, like Alex Spiro, Paul Clement, and Robbie Kaplan. The second consists of individuals with expertise in topics that are important to me and my audience.

One such topic is the 2014 murder of law professor Dan Markel. Dan was a friend of mine from college, when we worked together at the Harvard Crimson, and from the early days of legal blogging, when he founded PrawfsBlawg and I founded Above the Law. I have been following the quest to bring his killers to justice for more than eight years, here at Original Jurisdiction and at Above the Law before that.

For my third podcast episode, I had as my guest Steven Epstein, author of Extreme Punishment: The Chilling True Story of Acclaimed Law Professor Dan Markel’s Murder. For this latest episode, I’m honored to have as my guest Ruth Markel, who has the most personal connection of all to the case: Dan Markel was her son. And like Steve Epstein, Ruth is also the author of an important and acclaimed new book about the case, The Unveiling: A Mother's Reflection on Murder, Grief, and Trial Life.

Ruth is a noted author, public speaker, and the president of RNM Enterprises, a leading management consulting firm. She has worked in senior management positions in both private and public sectors for the past forty years. The Unveiling is actually her tenth book; some of her earlier works include Moving Up: A Woman’s Guide To A Better Future At Work, published by HarperCollins in 1988, and Room At The Top: A Woman’s Guide To Moving Up In Business, published by Penguin in 1985. In connection with the Markel case, she has appeared on such prominent programs as 20/20, Inside Edition, and Dateline NBC.

In our conversation, Ruth and I discussed what the eight years since the murder have been like for her; why she wrote The Unveiling; how she got Florida to pass the Markel Act, an important piece of legislation about grandparental rights; and the latest developments in terms of both the legal proceedings in the Markel case and her ability to see her two grandsons, who were cruelly kept from her for years after the murder.

Without further ado, here’s my interview of Ruth Markel.

DL: First of all, Ruth, congratulations on the book, which I have read and I highly recommend, and condolences on both Dan's passing and the journey you have been on these past eight-plus years. I think one point that you make in the book repeatedly is that this type of situation is not one discrete loss, but it's a suffering that recurs again and again as you go through what you refer to as the “trial life.” So again, just my condolences and thank you for trying to seek justice for Dan's murderers and also getting legislation passed to help other grandparents.

Ruth Markel: Thank you so much, David. I first of all have to thank you, a long and special thank-you, because I know you've written so much about Dan's murder, and I know that you knew him too. And whatever you've written is very accomplished and very thorough, and I appreciate your hands and eyes on the case, because we always need people who really know what's happening, rather than just reporting on separate incidents. So I really, really have a lot of gratitude to say to you—on the part of the family, it isn't just me, but it's all of us who want to thank you.

DL: It's the least I can do. As I've written before, I knew Dan—I knew him from college, when we worked on the Harvard Crimson, and then we reconnected again as bloggers, when he founded the extremely successful PrawfsBlawg and I started Above the Law.

One thing I wanted to ask you about—and I know you've talked about this in past interviews—many of us know Dan as a brilliant legal scholar, a prolific blogger, an academic, but what can you tell us about his childhood? What was he like growing up? I think some readers will be interested in hearing that maybe he wasn't what we [might have expected].

RM: No, not at all. I think if anybody had any contradictions from their later life to their earlier life, that would be Dan Markel, the late Dan Markel. Danny was a bum when he was younger. He was Dennis the Menace at his core—very, very high-energy as a child. He never liked normal toys. His favorite objects at 18 months, two years, were a pail, a mop-and-pail type of thing, and a stepladder. And a stepladder was his favorite toy. When he was really young, he would go up on the kitchen counter not to look for cookies, like many kids go into the pantry, but [for] the challenge of climbing it up and climbing it down, and so forth.

We lived in Montreal. First, we're Canadian. Many people don't even know that we're Canadian, that Dan was Canadian. And there's a lot of places that write that he was born in Toronto, but that's not true—he was born in Montreal. We lived there until he started school, kindergarten, when he was five, and then moved to Toronto.

And he was still [unfocused] in the first few years of school, even until eight, nine years old. The funny story is the school had an aptitude test in grade three, and they called me and they said he had the highest score in the school—not only the highest score in the school, but the highest score that [they] ever saw from this aptitude test. And then [the principal] said to me, bluntly, she says, “Why is he only getting an A-minus or A, what’s wrong with him? He's not performing at this high peak.” So I said to her—it was a very funny conversation with the principal—I said, “You know what? Wait another year. I promise you, by when he's nine or ten, he'll settle down. Because he read all the comics from me, at five or six, his reading, his skills were there. But [he tended to] wander off, he had high energy, which really was, as you know, the trait for the rest of his life and so forth.

So he really got serious about nine, 10 years old. And then he became really not serious in his choice of outside activities—he skied, he played baseball. But I would say, you know how there's the expression, “he settled down”—he settled down around 10, 11, and you could see he was going to be, I wouldn't call it scholarly yet, but that high level of achievement.

DL: And then I know of course, and we all know of course, about his résumé and his credentials. He went to Harvard College. He studied abroad in Cambridge. He went to Harvard Law School. He clerked for Judge [Michael Daly] Hawkins on the Ninth Circuit. He worked at a very prestigious law firm, now known as Kellogg Hansen, and then he went into academia. But as I recall from past interviews, you've said that his success as a lawyer or as an academic is actually not what you're most proud of about him as an adult.

RM: That's true. I'm most proud of him as a father and as what all his friends call the ”connector” part, the friend part. But let me talk about the father part for a minute. He was really amazing—his love for his children was so special. He would go to their daycare centers when they were small and he would have breakfast with the kids. He would read. As a dad he had a strong Jewish identity, and he would often at the daycare center say, this Jewish holiday is coming up, this is Christmas, this is Hanukkah. He would read stories, and they really liked that aspect of him.

He also was amazing because when the children would do any artwork, Danny put up a clothesline, he had a very open space across his living room, and he hung all their artwork. And what was so funny is when some of the students—he invited all the students who went with him to the final-level criminal courses [over] for dinner—and they were shocked because they thought, oh my, they're coming to the stuffy professor's house, and if they didn't trip over the toys, they were lucky. Right across the room was all this artwork, and I used to tease him: he started a new design category called “Preschool Decor.”

He was funny. He was really—as you know, Danny had an academic side—but his social side was so, so strong and so much a part of him that everywhere he went—and he lived in a lot of places, you mentioned a few, New York, Tel Aviv, London, Boston, San Francisco, Toronto—he always stayed connected. And he used to say, “Oh, my best friend here.” So we used to tease him—you have a hundred best friends in New York, a hundred here, a hundred there. And it was true actually. When he passed away, the memorializing [took place] all over the world. So he was blessed. We were blessed in that whole aspect of his life.

DL: Fast forwarding now to the terrible events of July 2014, which again you talk about in detail in your book, what was it like when you heard the news that Dan had been shot? I think you said in the book that it was like an out-of-body experience, that it was just really surreal for you?

RM: Right. I had several experiences. The first is numbness, and in the book I do talk about the purpose of the book. Maybe I should say it now because it'll give you really where I'm going. So I wrote the book, which is called The Unveiling: A Mother's Reflection on Murder, Grief, and the Trial Life, and the reason I wrote it and called it [that] is what's so significant here.

The title of the book is The Unveiling. In Jewish life, the unveiling is the time after a person is buried, the gravesite has been settled, the funeral is over, [and] there's different cultural customs, but we chose about eight months after the [funeral for the] unveiling. On the tombstone is writing. And we spent a lot of time as a family writing what's called the inscription. The Jewish tradition is you leave this piece of fabric cover[ing] the tombstone until the day that you actually have a ritual or a service called the unveiling…. And so why I called it The Unveiling is because my real grief process—which is very important, which I want the public to know about, not just me, there's so many school shootings, and I'll come to this in the second part of the reason I wrote the book—but the first part is that was [the start of] my grief journey, the real deep, deep grief. And before that, I did have what you would call an out-of-body experience. I was numb. I was in a daze.

The next reason for writing the book is more important to the public, and that's really to lift the curtain on what it is to be in a victim experience, particularly a victim experience in the criminal system. So there's two parts, and they're very important in the follow-through of not just my own personal experience.

I'm not sure if you're familiar with it, but there's a term called “homicide survivors.” Homicide survivors are different. It’s a different loss and a different trauma than illness and so forth, and the homicide-survivor trauma lasts longer because it doesn't get resolved. In addition, it's the violent, sudden finality of the death, which other types of trauma don't have. Even the pathway afterwards is very different than other losses because now I'll go to the second point, which is the criminal system, and the victim experience of the criminal system, [coupled] with the fact that the psychological component of the trauma is very different, the criminal system doesn't end.

And there's no such thing… the word “closure,” I've said it before, it's a word in the dictionary. All those words are not meaningful. You're dealing now with a psychological factor, which is impaired, let's call it, because of the level of grief and the long-term effect and the interaction of the criminal system, which is everlasting. Look, here we are, it's eight years, we're nowhere finished. So it's that combination that really makes this whole experience different.

DL: You've actually just answered some of the questions I wanted to raise….

RM: Oh, good.

DL: … as to why you wrote the book and why you named it The Unveiling, which I think is a very powerful title. Let me ask you this. Some readers might not know, but this is far from your first book—it's your 10th, but your prior books were very different. They were focused on business and career and professional subjects. You've just talked about having to relive that pain and reopen that wound. Were you really convinced to write this book, given that it would involve reliving this trauma that you've just described?

RM: No, this was hard. I'll tell you how I started to write the book. You're very right about the other books. [It’s a] foreign language when you do a personal-trauma story, it's a foreign language as to business management books, where it's charts and checklists and a whole different kind of process.

So how did I write the book, and why did I write the book? Right after Danny's murder—I hate to say the word—we were privileged with the media, as you know well, and you were part of it. There were tons and tons of things happening. I normally wasn't thinking initially of anything like this kind of book, but I did have—so I'm a little older—I did have a box, and I would photocopy and print [stories]. Nobody does that today. But I got this box filled up, which gave me a chronology. I could get the chronology on the internet, as you know, and I did as well, but it was just that, an earlier phase, and I was not planning this kind of book. I knew maybe I would write a book, but not the level that I wrote the trauma about. But, as time progressed, a lot of time actually, because we were preoccupied with the justice system, then it was about a year and a half or two years before the pandemic, which probably was a good thing because I used the pandemic to write, I have to tell you that. So in the period before I started to feel, I have a message, I guess it's because I've written before, whatever, but I started to feel really, I have a message about victims and trauma and grief. And there's not that much out there, and not that much with a personal story. So that was the real sort of the fork in the road. And I decided, okay, now it's serious.

Then, as you know, you would know, you go out, you have to get a publisher, an agent, the whole thing. It was after [hitman Sigfredo] Garcia’s [trial]… I needed to get, I guess, to Garcia’s and [go-between] Katherine [Magbanua]'s trial of 2019…. The trial ended in October and in November, I was in New York looking for, starting the regular routine of pitching the publisher and not the publisher, really, but the agent at that point. And then the pandemic came, January [2020]. I live in Canada, and we locked down very, very early, so it was different here, a whole different climate. We locked down much more, I don’t want to say seriously, but I would say more uniformly.

Now I'm a person who's always doing something—I’m like Dan or Dan's like me, I don't know which one is which—but the point is I said, oh, now I better get this together. And that's what I did. I really wrote in the pandemic, the first year, because it was a good time to write—not smart time, maybe, because you are isolated. I hardly saw my grandkids, Canadian grandkids in that time, but I was, yes, the fact is that I was busy and I was occupied, but it was very hard. The first part of the book on the grief and the murder and the finding out, it was more than challenging.

DL: Did you find the book therapeutic in terms of writing it and talking to other survivors of homicide? I know, for example, you mentioned in the book you had a coach, someone who had gone through a similarly awful experience. Did you find some solace in writing the book?

RM: I wouldn't call it solace. I did have support. The coach was terrific and we had excellent expertise and legal support, as you know, from Gibson Dunn and others, and a lot of Danny's friends. So we were definitely privileged.

I can’t tell you… I can’t tell you that the book in any way has added any closure. I don't use the word, but any help, “therapeutic”—has there been any cathartic benefit? Not yet. When we'll come to the grandparent legislation, the answer is totally different. And that's what's fascinating because I'm in the process still of the criminal system, I think because I'm still a victim.

Look, I'm going to put it out in—I don’t know if you want to go into the case, who's arrested and when, but we went through, now Garcia was arrested in 2016, later [hitman Luis] Rivera, later Katherine Magbanua. We didn't have any trial until 2019. And then there's the appeal of Garcia. What we just went through, just to give you the current view, is really amazing. We just did the trial from a point of view of calendar for Katherine Magbanua. We just finished it right in May, in July was sentencing, and Shelly, my daughter, had to do the victim impact statement. Then following that, Charlie Adelson was arrested, just before Katherine Magbanua’s trial. Then he had the Arthur [bail] hearing. Now Katherine is appealing, and you know, the public doesn't see all this, but we are in full-blown systems and movements and conversations and communications about what's happening. And so that's why I think in all fairness, the book has not yet been as cathartic, let's call it. It's very helpful for me now to go out and talk about the victim experience, but because I'm still so immersed, I don't know if I have that feeling [of catharsis]. I'm still like a student in school. I didn't graduate yet. I'm studying still, if you know what I'm trying to say. It's continuous.

DL: And you mentioned that throughout the book. You talk about, for example, even the different vocabulary words that you're learning as part of the legal process. And the book is interesting. There's an update at the end on the legal proceedings where you talk about how Katherine is about to be retried, and then of course now we know she was convicted on the retrial and sentenced. And then, of course, since the publication there has been another series of developments—for example, denial of Charlie Adelson's bail request, [after] the so-called Arthur hearing under Florida law.

How would you say you feel in a general sense, given the state of developments right now? You have three people who have been convicted and put behind bars, and you have this pending appeal from Katherine, but honestly I don't think it's going anywhere, knock on wood. And then you have, of course, Charlie's looming trial for the first part of 2023. I know you may want to be a little guarded in some of the things you say, but what would you say you just feel generally about where the state of the legal proceedings is right now?

RM: I think for us, for me… 2022 has been a great year, in the sense—and I'll explain why it has been very, very good. After 2016, after the arrest—I'm going to go into the grandparent issue for a minute because it relates to why 2022 has been very important—after the arrest in 2016, Wendi, Danny's ex-wife, cut us off from visiting the children. We tried behind the scenes, the lawyers and so forth, and we even used the media. Now, just to put it in perspective, we are privileged with the media, but Phil and I, Dan’s father, we never went [to the media right after] Dan was murdered. Most parents and most lawyers, they bring their clients out into public view, and we didn't—we didn't need to, because Danny had quite a bit of international acclaim, he was memorialized all over the world, and [going public] was really not our way of grieving.

However, after we were unable to see the boys, Benjamin and Lincoln, Dan’s children, we decided, let's try whatever we can to get some exposure to the fact that we are not able to see these young children. So that's what we did. We went [to the media], we were going to anyway, the programs were running, as you know, 20/20 had two sessions, Dateline had two two-hour sessions, then the [Over My Dead Body] podcast came out, and so forth. So it's been an unusual journey [in having] so much media available to us.

Then also, which really is a privilege, Jason Solomon started Justice For Dan. And he even started a petition on Justice For Dan to have people sign, and there were a lot of Canadians, a lot of Americans who signed [in support of] us to be able to see the children. Anyway, needless to say, that was effective, but not enough—it gave us a voice, but not a change in dynamics, let's call it.

Anyway, so what happened was after Garcia's trial, it was October 12th, 2019, I'm in Tallahassee, it's my birthday, I'm in the hairdresser, and this young woman [Karen Halperin Cyphers] comes over to me and she says, “Can I give you a hug?” And I don't really know her, I don't recognize her as one of Dan's friends, but I could see she's his age, I thought maybe she saw me on TV. And then she told me who she was and so we went for coffee. And then she said to me….

Now this is really important in the process of grief, I'm going to explain to you—I was advised by my New York lawyer, Matt Benjamin from Gibson Dunn, “Ruth, you're going to have to write a bill” [if you want to address the problem of grandparent alienation]. I'm sitting in Toronto. This is in 2016, after we went on Dateline and 20/20. A bill. I’m sitting in Toronto. What do I know? I’m in Canada. Although I had advocacy experience in my early, early social-work career, I did not know the American system, and also we are a little different in Canada, it didn't occur to me even that that [might be] the solution. And then my other friend said, “It’s all-American—you have to get lobbyists.” So I prepped, I’m getting the buzz in my ear, but I didn't do anything for three years. And why I think this is important—I'll get back to the journey—the reason it's important is because many families that are grieving, they want to memorialize their child, they want to start a foundation, they want to do something, but they don't break out of it from out of their head.

So here was my experience, I was sitting on it for three years, but Karen Halperin Cyphers says to me, right in the coffee shop [in October 2019], “Okay, what can I do for you?” And I just blurt out, “Grandparent alienation.” And she says, “Done.” So here I am, fortunate that Karen had all of these contacts through her position—at the time she was a partner in a media firm in Tallahassee—and this was only in October 2019. In January of 2020, Karen already organized in the Senate, [Florida State Senator] Jeff Brandes actually wrote a bill, got it passed in the Senate, but we couldn't get it into the other house in 2020. So this is another part. Try, try, and try again….

This is why we're coming back to 2022. Why is it such an exceptional year? In the first part of 2022, [Florida House Speaker] Chris Sprowls decided that he would get a representation in the House and the Senate at the same time, and he really organized. Anyway, the best news in the world: the Senate passed it unanimously, and the House was, I think, 112-3. And in the end, Governor DeSantis signed it on June 24. So that's the first part of 2022—and a really big part of the success that we feel. So the mood is changing, is what I'm trying to tell you.

Now, the next good part of 2022. So Katherine Magbanua was scheduled to have her retrial in February. That was postponed. The word is “continued”—I love the word “continue” when it meets “canceled,” but we won't go into law language—anyway, and it's till May 16th. In the same period, I get an email from Wendi Adelson, that's Danny's ex-wife, the mother of his children: “Ruth, we’re making a bar mitzvah for Benjamin around May 14th”—two days before the actual Katherine Magbanua trial—”and we're inviting you all then.” “All” means us plus Shelly’s family.

I couldn’t be more delighted. And I said, yes, we're coming for sure, and then I suggested, “Can we have an in-person visit on May 13th, the day before the bar mitzvah? The kids have not seen us now [for a long time].” So she writes back right away, “You know what? If you want an in-person visit, come in April.” First the date she selected was the Passover date, then she wrote back, apologies, come April 20th. And we said, we're on. We came April 20th. We saw the kids. We had a wonderful visit. We get back to Toronto, let's say, 1 a.m. on April 21st, at 6 a.m. I get a call from law enforcement in Tallahassee—well, they’re not in Tallahassee, now they're down in Broward [County in South Florida]—and they just arrested Charlie Adelson. In 24 hours, a lot on the children and on the case.

So 2022, this is the big year, right…. it's an actually an important story piece because families wait and, and certainly for us, the waiting and uncertainty are really the characteristics of the victim experience. But this is just an example of sometimes when the waiting does materialize into something that's very fruitful.

DL: Just to rewind a little bit, you mentioned the passage and the signing into law of the Markel Act, which deals with the problem of grandparent alienation. Can you say briefly to listeners what the Markel Act permits?

RM: The Markel Act, actually, is not a broad-based, all-encompassing act for any grandparent who's alienated or any grandparent who has difficulty. Florida laws are very restrictive, [some] of the most restrictive ones in North America, and considering they have all these elderly people, their grandparent legislation is very, very restrictive. And there's a piece in there that people have to understand. The reason it's restricted is because the natural parent in Florida has the right for autonomy and privacy [in child rearing], and that is huge, and that trumps anything else, and it always has to be reviewed against what are their rights.

So what happened with the Grandparent Act? When it was developed, it was developed to meet a very specific set of circumstances, which is if one of the partners in the marriage or ex-marriage or whatever divorced relationship was deceased or is deceased, and the other partner has some civil or criminal findings against them, that gives the grandparents rights to go to the courts and request a visit, and the request is less conditional than under other circumstances because those findings have to be met. So to that extent, it's very restrictive.

Having said that, and one of the most amazing things of why I said earlier on, I have to say that having passed this legislation has really given me—I would say I always have hope, but it has given me more satisfaction on a different level—do you know how many people write to me now asking how to use the Markel Act, telling me about grandparent alienation, and what's really sad is how many circumstances there are in Florida where [the Act might apply].

[There is also a 2015 law about grandparent visitation rights, which] is something else which I did another presentation on… like if your child has committed a felony. It's not the same. It's not the Markel Act, I have to say. But the point is, what happens? These adult children come out of prison, and the grandparents have taken care of the kids all these years, and [the adult children] tell [the grandparents], “Bye bye, Charlie.” So the grandparents lose out, and the children really lose that because that's their new family. But those families can get help—not necessarily [from] the strength of the grandparent legislation, but there are places to help them, and also they should know to go to Legal Aid as well.

DL: That's really important, and I'm glad you're sharing that information with people. One of the things that's interesting to note—it's very selfless in a way, what you've done, because the Markel Act, as I understand it, does not at the current time apply to your particular case. But on the bright side, I do note that very shortly after its passage, you were invited by Wendi to meet with the boys.

So I see we're almost out of time. In closing, can you talk about how much contact you have with the boys right now? Because for those of us reading the book, that was in many ways one of the most heartbreaking things—that for years, you were kept away from your grandsons after this horrific event. Can you talk a bit about how often you get to see them now and under what circumstances?

RM: We're only at a stage where the door is open, like a crack in the door. We did try to get some Zooms on the boys' birthdays to wish them happy birthday. We were successful. We made other attempts to get visits, which didn't materialize, but just recently, I asked Wendi for a visit in December, and she approved, she confirmed it. So that'll be the next visit. We saw the boys, we had contact with them in April, and now I'm really hopeful that I will get to see them in December. So we're, you know, it's a rocky ship still, but it's more open communication. And although small, but it's working in the right direction, very incremental, small steps. And so forth.

DL: As you mentioned, 2022 was a big, big year for you and your family. My final question is, what are you hoping for or expecting from 2023? Which is not that far away, less than two months until the start of the new year. What are you looking forward to in the coming year?

RM: I'm looking forward to, look, right now, I'll put it this way, the grandparent priority is a little bit, I don't want to say on the back burner at all, but it's less. Now we have to get justice in the criminal system, which has always been the competing priority…. So that's really one of the things I do want to say that I'm also looking at now, and in 2023 I want to make sure that people understand the victim experience, and particularly the legal and professional people who help—psychologists, lawyers, clergy, whatever, have to understand the victim experience. How can you learn to develop compassion for the victim in all these professions?

I have an agenda, I guess I'm a person who has agendas, and this is really because I really think it's an undervalued [experience]. And there's a statement, I read this in one of the reports in Canada, the [statement] is “the victim is the orphan of the criminal system.” And so that's my new challenge, and I hope that there are some lawyers, legal schools, law firms listening today. I have a lot of programs that I would really like to talk about in terms of an educational format to get the sensitization to what the victim experiences in the criminal system.

DL: Well, I think you've been doing a wonderful job of advancing your agenda, just in terms of getting people to understand that victim experience. And of course getting legislation passed to help other grandparents in similar situations. And of course spearheading and enduring this long, long quest for justice for Dan's murderers.

So again, on behalf of my listeners, on behalf of all of us who knew and cared for Dan, thank you, Ruth, for everything you've done. You are really an inspiration—just how you have endured this tragedy with such dignity and grace and how you have managed to try and find some things positive out of an unspeakable tragedy. So thank you.

RM: Thank you very much, and please continue writing. You're doing a great job.

DL: Will do.

RM: I always welcome your articles and your support, so thank you.

DL: Thanks again to Ruth for joining me. As I have said before, her resilience and strength over these past eight-plus years, as well as how she has used her experience to help both other victims and other grandparents, is nothing short of inspiring.

As always, thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe to Original Jurisdiction. Since this podcast is new, please help spread the word by telling your friends about it. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, as is most of the newsletter content, but it is made possible by your paid subscriptions to the newsletter.

The next episode of the Original Jurisdiction podcast should appear two weeks from now, on or about Wednesday, November 30. Until then, may your thinking be original and your jurisdiction free of defects.

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I spent an amazing year clerking on the Ninth Circuit for Judge Diarmuid F. O’Scannlain, who could not have been a better boss. And after speaking to numerous clerks over the years, I believe that most enjoy positive clerkship experiences like mine. When law students and young lawyers ask for my opinion on clerking, I generally recommend it (depending on the individual’s particular circumstances).

But not every law clerk is as fortunate as I was. As we have learned in recent years, some clerks are subjected to harassment and abuse from the judges they clerk for. And because of judges’ power and prestige, as well as structural problems that exempt the judiciary from most forms of workplace accountability, clerks often find themselves with nowhere to turn when mistreated by their judicial employers.

Aliza Shatzman wants to change that. After being harassed and discriminated against by the judge for whom she clerked, she has become a leading advocate for greater judicial accountability and transparency. She has submitted testimony to Congress, written and spoken widely about these issues, and co-founded the Legal Accountability Project, a nonprofit devoted to “ensur[ing] that as many law clerks as possible have positive clerkship experiences, while extending support and resources to those who do not.”

I was pleased to welcome Aliza to the Original Jurisdiction podcast. We talked about her harrowing clerkship experience, the need to pass the Judiciary Accountability Act, why she launched the Legal Accountability Project, and the Project’s current initiatives, including a centralized clerkships reporting database. You can listen to our conversation by clicking on the embed above.

Show Notes:

* Statement for the Record of Aliza Shatzman, Former DC Superior Court Law Clerk, House Judiciary Committee

* The Conservative Case for the Judiciary Accountability Act, by Aliza Shatzman for the Harvard Journal on Legislation

* Law schools are part of the problem—but they can (and should) be part of the solution, by Aliza Shatzman for the Yale Law & Policy Review

* The Legal Accountability Project, official website

Prefer reading to listening? A transcript of the entire episode appears below.

Two quick notes:

* This transcript has been cleaned up from the audio in ways that don’t alter meaning—e.g., by deleting verbal filler or adding a word here or there to clarify meaning.

* Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.

You’re listening to the sixth episode of this podcast, recorded on Monday, November 28. My normal schedule is to post episodes every other Wednesday.

One of the nice things about having your own podcast is the ability to cover topics that are important to you. One topic near and dear to my own heart is clerking. I have written about law clerks and judicial clerkships for years, dating back to my first blog, Underneath Their Robes, and my novel, Supreme Ambitions, is also set in the clerkship world.

I had a wonderful experience clerking for Judge Diarmuid O’Scannlain of the Ninth Circuit, who continues to be a mentor and friend more than two decades after my clerkship, and I want every law clerk to have such a great experience. So I was pleased to welcome to the podcast Aliza Shatzman, co-founder and president of the Legal Accountability Project. The goal of the Project is to ensure that as many law clerks as possible have positive clerkship experiences, while extending support and resources to those who do not.

Aliza is an attorney and advocate based in Washington, D.C. She graduated from Williams College and the Washington University School of Law. After law school, Aliza moved to Washington to clerk for a judge on the D.C. Superior Court. Unfortunately, she endured terrible harassment and abuse during her clerkship, as well as retaliation afterwards. She has shared her story—in congressional testimony, articles, and interviews like this one—in order to increase judicial accountability and transparency.

As Aliza discusses, one reason it can be so hard to hold judges accountable for mistreating law clerks is the culture of “hero worship” that surrounds judges. And here I have a confession to make: I have definitely contributed to the culture of “judicial celebrity” over the years, which I have come to increasingly regret over time. 

Without further ado, here’s my interview of Aliza Shatzman.

DL: Thanks so much for joining me, Aliza!

Aliza Shatzman: Thanks for having me on the show.

DL: So let's start at the beginning, before we get into your work with the Legal Accountability Project. Why did you decide to go to law school?

AS: I went to law school because I wanted to be a reproductive-rights litigator. I wanted to be a trial attorney at Planned Parenthood. I'd always had kind of a sense of moral outrage, particularly on injustices affecting women. Between college and law school, I took a couple of years—I interned and worked on the Hill, did some internships at Planned Parenthood and the National Women's Law Center, and was really just moved by some of the personal stories I heard. So I went to law school knowing I wanted to do public-interest work.

DL: And you were at Wash U, I believe, for law school?

AS: I was, yes. I was a transfer, so I spent my 1L year at UNC and then transferred to Wash U.

DL: And did your plans change in law school in terms of what you wanted to do? It seems like you certainly wanted to stay in public interest, but did your interests shift?

AS: They definitely did. Pretty early in law school, I got the prosecutor bug. I did four different internships with the Justice Department during law school, and then decided that I wanted to become a homicide prosecutor in the D.C. U.S. Attorney’s office.

DL: And what did you do towards that end? You mentioned the internships—what did you do right after law school?

AS: I decided to clerk in D.C. Superior Court during the 2019-2020 term. I knew that D.C. AUSAs appeared before D.C. Superior Court judges, so I was really focused on clerking in that courthouse.

DL: As I recall from some of your writing, and you've written quite a bit about your clerkship experience, you were initially pretty excited about it, right? And you had heard from professors or references or recommenders good things about the judge you were going to clerk for?

AS: Yes, I was excited to launch my career, and definitely Wash U professors made calls on my behalf to help me secure the clerkship. I was definitely excited when I went into it, and the messaging at Wash U Law, like at most law schools, was uniformly positive. This was going to be a lifelong mentor-mentee relationship; the position was going to confer only professional benefits. Nobody back when I was applying for clerkships, or when I started my clerkship, talked about any potential downsides to clerking.

DL: And of course it's also good for the law schools to send graduates into these prestigious positions.

AS: Indeed it is. They report those clerkship numbers publicly in a variety of fashions, and especially with similarly ranked schools, it goes to their ability to get the most competitive applicants to law school and the best professors who come with their own clerkship networks and relationships with the judiciary. So the relationship between the judiciary and law schools is very closely intertwined in a way that I don't think I fully realized until I started writing and speaking about this.

DL: That's so true, and I would also add: applicants are much more savvy than say I was. When I went to law school, I didn't even really know what a clerkship was. But I get calls every year from people who are thinking about law school and a lot of them will ask, “Oh, if I want a clerk, is this a good law school for that?” People are more aware than they were maybe when you were in law school, and certainly when I was in law school, about the value professionally and as a credential of a clerkship.

AS: Definitely. I would caution that the law schools that report the highest number of clerks per year are not necessarily the ones most focused on ensuring a positive clerkship experience. And this is based on a lot of conversations with law schools, a lot of conversations with students. But yes, there is a huge push toward clerking. And even now, I'm not dissuading anybody from clerking in the work I'm doing now. It's really about ensuring a positive clerkship experience. And that is different for every student. That is different for every applicant. There is no one-size-fits-all model, and I remain concerned that law schools are just trying to funnel students into as many clerkships as possible.

DL: Yes. Weren't you told when you were applying to accept the first clerkship you were offered because this is such a plum position?

AS: I absolutely was. And there are still law schools that are giving that advice, which is bad advice, and some have backed off it in recent years, maybe because I'm poking at them and telling them to stop giving that advice. I was told to apply broadly, across the U.S. and across the political spectrum, and to accept the first clerkship I was offered. I did all those things. I should not have done those things, but I did.

DL: That brings us to your clerkship in D.C. Superior Court. I think some of my—or many of my—listeners might be familiar with your experience. But for those who are not, can you talk about it?

AS: Definitely. I think it’s important to share my experience. My experience is not rare, but it is one that is rarely shared publicly, and every clerkship application cycle, so much ink is spilled, so many statements are made, to highlight the best of circumstances. Nobody's talking about the worst of circumstances.

I started this clerkship in D.C. Superior Court in August 2019, and just weeks into it, the judge for whom I clerked began to harass me and discriminate against me because of my gender. He would kick me out of the courtroom, telling me I made him “uncomfortable” and he “just felt more comfortable” with my male co-clerk. He told me I was “bossy” and “aggressive” and had “personality issues.” The day I found out I passed the D.C. bar exam—a big day in my life—he called me into his chambers, got in my face and said, “You're bossy. And I know bossy because my wife is bossy.”

DL: Oh my gosh. You would've thought, “Congratulations on passing the bar!”

AS: I think he also said, “I didn't think you'd pass.”

DL: Oh my gosh. Wow.AS: Yeah, I'm painting a picture of this judge. I was just devastated. I remember crying in the courthouse bathroom, crying myself to sleep at night. This was my first legal job out of law school. This judge just seemed to be singling me out for mistreatment. I wished I could be reassigned to another judge. My workplace didn't have an employee dispute resolution or “EDR” plan that might have enabled that to happen. I did confide in some attorney mentors and some other clerks, who advised me to stick it out, and I knew that I needed a year of work experience to be eligible to apply to the U.S. Attorney's Office. So I really tried to.

DL: So you were just going forward, crying in the bathroom, putting up with this abuse and harassment, but the best advice—or not the best, but the advice you were given—was, just keep on trucking?

AS: Yes, that's correct.

DL: Okay, and then what happened?

AS: Pandemic happened. March 2020, I moved back to Philly to stay with my parents and worked remotely, and the judge basically ignored me for six weeks, before he called me up and told me he was ending my clerkship early because I made him “uncomfortable” and “lacked respect” for him, but he “didn't want to get into it.” Then he hung up on me.

DL: Oh my gosh. So he did that. Just fired you over the phone. Wow. He did not even give you the courtesy of meeting in person. And also I think you mentioned in one of the pieces you wrote that in the lead-up to this, weren't you sending him things like orders and other drafts to look at, and he wouldn't respond to you, he would respond to your co clerk?

AS: Yes. Yes.

DL: That's crazy.

AS: It was pretty bad. I reached out to the D.C. Courts’ HR. They said there's nothing they could do because HR doesn't regulate judges, judges and law clerks have a unique relationship, and then they asked me whether I knew that I was an at-will employee. So then I reached out to my law school, Wash U, for support and advice, and I found out the judge had a history of harassing his clerks, which law school officials, including several professors, and the clerkships director, who still works there, knew about at the time I accepted the clerkship. But they decided not to share that with me, I guess, because they wanted another Wash U law student to clerk.

DL: Wow. Now this is something we'll return to, but when you were applying for clerkships, did you have access to evaluations or reports about this judge in the Wash U. clerkships office that might have told you about these bad experiences?

AS: I did not. Wash U does not conduct a post-clerkship survey. At the time, I did not even know whether they had a list of former clerks who clerked for this judge or others, so they are far behind others in the T20 [top 20 law schools] in this regard.

DL: I remember, when I was at Yale, there were these lists of clerks, former clerks, to different judges. You could look them up, and there were evaluations. And we'll return to this—the evaluations were almost uniformly positive because anyone could walk in and look at them, and if you wrote a scathing report, that probably would not be a great thing. But they were there. And I remember sometimes you could read between the lines, and maybe detect something less effusive, but they were mostly positive.

AS: Yep. Your alma mater might push back on that, but you are correct. Most of the reports are positive. Yes.

DL: Fair enough. Let’s go back to where you've been left in this process, and HR says they can't help you, and your law school can't help you. What did you do next?

AS: I reached out to some other D.C. judges who connected me with the commission where I ultimately filed my judicial complaint. I wrote it, but I wanted to wait to find a new job because I was worried the judge would retaliate against me. It took me about a year to get back on my feet. I secured my dream job in the D.C. U.S. Attorney's office and moved back to D.C. in the summer of 2021, intending to launch my career as a prosecutor and, I hoped, put all this behind me. I had not been in touch with the judge, and I was hoping to move forward.

DL: And I think he had said at some point to you that he would give you a neutral reference if asked?

AS: Yes. That’s correct.

DL: You're at the U.S. Attorney's Office. This is your dream job. This is what you had wanted to do in law school. This is why you clerked for the D.C. Superior Court, to get this job. It seems like everything is going great, right?

AS: For a couple weeks. Security clearance seemed to be taking a little bit longer than it should have, which was a red flag. But I was two weeks into training, I'd already started working there, they'd given me all the materials—and I received some pretty devastating news that altered the course of my life. I was told that the judge had made negative statements about me during my background investigation, I wouldn't be able to obtain a security clearance, and my job offer was being revoked.

DL: Wow…. And then what did you do next? Did you have any ability to push back or explain or say, look, this was a really biased and unfair review or assessment?

AS: I called HR, I called management at the D.C. U.S.A.O. and they said there was nothing they could do, that the decision was final. I absolutely tried to explain. I cried on the phone. I ultimately filed a FOIA request, which was denied in full, even though it was a reference about me that led to the denial of my security clearance. I actually was offered the opportunity a couple days later to interview for another job with that office, and then they revoked that too, based on the judge’s same negative reference. At this point, I was two years into my legal career, and this judge just seemed to have enormous power to ruin my reputation and destroy my career.

So I filed a judicial complaint with the D.C. Commission on Judicial Disabilities and Tenure. That is a regulatory body for D.C. judges. I hired attorneys and in the summer, in fall of 2021, participated in the investigation into the now-former judge, and we were partway through that when I found out separately that the judge was on administrative leave pending an investigation into other misconduct. At the time he had filed this negative reference, but the U.S.A.O. really was not alerted to the circumstances surrounding that negative reference until January 2022, when pursuant to the terms of our private settlement agreement, separate from anything the judiciary can or would do for a law clerk, the former judge issued a clarifying statement addressing some but not all of his outrageous claims. But by then, the damage had been done. It had been way too long, and I was pretty much blackballed from what I thought was my dream job.

DL: Wow. Now, I think you wrote at some point that you did see some of the content of the negative reference—how did you get that? You mentioned your FOIA request was denied.

AS: I have a copy of the negative reference, through private settlement negotiations between my attorneys and the then-judge’s. I am enormously grateful for everything my attorneys did for me. Were it not for them, I would never have seen this outrageous negative reference, and most law clerks in my position are not fortunate enough to be able to hire attorneys to pursue this type of a claim.

DL: I'm curious, this is maybe a bit of a digression, but whom did you hire? It's not like “clerkship abuse” is a practice area. Were these employment lawyers, did they have experience with the judiciary, how did you even know where to turn?

AS: Great question. I found my attorneys through a high-profile person in the movement to prevent harassment in the judiciary. She let me use her name. Gave me a list. I started calling through it. It was a large employment litigation shop that does this type of work—not this type of work specifically, but they were fantastic. I'm really grateful for them.

DL: So you reached an agreement with the judge. Were you then able to move on with your life professionally? What happened after that?

AS: Sort of. I agreed not to identify the judge by name. That is why I refer to him as “the former judge.” He agreed to issue a clarifying statement to the U.S.A.O. addressing some of the claims in the reference. I reapplied to the U.S.A.O., but they definitely did not want anything to do with me. So I found a new job as a family law attorney and thought I would pursue that work.

But during the summer when I was going through the judicial misconduct investigation, I became aware of the Judiciary Accountability Act, or “JAA,” which is legislation that would extend Title VII protections to judiciary employees, including law clerks. Currently, folks like me cannot sue our harassers and seek damages for harms done to our lives. So I reached out to a bunch of House and Senate offices involved with that bill to share my story, advocate for the legislation, advocate for an amendment to cover the D.C. courts, which are Article I courts and are currently not covered under the bill. And then a House Judiciary hearing occurred in March of 2022, and I was invited to submit written testimony advocating for the bill, sharing my story. And then I got involved in the weeks and months following that [with] further advocacy work around these issues. Eventually I launched the non-profit in June.

DL: I would recommend to people that they check out your testimony. I put it in the show notes. It's very powerful, very detailed. It identifies the problem and talks about possible solutions. In a nutshell—you talked a little bit about it just now—what would the Judiciary Accountability Act do?

AS: The JAA, H.R. 4827 and S. 2553, is such important legislation. It would extend Title VII protections to judiciary employees, including law clerks and federal public defenders, but it would do a lot of other important things too. It would clarify that Title 28 of the U.S. Code, which defines judicial misconduct, includes discrimination, harassment, retaliation—currently it doesn't even say that. It would specify that judges who retire, resign, or die amid a misconduct investigation—those [inquiries] won't cease. Currently they do. Some of the most notorious harassers, like former Judge [Alex] Kozinski, step down amid a misconduct investigation, and the judiciary loses jurisdiction over them.

It would also standardize employee dispute resolution or EDR plans in the federal courthouses. Courts are theoretically required to follow the EDR plan, but they each implement it a little bit differently. And then it would also impose some really important data collection requirements on the federal judiciary, requiring them to collect and publicly report the results of a workplace culture assessment. They have been just notoriously unwilling to do that until very recently. It would require more transparency around the judicial misconduct complaints. When a judge is adjudicated to have committed misconduct, currently, if you go on the U.S. Courts website, their names are redacted. They are not searchable. It would increase transparency in that. It would also require the judiciary to report data on the lack of diversity in law clerk and federal public defender hiring. The real dearth of data in these spaces has allowed judges to get away with misconduct for decades.

DL: This legislation seems like a very important part of the solution. Was your suggestion that it be amended to include D.C. Superior Court and similar courts accepted? Is that now part of the proposed legislation?

AS: It's not yet—a Senate hearing would help to revisit this and other issues. It's definitely under consideration. I was told that it was more an oversight than anything else. So, I’m hopeful.

DL: What is the status of the JAA right now? Are you optimistic about its chances of passage?

AS: It's kind of stalled in Congress. It has 26 co-sponsors in the House, one Republican, six co-sponsors in the Senate, no Republicans yet, but I think that really does not—I know that does not represent the broad swath of folks interested in this legislation. It just needs some sustained attention and a Senate hearing. I always caution that we can't only talk about these issues when there's a flashy hearing. At the same time, I've been told that [a hearing] would garner additional co-sponsors, so it's really important.

It’s a bipartisan issue. Both Democratic and Republican judicial appointees harass their clerks, both liberal and conservative clerks face mistreatment. The federal judiciary leadership is a weirdly powerful lobby, and they are vociferously opposed to this bill. They have been since 1995, when Title VII was extended to the other two branches. It just needs some sustained attention. Congress has a lot going on every year, but I'm going to keep poking at them about this bill, about a Senate hearing. It’s so important. Law clerks absolutely cannot wait another year for these urgently needed reforms. It’s outrageous that law clerks are uniquely exempt from Title VII.

DL: Why is it that it has so much less support on the Republican side of the aisle? I agree with you that it doesn't seem like it should be a partisan issue.

AS: It just doesn't have enough folks lobbying Republicans on the House and Senate Judiciary Committees right now, which was part of the point of my article with the Harvard Journal on Legislation, The Conservative Case for the JAA. I have been reaching out to Republican offices to talk about the bill, and they are receptive and interested. House Republicans during the March 2022 hearing seemed receptive as well, at least to the Title VII protections. I'm a little worried they might want to sever the bill and deal with the Title VII protections now and handle other things later, which I don't think they should do. It just has a lack of support generally, and if we got more Dems we might get more Republicans too. It's a question of putting someone's personal face and story on abstract issues and giving this bill sustained attention.

DL: Absolutely. And your testimony did that. And several other women came forward as well and offered testimony. There has been media coverage, so it is starting to get traction. But I guess we'll see what happens in January or in the new session.

AS: The lack of people willing to come out and speak publicly on this issue makes it more challenging because judiciary leadership likes to claim these issues are not pervasive in the courts. And I think House and Senate Republicans, probably some House and Senate Democrats too, think similarly, because there's just a dearth of folks willing to share their stories publicly. My story is definitely not rare, but it is certainly rarely shared. And there is just a real culture of fear and silence, one of deifying judges and disbelieving law clerks. I think we're in a better position now than we were in 2018 or 2020, when two previous hearings occurred on these issues. But we still have a long way to go.

DL: Let me play devil's advocate. What do you say to arguments that the judge-clerk relationship is a unique relationship and there are duties of clerk confidentiality? There were certainly clerks who, for example, wanted to report allegations against Judge Kozinski, but they were worried about violating the duty of confidentiality. What do you say to people who say this is going to undermine that, that special relationship that makes a clerkship such a great mentorship experience for so many?

AS: The judiciary has taken some steps to clarify that the duty of confidentiality does not deal with workplace issues, and anybody who is mistreated can and should report that. Perhaps it is a unique relationship, but I think a clerkship should be considered a job like any other, and the judges should be considered employers running a small workplace. What makes it a unique job is that judges have outsized influence over their former clerks’ lives, careers, and reputations, and that this first legal job for many folks has outsized influence over their future career success, which makes it particularly important that we address these issues and particularly important that the next generation of young attorneys are protected from mistreatment.

DL: Another point you've made in your writings is at least for the Article III judges, there’s life tenure, so in some ways they have even more protection than members of Congress or the president. They're not responsible to the voters. And also they're in some ways more low-profile. Even if there's a kind of hero worship or celebrity worship of judges, at the end of the day, they're not as famous as, say, U.S. senators—so they can probably get away with a lot more, I would guess.

AS: Absolutely, they can and they do. Continuing to exempt judges from Title VII and conferring upon them life tenure really sends the message that they're untouchable, that they’re above the laws they enforce. They shouldn't be. And definitely life tenure contributes to these problematic behaviors.

There's a lack of accountability in the judiciary. Judges are never disciplined. Complaints are rarely filed to begin with. It is a broken system, and I think the JAA and the Judicial Conduct and Disability Act, which is the federal complaint process whereby a clerk can complain about a judge, are really the floor and not the ceiling for judicial accountability legislation. And I would just underscore for anybody who thinks my story is rare or particularly outrageous, it is definitely not, and judges are empowered to get away with outrageous misconduct. And what keeps law clerks silent, what keeps them from filing any sort of complaint, is that they fear that what happened to me will happen to them. That is how judges, some judges, the misbehaving ones, lord their power over their clerks, which is really troubling.

It's definitely not all judges. There are lots of wonderful judges who reach out to me to extend their support for what I'm doing and thank me. But these issues are unaddressed in both the state and federal courts, and I'm really hoping that judiciary leadership takes it seriously.

DL: What about the argument that the judiciary can police itself and that things like the JAA are threats to judicial independence and the separation of powers?

AS: Internal self-policing leads to a lack of policing, and any attempts at internal self-discipline really lead to a lack of discipline. I remain enormously troubled that all judicial accountability mechanisms are run by other judges in the courthouse or the circuit where the complainant law clerk and the misbehaving judge work. Judges are notoriously unwilling to discipline their colleagues. Even when they see misconduct occurring, they're notoriously unwilling to even pull a judge aside and say something.

The judicial independence argument is kind of nonsense. We are not talking about suing judges for their rulings, something I would not support. We are saying that judges are employers running a workplace like any other, like the other two branches of government, those are employers. When employees are mistreated, they can sue and seek damages. We're just talking about treating judges like other employers.

DL: Have we seen any disasters result from the fact that other governmental entities are subject to suit for workplace violations?

AS: Not at all. And part of it is just it sends the right message to say that you are an employer, you are subject to Title VII, you are an employee, you are protected by it. We have not seen any downstream negative consequences from extending Title VII to the other two branches of government.

DL: Your testimony was in March 2022, this year, and then in June you started the Legal Accountability Project. Can you tell us what that is about?

AS: Sure. So the Legal Accountability Project basically seeks to ensure that law clerks have a positive clerkship experience and then extends support and resources to the ones who don't. I think of the nonprofit as the resource I wish existed as a Wash U law student applying for a clerkship, a law clerk facing harassment and unsure where to go for help, and a former clerk engaging in the formal judicial complaint process. And we're working on a couple of major initiatives in collaboration with law schools beginning this year, and I think that law schools have historically received a free pass in the conversation about judicial accountability and that they should be the first to step forward and make some changes to protect the next generation of folks.

DL: You have a couple of projects or initiatives you're working at the Project—can you talk about some of them that you're rolling out this fall?

AS: Absolutely. So the Legal Accountability Project is basically premised on gaps that I see in the clerkship application process, a lack of standardization, a lack of transparency, as well as larger issues related to a lack of accountability in our judiciary. So I speak to a lot of law students and I'll say, “So you want to clerk? Great. How would you avoid judges who harass their clerks?” Some might say, “I'd ask someone,” but who are you going to ask? Clerkship directors and deans tell students to “do their research,” but what research are they going to do when so little information about judges is available on an equitable basis?

The major initiative we're working on this year is a centralized clerkships reporting database, which is going to democratize information about judges so students considering a clerkship have as much info about as many judges as possible before they make what is clearly a really important decision about their careers. It's basically a better version of the post-clerkship survey that a handful of schools do already internally. As you and I talked about earlier, the schools that do them recognize they’re mostly positive reports in there. What I try to tell schools is no school has a monopoly on information about judges. Every school has a ceiling on the number of judges they can keep track of, and it totally depends on who their alumni have clerked for in the past.

We are going to have law clerk alumni from participating schools create an account with us and write a report about their judge and their clerkship—good, bad, medium, we want to hear everything—and our questions elucidate lots of information you might want to know before clerking. Certainly mistreatment is something we seek to capture in a way that law schools are not doing right now, but it's also how does the judge provide feedback, do I get writing and courtroom experience, can I take vacation? All kinds of stuff you might want to know about your boss and your job, most of which is just not available to students right now.

Law clerk alumni report into the database. It's a subscription model, so law schools pay us $5 per student per year based on their total J.D. enrollment, and then in exchange, law students get access to reading the reports. But why it's better than anything law schools do right now [is that applicants] don't just get to read their [own school’s] alumni reports. They read the reports of all the alumni from all the schools participating in database. I am confident this is the best way to infuse transparency into the opaque clerkship application process and protect the next generation of attorneys against harassment.

DL: It sounds really useful. It's a resource I would've wanted to have when I was applying for clerkships. Are you going to require clerks to put their names in? Because obviously, as we know from your case, retaliation can be a problem. But if the clerks are[] anonymous, is there a fear of false reports? And what about if students want to get in touch with somebody for further discussion? Can people be anonymous?

AS: Yes, law clerks can report anonymously. There is an option on the last page: would you like to provide your name to students considering this clerkship? We anticipate that the law clerks who face mistreatment will report anonymously, and that is one of many reasons why a lot of law-clerk alumni like this. They also feel an increased sense of anonymity because there are just more people reporting in from more schools in a way. I talk to students and alums from schools that do a post-clerkship survey and they say, I would not fill out my school’s, I don't feel sufficiently anonymous, I would fill out yours.

Your question about false reports—we do not have a culture of false allegations against judges. We have a culture of fear and gross underreporting. I'm not at all concerned about false allegations. We do obviously have a privacy policy, and law clerks are signing off that they will report truthfully. I am confident they will. I think students and alumni understand this is a desperately needed resource, and if there were false reports or folks misusing the database, it could no longer exist.

What you talked about with the clerk-to-student information sharing is often referred to as the “clerkships whisper network.” This is inefficient at best and ineffective at worst, and that the folks who have the information, it often does not get shared with the folks who need. We are not saying you should not reach out to former clerks. What we are saying is that it is an inefficient system, and for law clerks who face mistreatment, they typically do a couple things. They either don't report that back to their law schools, or they take themselves off the list of alumni to be contacted for clerkships, or they do respond to requests, but they are re-traumatized every time somebody reaches out, or they just don't share the full information. Those are all issues we're seeking to combat. Instead of those things, the mistreated clerk can take 10 minutes, fill out our post-clerkship survey once, and then never have to be contacted again. So we think it's better.

DL: Again, I think it's a great resource and a great idea. Are you worried about—again, I think this would be unlikely because it's sort of like the Streisand Effect, it would just draw more attention—but are you worried about a judge, say, finding out about this and then suing the Project to try and either unmask this person or get a retraction or, I don't know what….

AS: A couple things. This is not a public-access website. The only people who will have access to reading the reports are students from participating law schools and young alums from those law schools. Law clerk alumni get write-only access. They write a report, they can't read them. Part of the privacy policy is that you cannot screenshot this, you cannot share this with folks who do not have access. We are not worried about defamation because we will have Section 230 immunity. We are just posting what people want to write. They can write seven paragraphs, they can write my judge was nice, we're just posting what they write.

Judges actually support this. They reach out to me a lot to convey their private support. We're hoping to turn that into public support very soon. Judges understand that positive reviews in the database will bolster not only their reputations, but also their clerkship applicant pools, because what I see is it's historically marginalized groups, women, non-white folks, LGBTQ folks, who face the brunt of mistreatment during these clerkships, and either decide not to apply or they apply less broadly because they just don't have the info they need. I receive a lot of outreach from LGBTQ students asking who are the friendly judges to apply to, who are the not-so-friendly ones to avoid? I have to say we don't have that info yet, but we will.

Judges like this. I know it's a disproportionate sample of folks who reach out to say, I support you and I'm a judge, and probably the ones who hate this are going to be quiet. It should be a red flag if any judges are out there publicly opposing this because there must be reasons why they do. And look, the thing is, we are doing what a handful of schools, including your alma mater, already do internally. Judges know which schools have a database. They bring them up and they don't make us think about that because they know that most other employers, in most other professions, are reviewed. Why should they be uniquely not subject to any reviews?

DL: What is the status of the database—when will it go live, when will people start to be able to access these reports?

AS: The database is a working prototype right now, and our engineers are building the final product. Law clerk alumni will begin reporting into it this winter, and it will go live in spring 2023 for students from participating schools considering clerkships. And for folks who think this is a good idea, if you are a law student or an attorney, reach out to your law school and encourage them to partner with us. Most administrations are considering this right now, and we think student and alumni support is going to make a difference everywhere.

DL: I think people should, if they're interested in this resource, let their school know that the school should sign up for it if it hasn't already. Before we go, I was wondering if you could also talk about what the Project is working on in terms of the culture assessment?

AS: Yes, we are doing a workplace culture assessment of the federal and state judiciaries. It's a climate survey that's finally going to answer the question, “How pervasive is harassment in the judiciary?” The federal judiciary has just been notoriously unwilling to do this until very recently. [After] five years of advocates poking at them, they finally agreed to do one, but they've specifically not committed to reporting the results publicly, which I think is an enormous red flag.

We are surveying both state and federal clerks from a variety of institutions. In addition to standard climate-survey-type questions, we're also asking a section of questions that is particularly important, and it's about law clerk concerns about reporting formally to the judiciary, informally to their law schools. The federal judiciary likes to claim that these issues are not pervasive, yet they have conducted no type of workplace assessment that would show that.

Unfortunately, a handful of law school clerkship directors and deans say things to me like, “We're blessed to work with only good judges in this circuit! All our alumni have a positive experience!” That is nonsense. But the dearth of folks reporting back to their law schools right now means that they can kind of disclaim responsibility, so we're seeking to quantify that as well for some challenging clerkship directors and some challenging judiciary officials.

DL: When do you expect the assessment to be available?

AS: We're not going to send it out until summer of 2023, so a little while. We're trying to focus on the database. We overshot our timelines a bit for getting schools on board, so our full effort goes toward that right now. But I've been heartened by the very positive response from the vast majority of law schools who are very willing to engage, and I appreciate that.

It’s the right time. Advocates over the past couple years have really laid the groundwork, and now it's time to make changes to protect the next generation of young attorneys. Law schools are working in good faith with me and I appreciate that, but no school is doing an adequate job of protecting their students and alumni against mistreatment right now. We are offering them concrete solutions for radically under-addressed issues, and I hope everybody considers partnering with us this year.

We're definitely facing a first-mover problem. Everybody's looking around and seeing who's partnering with us. That's the first question we get from every dean, who else is doing this? Somebody's got to be first. There are a couple of really brave deans and clerkship directors who I’m optimistic will be leaders.

DL: I think, just based on having observed the legal profession for so long, that they're like lemmings. Once you get one or two or three, especially if they're big-name schools, you'll get many. You just need—it's like what just happened with these U.S. News rankings and Yale and Harvard—you just need somebody to do it. So you're working on a first mover, but you don't have one just yet?

AS: We're very optimistic about a couple. We're not ready to announce them, but we feel very good.

DL: Well, in closing, Aliza, I'm so thankful for your time and insight. For people who want to reach out to you to help out with the Project or to tap into resources, what's the best way for them to either contact you or get in touch with the Project?

AS: Our website is legalaccountabilityproject dot org, and my email is Aliza dot Shatzman at legalaccountabilityproject dot org. I receive a lot of outreach from current and former clerks. I always appreciate that. Please reach out, learn more, support us. We're recording this the day before Giving Tuesday, so it’s a good time to support us.

DL: You are a 501(c)(3)?

AS: We are working on it. We will be in a few weeks.

DL: Excellent. Well, anyway, thank you so much for your time, your insight, and all of the work you're doing on these very important issues. A lot of us really appreciate what you're doing.

AS: Thank you.

DL: Thanks again to Aliza, who is doing very important work. Reasonable minds can disagree on the details of specific reform proposals, but everyone who cares about the judiciary should care about the workplace treatment of law clerks.

As always, thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe to Original Jurisdiction. Since this podcast is new, please spread the word by telling your friends about it. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, as is most of the newsletter content, but it is made possible by your paid subscriptions to the newsletter.

The next episode of the Original Jurisdiction podcast should appear two weeks from now, on or about Wednesday, December 14. Until then, may your thinking be original and your jurisdiction free of defects.

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If you enjoyed my very first blog, Underneath Their Robes (2004-2006)—which I wrote under a pseudonym while working as a federal prosecutor, pretending to be a female associate in Biglaw obsessed with federal judges and fashion—then you’ll enjoy this latest podcast episode. How many podcasts combine analysis of Supreme Court oral arguments with discussion of pumps versus cowboy boots versus Mary Janes? (For the record, my guest made the first reference to shoes; I didn’t go there unprompted.)

My latest guest is—of course—the inimitable Lisa Blatt, chair of the Supreme Court and appellate practice at Williams & Connolly, the legendary litigation firm. Lisa needs no introduction to Original Jurisdiction devotees, so I’ll mention just two distinctions.

First, Lisa has argued 43 cases before the U.S. Supreme Court, more than any other woman in history. Second, she has won 37 of those 43 cases (86 percent), which makes her one of the most consistently victorious SCOTUS advocates. (Trivia question: is there a Supreme Court lawyer currently practicing who has argued that many cases before the high court with that high a win percentage?)

In our ebullient and enjoyable interview, Lisa and I covered her special relationship with the late Justice Ruth Bader Ginsburg, for whom she clerked; how she rose to the top of the male-dominated Supreme Court bar, as a woman from Texas who “didn’t go to a fancy law school”; how she developed her distinctive, famously unfiltered style of oral argument; and why she prefers cowboy boots over stiletto heels. I hope you have as much fun listening to this episode as Lisa and I had recording it.

Show Notes:

* Lisa Blatt bio, Williams & Connolly LLP

* Reflections of a Lady Lawyer, Texas Law Review

* Lisa S. Blatt: Cases argued, Oyez

Prefer reading to listening? A transcript of the entire episode appears below (although you really should listen to this one, since as is the case with her SCOTUS arguments, a transcript doesn’t do Lisa justice).

Two quick notes:

* This transcript has been cleaned up from the audio in ways that don’t alter meaning, e.g., by deleting verbal filler or adding a word here or there to clarify meaning (although I’ve done less clean-up than usual to better preserve the flavor of our fabulous and freewheeling conversation).

* Because of length constraints, this newsletter may be truncated in email. To view the entire post, simply click on "View entire message" in your email app.

David Lat: Hello, and welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to by visiting davidlat.substack.com.

You’re listening to the seventh episode of this podcast, recorded on Wednesday, November 30. My normal schedule is to post episodes every other Wednesday.

I must confess, with all due respect to my past guests, that this episode might be the most fun one yet—and I owe it all to my guest. Lawyers are known for being risk-averse and many carry that over into their interviews, not wanting to say anything that might get them in trouble or rub someone the wrong way. That’s definitely not true of my latest guest, who’s known for her refreshing candor, whether you’re chatting with her at a cocktail party or whether she’s arguing before the United States Supreme Court.

Lisa Blatt serves as Chair of Williams & Connolly’s Supreme Court and appellate practice. She has argued 43 cases before the Supreme Court, more than any other woman in history. And she has prevailed in 37 of those 43 cases, giving her a win percentage of 86 percent—which has to be one of the highest around, at least among advocates who have argued before the Court as often as she has. She has won numerous awards, including Litigator of the Year from the American Lawyer in 2021.

Lisa graduated from the University of Texas for both college and law school, summa cum laude both times. She clerked for then-Judge Ruth Bader Ginsburg on the D.C. Circuit and then joined Williams & Connolly as an associate. After government service, at the Department of Energy and then the Office of the Solicitor General, where she worked for 13 years, Lisa returned to private practice, and in 2019, she came full circle by returning to Williams & Connolly.

In our lively and wide-ranging conversation, Lisa and I discussed her unique relationship with the late Justice Ginsburg, for whom she clerked; her distinctive approach to Supreme Court oral advocacy, including her thoughts on trying humor with the justices; why she loves coaching debate; and why she thinks lawyers should not be passionate about their work.

Without further ado, here’s my interview of Lisa Blatt.

DL: Lisa, thank you so much for joining me. I'm honored to have you on the podcast.

Lisa Blatt: Well, thank you. I am honored to be here.

DL: So if I had to guess where you're from based on meeting you at a cocktail party or hearing you argue before the Court, I would've guessed you're one of us, a New Yorker or a Northeasterner. But you're from Texas.

LB: That's right. Both of my parents are from New York, and I grew up listening to the word “y'all” with a very thick New York accent, so everyone assumes I'm from New York. But no, I was born and raised in Texas, West Texas. I moved all over Texas, UT for undergrad and law school, and a lot of my personality is because I'm from Texas. And I think I'm on my 12th pair of cowboy boots?

DL: Oh wow, okay!

LB: I’m definitely a Texan. Part of the way I talk just is because my parents are both from New York.

DL: That makes sense. And you have a kind of candor, although I guess Texans are pretty candid too, aren't they?

LB: I don't think my candor comes from being from Texas! I don't know where that comes from, actually—no one in my family's like that.

DL: Fair enough. So going to your upbringing in Texas, were there any hints that you might become a lawyer? I believe your parents were not lawyers.

LB: Right. Dad was a software engineer, Mom a stay-home mom until she became a psychologist. But no, I think it was Thurgood Marshall, something about his story of Brown—I still get sort of teary when I think about it—something about his story of what he did in Brown v. Board of Education, being the lawyer, the advocate, not the justice. I just wanted to be a lawyer and I did debate, speech and debate starting maybe in seventh grade, I was always very into debate and just knew that I wanted to go to law school.

DL: What events did you do in speech and debate?

LB: Now it’s embarrassing, but policy debate, which is all that fast talking, and I had to unlearn that many years later. But yeah, I did policy debate and I spent many years coaching debate, so I do love the art of advocacy and argumentation and trying to persuade someone.

DL: I read in one of your profiles or interviews that you do coach or did coach debate. What was that like for you? It seems like you're very competitive about coaching debate?

LB: No, actually that's not right. I'm very passionate about coaching debate, and I feel very strongly about coaching; it’s what I would definitely do if I wasn't a lawyer, and I feel very passionate about helping children and kids. But I don't think it's about winning—and that's one of the things you have to teach kids, because they just want a trophy. So much in life when it comes to competition and jobs is arbitrary and capricious. One of the things that is so important for us, even adults, to understand is that some stuff is out of our control. If I can just teach one child how to stand up straight and feel good about an argument, then that's a home run. So I love everything about coaching debate.

Also, the different perspective was just a huge thing, getting a bunch of kids in a room. I've taught middle-school debate and high-school debate, and I would say my favorite was middle school because they're not yet completely sold on their politics and ideology, and trying to just get them to open up about things like background checks or hate speech or should dodgeball be banned in schools because it's violent. Just anything, any topic—nowadays not all topics are as safe as others, but just lots of fun topics—which tastes better, Coke or Pepsi, anything that you can just form an argument about and how to organize your responses.

Look how excited I get! Just the notion of being able to teach this in a way that is helpful, especially for women, and a lot of kids are very insecure at this age, and everything about trying to show them that they can be confident is just the best thing in the whole world.

DL: Speech and debate was huge for me in that respect. I was a very nerdy kid, very insecure, but when I found something and I enjoyed it, and I was good at it, it was a big boost for my confidence. So your husband's a lawyer, you're a lawyer, I believe you have two kids—are either of them into speech and debate?

LB: One's in law school, they both did debate, and the other one's just applying and now getting into law school. So we're going to be Blatt & Associates, or Blatt Blatt Blatt & Blatt. David, my husband, no debate, he finds it completely foreign, but both Daniel and Rachel did debate.

DL: Excellent. So in doing my research, I did come across your wedding announcement when you and David got married. I'm curious: did you give much thought to the whole “take his name or not take his name” thing?

LB: My maiden name is Schiavo, so I was so eager, I would've married anybody with any last name—as soon as somebody gave me a proposal, the answer was yes. So yes, I gave a lot of thought to taking his last name. Everyone mispronounced Schiavo. Actually its direct translation is “slave” in Italian. So I was happy to [take his name], I happen to love Blatt, which rhymes with your last name. It's so great.

DL: It's very easy to spell. The only issue is one or two t’s, but absolutely.

LB: I’m actually fine with people—a lot of people still know me as Lisa Schiavo, and that's fine too—but I like being Lisa Blatt.

DL: So as we talked about, you went to UT for college and law school, summa cum laude, did super well. And in some ways your first big break, I would say, was clerking for then-Judge Ruth Bader Ginsburg on the D.C. Circuit. She was a great advocate and a great justice, but some say she wasn't warm and fuzzy with her clerks. But based on your great piece for the Texas Law Review—Reflections of a Lady Lawyer, which I'm going to put in the show notes—it sounds like you had a fairly close relationship with her?

LB: Extremely, because I couldn't talk about the law with her! I'm being completely serious. Both my co-clerks were absolutely brilliant people from Harvard, on the Harvard Law Review, but that was just never going to go anywhere with me, to talk with her about the law. And so I'm probably one of her few clerks where it was shoes, jewelry, or clothes. I could not keep up with her, and we talked about fashion.

When it was one of her huge anniversaries, it may have been her tenth year on the Court, twenty years on the bench, there were only two people, maybe three people who gave a toast, and I was one of them. And everyone talked about all her this, that, and the other thing, legal giant—and I spent the whole time roasting her about how skinny she was and all her jewelry and how she was an airhead, and she was cracking up. But she liked people who made her laugh, and I think I made her laugh.

DL: That makes perfect sense. Look at [her late husband] Marty, look at [her good friend] Justice Scalia, and you. She was somewhat reserved or introverted, but she was drawn to people who could bring her out.

LB: She's so hard to talk to about… I just couldn't talk to her about the law, and I was probably her least productive and least intelligent clerk. I remembered at this toast I did for her, I showed everyone the bench memo I did for her, it was a made-up thing, but she took only the caption—a draft opinion, I drafted the opinion, and she cut out the caption and used that for the opinion. It’s true, it was a true story, but I did it on a big blowup poster and it was very funny. And I was also her first and last clerk from University of Texas, because she's such a snob, a super school snob….

DL: That is true. Yeah….

LB: Some of them are very, very specific about their Ivy League schools. But I loved her, and I do think it was a different relationship than she had with other clerks. Very different.

DL: That makes perfect sense. You mentioned you both were into or bonded over fashion. Did you have similar or different styles?

LB: No, she was so weird! She would just—come on, she wore all those caftans, at least back in when she was on the D.C. Circuit. Actually, now I think I dress like her because I love bright colors, and she definitely is where I got my “you know what, just wear it, own it.” Because she would show up in the strangest outfits and she just like looked very happy and I thought, “Wow, I wanna be her, she's beautiful.” She just loved life and travel and clothes. She definitely had a unique clothing style. I have a bunch of Mary Jane shoes that I have now after she passed away that I call my “RBG shoes.”

DL: Oh, interesting…. Mary Janes, and cowboy boots. I would've thought you would go for some pumps, with three- or four-inch heels or something?

LB: I'm so tall, I can't do it. No, I can't do heels, really. Cowboy boots are my thing.

DL: Okay, fair enough. So turning to what you're most well-known for, arguing before the Supreme Court, I believe you have argued more Supreme Court cases than any woman in history. You noted that in your Texas Law Review piece, but I noticed that on your Williams and Connolly bio, it doesn't say that. Was that intentional? Do you want to be known as a Supreme Court advocate and not a female Supreme Court advocate?

LB: Uh, no. How about a “female Jewish funny old-lady Supreme Court advocate”? No, I didn't even know that, David. I guess I could put [it] on my website. I don't know if anyone cares, so, no intentionality, no, no intentionality at all. I am very proud of the fact that I have more arguments than any woman in history, but I expect and hope to see other women pass me up very shortly, and I assume they will.

DL: Do you happen to know who would be number two?

LB: Well, I'm hoping it'll be Elizabeth Prelogar when she gets out of the SG’s office.

DL: That's right, that's right. She is racking up a lot of arguments.

LB: And she's gloriously fantastic.

DL: She's amazing.

LB: She's amazing. But there are plenty of women out there. Well, [my partner] Sarah Harris, my right-hand person, she's far more talented than I am. Because I'm a little bit different than other people, I hope that my style doesn't necessarily rub off, but I hope that what rubs off on people is that somebody who didn't go to Yale or Harvard and who lacked a lot of self-confidence and wasn't really groomed for anything can just do well. I was incredibly insecure for so much of my professional life. And so I very much want to be a model for people.

DL: And you write about that very eloquently in your Texas Law Review essay, which again, I really commend to people.

I'm curious, your Williams & Connolly bio does note that you've argued 43 cases before the Court, and you've won 37. And as I recall, didn't you have a very long win streak before you notched that first loss?

LB: Yeah, I was in the twenties, and Ted Olson gave me a case to lose. Yeah!

DL: And let me ask—are you the “winningest” Supreme Court advocate with a certain number of arguments below your belt, like 25 or 30 or 40? Your win percentage is something like 90 percent, 88 percent, something like that.

LB: I don't know….

DL: One thing that's interesting about the Supreme Court, and I think you alluded to this earlier—you said so much of life is arbitrary and capricious and luck, and I would argue that despite your amazing talents as a Supreme Court litigator, so many Supreme Court cases are decided based on political or jurisprudential or other factors independent of the argument style. How important would you say briefing and argument are? I know this is a very vague question….

LB: I'll break it down two ways. I disagree on the jurisprudential [point], except for abortion, guns, race, and religion. Everything else, I think, is open to grab, although you could make some points about statutory construction and administrative law—so you're increasingly more correct, but I still think that there are plenty of cases that are completely up for grabs on bankruptcy or even arbitration these days. Just random commercial cases or civil cases, I don't think it's that ideological. I will give you on—I don't think the Court needs to be briefed on how to rule in an abortion case, you're just completely right.

Then there's oral argument, and whether that matters, and a lot of us who argue like to say it matters. At a minimum, I would say it matters in that you can lose a case at argument and you can go backwards. It's much harder to win a case at argument, but it's pretty easy to lose a lot of ground and lose a case at argument. And as you can tell now from the current format, the justices are just bursting with stamina in terms of how much they want to argue. It’s like the cage has been opened, and I think they're going to go back to all-day argument soon.

DL: Do you like the new approach?

LB: How can you not?

DL: I do, as a listener….

LB: Because there's no time limit for them in the lightning round or whatever they call it—round robin, Justice Sotomayor just called it—and you can tell they're all sort of looking at each other like, “How much longer can I get away with?” The worst thing about the old style, where it was rapid fire and Justice Thomas was silent, is you just didn't learn that much about what their concerns were because it was so hard to get your point out, it was so hard to hear what every justice thinks. Now Justice Thomas is free and is so involved in argument, and all of them are, so you're just getting all of them now. The only problem with that is you're having nine conversations, so it's just turning into very long arguments. But the parties, who aren't lawyers, it's helpful for them to see the Court in action, so I like that, and for the public to see how hard they're working through the issues.

DL: Absolutely—and I know this is a pending case, so we won't delve into the merits—but I would commend people to the argument in the Warhol case [Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith], which you and Roman Martinez and Yaira Dubin recently argued. It's a great case. It's super-interesting. The argument went on for quite some time, but you really do see the justices grappling with the issues in a very earnest and non-ideological way. It's a great argument.

LB: One of the things I don't like talking about in argument is the law, so to me, those cases are the most fun, because you can talk about how the case matters in the real world, what it means to people, the public, the parties, and you're not so much talking about what some word in the U.S. Code means.

DL: Exactly. That case covered everything from Darth Vader to Mondrian to The Jeffersons, and so it was a really fun case for folks to listen to.

Turning to advocacy and your style of arguing before the Court, which we alluded to, Sarah Isgur of the Advisory Opinions podcast said that nobody should try to imitate Lisa Blatt, even though Sarah thinks you're an amazing advocate, nobody should try to imitate Lisa. And I agree that there's a sort of “don't try this at home, kids” quality to your argument. Would you say you have a distinct style of argument, and if so, how is it?

LB: Well, it upsets me that so many people say don't try to emulate her because… it just upsets me to hear that. I'd like….

DL: I would be flattered! I'd be like, I'm inimitable, I'm sui generis, you can't imitate me!

LB: One of the things that you have to do when you're a Supreme Court advocate or any advocate is make sure everything you say you can back up. If somebody wants to say, “wait a minute, did you just say what you said,” you're going to go, “I absolutely said what I said, and I'll repeat it again,” and that has always been my philosophy.

It's true I think some people think I maybe go right up to the edge, but I'm okay with that. Sometimes I say things and I'm like, oh my God, why did I say that? In the Romag case with Neal Katyal, that was definitely one of my more notable ones, where I said, “I think you might have to cut me off.” The Chief just looked at me like, “Are you crazy?”

So I say things like that and I'm like, what? Or “I didn't go to a fancy law school,” and I'm like, well, why did I say that? So things like that, I'll regret saying, and you shouldn't say things like “I didn't go to a fancy law school,” so I would never recommend people repeat that. But I would think that lots of people make statements and arguments that they're like, I should have said it differently, so I don't know why I should be any different.

What I guess is upsetting to me is my style, if it’s unique, it's that I have this very strong view that truth is the best form of advocacy and for someone to have a different view—it's disturbing to me. Why would you not be incredibly honest and direct with the Court? That's all I have to say, and I think everyone would agree. I don't know whether it was Irv Gornstein or Michael Dreeben [who said it], but Paul Clement and I often talk about this, that oral argument is truth serum, so whatever someone tells you to do, what you think is really going to come out. I've tried to change my style, I would like to be different, but it's very hard for me to not be the way I am.

DL: Well, let me give you some examples. I totally agree with you on the point about fidelity to the law and the facts, and I think that if someone were to compare you to Paul Clement, your former colleague in the SG’s office, who would also be identified as one of the best Supreme Court litigators of all time….

LB: Paul is the best. Let's just be clear.

DL: Okay, well, fair enough….

LB: Paul is magical in a completely different way. His magic is the way he engages with cases and doctrine, and I've never seen anything like it

DL: What would you say is your special sauce or superpower?

LB: I don't think I have one! I think, I'm not trying to be funny, but I think that they sometimes are laughing, like a fair amount of times are laughing. And so I don't know why that is, that they think it's funny, the things I say.

DL: I think this is another aspect of your argument that I think people say don't try to imitate. Usually when people say, well, what are the rules of appellate or Supreme Court advocacy, they say, well, listen to the judges or justices, don't talk over them, really try to be responsive, [and] people also say generally don't try humor. But you do try humor, and it almost always works.

LB: No, I don't try it, I don't try it! That's, no, you never should try humor! Absolutely. Never. Try. Humor. It would be a disaster. And can you imagine making a bad joke? That is the worst thing to do. Don't try humor. I think sometimes I say things…. I remember the first time I said something that got a hysterical laugh, it was an argument in the gas tank case [United States v. Flores-Montano], which is mentioned in the Guide for Counsel. Definitely considered, I know at least by Justice Ginsburg, it was one of her favorite arguments, and it was a glorious argument, but in the course of the argument, Justice Scalia said, I said something and he goes, “Is that public?” And I said, “I just made it public.” And they all just broke out laughing. And I'm like, I'm not trying to be funny, but sometimes that bluntness and directness, it's funny, but I'm not trying to be funny. Does that make sense?

DL: Well, so when you made the funny quip in the Warhol argument about the airbrushed photos of Lisa Blatt, you were not trying to be funny? Because it was funny.

LB: Nor was I trying to be funny when I said the court was “yakking.”

DL: Yes. That was also great!

LB: The minute that came out, I was like, ah, how do I take that back? And they thought it was hysterical, but I wasn't trying to be funny. Why would anybody say that? Intentionally?

DL: Okay, okay, fair enough.

LB: But, so, I think it's just quirky. I don't, maybe, I don't know what the word is. I don't know.

DL: When people say, don't try to imitate you, I don't think they're saying anything about your fidelity to the facts or the law or the record. I think you and Paul are pretty much toe to toe on that. But you have very different styles. He's conversational and you are conversational, but you're much more… lively, no offense to Paul, you're more sort of… in your face, I guess? I don't know how to put it….

LB: Oh, I don't know what I think of that. Paul is definitely just more eloquent and elegant and intellectual, and I'm just more, let's talk, let's roll up our sleeves.

DL: And I think that would be your superpower. I think you have a way to just cut to the heart of the case, in a way, and to also play out the consequences. I know that we're deciding cases on the law, precedent, not policy, blah blah blah, but I think you're really great at unfolding [consequences]. I love the line you had in the B.L. v. Mahanoy Area School District case about the cursing cheerleader, where you’re saying near the end in your rebuttal, like, “judges, justices, don't do this!” in terms of setting forth a bad rule.

LB: I said, “please don't do this to courts,” or “please don't do this to schools.” Yes, I said “please.” Okay. The minute I said “please,” it's like, I would highly recommend never saying, in any oral argument, “please.” But it did come out that way.

DL: It was great!

LB: Maybe it's just refreshing because nobody says “please.” Or I referred to North Korea and Russia. And so, but trust me, I am not trying to be entertaining because I strongly think that that is a disastrous move. You should never try to be that or try to be—you just can only be yourself.

DL: Yes.

LB: And so what you see at argument, I think with a lot of people is just someone's true self. And maybe it's because I didn't go to a fancy law school.

DL: You mentioned in your Texas Law Review piece that it took you a while to learn to be yourself, that you tried on a couple of styles before settling on your current one?

LB: Absolutely. Yes. That's why I feel the modeling and supporting younger people are extremely important. But how are you supposed to know this in your thirties? I didn't have the confidence and I hated everything about myself, so, yeah, I thought I would look at other, I guess, women and men and want to be like them. Maureen Mahoney, one of the best all-time advocates, everything about her is to die for. I couldn't be her if my life depended on it. And it was very hard for me to just accept the fact that I was never going to be that kind of lawyer or just always be a little different and not ever feel comfortable like in a suit, and just really…. I'm sure a lot of people feel this way, where they don't feel like they belong. This is not some great revelation. And so the sooner you can accept your weaknesses and lean into your strengths, the better off you are. So the more I can try to tell people that wherever that leads you, the better. It just took me a while, probably late thirties, early forties.

DL: What were some of the styles you tried on before settling into your current one?

LB: I grew up in the eighties, seventies and eighties. It was the suits, the, like, really uncomfortable suits, pantyhose, all that stuff, like uncomfortable shoes, not bright colors, or not speaking up, or worrying about how it comes out. I think the biggest thing that a lot of people won't do is admit they don't understand something. And I do that all the time at the meeting, I'm like, I have no idea what you're talking about, I literally have no clue what you just said. And a lot of people would never do that. And I think I sat through so many meetings where I would just go, I have no idea what those people are talking about. And now I'll say it and maybe people think I'm dumb, but I don't care. I'd rather—I'm positive that there's probably someone in the room that didn't follow it either.

DL: Yes, exactly. I think that's so true.

LB: But you know what? Shame and humiliation drive so many people and the way they conduct themselves, and the sooner you can sort of laugh at yourself, the better off the world would be.

DL: That's very true, very true. I'm curious, over your 40-plus arguments, is there a win that you're most proud of? You have won a lot of really interesting cases, but is there one, maybe one that we haven't heard of or have not heard as much about?

LB: Yes, and it'll be probably, you know, a lot of people will get mad at this, and please don't hate me on social media, but the [Adoptive Couple v.] Baby Girl case.

DL: Ah yes….

LB: With the Adoptive Couple [case] that I did with Paul, it just took, you know, like two years into my life and it was just a long, long struggle. And so I am proud that we won that case. It was just involved, a child, a family, and so it was just, to me, a meaningful case. It was also, you know, definitely one of my more memorable oral arguments.

DL: I remember that case. I re-listened to that one recently, and this was a case that was interpreting the Indian Child Welfare Act, or ICWA, which is now back before the Court. And you just had a really powerful line in there where you said something like, “Look, we're talking about children, we're not talking about property or something.” You had a really resonant line in that argument.

LB: Yeah, so I think in that case, I think it's fair to say that I know this from inside sources that, you know, you could see that case in two ways: it was one about the law and one about the facts. Then you can take it from there, and I chose to argue the case about the facts. I think the ICWA case now before the Court is very much about the law.

DL: Interesting.

LB: It's just so—some cases are more about the facts than the law.

DL: I think you won that case on the facts as well. There were a lot of facts, I think, that were not great for the other side.

LB: It was a 5-4 case. It was just tough, and the argument was very tough. It was also just very meaningful for me because I did it with Paul who was, you know, such an inspiration, and I basically give Paul credit for my entire career. So it was just a huge deal to me to have him up there arguing with me.

I also blame Paul because I was really restrained in the whole beginning of the argument and it looked like we were losing. And Paul is like, you know, you gotta keep, keep it under control. And right before I went up for rebuttal, I said, “Can I just let loose?” And he said, “Yeah, just do it.” So I don't know if he remembers it that way, but I always say, Paul told me just to let loose, so that's what I did.

DL: I would say another one of your superpowers is you really bring it in the rebuttal. Rebuttal is sometimes kind of an afterthought, but your rebuttal in that case, your rebuttal in the BL v. Mahanoy Area School District Case….

LB: No, Oklahoma [Carpenter v. Murphy] was the worst.

DL: What do you mean by the worst?

LB: Well, because I basically said, this will stimulate you, and then repeated about rapists and molesters and murderers. It was, it was epic. And then everybody blamed me for going hysterical, and then everything I predicted happened in Oklahoma [after McGirt v. Oklahoma, which addressed the same issue after the Court deadlocked in Carpenter]. But yeah, no, the Oklahoma rebuttal was definitely one that was probably a little over the top.

DL: Well look, sometimes you go a little over the top, but I think you also just bring a—I know you don't like this word as applied to argument—but I do think people would say you're a passionate advocate, or you're….

LB: Ugh!!!

DL: I know, I know, I've read your pieces saying don't use the P word, save it for your, save it for your hobbies, or…

LB: Save it for sex.

DL: Ha!

LB: I'm not a big fan of “passion.” Do you really want a passionate surgeon? No.

DL: Well, I guess maybe….

LB: I just want someone who’s good. Do you want a passionate architect? No. Do you want a passionate airline pilot? No. Just get me somebody who can get the job done and not mess up my face, or my house, or my plumbing. I mean, just get the job done. I do not want a passionate professional, period.

DL: Okay, so well…..

LB: I would say I'm extremely high-energy.

DL: Yes, yes. And I think you just have a sort of sincerity, I think, [so] that nobody feels they're ever getting a snow job from you. It's like very, very honest, very unfiltered. And I think that that candor, that uber-compliance with the duty of candor to the court, I think is very appreciated by the judges.

LB: Again, think of a surgeon. Seriously. When you're out and under their knife, you need them doing a good job with whatever they're repairing. Your life is in their hands and you need to take care of them. And that is in addition to putting myself in the role of a mother, I also think of a surgeon. I mean, you do everything you can for your kids. And if you're a surgeon, you know you got a job to do and you just, you gotta get it done. And so, I don't like that word “passion.” It sounds like it interferes with judgment. That's why I don't like that word. And maybe I am passionate, but I don't like to be called that.

DL: So what are you passionate about then? What do you like to do outside of work? I see you, the listeners can't, but we're on Zoom, I see you're wearing a Peloton sweatshirt. Are you passionate about exercise? I know you mentioned you're not passionate about cooking or baking because you tried that on and that didn't work. So what do you like to do when you're not arguing before the Court?

LB: I love to play with my dog, I love to exercise, I love music, and I love children.

DL: Okay. Those are all worthy interests.

So this is the lightning round, [since] I see our time is almost elapsed. Let me ask you my final four questions, which are standardized for all guests.

The first is, what do you like the least about the law? And that can either be the practice of law or it can be law as that system that governs all of us.

LB: The stereotypical male ego.

DL: Fair enough. That is a good point and a very concise one. What would you be if you were not a lawyer?

LB: Debate coach.

DL: Oh, there are a lot of similarities there.

LB: I would coach. I would be involved with children in some way, teacher, coaching, whatever I could do with kids.

DL: Wonderful, wonderful.

LB: I think everything that you think is different about me as an advocate is why I really come alive with children, because they're so not used to adults that are normal. They're so used to adults kind of doing weird stuff with kids and they're like, they just flip out when an adult is like, just tells it to them straight. They just, there's some way, just so much fun. I love kids.

DL: Well, it's funny, I think in your Texas piece you had a line about how, well, the kids know that you're different from the other parents because….

LB: I swear with them. I can't tell you how much I love kids. I mean, I love dogs too, but I love children.

DL: Oh, that's great. Well, I'm sure that if you ever retire from Supreme Court advocacy, I'm sure a school or debate camp would love to have you.

Question number three, how much sleep do you get each night?

LB: I sleep all the time, in the middle of the day, in the morning, I just sleep. I love to sleep, so I don't know, seven, eight hours. I would sleep for 12 if I could. I really like to sleep.

DL: I am so glad to hear that.

LB: Naps are the best.

DL: I agree with you on that. I have a great ability to nap. Unfortunately, not everyone does, and some people have trouble sleeping, but it sounds like you're not one of them.

LB: I've had trouble since the pandemic. I've had trouble sleeping, but I still, then I'll just sleep in the daytime. But I do like to sleep, so I definitely get enough sleep.

DL: Oh, good, good. And I guess my final question: any words of wisdom, especially for listeners who look at your life and career and say, I want to be Lisa Blatt?

LB: Maybe it's two things that are similar. The hardest lessons are how to deal with failure, and you just can't let failure define you. It is inevitable. Setbacks are so inevitable, and so is embarrassment, shame, and humiliation. And so the sooner you can adapt to that, the better. Jeff Wall once gave me the best advice of my entire life: with every door that closes, the window opens. And the other thing that Jeff Wall told me that was sort of foundational was when you look back upon your life, will you be thinking about how much money you have or how many arguments you have? And the answer is no. You're not gonna be thinking, if I'd only had one more argument or gotten one more award, you'll be thinking about the relationships you've made along the way, that those are the most important. Now, I remember telling this to Judge [Pamela] Harris, who's an amazing Fourth Circuit judge, and she said, “No, that's not what I'll be thinking about, I'll be thinking about what good I did for the world.” And I was like, “Ah, I can't win for losing!” So if you don't think about your relationships, at least think about what good you did for the world.

And then the other piece of advice, which is along [the lines of] don't let failure define you, is just don't let other people's view of you define you just because someone doesn't respect you. Okay. You need to define who you are for yourself, and it is so easy to see yourself through other people's eyes, and it's just something you need to fight if you're insecure, like I was.

DL: Again, very, very true, and I think you have managed to succeed and define yourself in a really unique way. And again, I have such admiration for you, Lisa, and I'm so grateful to have you on the show.

LB: Yeah. And David, let me just plug you. You're a god and my family loves you. My husband loves you. We always read you. You're just amazing. My husband follows everything you say about Yale.

DL: Well, there's a lot to say, and I think I'm gonna be hopping on a train soon to head up there for an event. But, again, thank you so much….

LB: We are avid, avid followers of you.

DL: Thank you again, Lisa. This was so much fun and best of luck in the arguments you have stacked up for the rest of this Term.

LB: Thank you. And thank you for inviting me!

DL: Thanks again to Lisa for joining me. I’m always inspired by people like Lisa who can reach the pinnacle of the legal profession while remaining true to themselves. She’s a unique advocate and personality, and I mean that in the very best sense.

As always, thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers, for tuning in. If you’d like to connect with me, you can email me at davidlat@substack.com, and you can find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.

If you enjoyed today’s episode, please rate, review, and subscribe to Original Jurisdiction. Since this podcast is relatively new, please help spread the word by telling your friends about it. Please subscribe to the Original Jurisdiction newsletter if you don’t already, over at davidlat.substack.com. This podcast is free, as is most of the newsletter content, but it is made possible by your paid subscriptions to the newsletter.

The next episode of the Original Jurisdiction podcast should appear two weeks from now, on or about Wednesday, December 28. Until then, may your thinking be original and your jurisdiction free of defects.

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I interviewed Helen Wan, author of The Partner Track—first a novel, now a hit show on Netflix. We discussed her upbringing by tiger-ish parents; her impressive career in the law, far longer than the legal careers of most lawyers turned writers; how much of The Partner Track is based on her own time at a large law firm; and the sacrifices she had to make in order to maintain a high-powered legal career while also writing a hugely successful novel.

I interviewed Judge Frederic Block, a federal judge in Brooklyn since 1994, about his improbable rise from Long Island solo practitioner to federal judge, the highlights of his almost 30-year judicial career, how judges should decide when it’s time to hang up their robes (he turns 89 this June), his views on the current direction of the Supreme Court, and what he REALLY thinks of former president Trump’s judicial appointees.

Jeh Johnson, currently co-head of the Cybersecurity and Data Protection practice at Paul, Weiss, Rifkind, Wharton & Garrison, has had a truly remarkable career in law and public service. Over the past four decades, he has gone back and forth between Paul Weiss, one of the nation’s leading law firms, and the federal government. He has served as an Assistant United States Attorney for the Southern District of New York (1989-1991), General Counsel of the Department of the Air Force (1998-2001), General Counsel of the Department of Defense (2009-2012), and finally, Secretary of Homeland Security (2013-2017).

I first met Jeh (pronounced “Jay”) Johnson when he was GC of the Department of Defense (“DoD”) and I profiled him for Above the Law. At the time, he told me he thought it would be his last position in public service. But President Barack Obama had other ideas: in 2013, he asked Johnson to join his Cabinet as Secretary of Homeland Security. From December 2013 until January 2017, Johnson led the Department of Homeland Security (“DHS”), a sprawling agency with some 22 components and 230,000 employees, and helped keep the United States safe.

Remembering fondly our 2011 conversation, and eager to hear about his time as a Cabinet official, I reached out to Secretary Johnson late last year to invite him on the podcast. He kindly agreed, and in our conversation last month, we discussed everything from his being an academic “late bloomer”; what he’s most proud of from his time in public life (interestingly enough, not a specific success like the Osama bin Laden operation or the repeal of Don’t Ask, Don’t Tell); and his advice on mentorship (specifically, how to be a good mentee).

My timing for posting this episode turned out to be excellent: just yesterday, DHS unveiled Secretary Johnson’s official portrait, a tribute to his service to the Department and to the nation. Congratulations to Secretary Johnson on this honor, and thanks to him for his long and dedicated service to our country.

Show Notes:

Jeh Charles Johnson bio, Paul, Weiss, Rifkind, Wharton & Garrison LLP

DHS Unveils Secretary Jeh Johnson Official Portrait, U.S. Department of Homeland Security

An Afternoon With Jeh Johnson, General Counsel of the Defense Department, by David Lat for Above the Law

Prefer reading to listening? A transcript of the entire episode appears below.