While we have a few comedic moments on the podcast (usually unintended), we actually have a real-life comedian, Eugene Cipparone, join us on this week’s episode. Eugene is a lawyer, who took a few years off to join The Second City comedy troop in Toronto, before working his way back into the legal industry as Goodmans, LLP’s Director of Professional Support. With the pandemic, the need for support, and KM resources became critical. Eugene’s ability to understand the needs of his firm and his ability to engage members of the firm in training by telling a comical story allows people to better remember the training and understand why the resources make the task easier to perform. (14:05)

 


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What to Expect from the AALL Virtual Conference
Michelle Cosby, President of the American Association of Law Libraries, discusses what to expect from the AALL Virtual Conference on July 13-17, 2020. While the theme of Unmasking Your Potential was initially a tip of the hat to the host city of New Orleans, it’s come to have renewed meaning on what it is like to provide professional development and community during the pandemic. (8:50)
Information Inspirations
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Please take the time to rate and review us on Apple Podcast. Contact us anytime by tweeting us at @gebauerm or @glambert. Or, you can call The Geek in Review hotline at 713-487-7270 and leave us a message. You can email us at geekinreviewpodcast@gmail.com. As always, the great music you hear on the podcast is from Jerry David DeCicca.

Transcript

[00:00:00] Speaker B: One little thing, and I didn’t cut it off at the very beginning, but my firm is Goodman’s. Men’s. Yeah. Not Good Win.

[00:00:06] Marlene Gebauer: I’ll redo it.

[00:00:07] Greg Lambert: We’ll be talking along, and then all of a sudden you’ll hear Marlene go, Goodman’s?

[00:00:14] Marlene Gebauer: And people will be like, ah, I know what happened there. Welcome to The Geek in Review, the podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer.

[00:00:32] Greg Lambert: And I’m Greg Lambert. So Marlene, you and I sometimes we’re, I’d say, accidental comedians on this podcast.

[00:00:38] Marlene Gebauer: Sometimes, sometimes.

[00:00:39] Greg Lambert: But this week we decided to bring on a professional to show us how it’s really done.

[00:00:44] Marlene Gebauer: Yeah, since this is our version of Star Search, I’ll tell you, I discovered Eugene via a professional gig, a product design sprint for a famous big time information and tech company. I was contacted by my friend and colleague, Xena Applebaum, who got me this gig. And disclaimer, this was not a paid gig. I don’t have a SAG card.

[00:01:06] Speaker B: Anyway, Eugene was also one of the participants in the sprint. And when Xena casually dropped that he had another life as a standup comedian, well,

[00:01:15] Marlene Gebauer: I just had to get him on the show.

[00:01:17] Greg Lambert: Well, of course we had to get him on the show.

[00:01:19] Marlene Gebauer: Of course we did.

[00:01:20] Greg Lambert: Yeah, that was fun.

[00:01:22] Speaker B: Well, in addition to our discussion with Eugene, I took a personal privilege this week and asked Michelle Cosby, the current president of the American Association of Law Libraries, to come on and discuss what to expect from the virtual conference that’s happening between July 13th and 17th. You know, I really had to tip my hat to Michelle because this has been a crazy year. And I hope that members who listen to the podcast are supporting AALL by attending the conference. So I know many of our conference budgets were cut this year. So I’m going to throw a challenge out to directors or chiefs out there who have staff who are wanting to attend these online sessions, but the staff themselves can’t afford the $99 rate. You know, find a way to get them registered. Go find some grants, reach into your pocket.

[00:02:06] Marlene Gebauer: I did.

[00:02:07] Greg Lambert: You know, show, show people that professional development is important even when the budgets are slashed. All right, enough of that. Let’s get into this week’s Information Inspiration. I got two, Marlene, but one’s really quick. So when you sign off of a Zoom or a WebEx, do you wave goodbye?

[00:02:27] Marlene Gebauer: I do. I do.

[00:02:29] Greg Lambert: Well, you’re not alone. So Kaya Yurlev from CNN Business interviewed a number of experts and asked why it is that we do that. And not surprisingly, it’s because we miss our human connections when we’re connecting with our fellow coworkers and peers on these video conferences. In a way, it makes that act of clicking on the X button to close out the window a little less awkward. So, you know, don’t think you look weird by waving goodbye. You’ll find you’re not alone.

[00:02:57] Marlene Gebauer: I look weird in other ways, but honestly, I do it because most of the time I’m on mute, and then oftentimes you don’t have time to turn it back, and everyone’s like, Bye, and so you just wave because at least you’re kind of acknowledging to people that you’re on mute and then oftentimes you don’t have time to turn it back and, you know, everyone’s like bye. And so you just, you wave because at least you’re kind of acknowledging to people that you’re like, yep, I heard you and see you next time. Well, one of my inspirations has to do with surprise fashion.

[00:03:21] Greg Lambert: From you?

[00:03:22] Marlene Gebauer: Yeah, crazy. So as you know, masks are a bit of a necessity now. So, of course, it didn’t take long for the reviews of most of the favorites to come out. Now, why put out a review? So, you know, best overall, best lightweight, best with extras, most comfortable. I have several now. I have some two-ply ones. I have a respirator one. I have a 3D one that takes into account for your nose and balaclavas, you know, because it’s like shoes, right? I mean, you need a different one for different events, depending on what you’re doing. You know, if you’re riding your bike versus going to the supermarket, you’re not going to be wearing the same thing. So if you’re in a market for masks, check out the Wired reviews. And oh, oh, just as an aside, I heard on Make Me Smart that now, you know, masks are truly becoming a fashion item. And as a result, women are really upping up the game with eye makeup, which is terrible for me because I’m not so good with the eye makeup. But but I will tell you, the fake lashes game is real, people.

[00:04:32] Greg Lambert: Yes, it is. All right. So here’s one that’s a little more serious. You know, we all are leading teams during this crisis or at least on a team. So while you may think that many of us are experts at leading a team by remotely leading a team by now, you’d be mistaken. So Kevin Costanza from Seed IP Law Group in Seattle and Mark Evans from Smart and Bigger in Toronto gives some tips to think about and how to successfully lead a remote team. And Marlene, guess what the big problem is? Just guess what the problem is.

[00:05:10] Marlene Gebauer: What are our problems? I am I am going to let you I’m going to let you take this. I’m going to let you take it because I know what it is. But this is your inspiration.

[00:05:20] Greg Lambert: The big problem is communication. So I’m shocked, you know, but just checking in with your team is not enough. You have to be able to organize that communication in a way that works for the team. And that also means communications need to be delegated so the right people are engaging. If you’re on a call with your team and you’re the only one talking, that’s not communication. In addition to communication, we need to make sure that our teams have the right tools and support for those tools. Finally, we need to be able to act quickly to the needs of our teams, but also have a clear plan, long range on where we’re going as a unit. So working from home as a team is tough. But Costanza and Evan say that, quote, firm leaders need to be prepared, engaged, transparent, empathetic and supportive. Done well, leadership under such times can actually result in increased trust, respect and loyalty across the firm, unquote.

[00:06:21] Marlene Gebauer: Well, you know, you made me feel bad because now you’ve done a serious one and I have yet another light-hearted.

[00:06:27] Greg Lambert: Bring us back up. Bring us back up.

[00:06:29] Marlene Gebauer: Bring us back up. OK, so in theme for today, I have a celebrity app to discuss. Greg, you know, I love to eat. He’s like, I’m not touching that.

[00:06:44] Greg Lambert: I am not saying a word.

[00:06:47] Marlene Gebauer: Well, listeners, he knows I love to eat and to cook. So the Food Network has an app that has been dubbed the Peloton of Food. You not only get the recipes like you do when you do like an online search, you can interact with the chefs as they work through a recipe. So it’s like, hey Bobby, how long do you keep that steak on the grill to get that perfect medium? And I know, you know, what if I substitute dried onions for fresh in that meatloaf? And Ina does a great meatloaf, by the way. And they have, this is what I’m really excited about, they have live knife skills sessions.

[00:07:26] Greg Lambert: That sounds dangerous.

[00:07:28] Marlene Gebauer: Well, it’s supposed to make you safer in the kitchen. But this sort of star interaction costs money. It’s about forty dollars a year. And, you know, as far as I’m concerned, the knife skills class alone might be worth that, you know. But here’s the downside. Not so much chefs of color participation. And apparently Food Network is working on this. But I just find this surprising. I mean, as a watcher of Food Network that, you know, it didn’t address this coming right out of the gate. I mean, they have hosts and chefs of color on the networking program, so I’m not sure why they didn’t, you know, include them in the app right away. But I am glad that they are making adjustments. And that wraps up this week’s Information Inspirations.

[00:08:13] Greg Lambert: Well, Marlene, this year’s AALL theme for its conference is Unmasking Your Potential. Now, this was meant to be a tip of the hat to the city of New Orleans, but with the pandemic, the need to wear masks just to keep us safe, it’s become a symbol of hope for the future. As we climb out of this crisis, I hope we finally do get to unmask. So I asked Michelle Cosby to come on and talk with me about the upcoming annual conference and what the attendees should expect from the new and unique educational experience. Michelle Cosby, president of AALL and the director of Temple University School of Law Library. I’ve asked you to come on to the show to discuss the upcoming virtual annual conference for AALL. So Michelle, I know this year has been one challenge after another for you, and I’m glad to see that you seem to be holding up okay. I’m glad to see that you seem to be holding up OK.

[00:09:11] Eugene Cipparone: Thanks, Greg. Thank you for having me. I’m really excited to talk about this annual meeting. We had the theme of Unmasking Our Potential, which when I envisioned it, I had no idea what it would mean for 2020 post-coronavirus. Yeah. But we’ve moved this conference virtually and we were able to offer it at a very low cost. It is $99 for AALL members. It’s $149 for non-members.

[00:09:41] Greg Lambert: All right. So how’s the preparation gone so far for this?

[00:09:44] Eugene Cipparone: It’s been very interesting. AMPC has had to do a lot more work than they originally thought. Originally with AMPC, we would meet in October, select all of our programming and then just have coordinators from there. So basically, we had to redo the AMPC process. We had to reach out to our coordinators and speakers to see who would be interested in doing live recorded sessions and who would want to do pre- recorded sessions. So it’s been a lot of work, but we’ve got some really great programming.

[00:10:15] Greg Lambert: So tell me a little bit about the conference. What should an attendee expect?

[00:10:20] Eugene Cipparone: So the conference will happen during the week of July 13th through 17th. So an attendee on the first day, we will have our Partner Solutions Day.

[00:10:30] Greg Lambert: So this is our virtual exhibit hall where all registrants can explore products, talk with vendors. So they’re still able to get that experience and get any new products if they need them for their firms or libraries. All right. And Tuesday, I know you’ve got the keynote speaker, Jim Kwik. Can you tell me a little bit about what we should expect from him?

[00:10:51] Eugene Cipparone: Yes, I’ve been a fan of Jim Kwik for many years. He has a popular podcast called Quick Brain with Jim Kwik. He’s a learning expert and he’s also just recently released his new bestseller book, Limitless. So when Jim speaks to us, he will be giving us an overview of the Limitless technique. Then I’ll have a Q&A session with him to find out more about his learning tips. And then we’ll open it up for members to ask Jim questions.

[00:11:20] Greg Lambert: So the conference itself, there’s going to be three days of live sessions, and that’s going to be July 14th, 15th, and 16th. With the live sessions, what should the attendees expect?

[00:11:33] Eugene Cipparone: Right, so during that time, we’ll have over 20 live educational sessions on cutting-edge topics and trends for the legal information industry. The sessions will be running concurrently, so you will have a variety of sessions to choose from. And each session will be about an hour long, so we’re able to offer multiple sessions per day for registrants.

[00:11:55] Greg Lambert: So in addition to the live sessions, I know there’s some prerecorded sessions that’s going to be released the following week. Can you tell me a little bit more about that?

[00:12:03] Eugene Cipparone: Yeah, so the week after we will be releasing about 25 additional pre- recorded sessions that all registrants will have access to. We do know that people’s time is valuable, so they can continue to spread out their learning experience over multiple weeks and watch sessions as it fits best with their schedule.

[00:12:22] Greg Lambert: So I know we all have great intentions to sit down and watch the live sessions, but sometimes work gets in the way. So if I have to miss a live session, can I catch it after?

[00:12:34] Eugene Cipparone: Yeah, absolutely. All attendees will have the ability to go back and watch any of the live stream sessions at a later time. And they can also then also watch those prerecorded sessions as well.

[00:12:45] Greg Lambert: So I know the conference wraps up on Friday at 1 p.m. Eastern with the general business meeting and the members open forum, which is typical for even a live session. So what’s covered in these meetings and is it just limited to the attendees of the conference or can any of the members attend?

[00:13:06] Eugene Cipparone: Well, the one great thing about having this virtually is that we are really able to open up the members meeting to every member. So you do not have to be registered for the conference to attend the meeting, which will be, as you said, on July 17th at 1 p.m. Eastern Central. We will have a regular meeting, which will go over the finances. We will go over highlights for the year. We will have a passing of a gavel where I will give the gavel to Emily Florio, who is president-elect. And we will also learn about the 2021 conference in Cleveland.

[00:13:41] Greg Lambert: Well, I hope we all actually get to go live to Cleveland next year. Well, I know it’s been a challenging year for you, Michelle, as a member of AALL and as a former president. I appreciate what you’ve done this year. So thanks for coming on and talking about the conference.

[00:13:58] Eugene Cipparone: Thanks, Greg.

[00:14:05] Marlene Gebauer: Today we welcome Eugene Ciparone, the Director of Professional Support at Goodman’s LLP. In addition to his day job, Eugene is a stand-up comic and a former troupe member of the Second City Improv in Toronto.

[00:14:18] Greg Lambert: Eugene, welcome to the show.

[00:14:20] Speaker B: Thanks for having me.

[00:14:22] Marlene Gebauer: So, Eugene, when I first met you, we were part of a product advisory team. And I remember distinctly that you had long, curly hair and a full beard. Then I looked at your Goodman’s picture to prep for the show and I barely recognized you. I thought, who’s this fresh faced man? And what did he do with you, Eugene?

[00:14:41] Speaker B: That’s actually my more typical corporate look back when we had things called barbershops. The long, curly hair and the beard are something I tend to do more in the wintertime. But I’m finding that everything, everything 1970s is back. So I sort of have this Joni and Chachi hair, a little more Joni in the morning and a little more Chachi with a lot of product. Not doing the beard so much anymore because it’s coming in far too white for my liking.

[00:15:08] Greg Lambert: Well, not that there’s anything wrong with that.

[00:15:10] Speaker B: Not that there’s anything wrong with that.

[00:15:11] Marlene Gebauer: Not at all, Greg. And well, I mean, as someone who grew up in the north, I totally understand the longer hair in the wintertime. So I am right with you on that. So can you tell us a little bit about yourself and how you came into your current role?

[00:15:26] Speaker B: So going back to the beginning, I’m a 1992 University of Toronto law grad. And I articled and had my first career as an M&A lawyer at a large Canadian firm called Osler’s. I was at Osler’s for five years in their Toronto office, and then I was lucky enough to be transferred to their small New York office in the late 90s, which was a really fun time. I ended up moving back to Toronto just a few months before 9-11. And it didn’t take me long to realize that I really liked the small New York office over the really large Toronto office. And I decided to leave the practice of law entirely, which I did in 2002. Didn’t quite know what I was going to do then, but I ended up doing a lot of traveling and I started doing improv and sketch and stand up comedy at Second City. I did that for about three years. And then when it was time to dust off the law degree, I ended up in my current role first as the knowledge management director at Goodman’s. I started Halloween of 2005. And since then, I also manage the firm’s risk management and legal technology and innovation programs.

[00:16:41] Marlene Gebauer: Well, I think it was definitely a treat and not a trick.

[00:16:45] Speaker B: I always say it was a scary day. I said I started that.

[00:16:49] Greg Lambert: Well, I started a job once on April 1st and– That’s another thing.

[00:16:53] Marlene Gebauer: And they said, no, just kidding.

[00:16:55] Greg Lambert: Yeah. It worked out about as well as you thought it would. So what’s going on with the KM space right now and especially with everything that’s happening around the pandemic?

[00:17:08] Speaker B: Well, I found it was interesting when this first started because it was almost like KM 101. Because we started off immediately, lawyers wanted precedence. They wanted to know what was changing in the law. We were suddenly having to track all the executive orders that were coming down from the levels of government. Employment rules were being changed. How you sign things were being changed. The governments were coming forward with tax changes and support for businesses that were being shut down. And so the first thing I did was essentially create a COVID-19 legal database where we kept all of this information. And I had lawyers flipping me things that they came across, or we would answer questions that lawyers had. And then we would save that material so that we were basically building up these resources. And they covered everything from employment, landlord-tenant, business continuity. There was stuff on the litigation side in terms of what do we do now with the courts as they’re shut down or as they’re trying to reopen digitally. And we just kept building and building this database, working with the library and some of our practice heads.

[00:18:22] Marlene Gebauer: We found that a lot of people are coming and saying, you know, they have a real renewed interest in like the platform. And like, what are all the resources and how do I access this? And I forgot my password. I mean, are you seeing that as well?

[00:18:34] Speaker B: I mean, we had that initially as well. Because of the work I do on the legal tech side, we had some low-tech lawyers that were suddenly working from home. And they hadn’t ever marked up a document without a pen before. And so that was the other component that was really brutal in the first sort of six weeks, getting the KM database for COVID-19 up and running and robust. And then also getting the skill set of some of the more low-tech lawyers or their staff, legal assistants, etc., so that they could function in an environment where our culture is very people-centered. We’re one office. So a lot of it, we have very high interpersonal knowledge management. And so we’re used to just dropping by, you know, the person around the corner and being handed a document or chatting about how they dealt with something similar. And suddenly we’re all isolated, which is the exact opposite of our culture. So dealing with the legal technology side and getting everybody up to speed on the new normal was a big part of what I was doing in the early weeks of this. And I got to give my troops credit because they really did rise to the occasion, both on the mastering the COVID and changes to the law that were coming down the pipe, and then mastering the technologies that we needed to suddenly use and rely on.

[00:20:00] Greg Lambert: Yeah, I found that most of the people I’ve talked to, especially on the KM side, that, you know, this is a 12-year overnight success of spending the last 12 years preparing and begging attorneys to adopt some of these tools and then taking a worldwide pandemic to finally getting them to move. But, you know, the nice thing about that was hopefully you were ready, right?

[00:20:26] Speaker B: You know, I think there’s not a lot of tools that I was piloting or looking at that we don’t have that I wish we had right now, because there’s that aspect of it too, which is with everyone cautious about clients and revenue and so on, there’s a big pressure to kind of not spend if you can avoid it. But I do think that things like, you know, it wasn’t long ago that I was being questioned about cloud based platforms. And now it’s like that, that argument is so over. And they literally did it overnight, like all the things that we’ve kind of been wanting, whether it was, you know, virtual meetings, e-filings at the courts, allowing for, you know, DocuSign type signatures, instead of requiring wet signatures, like just little things like that. They literally just passed an order and made all this stuff fine. And then some of it they’ve made permanent, like they’ve actually brought down outside of executive orders, which are meant to be temporary with the emergency, they’ve actually brought forward legislation to make many of these changes permanent. So I think in the same way that the government’s not going to go back to the way that, you know, things were done in the courts or on a regulatory basis, our lawyers aren’t going back. You’re not going to unlearn how to mark up a document, you know, electronically. You’re not going to unlearn how to sign things without your pen, that kind of thing.

[00:21:59] Marlene Gebauer: Yeah, it’ll be a stylus now.

[00:22:01] Speaker B: Yeah, exactly.

[00:22:03] Marlene Gebauer: You know, it’s amazing to me when you’re talking about this, again, how because of necessity, all of these hurdles that were just seemed insurmountable, it’s like, no, we can’t possibly do that, suddenly are now so easy to do. Everyone’s like, of course, we should do this. And I wish I had the argument about cloud was over for me. It’s not quite over, but we’ve made great strides. So when you’re hearing all of these changes, you know, we’re not going to go back to the way we were doing things. How is the industry handling, you know, operational roles and attorney roles in the wake of this innovation wave and in the wake of the pandemic?

[00:22:45] Speaker B: So I think from the legal side, not much has really changed in terms of the practice areas or the clients or their needs. Because I think with the government programs, they’ve tried to just keep everything kind of the same, so that the government support for businesses, small and large, and for employees that might be laid off temporarily, everybody’s just sort of kept afloat while this passes. Now, it looks like it’s not going to pass so quickly. And we’ve just started in the reopening phase. But if you’re asking about, you know, are we seeing like a massive spike in bankruptcies versus M&A? Not yet. And there may be a time when different practice areas become more involved. I can think for sure on the bankruptcy side, I can think on the landlord-tenant side. We also have a very small employment law group. And I don’t think they ever expected that they’d ever be the center of the universe at our firm as quickly as they suddenly had to. They’ve been amazing. And we have a few that are in the corporate side, and they usually support our transactional practice doing due diligence and employment agreements and so on. And then we have a few that are on the litigation side, that do the wrongful dismissals and stuff like that. But they have been unbelievable, because it’s one of the areas that has been changing so fast. We’ve gone from the how do we, you know, how do our clients like lay off people? How do we access these government support mechanisms? And now we’re already to how do we get them back into the office in a safe way? And what are the employers obligations for maintaining a, you know, a safe work environment? So far, I find that the workload has been very steady in all of our practice areas, as it’s been. And I think we still have months to go before we see whether or not the legal work really does shift and we have to sort of push some resources into certain areas over others. On the support staff side, the, you know, finance, marketing, technology, knowledge management, our CPD and education training programs, everything’s very constant there. We’re all busy. We’re working from home supporting the lawyers as best we can. Legal assistance, there’s been a difference. As I mentioned earlier, with some lawyers suddenly using technology tools, they’re not using their legal assistance necessarily in the same way. So we’re getting the legal assistance up to speed on different ways that they can support their lawyers. I’m finding more of them. I’m opening up accounts in some of our technology platforms so that they can do the administrative work that maybe a junior lawyer might have done, uploading documents in a transaction management tool or something like that.

[00:25:36] Greg Lambert: How well are they adapting to that?

[00:25:38] Speaker B: Pretty well. I mean, you know, so much of this depends on your personal circumstances. Are you, you know, are you living alone and focusing on work? Are you looking after three kids? It really does depend. And that’s across the board. I’ve got lawyers that I get a flurry of emails from them at like 9.30, 10 o’clock. And I know they’ve logged in after putting the kids to bed. And there’s others that I’m getting emails like such a ridiculously early hour in the morning. And I know that, okay, that’s their part of the day when they can work. And then I won’t hear from them for a few hours as they’re, you know, doing whatever those chores are that they have to do. So I do think it depends on the living circumstances. And then there’s a generational side to it. There are some people that are still working the way that they essentially have, maybe with a few new tech tools, but still engaging their legal assistants. And then there’s junior lawyers that weren’t really engaging legal assistants in the office because they’re so tech savvy and doing most everything themselves. And that hasn’t changed. I like to think of this next period, and it’s probably not going to start till after Labor Day, but we’re starting to call it the next normal, as opposed to the new normal. Because we’re going to have a situation where some of us are in the office and some of us aren’t. And we’re a city more, you know, more like a New York, which has a very well used commuter train and transit system. And that’s a lot of people’s big fear about whether or not just wearing a mask is even going to be sufficient. So we’re going to have some people going in. I can walk to work. So I’ve got it really easy. Other people can drive and there’s underground parking in the downtown office towers, but that comes with a price. And we’ll just have to see how people adapt and what their choices are. I don’t imagine we’re going to do anything other than voluntary in the short to medium term. But what 2021 looks like, I’ve got no idea.

[00:27:45] Greg Lambert: How are you addressing things like culture at the firm? Because as we get into this hybrid work model, the culture kind of, I think, brews itself by having people around each other. And how do you think that’s going to go as we move on?

[00:28:04] Speaker B: We pride ourselves on having one of the more unique cultures in the Canadian legal marketplace. We are lucky to have one office. And we’re a tight bunch. And we’re a fun bunch. And like the example I like to give is when we first moved into our current office tower 10 years ago, the internal staircase was not completed. And so for the first six or seven months, we lost touch with each other because people weren’t taking the elevator one floor. And so what we do is every year, and I think it’s coming up, it’s in it’s an early mid July, it’s just before my birthday, we have a party, and we celebrate the birthday of our stairs. And we’re all up and down the stairs, the whole firm gathers, and there’s, you know, our, our different people give speeches, and and there’s, you know, ice cream or a glass of champagne or whatever. But it’s the kind of thing that we do to remind ourselves that we like each other, we like working with each other. And we’re an environment where people get along. The other example I give is the summer students, our summer student program is really all about the culture. You know, it’s not that they’re not doing any legal work, but it’s much more important historically was the bonding, the getting together with the practice groups, we have a strong mentoring program, a lot of shadowing. So they’re so they’re following litigators to court, or they’re, or they’re going to corporate negotiations or transaction closings, whatever. And this is the first year where all of our summer students and we didn’t change their start time or anything. But they’re all working from home, and some of them aren’t even in Toronto. They’re living with their families, you know, in other parts of Ontario or Canada. And so that has been a real challenge for our directors. Our co-directors of our Student and Associates Program, keeping them engaged. And I used to be one of the you know, the go-to people for the students, you know, whenever they needed some lawyer’s instructions reinterpreted, or if they had, you know, there are no stupid questions, but they’ll ask some questions. They want to come in and close the door and just have a little freak out that that’s what I’m here for. And I’m not engaged with them. I’m going to try to host because I used to take them to Second City, as my sort of comedy event that I do with the summer students every summer. This will be the first year I don’t get to do it. So instead, I’m going to be hosting a Zoom cocktail party. And I’m going to be partly interviewing them and finding funny things to talk about on their resumes. And also, I think I’m going to be a prop comic for the first time. I’m going to show them funny things I found when I’ve been like cleaning outdoors and cupboards and stuff. And, you know, trying to try to integrate with them and have a memorable COVID finds, COVID finds, exactly. But I just I feel like that’s part of my role. And I don’t want to like not be that guy. And I send them, you know, little messages and they certainly email me but it’s not the same as that social cultural get together which we’re so proud of in our firm of maintaining.

[00:31:24] Marlene Gebauer: Have you heard anything in terms of how do we figure out like what people are doing and how are they keeping busy all day long when they’re when they’re not, you know, sitting at sitting at their desks?

[00:31:37] Speaker B: On a podcast, for example. Yeah.

[00:31:41] Greg Lambert: Wait, wait, they’re not just sitting at their desk all day? That’s what I thought my people were doing.

[00:31:47] Speaker B: I mean, I think our section heads, they have regularly scheduled group meetings, and it usually, it rarely doesn’t include the entire section, so that would be legal assistance and support staff. So I think there’s a lot of open talk about who’s busy. I think that we’ve tried to stress to people not to just sit back and wait for things, but to try to be proactive, that includes junior lawyers, as well as legal assistance and support staff. And if there’s anything, if they do feel that they have time, if they want to repurpose themselves, if they want to learn a new system and back someone up, we’re kind of hitting a point where almost nobody’s taken any holidays. And so we’re now trying to organize the fact that we need to use up our holiday time before the end of the year. We can’t all take it in December. So we’re trying to start to figure out who’s gonna back up who and what skills do they need to learn in order to be an effective backup. So those are the kinds of things that we’re doing to kind of just keep an eye on people. It’s easier for extroverts than it is for introverts. And I think we have to keep an eye on and think about who our introverts are, who we may need to, those of us that are the extroverts have to kind of reach out and just keep tabs on. Our management sends out a weekly e-mail, just setting out what’s going on in the province or in the city, reminding them about certain activities that the firm still has going on. We also remind them about certain work from home issues, ’cause I’ll put on my risk management hat now, things like we still need to shred and secure client documents and beware of phishing scams and all the usual stuff. put on my risk management hat now, you know, things like we still need to shred and secure client documents and beware of phishing scams, and all the usual stuff, we just like to send out those reminders and it just keeps people engaged. And I think that’s important. But the leadership in our firm is really striving to keep that connection going. The chair of our firm, he sends out every Friday a video of some kind. There was a Mother’s Day one, there was a Father’s Day one, there was, we act for Maple Leaf Sports and Entertainment, and he’s on the board. And so the Raptors winning the NBA last year was a really big deal. And so he sent out an anniversary video of those celebrations as they were happening, both in the city and in our firm. And so it’s that kind of thing that we’re always, we have a very creative marketing department that helps with these kinds of ideas and events. I mean, they came up with the birthday party for the stairs, so. And we’re still celebrating it. Like, it’ll be virtual, but we’re still going to be doing something.

[00:34:42] Greg Lambert: Well, you know, one of the good things is the Raptors now will be reigning champs for two years.

[00:34:46] Speaker B: That’s how we’re looking at it. That’s how we’re looking at it.

[00:34:53] Marlene Gebauer: I wanted to just touch on something that you mentioned, like that people are sort of learning new skills and that it seems to be a really good time to do that, to sort of bone up on your education in different areas.

[00:35:09] Speaker B: Yeah, and I think our HR department, they have some very deep programs for legal assistance and support staff in the best of times when we were all in the office. And they’ve made a lot of tweaks to them so that the programs are focused on the new work from home environment and helping people through that. The lawyers in Ontario have a minimum continuing professional development obligations, and we basically have the same thing for our support staff. So they have to do their 12 hours, and it’s broken down into, you know, technical skills, wellness. There’s a bunch of different categories and they’ve just made tweaks on that. Instead of holding those in our training room or in a boardroom at the office, we’re just doing them virtually, but they’re focused on more of the things that are specific to the work from home environment.

[00:36:05] Marlene Gebauer: Well, Eugene, you’ve mentioned that, you did stand up for a while and we also learned that through some of our research connections. So, we have to ask about that because that is so interesting to those of us who don’t do this. So how is your role in law similar and different than stand-up? And what joy does stand-up give you?

[00:36:34] Speaker B: Well, there’s two sides to the comedy. So there’s the improv side, which I think just helps you deal with any situation. It just helps you in any different group of people sort of work the room. You can kind of put on, you know, this face or that face, depending on the circumstances. From the stand-up perspective, I do like to bring the jokes to the table when I’m doing training, and when I’m doing any kind of firm events, when I’m emceeing anything. I also love to train via anecdotes, and the anecdotes are usually very funny ones. And so if I can, you know, say, this is the way we used to do things, and isn’t that ridiculous? And then they’re all nodding their heads. It’s much easier to get them to do something in a new way.

[00:37:21] Marlene Gebauer: And just think 20 years from now, we’ll be saying the same thing about you.

[00:37:25] Speaker B: We’ll be saying the same thing. That’s exactly right. And so I do like to bring the humor and the good-naturedness to it. Change is hard. And I think it’s easier for some people, but it’s really hard for a lot of people. And so from a change management perspective, the secret of my success is make it fun, make it funny. Don’t embarrass somebody or shame them for the way they used to do things, but make light of it. and just say, this is how much better it’s going to be when we all start doing it this way. That’s where the comedy background has been helpful to me. It’s also helped, people tell me that they remember. They’ll remember the anecdote or they’ll remember the joke. People remember stories.

[00:38:11] Marlene Gebauer: They remember that stuff.

[00:38:13] Speaker B: I like to talk about, we’re a big user of Closing Folders, which is a Toronto-based transaction management platform, which is now into the US and the UK. And one of the ways I talk about it is I say, a long, long time ago, like two years ago, this is how we did, you know, closings. And I talk about like all the paper on the boardroom table, and then the associate would have to go with the little staple remover. And then we’d be slip sheeting pages till two in the morning. My very first time blacklining was me with a ruler and a pen while the other articling student was reading the document. I mean, that’s how old I am. This is going back to like ’93, ’94, you know, the early days of blacklining. And the young lawyers just look at me like I’m crazy and they can’t believe that anybody would do things that way. But they remember. They remember the training and they remember that they should be grateful that they have the tools that they have today and don’t have to do things the way we used to do them. that they have the tools that they have today and don’t have to do things the way we used to do They’re terrific within closing folders because I think every time they do something and it’s effortless and automated and they think about what I must have been doing back in the day when it was all about paper and walking your client around and making sure they signed everything properly and then having it all be slip sheeted because changes were made at the 11th hour and they remember those anecdotes.

[00:39:44] Greg Lambert: Yeah, they have no idea what it means to get a bite from a binder.

[00:39:55] Marlene Gebauer: It’s funny, I’ve never had like formal improv type of training, but I do remember like one thing from something that was informal was that you don’t like shut down the conversation. Like someone says something and the idea is you’re supposed to be like and not like shutting down the story. Yes. And those are the magic words in improv. Yes. And.

[00:40:15] Speaker B: Yes. And the other thing is you don’t reply with questions. Those are the two cardinal rules. Yes. And and you don’t respond to somebody with a question. You you you make another statement and then you just keep moving the story and the situation along.

[00:40:34] Marlene Gebauer: I feel this should be a team building exercise really. I really do.

[00:40:38] Speaker B: Second City in Toronto has a corporate side and they do corporate events and they’re fantastic. I don’t know. I don’t know if you have a Second City in in in Houston. I think the closest one might be Las Vegas, but they do do corporate events or there’s other I’m sure there’s other improv organizations and they’re really fun because you get lawyers, you know, especially lawyers doing these things and they have to let their guard down and they have to, you know, not be themselves for a few moments. And it can be pretty funny.

[00:41:12] Greg Lambert: Well, Eugene, this has been fun talking with you. So thanks for taking the time to talk with us.

[00:41:18] Marlene Gebauer: It’s super fun.

[00:41:18] Speaker B: It’s been a pleasure to meet you. Yeah. I hope to keep in touch.

[00:41:23] Marlene Gebauer: We will be in touch.

[00:41:27] Greg Lambert: Well, Marlene, that was a lot of fun. Thanks for getting Eugene on the show. You know, I have to say that I wouldn’t have ever imagined that we’d land a former member of Second City Comedy Troupe on the podcast.

[00:41:39] Marlene Gebauer: But I’m glad you and Eugene found each other through your KM connections. Yeah, I got to say serendipity sometimes works really well. And this was one of them. I really enjoyed listening to Eugene’s insights and Goodman’s.

[00:41:56] Greg Lambert: Yes. And I also thought that the storytelling thing that you guys kind of hit on during the conversation was right. You don’t have to be a comedian, but I think you do have to be able to share some stories, create kind of a storytelling around especially around your training. So good, good insights.

[00:42:16] Marlene Gebauer: Yeah. And I think, you know, you just you just have to relax about it. I mean, you tell stories all the time in your life and it doesn’t have to be something formal. Just sort of think about how you talk naturally with your friends and family and you’re telling them something and, you know, start with that.

[00:42:35] Greg Lambert: Yes. And I see what you did there.

[00:42:40] Marlene Gebauer: Yes. And before we go, we want to remind listeners to take the time to subscribe on Apple podcasts, Spotify or wherever you listen to podcasts. Rate and review us as well. If you have comments about today’s show or suggestions for a future show, you can reach us on Twitter at @GabeBauerM or @Glambert, or you can call the Geek & Review hotline at 713-487-7270. And as always, the music you hear is from Jerry David DeSicca. Thank you, Jerry. Thanks, Jerry.

[00:43:14] Greg Lambert: All right, Marlene, I’ll talk to you later.

[00:43:16] Marlene Gebauer: OK, bye bye.

After 68 episodes and 75 guests, I am concluding the In Seclusion Podcast miniseries today with special guest, David Lat from Lateral Link. Back in March, David announced he had contracted COVID-19, and spent some two and a half weeks in the hospital, much of that time in the ICU. For many of us in the legal industry who knew David from his days running Above the Law, his experience with the virus made the issue very real for us and we followed Twitter and the news closely as he finally came out of the hospital, and is now working to get back to full strength.

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I asked David to come on and be the final guest because I wanted to ask him if we, both as a legal industry, and as a society, have really learned anything from this experience of a global pandemic and disruption to our normal work and life routines. He gave me three things that he thinks we have learned.

  1. We’ve learned to work successfully on a remote basis. This is no small deal for the legal industry who stressed the need to be in the office.
  2. Lawyers and legal professionals have learned how to use more technology tools in a more effective and efficient way.
  3. It turns out that lawyers can learn new tech when they are forced to. We all have gained a great perspective of what’s truly important to us in our work and in our personal lives.

While we may eventually go back to some of our old habits, I think the stories that have been shared on this podcast show that we are not the same industry or the same people we were at the beginning of 2020. We had a tipping point in the way we view what it means to work, and how we treat ourselves, our colleagues, and those who don’t look like us. I think we all hope that when the virus is no longer a direct threat to the lives of millions, we will be better people. Here’s to hope.

 

Since Justice Antonin Scalia was not available to be on the podcast, we reached out to Northwestern Law School’s John Paul Steven’s Professor of Law, Andrew Koppelman, and Jackson Walker Labor & Employment attorney, Sara Harris, to fill in. Justice Scalia believed in the concept of textualism when it came to the Court interpreting the law, without allowing one’s personal political bias to play a role. According to Merriam Webster, textualism is “a legal philosophy that laws and legal documents (such as the U.S. Constitution) should be interpreted by considering only the words used in the law or document as they are commonly understood.” The problem, according to Koppelman is that textualism has to be balanced with context. If a Justice were to apply or misapply the context of the issue, then textualism could be made to fit the outcome the Justice wants, regardless of what the text of the law says. In the Bostock v. Clayton Co., Georgia decision, the five conservative judges split 3-2 on how textualism applied to the 1964 Civil Rights Act, Title VII issue of “because of sex” discrimination, and gave the LGBTQ+ community a win in the process. We dive deep into the text, and the context of the decision.
Andrew Koppelman is also the author of the recently published book, Gay Rights vs. Religious Liberty? The Unnecessary Conflict (2020).

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Information Inspirations
After a bit of a hiatus, we bring back a few items that inspired us this week, and we hope to inspire you as well.
Greg may be retiring his In Seclusion Podcast at the end of this week (awwww), but there are plenty of legal podcasts to fill the void. Here is a couple.

Continue Reading The Geek In Review Ep. 79 – Text, Context, and SCOTUS’ Textualism in Bostock – Andrew Koppelman and Sara Harris

This upcoming week will be the final week for the In Seclusion Podcast. It’s been a great run, and I hope that you listen to the final episodes. Last week I had a fantastic and diverse group of guests who shared their stories of life during a pandemic from the perspectives of race, changing jobs, losing their jobs, data security, and looking and writing about the future. We’ve all handled this period of seclusion differently, but we have all learned from each other at the same time. Check out last week’s episodes, and join me as I wrap up this week with more outstanding guests.


Monday, June 15 – What Do We Do After Summer Ends? – Danny Norris

Danny Norris, Attorney at Law and Trustee at the Harris County Texas Department of Education, discusses his experiences over the past few months of changing jobs, being busy with a full-time Intellectual Property law practice, and elected official. While businesses in Texas are reopening, it is the school system that has continued to find ways of helping students by continuing programs, including providing meals. Danny thinks that as we get closer to August, we will need to determine how we protect the most vulnerable in our society. Whether that is the students as we assess the risk in which we are willing to place them or those who may be subject to eviction as courts lift stay orders over the next couple of months.


Tuesday, June 16 – We Need Better Shared Situational Awareness Between Law Firms and Clients Going Forward – David Kamien

David Kamien, CEO, and co-founder of Mind Alliance discusses how when COVID-19 began shutting down the economy, law firms opened up a firehose of thought leadership for their clients. While the clients’ inboxes were overflowing with information, and firms were establishing COVID-19 resource pages, the ability for the client to easily search and filter that information was very limited. David thinks that firms are honestly trying to help their clients through the distribution of relevant information, but the way the information is distributed, accessed and indexed is creating barriers for the client that needs to be corrected. The information has to be more consumable by the client and that means organizing it, placing metadata into the information, and giving the user better filtering ability. There needs to be a shared situation awareness between law firms and clients, and not just during a crisis.


Wednesday, June 17 – the Expanding role of IT Security in the New Hybrid Work Environment – Joel Lytle

As many of us were rushing to work from home at the beginning of the pandemic, law firm security teams were scrambling to ensure that the networks and hardware were protected from possible attacks. Joel Lytle, Director of Information Security at Jackson Walker in Dallas, joins me to talk about the process he went through during the initial phase of remote work, how he handled the challenges of so many remote workers, and what the goals are for how we adjust to a hybrid of office and remote work going forward. Maintaining security protocols and updating software and hardware are part of the job, but a potential new part of the job may be making sure that the remote workplace doesn’t become an easy target for security breaches.


Thursday, June 18 – Virtual tactics By Design vs. Virtual Tactics By Necessity – Craig Levinson

Craig Levinson is President & Chief Client Developer at Levity Partners and the author of the recent articles “Top 20 Virtual Client Development Tactics Lawyers Can Begin Implementing Immediately,” and “What All Attorneys Can Learn From Female Rainmakers: Panel Recap.” The practice of establishing virtual tactics around client and business development should not be a brand new idea to rainmakers in the legal industry just because we’re in a pandemic. Craig discusses the great rainmakers who have already established virtual tactics around the business by design, and those who are finding themselves establishing virtual tactics by necessity.

 


Friday, June 19 – Are These Changes Permanent, Or Just to Get Us Through the Moment? – Colin Levy 

Colin Levy, Legal Technology, and Legal Innovation Thought Leader says that there are a lot of people in the legal industry who are truly trying to innovate, but that innovation does not equal technology, and technology does not equal innovation. There’s a holistic approach that needs to be taken, especially in the middle of a crisis like we have now, and the processes as well as the technology need to be evaluated in order to truly create an innovative environment that is built to last.

On March 23, 2020, I launched what I thought would be a three or four-week project. A daily podcast, called In Seclusion, asking legal professionals how they were dealing with the changes resulting from working from home during a pandemic. My fifteen to twenty-episodes ballooned into 60+ episodes. Lawyers, law librarians, law students, law professors, courthouse personnel, marketing, and many more legal professionals shared their stories with us. We’ve heard how they’ve adapted, what were the good and bad things about working from home, and what permanent changes were going to happen in the legal industry. It’s been a lot of fun, and very informative for me discussing these issues with so many people. There are a lot more stories to be gathered, but, to paraphrase Jerry Seinfeld, “you should always leave ’em wanting more.”

June 28th will be the last episode. And if I counted correctly, that means there will be 68 episodes total. (I took Good Friday and Memorial Day off.)

With the slow reopening of offices, plus the added issues of unemployment, and of course the biggest issue we always seem to face, racism, I wanted to get back to the longer form format of The Geek in Review. Plus, I have a day job.

So enjoy the last ten episodes that are coming out between now and June 28th. If you have a suggestion on who would be a good guest or what would be a good topic. Let me know.

In the meantime, here are last week’s episodes from a diverse group of people, sharing diverse ideas on how we need to treat ourselves and others as we go forward.


Monday, June 8th – We Have to Learn and Do at the Same Time – Celeste Smith

Celeste Smith, the Director of Education for the American Association of Law Libraries (AALL), works on finding educational opportunities for those of us who consider ourselves life-long learners. While we are in an industry of very intelligent people, the current situation has taught us that we can not be tied to what we think we know based on our own history and experiences. She notes that just as we did when our physical workspaces closed, we do not have the luxury of taking our time to craft long-term strategies before we need to take action. We have to learn and do all at the same time.


Tuesday, June 9th – And We Haven’t Missed a Beat – Cornell Winston

For Cornell H. Winston, Law Librarian at United States Attorney’s Office in Southern California, there have been a number of small and large changes affecting his law library and records departments. While he is generally an optimist, he knows that change will happen. People who were never allowed to work from home will not accept that limitation any longer. Workers who once made hours-long commutes to and from work haven’t missed a beat while working from home. They will not be coming back to work the way they did pre-COVID. And while Cornell may have not experienced a global pandemic before, he is familiar with economic and racial unrest. But as he says, when you see it, you learn how to ride it.


Wednesday, June 10th – We Need to Acknowledge What’s Going On And Be Present – Alycia Sutor

Alycia Sutor, Managing Director at GrowthPlay, coaches lawyers, law firms, and other legal organizations on the need to get out of their comfort zones, and quickly embrace the changes as a new way of being. Those are just not skills that many in the legal industry are used to using. But those who find ways of quickly deploying these skills will be the ones who recover the fastest. For your colleagues who are struggling right now, especially with the issues of racial discrimination, she notes that it is important for you to acknowledge what is going on, be present, and be silent and listen.


Thursday, June 11th – Will We Be The Same People When We Go Back? – Mike Whelan

Mike Whelan, author of “Lawyer Forward: Finding Your Place in the Future of Law” is a lawyer, author, legal innovator, and recently an Above the Law podcast host. As we begin to make our way back to our respective office or identify our more permanent workplaces, will we go back to the old habits and schedules, or will we take what we’ve learned over the past few months and apply it to create a new model of working going forward?


Friday, June 12th – Give People the Space to Step Back – Casandra Laskowski

Casandra Laskowski Technology & Research Services Librarian at Duke Law School has the responsibility of assisting law school students, staff, and faculty through some of the teaching and technology challenges of a remote classroom. In addition, she also chairs the Diversity and Inclusion Committee of the American Association of Law Libraries. With the murder of George Floyd and the civil unrest to protest Police brutality and systemic racism, Cas says that people need the space to step back, access their personal situation, and to have time to think, speak, and hopefully heal.

I had a chance to talk with a number of people for the In Seclusion Podcast recently who have been holding down the fort, in one way or another, to make sure the wheels of Justice and the economy keep turning. Some of us had to look out for those still caught in the justice system. Some remained in the office to make sure others didn’t need to. Some of us found new ways to provide training and professional development processes. Some of us leveraged the crisis to try new experiments. And some of us made sure that the stories of those struggling are heard.

Monday June 1 – Now’s the Perfect Time To Experiment – Maya Markovich

Maya Markovich, Chief Growth Officer at Nextlaw Labs, thinks that the current environment within the legal industry is the perfect time to rethink the old ways of doing things. The time is ripe to try new processes as well as experiment in ways that we might not normally try because we have somewhat of a safety net to try and fail with less judgment. For those with an entrepreneurial mindset, this might be the opportunity you’ve been waiting for to put your ideas into action.


Tuesday, June 2 – Those Who Kept Our Offices Running – Clare Hart, CEO Williams Lea

Not all of us left the office back in March. Many of our office services staff remained to make sure that the workplaces most of us left behind, were still operational and ready for when we make our way back to a physical office. Clare Hart, CEO of Williams Lea, provided many of the people who were designated the essential employees who kept the lights on in our offices these past few months. I asked her to talk with me about how she worked with her clients to make that happen, all while keeping everyone safe.


Wednesday, June 3 – Will COVID-19 Be the Great Equalizer for the Legal Industry? – Vivia Chen

Vivia Chen is Senior Columnist at ALM, and Chief Blogger for The Careerist. She talks with me about how the pandemic may finally be the impetus to break large law firms from their vanity. With the cultural and societal changes that will most likely come out of the pandemic, there will be no need for lavish law offices or high-end client events to impress those who no longer want to come to your offices or attend your events. There may be a balancing of the scales between competing law firms based more on the substance of the firms’ quality of service than in the quality of their coffee bar. We cover this as well as how women’s needs are handled as we begin reopening offices, and what the real metric of success will be for law firms in 2020.

Continue Reading Holding Down the Fort

We wanted to produce a special episode of The Geek in Review to discuss the tragedy surrounding the murder of George Floyd and the protests which are going on over the past ten days. While we focus our discussion on the legal industry, the issues are certainly not limited to lawyers and legal professionals. We’ve dedicated the entirety of the episode to this topic.

Just two months ago we had Bryan Parker on the podcast discussing the need to have a better return on investment when it came to legal talent. In the year 2020, two months feels like two years. With the changes resulting from the pandemic, the economy, and now the murder of George Floyd, we asked Bryan to come back and talk with us, and bring along his Legal Innovators business partner and one-time mentor, Jonathan Greenblatt.

In the recent article, What the Death of George Floyd Should Teach the Legal Industry, Bryan Parker (with help from Jon Greenblatt) lays out some internal and external steps that the legal industry can take to contribute to the conversation around race while maintaining a respect for everyone willing to have an honest conversation. There is an enormous amount of privilege and power within the legal community, and those traits should be used to drive real change.

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One of the first things that Parker and Greenblatt stress that we all must do is to check in on one another. As Bryan says in his article, “[f]or starters, your black colleagues and associates are not alright.” This type of interaction and communication shouldn’t be limited to the current new cycle. And, as the stress of the current environment sinks with everyone, there is a need to monitor the mental health of all of our colleagues.

We hope that this conversation leads to more conversations.

You can reach us anytime by tweeting us at @gebauerm or @glambert. Or, you can call The Geek in Review hotline at 713-487-7270 and leave us a message. You can email us at geekinreviewpodcast@gmail.com.

As always, the great music you hear on the podcast is from Jerry David DeCicca.

Transcript

[00:00:00] Marlene Gebauer: Welcome to a special episode of The Geek in Review. I’m Marlene Gebauer.

[00:00:10] Greg Lambert: And I’m Greg Lambert.

[00:00:11] Marlene Gebauer: We want to acknowledge the sadness we feel for the death of George Floyd and the treatment of protesters and the destruction of property in the wake of his death. There’s hurt and anger and sadness in our country, and also hope to improve what has been a lasting blight on this country. This has framed today’s episode.

[00:00:31] Greg Lambert: Brian Parker of Legal Innovators had recently been on the podcast, and he wrote an article along with his business partner, Jonathan Greenblatt, about the murder of George Floyd and what lessons the legal industry could learn from this tragic and brutal event. So Marlene had reached out to Brian and John to see if we could get them on the show, and we did.

[00:00:46] Marlene Gebauer: Words create worlds, and this episode reflects that. Conversation, legislation, representation. You will hear references to all of these as we sift through the ways to support Black colleagues during this turbulent time and beyond.

[00:01:03] Greg Lambert: So thank you all for taking the time to listen. Two short months ago, Marlene and I talked with Brian Parker about the need to better understand, recruit, and retain the talent within the legal industry. You know, since that time, the pandemic has continued. There’s been 40 million Americans or so that have lost their jobs. And of course, recently, the tragic murder of George Floyd and other significant issues that bring out the ugly truth about race in America back to the forefront.

[00:01:34] Marlene Gebauer: Brian, along with his Legal Innovators co-founder, Jonathan Greenblatt, penned an amazing but sobering article this week on the American Lawyers website entitled, What the Death of George Floyd Should Teach the Legal Industry. Brian and John join us here today to continue that conversation. Brian Parker, John Greenblatt, thank you for writing this article and for speaking with us today. It took a lot of courage to write that piece, and I hope the article has been getting a strong, positive response.

[00:01:57] Jonathan Greenblatt: to write that piece, and I hope the article has been getting a strong positive response.

[00:02:03] Bryan Parker: Yeah, well, we appreciate that. And you, obviously, Marlene, we thank you for forwarding it around and sharing it with some of your colleagues. I think you’ve certainly started that sharing pattern. And I think what John and I talked about, it’s amongst many other really good articles and thought pieces that are out there, has just sparked some good conversation, which is what John and I talk all the time. We think that’s the beginning of what could be the healing here.

[00:02:29] Marlene Gebauer: Before we get into the substance of the article and what lessons we should take away from the current situation, Brian and John, can you tell us a little bit about your relationship and how the two of you managed to lead a company from two different racial lenses?

[00:02:43] Bryan Parker: That’s all right. John, I’ll actually let you go for it. You want to take that one first.

[00:02:47] Jonathan Greenblatt: Sure. Well, the relationship started– so I had founded the Diversity Committee at Sherman and Sterling. My family is a mixed-race family. My wife is African-American. Our kids are biracial. And I’ve had a longstanding interest in diversity and co-founded. in about 1990, thereabouts, maybe it was the late ’80s, early ’90s, the diversity committee at Sherman and Sterling. A lot of the things I think we’ll probably talk about today come out of some observations that were made at that time that are as true today as they were then. But one of them is that all young lawyers need to be mentored. And they certainly benefit from it to the extent a senior person takes an interest in them and helps them learn and not make the mistakes that they made. And that’s probably even more true if you, for whatever reason, feel isolated in the firm or particularly different. And Brian was assigned to the litigation group. As a summer associate I was in the litigation group as a partner then and I started to mentor Brian and was impressed with him even then. Even more impressed when he came back to the firm he decided he wanted to be an M&A lawyer which meant he understood where the money was and so he left the litigation group and joined a group that where he developed some additional mentors. associate. I was in the litigation group as a partner then, and I started to mentor Brian and was impressed with him even then. Even more impressed when he came back to the firm, he decided he wanted to be an M&A lawyer, which meant he understood where the money was. And so he left the litigation group and joined a group where he developed some additional mentors. And we stayed in touch because Brian’s good about staying in touch throughout the time that he, after he left Sherman and went off to go into the first investment banking side, then the business side. Then he contacted me when he was running for the mayor of Oakland. And we caught up when I was in San Francisco on a case. We hadn’t seen one another for a while in person. It was great. I remember coming back and remarking to my wife how it reminded me how close Brian and I had been and how much we liked one another and how smart Brian was. And it also occurred to me that he was very good at raising money because he was able to pry the pen out of my hand to write a check for his campaign, knowing he had zero chance of winning.

[00:05:07] Bryan Parker: We got two donations out of him, though. Linda, too.

[00:05:12] Jonathan Greenblatt: But hoping he did as a good government candidate from the outside taking on the incumbent. And I had had the idea for Legal Innovators in my mind for quite a while. And, you know, I didn’t want to say it then. But when Brian didn’t get elected, I connected up with him and said, you know, you bring a skill set that I don’t have. You’ve run businesses. I have a vision. I have certain credibility in the legal industry. I understand the training, the mentoring and the professional side. But I have no ability to start a business and make a business be successful. And Brian had developed those skills. So I asked him whether he’d be interested in teaming up. And Brian can share with you why he made the ridiculous decision to do that. But but but he did. And, you know, this whole relationship has always been based on honest and open communication between us, because there’s a lot of respect and an understanding of what we each bring to the table and who’s better at what. And we defer to the other person on what that person is better at so that the team succeeds. So anyway, Brian, I’ll let you give the same, go through those facts from your perspective.

[00:06:24] Bryan Parker: No, I mean, look, I think that’s, you hit the stuff on the head and, I know, again, I’ll wait for the questions to unearth some of this. But I think when I sat down and was doing the article and we got to some of the solutions, and this was just a natural outgrowth of everything that John and I have said. I mean, not that there’s off time, right? We’re always talking about business, but sometimes we’ll put sports in there and politics and this and that. And when you get right down to it, this subject of race is a really uncomfortable one on all sides, both for white and for black people. And I think when we got to the other night kind of finalizing things, was, look, you gotta start with a conversation that’s real, that’s based on the type of respect that John talked about, and give permission to people on both sides to just speak their truth, whatever it is. And I think a lot of times, blacks in this country don’t feel hurt. I mean, that this is obvious from the protest, but whites on the other side may say everything from, I don’t know the language to use, to if I bring up a point that I’m thinking about, I get shut down, etc, etc. And so I think we’ve got to have room for what is a really ugly subject and being able to speak to it clearly. got to have room for what is a really ugly subject. And being able to speak, speak to it clearly, because I think unless we embrace it, it’s going to be hard to get beyond people say racism, there was a professor today that wrote up in the Times, I don’t know if you guys saw it. And she said, let’s call it what it is. There’s an anti-black problem in America. That’s a harsh reality. And that’s a harsh statement to, especially for many of us that feel we’re enlightened, progressive, whatever that means, to hold on to. But unless we can try to seek the truth to it, take our egos out of the conversations, and be able to speak truth to power, I’m not exactly sure how we progress. And that’s in any area of life, John, and I obviously are started with a legal profession, because that’s, that’s what we do for a living.

[00:08:26] Jonathan Greenblatt: Yeah, and we’re not going to solve the problems if there’s not honest discussion. And I’m concerned that people are afraid to have them. And we’ve got to create places where people can have a discussion and not be worried about whether what they say will be perceived wrongly or correctly, but that it’s then you don’t get past that point in the discussion, because then people retreat. And, you know, it’s so easy for people to say, this is a really hard subject. And since it doesn’t affect me, if I’m white, day in and day out, you know, why venture out there if I’m going to get hurt in some way by trying. So that’s not to, by the way, in any way blame the victim. I’m simply saying that we’ve got to find a way to be able to have discussions and break down the assumptions, the wrong assumptions that a lot of people, white people make about the facts and they end up saying things that they may not understand, come across a completely different way. But if you have a dialogue, and it’s my kids often in my wife who help me understand this, they educate me to why it is that something I might have been inclined to say comes across a particular way and why it’s insensitive. helped me understand this, they educate me to why it is that something I might have been inclined to say comes across a particular way and why it’s insensitive. And if you’re open to that kind of discussion, then you’ll change your behavior because many of us don’t want to hurt anyone else, but we all need to learn from one another. So Brian and I talk all the time about these subjects in that kind of way.

[00:10:05] Greg Lambert: Yeah, I imagine there’s a combination of anger and defensiveness that really kind of restricts some of the open conversation. So let’s dive in on this and see how it goes. So Brian, I want to get to the article, and I’m going to tell you that the line that you wrote that said, for starters, your black colleagues and associates are not all right. That really punched me in the gut on that one. And because obviously it’s true, but sometimes you got to state something that’s so obvious and say it out loud before you realize that and allow it to sink in. Can you talk about the mental strain that is affecting the black legal community right now?

[00:10:58] Bryan Parker: Yeah, and I’m not so sure, it’s just, so my comments, and you guys are the three legal geeks, right? So we’re talking about legal stuff. But one of my friends said it, sort of said it best, right? Like whether we’re a lawyer, doctor, politician, I’m a lawyer like John, like you guys. When we leave, actually, I was listening to an interview on Malcolm Jenkins. Malcolm Jenkins was speaking from the New Orleans Saints in response to some of the Drew Brees comments, right? And Malcolm is an all-pro safety and makes whatever gazillion bucks, and he deserves it, right? And he works hard and all that. What was saying back to Drew Brees on Drew’s comments, and I don’t want to get involved in trying to further bring Drew down, he’s apologizing. saying back to Drew Brees on Drew’s comments, and, you know, I don’t want to get involved in, you Hopefully, he can be a part of the solution. But Malcolm’s comments, which I think are applicable here was, yes, some of the field on this all pro safety, when I go out into the streets, I’m still a black man. And so I think that’s where we start. And I should say, you know, I use the term man, and I’ll use that, you know, it should be interchangeable with man, woman, right? Women, excuse me, because there are certainly black women. And we see where George Floyd kicked off what I hope will be a lasting moment of change, but he was just the most recent in a litany of black men and black women, right? And so at some point, you come to this boiling point. All that to say, I think it’s a mix of emotions, right? I happen to have a very sensitive and compassionate co-founder, and even his wife and his daughter, who is a PhD in psychology, who, you know, like, hey, you know, check in on you and give you that space, which may not be natural for everybody. But it’s you get up in the morning, and you know, just like you guys are doing your own jobs, right? Like we’re trying to run a startup in a pandemic. So we’ve got a lot of stuff to do, right? Like clients and loans, or whatever we got to do to make sure we stay afloat. But you have the weightiness of this moment on you. And I think in any day, it’s a it’s, I can only say it’s a range of emotions. Sadness, anger, despair, you know, hopelessness, right? All of these things rolled up into one and you you go through seas and crest of the these emotions during, you know, during during the day. And unless you have been in a, or already in an organization, that you feel valued, and you have the space to mentally not be okay. I’ve had lots of friends that I already talked about, John’s role and checking in. Friends, I already talked about John’s role and checking in Monday. I mean, we’ve, again, I don’t want to put our burden above anybody’s, right? But startup pandemic, it’s hard. And Monday, a lot of stuff to do. But I just had to say, look, mentally, I’m used to trying to operate at a very high level of efficiency and had to say, look, on Monday, it’s just okay, right? Like I’m revenue, 50%, 60%, whatever it was, but what can we do? And I guess that’s where my mind turns in terms of a cathartic experience. Part of it was talking to John and some of my other friends that really helped. But the more I sat around and thought about it, I said, look, let me put pen to paper and see if I can get some thoughts out. Originally, it’s just a couple of groups of my friends who we exchanged in some of these chat rooms and text messages and stuff. And then I said, well, maybe we got something larger that could be shared more globally. Globally, at least here in the U.S. and in our legal community. That’s how I got from, you know, how I was feeling and how I was feeling as a proxy for your question of how are folks feeling at these law firms and in the legal community right now. And that range is pronounced, right? And maybe we’re going to get to it, maybe we won’t. The one person I will pause on more than one person. But I think for right now, the example that I would want to put out is the Collins Ford, and I’m sorry, forgetting his last name. But he’s the associate from Pryor Cashman who was charged with his participation in driving a van and incendiary devices and stuff. I don’t think anybody condones that. Do we understand how it can come out of the anger and the frustration? That’s not the right way to do it. And I feel really bad that, you know, he’s put his career in jeopardy that obviously he worked so hard for. I just want to bring that up to understand a point. To bring that up to understand a point and John helped me lay this out. So it was, you know, It wasn’t muddled in the writing, and it was clear. We want to denounce actions like this. But we need to step back and not get lost in the actions on our way to understanding the anger that drove them. And I think, well, Colin Collins took it further than, you know, I guess 99.9% of the people that I know, that real anger and despair. And let me close, let me close this way. It’s something that John’s wife reminded me of the other day, we’re having a conversation. In ’68, you might remember Fannie Lou Hamer, talking about riots and the things that were going on at that time. And she said, you know, because they were asking about the violence and some of that sort of thing. And she says, look, you keep taking away from people who have nothing, treating them like they’re nothing. And then you’re surprised that this violence and this anger can come out. Like, once it’s unleashed, you can’t put cozy definitions on it, because it’s revolutionary. It’s unorganized, but it’s an expression of people who haven’t been heard for too long.

[00:17:01] Greg Lambert: Jonathan, you have anything to add to that?

[00:17:04] Jonathan Greenblatt: Well, I would say that to me, the other half of what Brian was talking about, which was, your colleagues are not all right, is the obligation, I think, to check and see, how are they doing? Because one of the most important things we can do is make sure that people who are feeling like that don’t feel isolated and alone, that they feel supported. And it doesn’t stop there with just statements of support. But Brian, you tell me, I think it’s a place to start. And then what, this is something I’m writing about, is you have to then take it into action. And you have to say, okay, what are the actions I can take now that will last beyond this current crisis when the news cycle moves on to something else? What can I do so that there isn’t, this doesn’t keep happening? But to me, we have an obligation to our colleagues, whether they’re your employees, your peers, your superiors, it doesn’t matter. We have an obligation to our colleagues to find out how are they doing and let them know they’re not alone and they are supported. That there are people who completely are aligned with their interests on this. You can speak, Brian, to the other side of that in terms of hearing that, but to me, it’s required conduct.

[00:18:31] Greg Lambert: I just wanted to jump in real quick here because one of the issues is in normal, with the quotes around at times, we could pull people together in a room. We could walk down the hall and sit in the chair across the desk from someone or take them to coffee and have that personal one-to-one conversation. Right now, we’ve got the added layer of, I’m not seeing my people. Other than, now I got to read the room by reading the emails or the text messages or the instant messages that I’m getting. So, Brian, how are you guys working with your staff that you don’t necessarily get to see and understand what they’re feeling versus what they’re saying?

[00:19:22] Bryan Parker: Yeah. So, I’m going to pick up on where John left off and then go to your question. I mean, the answer is what we’re doing now. Like, Zoom has been a good gift, right? And that’s short of being able to hug people or do some of the nonverbal communications. But it is better than just being on the phone or the text messages, which I think a lot of us defer to. I mean, Marlene and I, and I appreciate her, right? She’s as relentless about her work, I guess, as I am about mine. We’re texting around or not even texting. We’re on Twitter at midnight coordinating this. I definitely thank her for that.

[00:19:58] Greg Lambert: Good job, Marlene.

[00:19:59] Bryan Parker: Yeah. And so, I was listening to a speech this morning from when Baldwin went over to Europe, and there was this whole debate on what was going on with the American Negro. He has this line that talks about to be black in America is to be in a constant state of rage. And I think, you know, maybe before this most recent incident, people have kind of left that to the wayside. And what does that mean? I mean, that is the environmental pressures that happen in poor communities. That is not having fresh fruits in those. That is regardless of you’re somebody that maybe has a little bit of money and privilege to the person that’s kind of scuffling on the street. And that’s what I meant by that line in the story. You are prone for cops to pull you over for, and people say, euphemistically driving while black, right? I mean, it’s you have a nice car, you’ve been profiled. That’s happened to me and so many friends. It produces that rage that Baldwin was talking about. Michael Wilbon, who’s one of my favorite podcasts, obviously behind the three peaks, but on PTI, in ratings as well.

[00:21:12] Jonathan Greenblatt: In ratings as well, I think.

[00:21:14] Bryan Parker: Thanks, John. You see, that’s why we’re so good as partners. So he was talking, and Michael’s got to be, I don’t know what, John, is he early ’60s maybe? I think so, yeah. Yeah, so early ’60s, right? So, I mean, you know, and he’s got dresses impeccably every time I see him. I don’t know what he drives, but I’m sure it’s, you know, at least decently nice. And he was making the point that when he heard sirens in a car pulling up behind him, his heart started beating a little bit faster. And I got to tell you that for many black Americans, when that happens, your whole physiology, it changes. You become anxious. I’m never riding around with anything illegal or any of that. Maybe break the speed limit occasionally. But, and I’ll give credit to John on his lawyer, I’d like to– That’s right.

[00:22:07] Jonathan Greenblatt: His lawyer, I’d like to– That’s right. Spiff on the speeding point.

[00:22:12] Bryan Parker: Strike all those that I didn’t admit. But I think it’s we’ve had to communicate a lot through nonverbal, which has meant more checking in. And I have to say that, unprovoked, right, like, you know, a lot of times, and John is the chairman. And so, you know, I am the day to day. I may say, hey, John, you know, somebody’s birthday or somebody did this and call him on his own. Checked on all of our African American associates to make sure they were okay and give them a chance to just have input and just let them talk. And I have to say, Greg, in response to where you have a group of people, and look, it’s better for some people than it is for others. I don’t want to say like, oh, the whole sky is falling. We’ve got some issues that we need to address. I got an email from one of our investors who’s actually sending over some more money. He’s a lawyer, read through the article, and wasn’t like, oh, this is so well written, great things that lawyers say. I’m sorry for not doing more. Our relationship has been over a phone and email so far. I’m going to pass this along to his partner. I am going to, you know, waiting to meet you and tell me what I can do more. And I just sat back, and in a moment, I said, we’re fluctuating, and we’re thinking about the business and your head is in this, where all of America, the world is with George Floyd right now. That was so touching, just to say, look, I acknowledge that there’s an issue here, telling you that I care about you, whatever words you’re using. And then giving you space to say, reach out for whatever kind of additional support you would need. And the outpouring of that has been, and I think if you ask many, many, many black people in America right now, the outpouring has been substantial. It’s been surprising. It’s been heartwarming. The question is, when the specter of George Floyd’s memorial stops, how do we maintain that? And I’m not expecting somebody to call me up, or certainly John’s not going to call me every Friday and say, Hey, are you okay? How you feel? But how do we address these changes that need to be made systemically and make sure that we are checking? And by the way, at some point, this will settle in and we should be checking on the mental health of all of our employees and friends. But for right now, I think we need to make sure that this change is lasting.

[00:24:46] Marlene Gebauer: So I have to say that, that I took both of your advice in terms of reaching out to people and, you know, reaching out to colleagues, reaching out to friends, just to say, you know, are you okay? Is there anything I can do to support you now? And, and, I mean, even to somebody who I just met very recently in a social situation, and, you know, and that was that was scary because I didn’t know how it would be perceived. And, you know, I have to say it’s been really good and really positive and really engaging in terms of the conversations we had and what, you know, I’ve been able to learn and, you know, hopefully can apply. You know, you mentioned sort of this systemic problem. And I, you know, I listened to another podcast, and it was actually a poet who said this, that basically, you know, we have a cultural and systematic, you know, that racism is ingrained in the system and in our culture. And it’s very important about the next steps that we’re going to take to address that because, you know, we have a very short attention span on, you know, unfortunately, in terms of media. So, in your article, you know, you lay out some practical takeaways on steps we can take to address the situation. You know, so what are some of those actions that we should be thinking about to do?

[00:26:24] Bryan Parker: Yeah, and, and, you know, maybe I’ll, but just so I’m not talking the whole time, maybe I’ll split them up with, with, with, with John. I think we tried to, you know, separate them into internal. So what can you do with your, with your business, or law firm employees? And this is applicable, as I’ve heard from a lot of people more than just in law, right? So if you’re listening, and you’re not a lawyer, great, then, you know, do these things anyway. And then there’s, there’s some external ones. And, you know, just to, to, to front run John’s a little bit. I think, on the external side, there’s lots of personal responsibility and other things that people can do. And John’s going to have things, some things because he’s a lawyer, and so skilled as a litigator. But, but let me– those are the external, I’ll start on the, the, the internal. And we’ve talked about, we’ve talked about one, and that is being aware. What I would compliment big law, corporate America on right now, is the progress, especially as I’ve seen, since I was an associate 20 years ago, is the focus on mental health. Many have chief wellness officers, or maybe they have a wellness manager that’s part of the chief diversity or chief talent officer. Regardless of how you organize it, I think people are a lot more aware of this. And I think the, the checking in, the making sure you’re okay, not passing judgment and not doing something that you’re not trained to do, but then offering up resources to the extent that you do find some, you know, that you do find a challenge. Another is, we’re big data people, right? And I think you talk about racism or something like that, I think it can easily get into, well, this is, this is just feelings and a very qualitative discussion. And for some people that are very numbers oriented, they’re like, okay, that’s fluffy. that’s fluffy. Yes, you know, I’ll buy some tickets, we’ll throw a gala. Let’s look at the data and see what that’s telling us. Why do we have fewer blacks entering the pipeline? Why do we have more as a percentage dropping out? Why don’t we have more going to partner? Let’s match up the numbers that are on the good cases in the litigation sense or good deals in the M&A sense with me. Are they getting that exposure? Are they getting taught how to do business development? So grounding ourselves in the data as we look for these solutions, and then getting to the root cause, I think is something that we can do a better job of. And then I call it leading from both ways. And what does that mean? Well, we lead from the top. And John is a former member of the policy committee over at Sherman, you can say, hey, we got this august group that sits around this table, and they come up with things. There’s lawyers that are smart business people. That’s why they’re at that table. But what I’ve learned in business, and I think it’s a truism here, is that there’s got to be both tops down and bottoms up leadership. It seems antithetical to me that you’re going to try to address a problem, as you see it, and great for taking that first step in addressing the problem, right? But then you’re not going to hear the voices, say you’re trying to do something about diversity, or I’m really looking at the issue of my black associates or partners more closely. You’ve got to take into account what they’re saying, what they think can work, and then coming back with some good measurements. Last thing, I’d love to turn it over to John’s more of the external things. Trainings, if we go to the example of the woman from Franklin Templeton in Central Park that threatened to call, I’m not sure if she was on the phone, I’m not sure if she got through, she was certainly threatening. threatening, and we laughed, she was like, 57-year-old black guy, I can’t think of many more harmless black guys than people that are in the bird, I forget what it’s called, it’s got some name that I only learned by that story, watching birds, but weaponizing this group, and you go back in her history, and she’ll say, oh, I’m a Democrat, I’m liberal, I vote for all these things, but how does she go in an instant to thinking it’s okay to weaponize the police against a black man, and so this role of implicit bias, even for people that have the conscious mindset and say, hey, I’m new age, for lack of a better word, I’m progressive, I’m for the rights of all people, I think it’s just important, and by the way, black people have some of those same implicit biases, so everybody’s got to go through the training, I think if you read Gladwell’s book, Talking to Strangers, he talks about this concept, and I think that’s an important one.

[00:31:10] Jonathan Greenblatt: Well on the last point, and then I’ll go, I think that’s where dialogue and interaction helps, because you can break down, we have to all acknowledge those biases, and we have to correct for them, you have to be sensitive to them and correct for them, and that means you have to be educated, both by training and by talking to people about where your understanding is wrong, and because you won’t necessarily get that because of your biases, and everything you said in the legal profession is harder, but for two reasons, one, it’s a very hierarchical structure, environment in big law, and there is a bit of young people are seen to be, are there to be heard, seen, not heard, like young people at a dinner table, that’s all changing, but it’s sort of you earn your stripes, you get through the gate, That is not a long-term environment that fosters change very quickly. And we need to have change more quickly than we have it. So I think that law firms have to be better at listening to even their most young and junior people in the firm. Putting aside that that’s the future, those people are also in touch with a reality that a lot of people have lost touch with, if they ever had it, as they get more and more senior in a law firm environment. And the second thing is lawyers abhor being touchy-feely, right? They think touchy-feely is for I don’t know what professions, but not the legal profession. I remember before I went to law school, this one person who was a lawyer said to me, you know, when you go to law school, it’s the Marines for your brain. They’re going to sharpen your brain into a pencil, and you’re going to be like a laser pinpoint type of thinker, not some wild-eyed broad thinker like you used to be. And there’s a certain truth to that. I think if you can combine both, you’re a much better lawyer. But in fact, the legal process does train you to zero in on what’s relevant. And you know, early in my marriage, I don’t know that I was beyond objecting on the basis of relevance to things that my family members said, which is pretty obnoxious. And it’s not, doesn’t make for a long-term relationship unless you lose that quick. But because of that, lawyers, they’re not good with touchy-feely. They don’t really know how to do that very well. They think it’s kind of counter to the culture. And I don’t suggest we go all in on touchy-feely, as Brian knows, because I hate it too. But there is a need to find out how your colleagues are doing, and to listen to what they say, and try to help correct for whatever, you know, you need to be responsive. And that’s something law firms are getting better at, but they’ve had to come a ways to get there. come a ways to get there. Well, so I’ve broken down my own personal, like, action list into things I can do as a lawyer, and things I can do as a citizen. As a lawyer, I think what Brian and I need to do is fight harder to open pathways into the legal profession for more young black lawyers, and, you know, we are trying to do that with legal innovators, but I think we’re going to have to dig deeper, and be broader thinking, and go even earlier in the cycle of a student, and maybe try to get to people in high school and junior high, and start talking about the law in a way that at least in some environments they may not be exposed to, so we can start to, because part of the problem here is that the pool of people coming in isn’t that large, and we need to expand the size of the pool, putting aside all the other things that happens once the pool actually gets into a law firm. I think I need to take on another pro bono project on a social justice type issue. I do some, and I think I need to do another one, and that’s kind of a to- do list item for me, and I want to educate myself more on what kinds of legal, legislative, educational information there is on the police brutality against black Americans, and that’s not, I’m not in any way trying to tar all police officers, because that’s not what I believe, but I also believe that it’s happened way too often, and there, it seems to be extremely difficult to accomplish change, and I want to try to understand what I can do to get more knowledgeable about how we might contribute to making change in this area, in that specific area. Now, as a citizen, you know, we talk about reaching out to everybody you can think of to show support, but listen in those conversations as to what the people are saying that would be supportive. Don’t just make the call. Listen. You know, I want to volunteer in some activity that brings me in touch with the types of environments that most of us try to avoid in life, you know, the most difficult, disadvantaged areas, because it’s easy to write a check, and that’s important, but it’s harder to come to grips with the actual difficult issue that you aren’t living in your own life, and I think it’s incumbent on us if we’re going to try to have more empathy and understanding to actually see and understand better what people are going through, and then, given my particular family circumstance, I want to try to find a way to have our family open up a dialogue, because we can talk to one another in a way that all of us feel safe and try to expand that into a broader network, so I’ve been thinking a lot about the things I can do so that when this does leave the life, the news cycle, we’ve got some enduring actions that hopefully make a difference if enough of us do them.

[00:37:52] Marlene Gebauer: Actually, a really interesting idea in terms of understanding sort of safe discussion and how to do that, because again, I think that there’s a lot of people, and we’ve talked about it, that are very nervous about doing that, and you seem to be in a unique position to be able to think about that and educate others in that regard.

[00:38:15] Jonathan Greenblatt: We have those discussions around the dinner table, on long drives, heart-to-hearts with one another, and, you know, and my kids are not afraid to call me short on issues that they think I’m not sensitive enough to, and they don’t think I’m listening, but I’m listening to them and trying to internalize that so I can be better and understand it from a different perspective that I didn’t live. So, but I want to understand and be able to address, particularly because, you know, as a person who ultimately acquired a relative degree of privilege, those are the people that can make a difference if they actually try to do it and stay with it.

[00:38:58] Bryan Parker: that can make a difference if they actually try to do it and stay with it.

[00:39:05] Greg Lambert: Well, speaking of privilege, in your article, Brian, you’d mentioned that the underlying theme that you suggested in the external actions that John had covered, that we have an amazing amount of privilege in the legal community to actually drive some change. So what is it that you think we should be doing with that power and privilege?

[00:39:26] Bryan Parker: Well, you know, look, I think it starts with actions. So I won’t repeat a lot of what John said, but it’s for a lot of people that have that privilege, right? Like they know a me, right? Or they know somebody who’s actually smarter than me at their firms or whatever. And so they say, whoa, like, and I think it’s expanding that understanding out to say it’s like that’s not the only Black person that’s good or smart or doing something. So I think there’s an education and once that is there, the privilege can be used in all kinds of ways, right? So John talked about money. Two of the initiatives that both of us really like are the Equal Justice Initiative, which is led by Bryan Stevenson, who was a professor at NYU when I was there, and the NAACP Legal Defense Fund, who’s led by Sherrilyn Ifill, who is also, like me, a NYU and super accomplished NYU graduate. So helping those people have the funds so that they can do this important work, I think is something that’s certainly out there. Now, the other one is a little bit controversial, but we try to strip away some of the controversy around it and say, let’s forget about Republican and Democrats, right? Like, so we know that we have people in both parties under these same firms and people that enjoy privilege. people that enjoy privilege. That means that on both sides of the aisle, by the way, which is how our system should work, we can get headway on laws and rules and regulations that matter. So, if we’re saying, as John said, that these police incidents are happening too much, and even if you looked in the case of the officer that did the execution of George Floyd, it’s 17 complaints against them. Why is an individual like that still on the force? And so, these police commission review boards, Congressman Jeffries from New York, who was also at law school with me, putting out federal regulation on ending the use of the chokehold. We’ve known that for 20 years. Why the heck are we still doing that? So, can you influence regulation if it’s a case of an officer-involved shooting? We know what the stats are when it’s left to the local DA versus a special prosecutor versus going to a grand jury. Can we have the law mirror the justice that was at the root of its intent? Influencing the law so that it’s applied equally, those are policy things. And I think then we can move beyond the labels of Republican, Democrat, or people that are libertarian or independent and just say, look, we just want to flatten this out and have justice applied across the board. And that obviously would extend to the system of mass incarceration, which on the GOP side, even the current administration, it’s in there. This is a problem. We need to recognize that. So, how do you bring your voice and your privilege to bear?

[00:42:51] Greg Lambert: Yeah, before I go on, I just want to say, that’s a hell of an NYU class you were in.

[00:42:57] Bryan Parker: Well, so Sherrilyn was before. Again, we follow in big footsteps, but look, that’s the purpose, right? You want to be inspired. I certainly haven’t made one-tenth the contribution that she’s made, but the point of holding up the Equal Justice Society, or initiative, excuse me, or the work that she does on legal defense fund, who are going after voting rights and fractions, who are going after voting rights infractions, who are going after criminal justice reform. We’ve got to be behind those champions that are doing that as the basis of their daily work, because all of us, which is worthy work, are working for profit. We’ve got to be behind those champions that are doing that as the basis of their daily work, because all of us, which is where they work, are working for profit. And then we do, like John said, we’ll do pro bono, we’ll write checks, And then we do, like John said, we’ll do pro bono. We’ll write checks. we’ll get involved after. We’ll get involved after. But these are warriors that are in the trenches, and we’ve got to support them where we can’t always be there beside them. them where we can always be there beside them. Yeah.

[00:43:49] Greg Lambert: So while Marlene was DMing with you on Twitter, trying to get this thing set up, when she told me we had you and John on, I actually reached out to a group of lawyers that are on my diversity and inclusion committee. And I actually had an associate who’s just now finishing up her first year reach back out to me and she said, look, I’ve got some questions I’d love to hear some answers to. So I’m going to throw these out here. So I’m going to throw these out here.

[00:44:21] Bryan Parker: What kind of podcast do you run in here where you’re doing some research outside of it? What kind of podcast do you run in here where you’re doing some research outside of it? That’s like lawyer training to me.

[00:44:29] Greg Lambert: Well, I don’t know if shooting a mass e-mail to everybody’s research, but you know, hey.

[00:44:32] Bryan Parker: You took a step. You took a step.

[00:44:37] Marlene Gebauer: You are talking to research librarians.

[00:44:40] Bryan Parker: Yeah, that is true. I was trying to bring that out. We appreciate it.

[00:44:45] Greg Lambert: So the first thing she asked was, she wanted to hear more about how law firms can enable and support attorneys to actually get involved in social justice initiatives.

[00:44:52] Bryan Parker: I think I’ve got an answer on that. I think I got an answer on that. I’d love to– just given that John’s experience co-founding the diversity committee at Sherman, maybe he can speak from an institutional perspective, and then I’ve got a thought that I would add on there.

[00:45:07] Jonathan Greenblatt: perspective. And then I’ve got, you know, maybe a thought that I would add on there.

[00:45:12] Greg Lambert: All right, John.

[00:45:13] Jonathan Greenblatt: Well, I was going to say, I mean, some of it has to do with the culture of the firm, right? At Sherman, we’re very good about allowing associates to actually be the initiators of some of the landmark cases that we were willing to take on on a pro bono basis. That’s not to say the burden should fall on them, but I’m saying that, I mean, because we have a pro bono coordinator who’s out there looking for interesting and important cases, and not just cases, but work as well. But for example, we represented Shannon Faulkner, who integrated from a gender basis, the Citadel Military Institute, Military College in South Carolina. And it was probably in the early 90s would be my guess. If I remember correctly, and that was groundbreaking. I mean, she was a real trailblazer, and there was tremendous resistance. That case started, I was actually on the pro bono committee at the time. And I remember this associate coming to me, she knew I was, you know, sympathetic to trying to find landmark type cases for the pro bono, for our pro bono work. And she described the case to me. And I said, well, I’m definitely voting for that and supporting it because this case is going to end up in the Supreme Court. And it did. And I only worked on it peripherally. I was on the case, but they were, she drove it. Another partner was much more active on it than I was. But I stayed involved. I interviewed Shannon when we first talked to her about being a client, went down to South Carolina to talk to her. And it was a big burden for an 18 year old to take on. Culture of the firm permits the associates to generate initiatives, that’s one way. The other thing is there are likely to be organizations that the law firms already have relationships with. And either through partners, or through other cases or matters that you’ve worked on, board memberships on nonprofits, etc, that put you in touch with them. But there’s a list of these organizations that are committed to social justice. And, you know, they rarely turn down pro bono assistance. It’s structured, they may not want one individual lawyer, they may want a team. But you know, the Lawyers Committee for Civil Rights Under Law, which I used to be on the executive committee of the Legal Defense Fund, which does a lot of their litigation alone, but will team up from time to time with law firms, and dozens of others that, you know, the DC Lawyers Committee, or the New York Lawyers Committee, or there’s a lot of different committees out there, depending on your interests that are social justice oriented, that you can get involved in. You just have to figure out in your firm culture, what’s permitted.

[00:48:18] Marlene Gebauer: I just I wanted to expand on the question and basically say it’s like, we’re talking about attorneys, what about other legal professionals? What can they do? Or how can they support the firm’s initiatives?

[00:48:30] Bryan Parker: Yeah, I would take, you know, a couple of stabs. I mean, obviously, you know, folks can we go back to the resources, right? It costs a lot of money to run some of these things. And back to John’s point, you know, that’s top down leadership that associates may be able to influence. But things are changing in the law, as John was saying a minute ago about it used to be earn your stripes, then you get to talk. I think associates are coming in with more verve than ever before. coming in with more verve than ever before. And so think about cases that will put the firm in a positive light. Think about getting together with people and making the specific advocacy case to the firm to either expand in those areas or expand with the client in that. I think it can be easy to say, we’ve got this pro bono process. this is the stuff that comes out of it, I’ll just take one, but to influence it both ways in my mind. In terms of other professions, because we overlap with some of the work that we do, there is tax preparation, there’s work at the bankruptcy court. To be frank, if we’re going to move outside of this area of the law, of what can you do to impact the challenge? We’ve got law as one, we’ve got education and economic opportunity as another two pillars, right? And so if you’re talking about getting acquainted with the process on the ground, educating around voting rights, it’s going and being a tutor for four years. helped coach an inner city that was the worst school in our area, well, academically performing in our area, and the most under-resourced one, coached football. Why was that? Yes, I loved football, used to play. Not the point. You get people to focus more on their schoolwork because they had to sign a contract as well as their parents had to sign a contract saying you’re only going to play if you have a certain grade point average, if you show up for these team meetings and that sort of thing. So economic opportunities, if you were. God, it was, I’m forgetting who the A.D. was, but at Cal, which is my undergrad, we were noticing from the data that… Cal, which is, which is my undergrad, we were noticing from the, from the data the football players who were generating a disproportionate amount of income for the university, those that didn’t go off and become pro, weren’t getting the type of jobs that, by and large, the average student that was getting out of the University of California was getting. Well, why was that? Some of the reasoning came down to, You’re busy. You’re going to one of the top universities in the world, and you’re a Division I athlete. Do you have the time for networking, the internships? There’s all kinds of prohibitions about what you’re not able to do while you’re in school. So we instituted an internship and mentor program. Or the mentors came to the football team. And last year before I moved out here with John, we had 50 companies that were there to offer these internships for the summer. So the players didn’t have to go out and do the interviewing. Well, you learn how to network, you learn how to be in a professional environment, by the way. You’re getting this cross-cultural knowledge of each other. And so now they’re coming out. If you don’t go pro, which is the vast majority of athletes of any school, you’ve got a career to kind of get into. So I think there’s all kinds of things that people can do that are not related to law to make a difference.

[00:52:17] Jonathan Greenblatt: Well, and the other thing is, I think in-kind contributions are really valuable, right? So let’s say you’re an IT person. Most of these non-NGO, nonprofit organizations are struggling for dollars. You can provide IT support to them in a way where they don’t have to have an expensive IT function. That helps them because they can put the dollars they would spend on that to something else. If you’re a human resource person and you want to devote some of your time to their human resource issues, you know, all those things are actually important contributions that you can make to nonprofit organizations that helps them function, focus on what their underlying mission is. So there’s a lot of different things. Plus, you know, we talk a lot about litigation. And when I was on the pro bono committee, I was always trying to figure out, well, how do we get the corporate lawyers as involved as the litigators are? Because a lot of them wanted to do more pro bono work, but they were struggling to find projects. Well, two things that occurred to me. One is there are projects out there where people need taxes. I mean, you don’t get too many nonprofits looking to do an M&A deal, but they have tax issues often, or they have real estate issues. They have leases to be negotiated, and sometimes they need to raise money. And I mean, they always need to raise money, but sometimes they may need to raise money in a way where a lawyer can be helpful. And you know, with that, sometimes they need to get a line of credit and they need a lawyer who can do who has bank finance experience. credit, and they need a lawyer who has bank finance experience. And then, finally, I was pushing at one point, because the lawyers committee model is that, you know, it’s got a staff that finds matters and oversees the matters, but the cases are staffed by their membership, which is a lot of big law firms, and it was called to arms by President Kennedy in 1963 when he said to the head, he and Bobby Kennedy said to the heads of many, many law firms in New York and DC and Philadelphia, look, the lawyers down south that are fighting the civil rights battles need some help, and I expect you or want you to lend your forces. And so, most of the big firms signed up, became members of the lawyers committee, and they staffed the matters with their attorneys. Well, at some point, litigation isn’t the answer to all social problems. You know, we need to push the envelope with litigation, but there’s a lot of money and opportunity that needs to be moved that doesn’t depend on litigation. That’s where corporate lawyers, investment bankers, and commercial bankers could actually bring their skill set to bear. So I was trying to get the Justice Department actually interested in the Clinton administration, interested in creating an equivalent lawyers committee only for investment bankers, commercial bankers, and corporate lawyers. It’s a matter of sort of thinking outside the box if you’re in an area where the cases just don’t come in over the transom, but there’s plenty of need, that’s for sure.

[00:55:45] Greg Lambert: Yeah. Well, I think you answered the second question she had, which was, this doesn’t necessarily have to be a litigation, criminal defense, or a civil rights issue in order for it to need action. So I’ll skip to the final one, which I think, again, will resonate with the current situation. She said that oftentimes there’s a heavy weight on minority attorneys to give back to their respective communities. So how can minority attorneys balance trying to learn and grow in the first years of their practice with giving back in a meaningful way, but at the same time, not feeling the burnout of overworking ourselves both mentally and emotionally?

[00:56:31] Bryan Parker: You know, it’s a real issue, right? And when you think about being, you know, one, it’s an incredible opportunity. And I feel, you know, super grateful to have worked at Sherman. It’s just given skill sets, it’s opened doors, all of those kinds of things, right? And I think when you find yourself in that pantheon, maybe there’s a better word for that, that, you know, you’ve got students that want to talk to you, how did you get there? As you get more senior, you know, you’re expected to mentor downward in that sort of thing. And so I guess I go, for me, I go back to, well, there’s probably two things, there’s an internal and an external answer to this. The internal one, and somebody asked Oprah this, right? to be Oprah, but you know, we can we can think along these lines. She says, different version of your question, but can we have it all? Maybe personal life, work, family, love, all this kind of stuff. And she says, yes. But you just can’t have it at once. And so I think for young associates, and I’m assuming that’s from someone that’s sort of rising in the ranks, it’s keeping your priorities together, right? And so the first part of your career, and John and I talked about this a lot, personality and business development, all those things and doing the extra help when you’re on the rise or when you’re considering for partnership because it’s competency plus, this plus. When you’re a junior associate and you’re fighting to make sure that you’re seen in a positive light, that you’re getting on the right matters that are going to elevate your skills and elevate you within the firm, you’ve got to get your head down. So just giving yourself the permission to say, look, maybe I’m going to take on one thing outside the firm, I’m going to do that well, knowing that the disproportionate amount of my energy is going to the firm, and I still have to go and exercise to keep myself physically and mentally fit and those sort of things, so that may be it. And then the companion piece is that this is the flip side of what I was trying to talk or what we were trying to talk about of the top down and the bottoms up, and looking at your associates and saying, are you mentally okay? Associates and saying, Are you mentally okay, I think, John, John makes a great point. And a lot of this is going to be the psychology of whatever individual firm that it is. But a recognition that there may be more challenges and more things pulling at a minority associate than they are of general people. And not to let them off the hook, you paid a handsome salary, you’re there to work and all those sort of things. But if you want that person to mentor, if you want that person to do things in the community, if you want that person to help you recruit and keep your pipeline going, there’s going to have to be some acknowledgement of that and some accommodation. So that you don’t burn out, right? Because after all, this is no different from, you know, the draft of any sports team. We’ve identified somebody that we think one day could contribute to the firm, to our clients, meaningfully to revenue, and maybe one day it’s as partner. So it actually works against your best interest, if you’re not accounting for all these things and burning a person out. So I’d say that to, you know, to the person answering that question. I think it’s a little bit about what you’re bringing to the table, but hopefully you’ve chosen the right environment. And then the leadership of the firm helping you as well.

[01:00:03] Jonathan Greenblatt: Well, I mean, can I just pick up on that? When I was very involved in recruiting and hiring minority attorneys, one of the things we did was we created a scholarship. with the legal defense fund. That’s actually where I developed the relationship with Sherrilyn Eiffel, who we mentioned earlier, which I still cherish, and we’re still friendly. She was on the committee that, along with me, would pick the scholars. And one of the things I noted from that and other recruiting I was doing outside of the scholarship program was this extra burden that black associates felt on two levels, really. One was coming to a firm selling out in some way and two, were they giving back enough soon enough? And I felt it was a horribly unfair extra burden for them to have to carry as very young lawyers compared to their peers who weren’t feeling either of those things, by and large. Not none of them, but many of them were not feeling either of those two things. And I think it’s incumbent on a firm to recognize that that’s the reality. And mentorship can help people understand how they can get that balance right. And for me, when I felt like, gee, should I go to a law firm and sell out? Don’t forget I went to law school in the 70s, right? The late 70s. So there was corporate America wasn’t too popular in those days. It wasn’t selling. You know, the way I rationalized it, I hope it wasn’t just a rationalization, was, well, someday you get to a point where you can give back a lot more. You have to take the long view, right? And, you know, I’d like to think that I’ve tried to get that balance throughout the course of my career and not forget it. But I understand that, particularly, you know, black attorneys feel this pull and this burden. And I think it’s got to be recognized, addressed, allowed. And we have to get to a place where people can get the balance that Brian was talking about right. get the balance that Brian was talking about right. And that really requires people to be looking out for you in the firm, as you navigate through this extra layer of complexity that some people just don’t have. They may have other complexity. And they may, you know, I don’t mean to say other people don’t have their own issues. But this is one that over the years I’ve noticed is being taken on by minority attorneys to a higher degree than non-minority attorneys.

[01:02:43] Marlene Gebauer: So I want to shift the conversation a little bit to diversity and inclusion programs. So, we’ve seen a visible increase in diversity inclusion programs and policies within law firms over the past decade, probably longer. With the current issues of the pandemic, the economic crisis, and racial tensions, are there new opportunities to combat racism and to support diversity inclusion in law firms?

[01:03:11] Bryan Parker: Well, I mean, I guess I’ll maybe take a short crack at this. Maybe, right? We are, and Marlene, I’ve shared this with you, Greg, I haven’t had a chance to share with you yet, Legal Innovators and John and I and our whole team bringing together a webinar on diversity inclusion at the end of the month on the 30th. And the angle that we want to take is to say, how do you view cost- cutting focus on profits that is just happening in this environment with diversity inclusion? So, Marlene, what I said, it depends, is I think our first thing is we want to make sure that we’re not losing the gains that we’ve made. There’s been some wonderful work that’s done. There have been investments that have been made. More folks, I think we’re seeing, you know, starting to come in. But we look, again, we go back to data, and the folks at Parker Analytics are going to be on the phone. and they helped shape this very well. If you look at ’08 or ’09, the real estate crash and what happened, you had a number, you were starting to make some real good progress on the diversity and inclusion. And then people said, like, you know, the work is drying up. I mean, it was a bad situation. I don’t want to underplay it. Like, I was panicked, along with everybody else. But what happened is that you got a lot of junior talent in right at the period before the crash. And people said almost indiscriminately, look, we’ll just lay out this percentage of years one through four. And that happened to disproportionately hit hard the diverse folks, black and otherwise, and women. It took three or four years after the crisis had gone by to try to make some of those gains back. What we’ve seen from general counsel saying, look, more and more, if you don’t have a team that represents diversity, you’re not getting hired. So the point that we want to make is diversity is not only the good and the moral thing to do, it makes business sense as well. So how do we marry those two things? And then Marlene, to your point, how do we come out with actionable steps that people can take? Yes, cost cutting is going to be a part of the equation, but how do we make sure that that’s done with purpose and to lift up the intent of these diversity inclusions, and that we’re not losing the ground? And then as the economy comes back, hopefully, we’re able to put more in. But I think we’re at a critical point. And when John and I have the chance to sit down and talk to the law firms, as we do, and people are in varying places, but I think there’s an openness to look at that. One of the reporters from The American Lawyer that I spoke to yesterday said, well, it’s like, OK, well, that I spoke to yesterday, said, well, it’s like, okay, well, it was always important. Now, with the specter of Joyce Floyd, and the death and everything that’s gone on, there’ll be more of a lens looking at this. Hopefully, people will say, okay, that’s a proxy for accountability. Because what I pointed out to him, is law firms are different than public corporations, right? There’s not going to be an earnings call at the end of the quarter where you can say, how much did you spend on diversity and inclusion? Why did you cut this? And why aren’t you investing there? But I think it gives us a moment to pause and make sure that we don’t go back the other way, and keep making the progress.

[01:06:44] Jonathan Greenblatt: I think it comes down to putting your money where your mouth is. If law firms are going to preach this, and we were both concerned and writing about how important it was that during a pandemic or any economic downturn, as Brian said, that the first thing to go isn’t one of these so-called feel-good things like diversity, because the bottom line is impacted. Number one, I think the bottom line for the reasons Brian said is impacted if you cut diversity, and good for the corporations that are requiring that and pushing it. But secondly, the problems that need to be solved, if you just look at COVID-19, that is not a local problem. That’s a global problem that has affected everyone in the world. And you can’t solve problems like that without diverse viewpoints and perspectives and the different ways of learning and looking at problems. So if we want to be effective, we have to. But I do think, as Brian said, that the focus that’s been placed on combating racism as an outgrowth of the horrible George Floyd murder is going to make it even more incumbent. on law firms not to give up ground game. And at the end of the day, lawyers tend to be progressive thinkers about things like equal opportunity and social justice, whatever their politics are. They tend to be open-minded about those things. That’s why many people went to law school. And if we aren’t going to do it, what profession is going to? I think it’s really morally backwards that it’s our corporate clients that are telling us we have to do it. We should be doing it because we should be doing it. But if it takes the corporations to tell us as a profession we need to do it, then so be it. And it’s going to take creativity. It’s not that a lot of law firms haven’t tried. It’s that they aren’t trying hard enough and creatively enough. And everybody’s got to think out of the box and make a commitment to it and stick to it. That takes leadership. The leaders of the firm have to stick with it in good times and bad and say, this is part of our culture. This is part of our mission. And if it means we’re returning X dollars less at the end of a quarter, which I don’t think it does, but if it did, if that’s the concern, then that’s what it means. We’re not giving up ground on it.

[01:09:22] Bryan Parker: We’re not going to waver. I want to leave a serious point because people are saying, where do we go from here? And I think there’s a lot of bleakness and a lot of lack of hope. And I think we’ve got to put it back on to, yes, we can wallow in that. But how do we move this forward into something? And I was going back and forth. So I’m alternating between being a Baptist and a member of the AME church. But this comes from a rabbi friend of mine who we talk a lot. And he sort of reminded me of something that was in the 30th Psalms. And you guys may remember. not remember, but they’re focused on that. There may be darkness at night, but there’ll be joy in the morning, right? There’s a lot that needs to happen over that. And one of the black and white photos that I have framed in my hallway with low quotes, AP photo, Frederick Douglass. And I think he talks about this and this is going to be a specific call to action back to the blunt talk that John is talking about. But I really think that this is where we are. Imagine he is talking in the late 1800s and here we are right now, but change the word Negro to black and the quote still applies. So he says to us, there is no Negro problem. The problem is whether American people have loyalty enough, honored enough, patriotism enough to live up to their own constitution. We Negroes, again, insert the name black and most people don’t use that anymore. Love our country. We fought for it. We ask only to be treated as those who fought against. I think that’s where we are. And I think there’s a specific call and we’ve got to look into each other’s eyes and make sure, especially as some of us, and I have my grandfather’s black who served in the Navy, go to these things of patriotism and make sure that it looks across all the aisles and treats everybody fairly.

[01:11:34] Greg Lambert: Well, Jonathan Greenblatt and Brian Parker from Legal Innovators, I appreciate you both coming in and having this conversation with us.

[01:11:42] Marlene Gebauer: Thank you very much.

[01:11:43] Bryan Parker: Well, we’re very appreciative as well.

[01:11:45] Jonathan Greenblatt: Thank you.

[01:11:46] Bryan Parker: Be safe, guys.

As we approach the three-month mark of the pandemic and alternative working environments, it is important to remember that we still provide a service that is focused upon the needs of people. On the In Seclusion Podcast last week, I talked with four consultants and business development professionals to see how they are adjusting to these unique times. The common theme was that we needed to have more personal and professional discussions with our clients, not less. What that means, however, is that those conversations need to be sincere, relevant, helpful, and empathetic. Clients are drinking from a fire hose of information and it is our job as a trusted counsel to guide them through complex issues and make it simple and easy to understand. Listen in on the insights of four leaders in the industry.

Tuesday, May 26 – We’re Getting Used to This New, Ambiguous, Different, and Uncomfortable Work-Life – Marcie Borgal Shunk

Marcie Borgal Shunk of The Tilt Institute, Inc. is used to working closely with attorneys and law firm leadership. Traditionally, this meant gathering large groups of lawyers into a room for hours, or days at a time, and walking through scenarios together. With the current situation, it means having to adjust to fit the online nature of education and training. For many lawyers, this is new, it’s ambiguous, it’s different, it’s uncomfortable… and they’re actually getting used to it.


Wednesday, May 27 – It Turns Out That Law Firms ARE Pretty Adaptable – Tim Corcoran

Tim Corcoran advises law firms on how to improve the business delivery side of things. One of the positive aspects of the pandemic has been the ability for firms to actually look at the processes of their business, and not just focusing on the tools. As we begin to develop a hybrid office where some people will be working in the office, and some will continue to work remotely, it will test how good our management skills really are. Maybe now we’ll give some real management training.


Thursday, May 28 – It’s Time to Put Our Energy Into New Engagement Models – Roy Sexton Continue Reading We Are Still In The People Business

Before the world turned upside down, one of the issues we were following was the Georgia v. Public.Resource.Org case where the State of Georgia brought a lawsuit claiming copyright protection on the annotations for its Official Code of Georgia. Our three podcast series (unintentional) started out with Tom Gaylord discussing the initial filing with the Court, Ed Walters and Kyle Courtney breaking down the oral arguments, and finally, we have today’s final episode with Ed Walters returning and bringing Cornell Law School’s Kim Nayyer, and the Legal Information Institute’s Craig Newton along to discuss the Court’s final ruling.
The Court ruled in Public.Resource.Org’s favor, but our guests aren’t sure how far the opinion actually goes to cover state material beyond the Georgia Code. Could it mean the end of deals between states and vendors like LexisNexis or Thomson Reuters? Does this mean that other materials, such as Regulatory Codes are fair game? We discuss… you decide.

Listen on mobile platforms:  Apple Podcasts LogoApple Podcasts | Overcast LogoOvercast | Spotify LogoSpotify  
We spend the entire episode on this topic. Don’t worry, we’ll bring our Information Inspirations back next week.
Listen, Subscribe, Comment
Please take the time to rate and review us on Apple Podcast. Contact us anytime by tweeting us at @gebauerm or @glambert. Or, you can call The Geek in Review hotline at 713-487-7270 and leave us a message. You can email us at geekinreviewpodcast@gmail.com. As always, the great music you hear on the podcast is from Jerry David DeCicca.

Transcript

[00:00:00] Greg Lambert: All right, I’ll talk to you later, Marlene.

[00:00:02] Marlene Gebauer: Okay, bye-bye. Oh, just in time. Welcome to The Geek in Review, the podcast focused on innovative and creative ideas in the legal industry. I’m Marlene Gebauer.

[00:00:20] Greg Lambert: And I’m Greg Lambert. Well, Marlene, this episode wraps up our trilogy surrounding the issue of the state of Georgia versus publicresource.org and the fight over whether states like Georgia can put a copyright claim on their official annotated statutes. So I don’t think the answer is going to be a big surprise to most of our listeners today. But we decided we’d bring in three experts, you know, it is a trilogy, so we needed three. And they’re going to discuss how the court ruled and what this means for states who have established certain copyright restrictions on their laws, as well as to the publishing industry, who may need to identify new business models according to one of our guests.

[00:01:00] Marlene Gebauer: While the court has made its decision, our guests have some disagreement on how far the court’s opinion actually goes. That always makes for interesting discussion.

[00:01:11] Greg Lambert: Yes, it does.

[00:01:12] Marlene Gebauer: We brought back Fast Case co-founder and CEO Ed Walters. He’s joined by a couple of legal scholars from Cornell, Kim Nayer, Associate Dean for Library Services and Professor of the Practice at Cornell Law School, and Craig Newton, co-director at Legal Information Institute. We decided to jump right into this conversation, so we’ll bring back our information inspirations next week. In late April, the U.S. Supreme Court came down with this decision in the Georgia versus publicresources.org question of if a state can claim copyright over its annotated statutes. For the law library professional, I think it’s fair to say that a large majority of us believe that the ruling came down in the way that we hoped. We’ve talked about this issue when it was filed and again when oral arguments occurred. So we thought it made sense to close the loop and discuss the final result and what it meant for states, legal information professionals, and legal information vendors going forward. We’ve brought back Ed Walters, CEO and co-founder of Fast Case, Kim Nayer, Associate Dean for Library Services and Professor of the Practice at Cornell Law School, and Craig Newton, co-director at the Legal Information Institute.

[00:02:24] Kim Nayer: of Practice at Cornell Law School, and Craig Newton, co director at the Legal Information Institute.

[00:02:31] Greg Lambert: So I’ll get this started. Kim, would you mind just giving us a little bit of the backstory and what happened to cause this case both to get filed and then eventually brought to the U.S. Supreme Court.

[00:02:45] Kim Nayer: So you’ve talked about this case already, but just as a refresher, public.resource.org is an organization that has a mission of making access to the law open and available. This case involved that organization’s efforts to not only make the Georgia Annotated Code available, but also to push the boundaries of what that meant, what open access to Georgia law meant in this case. So Carl Malamud, who is the principal of public.resource.org, digitized the Georgia Annotated Code, including what are the annotations to the code, and that’s where the boundaries get pushed here, is what actually constitutes the law. So the code itself, stripped of any additional content, that the issue relating to copyright in that instance is pretty clear. But the question he was wanting to push is that these annotations also form the law and therefore should be available to anyone by an assertion of copyright over this really defeats the purpose of open access to primary law.

[00:03:40] Ed Walters: annotations also form the law and therefore should be available to anyone by an assertion of copyright over this really defeats the purpose of open access to primary law.

[00:03:51] Kim Nayer: And someone please jump in and help me out here.

[00:03:53] Marlene Gebauer: Someone will. Don’t worry.

[00:03:57] Ed Walters: Yeah, maybe I can tell a little bit more of the backstory. So, Kim, that’s an awesome summary. Maybe I can hum a few bars of how a bill becomes an annotated code in Georgia, because the facts really matter here. So in Georgia, like in many states, the legislature passes a bill, a member of the Georgia legislature will draft a bill, it’s debated, it’s amended. The legislature passes a bill, and the governor signs it into law. And then it goes into Georgia’s Code Commission, an agency of the legislature who is responsible for codifying those bills into the outline of Georgia’s code. Right. And so the commission goes through these acts and cuts the bills and puts them into their place in the Georgia code. And like several states, Georgia’s official code is annotated. The official code of Georgia annotated, or OCGA, you’ll sometimes see it. and for the annotation work the Georgia commission contracts the writing of the annotations to a private publisher Lexis Nexis and so Lexis Nexis compiles annotations for each section of the code and annotations look like summaries of judicial opinions that you know sort of expound on the statute to say what it means uh it will cover like legislative history notes and when at the end of each session annotation work, the Georgia Commission contracts the writing of the annotations to a private publisher, LexisNexis. And so LexisNexis compiles annotations for each section of the code, and annotations look like summaries of judicial opinions that, you know, sort of expound on the statute to say what it means. It’ll cover like legislative history notes. And Lexis compiles those annotations. They pass them back to the commission. The legislature sort of blesses all of the annotations and passes them into law. And then, as a part of its work, the state of Georgia has contracted out with LexisNexis the exclusive franchise to publish the official Code of Georgia annotated. The state of Georgia, the governor’s office, the legislators all get free or heavily discounted copies of the OCGA. And then Lexis can sort of sell it to the world as the official version of the Georgia code under the exclusive book publishing franchise. That’s kind of how a bill becomes a law in Georgia. In this case, maybe I can just add one more fact. And that is that publicresource.org’s president, Carl Malamud, who believes in open access to the law and believes that once you make any publications the official version of the law, whether it’s annotated or not, the whole thing passes into the public domain. law and believes that once you make any publications, the official version of the law, whether it’s annotated or not, the whole thing passes into the public domain. And so Carl Malamud, the president of publicresource.org, took a copy of the official Code of Georgia annotated, scanned it, and published it online for free, not in the dark of night. In fact, one thing that the publicresource.org did was to take the scanned version of the code and sent it on thumb drives to the Georgia legislature and other officials in Georgia, and told them, I’m going to do this in public because this is public law. I’m not sneaking around or anything, I’m going to tell you that I’m publishing your open law openly on the internet.

[00:07:07] Greg Lambert: So Malamud was looking to get sued on this, right?

[00:07:10] Ed Walters: At least he was looking to assert the fact that open law is open. You know, he wasn’t he wasn’t trying to do it in the dead of night.

[00:07:18] Greg Lambert: But he wasn’t surprised he got sued.

[00:07:21] Ed Walters: Yeah, I can’t I should say like, so, in the interest of full disclosure, I serve on the board of publicresource.org. I’m hardly, you know, a partisan about this, but I can’t really

[00:07:32] Kim Nayer: speak to Karl’s motivation, or whether he was surprised when Georgia sued him. But the state of Georgia, not LexisNexis, was the one who brought suit against Karl. It was the Code

[00:07:44] Ed Walters: Commission for the state of Georgia that brought suit. And they, you know, insisted that he take the code down. And the district court in Georgia and the Northern District of Georgia held for the Code Commission. They said this is the annotations the copyrighted work of the state of Georgia, and maybe perhaps of LexisNexis as well, and requested, insisted that publicresource.org take the law offline, which they immediately did. They took the code offline, and immediately appealed to the Eleventh Circuit.

[00:08:18] Kim Nayer: And thank you, Ed, for reminding me about a step in the U.S. legislative process that I sometimes forget. And so whereas I love the way Americans pronounce codify, codify, I don’t love the way the law is codified here. So the statutes on their own, they’re fine, and they’re fully available. But to add that extra layer of annotation, and then to go and license a private provider to do it and call that whole thing, the codified law, yeah, that that seems to defeat the purpose of law being available.

[00:08:51] Craig Newton: the purpose of law being available.

[00:08:55] Greg Lambert: Well, and especially to say the official code of Georgia, that’s I think the official some people look at that as saying, this is the one I have to have in order to really practice law in

[00:09:07] Kim Nayer: Georgia. Yeah.

[00:09:09] Ed Walters: Can I ask in Canadian, do you guys add an extra U to codified?

[00:09:17] Kim Nayer: No, I do not favor the extra U in codify.

[00:09:21] Ed Walters: That is very honorable.

[00:09:23] Greg Lambert: Yes, ask your neighbor about that.

[00:09:28] Marlene Gebauer: So now that we’ve gotten a really good background, Craig, can you summarize the court’s opinion for us?

[00:09:36] Craig Newton: Sure, I guess it’s about time I jump in here. So the first sort of interesting thing about it is it was a 5-4 opinion, and it was a very unusual majority, right? So it’s the Chief Justice who authored the opinion. And he was joined by Justices Sotomayor and Kagan and Kavanaugh and Gorsuch. I don’t recall who first pointed this out, because I’d love to give them credit. But these are the five youngest justices. There’s actually this split under 70 and over 70. So perhaps that’s significant. Perhaps it’s not. Perhaps that’s a harbinger for the future. Perhaps it’s not. But nevertheless, an interesting little factoid there. As for the opinion itself, I know Ed disagrees with me on this, which is exciting. But you know, I think the holding is actually, you know, fairly narrow. I was trained that the holding is what the court says it is. And really, everything else is just dicta. especially if you’re trying to distinguish your facts from a case. Then everything that’s not the holding is dicta, right? And so what the court says is we hold that the annotations in Georgia’s official code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals. And like I said, I’m sure Ed is chomping at the bit there to tell me I’m wrong about that. But as far as, you know, more of an overview of the opinion for folks who haven’t read it or aren’t familiar with it, all of this analysis that goes into that holding turns on something called the government edicts doctrine. And that’s, I know, something that Ed and Kim talked about at length in a previous podcast from AALL about this case. But what we knew about that doctrine previously from a series of very old cases was that judges cannot be the authors of works that they produce in the course of their official duties for copyright purposes, regardless of whether or not what they’ve written carries the force of law. And for example, I think it’s the Chief Justice in the opinion of the court says, for example, dissenting opinions, those don’t carry the force of law, they’re dissents. But nevertheless, a judge can’t own a copyright in a dissenting opinion, right? So, you know, really in the most narrowest sense, what the Supreme Court did was say that same rule applies to legislatures or legislators the same way it applies to judges. But at the same time, especially I think with the Roberts Court has a reputation for the narrowest possible holding, there’s a lot of sort of wonderful analysis and wonderful pronouncements for those of us that do free law for a living, right? You have the court courting a 19th century case out of Massachusetts that says no one can own the law, and that every citizen is presumed to know the law and therefore all should have free access to its contents. People that do open access, people that do free law, I mean, we absolutely, you know, brighten at that, right? You’ve also got these bits. There’s a bit in the opinion where the Chief Justice talks about a pay per law scenario and how unfortunate that would be. And I think that got all the PACER fee folks really excited. There’s a nice exposition of specific examples of what a citizen in the state of Georgia wouldn’t know about Georgia law without the annotations, such as specific laws that have been held invalid but have never been taken off the books. And so, you know, the Chief Justice, you know, wants to avoid what he called the economy class version of the Georgia Code. That’s all really exciting. And then, you know, again, I kind of contrast that with, you know, what I was taught to look as, like I said, the court will tell you what the holding is, which I read as pretty narrow. And so, in my mind, there remains some question about where does that leave everything else that’s not the annotations to the official code of Georgia.

[00:13:34] Greg Lambert: Mr. Walters, you have the floor. How is Mr. Newton correct and incorrect in his reading?

[00:13:41] Ed Walters: Now I’m having flashbacks from law school. Mr. Walters, state the fact.

[00:13:52] Marlene Gebauer: You need to stand up.

[00:13:57] Ed Walters: Hold on a second while I nervously sweat. Also, I think this is actually a pretty sweeping opinion. You know, the court in this case could have said, look, under the narrow facts of the way Georgia codifies its codes, this specific collection isn’t copyrightable. Right. But that’s not what the court said. When the chief writes the opinion, I’ll quote the opinion chapter and verse here. Under the government edicts doctrine, judges, and we now confirm legislators, may not be considered the authors of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law. And it applies to annotations here because they are authored by an arm of the legislature in the course of its official duties. So there’s four things about this that I think are extraordinary. First is that this applies to states. It’s long been copyright policy that official works of the US government can’t be copyrightable under law. This opinion extends to the states. And I would imagine not just like to, you know, top level states to the counties or any government organization. To this applies, not just to case law, as we’ve seen in the historical precedence, but to statutes in this case. And again, the court could have said the government edicts doctrine applies to statutes, but that’s not what Justice Roberts says. Justice Roberts says that any government actor acting in their official capacity can’t be the author of what they write. Third, the chief goes out of his way to say it doesn’t matter whether what they write is binding law or not. So I went to the argument in Georgia versus publicresource.org and there was a lot of time spent on whether the annotations of the Georgia Code constituted binding law or not, and whether it mattered, whether the lawmaker, the agency regulator, the legislator, the judge was writing binding law, or whether it was something else in their official capacity. The chief says it doesn’t matter whether it’s binding law or not. If the thing that you are writing is in your official capacity as a government agent, if you’re working on behalf of the people, then it’s the people who are drafting whatever you draft, not just binding law, anything that you write. And then finally, I think it’s a very broad application to agents of government, right? Because remember, it’s LexisNexis who writes these annotations in the Georgia Code. And the court has no problem at all saying, when a private company creates something like an annotation as a work for hire, regardless of whether it has the binding force of law, they are doing the work of the legislature, they’re doing the work of the government agency, and it is a work for hire. So in agency law, the agent can’t have any more rights than the principal can. You can’t make an end run around copyright law by hiring out a private party to do this official government work on behalf of the people, and thereby get some sort of ownership right in the output. No, the chief says here, if you are a private party and you are acting as an agent of the state, acting in its official capacity, you have no more rights than the principal does, you have no more rights than the legislature does, and the work that’s created can’t be authored by the private party any more than it could be the government party. In every one of these cases, the people constructively are the author of this document. The legislators and government agency are acting on behalf of the people. And when they contract these rules out to private parties, the private parties are acting on behalf of the people. And whether that is binding law or non-binding law, whether that is in the federal government or in the states, whether that is judges with judicial opinions, or legislators with codes, and whether those codes have the force of law or not, every one of those circumstances, they are edicts of government, and they are outside of the scope of copyright. This is remarkable. I mean, this is an amazing opinion from the chief. Again, you have justices, as Craig noted before, who you typically think of as being very narrow constructionists, right? Justice Roberts, Justice Gorsuch, Justice Kavanaugh, you could imagine in this case saying, under these narrow facts, we hold that the official code of Georgia, as annotated by LexisNexis, under the agency contract that we’re looking at in this specific circumstance, is not copyrightable. But instead, what you get is this broad sweeping proclamation by the chief of the government edicts doctrine for all time.

[00:18:53] Craig Newton: and for all kinds of documents, anywhere, for any level of government, state or federal, outside the scope of copyright. Remarkable.

[00:19:02] Greg Lambert: All right, Mr. Walters, you’re just showboating now, so let’s giveΓǪ

[00:19:06] Marlene Gebauer: I’m saying that was just like law school.

[00:19:09] Greg Lambert: Let me give Mr. Newton 30 seconds to rebut.

[00:19:13] Marlene Gebauer: Rebuttal, rebuttal.

[00:19:15] Craig Newton: Ed, your reputation as an unrepentant optimist is definitely well- earned. I would say, if I really only have 30 seconds, I will say two things. The first is that, you know, the holding is not this broad proclamation that all official codes are not eligible to copyright protection, including their annotation. It’s that Georgia’s official code isn’t eligible for copyright protection. You know, I’ve actually marked up that part of the opinion, Ed, as supporting the idea that the holding is narrow, because it says judges and legislators. It doesn’t use the phrase government agent or government actor. In fact, I don’t think those phrases appear anywhere in the opinion. And as far as this question of the agent, I don’t dispute that the agent doesn’t have more rights. He has more rights than the principal, but the last sentence of what you read, Ed, was it says that the rule applies to the annotations here because they are authored by an arm of the legislature. It doesn’t say an agent of the legislature. They’ve essentially, in the next section of the opinion, the chief justice, you know, goes through all the reasons why the commission held such tight control, all the ways the commission held such tight control over Lexis, that Lexis had become an arm of the legislature itself. So I think that’s where the disagreement there, but to the extent there is one, or maybe your optimism and my pessimism, Ed, I think that’s sort of the crux of the matter.

[00:20:43] Kim Nayer: What Craig is picking up on there is like the analysis of the 11th Circuit, where Lexis might be Lexis, but they’re acting so closely under the direction of the commission that it is the words of the legislator. There’s no room for interpretation. It’s not commentary. So it’s very directive, and I think that that’s an extension of that very, I thought, valuable analysis of the 11th Circuit.

[00:21:13] Greg Lambert: So, Ed, let me test your optimism here. Is this limited to any vendors or third parties that contract with the state, that that makes them basically an agent, or how far does that go?

[00:21:31] Ed Walters: Well, I think that for, certainly for government contracts, where the private publisher is performing on behalf of the state, some state function, I think you’d have a very hard time claiming copyright for that. If the state, acting in its own capacity, wouldn’t have copyright, then anytime they contract that role out to a private publisher, the publisher doesn’t have any more copyright than the state would have. So Craig would tell you the glass is half full. I think the glass is overflowing. I can’t believe it.

[00:22:04] Greg Lambert: Well, you’re both optimists in your own way, I guess.

[00:22:10] Craig Newton: I’ve never been accused of being an optimist in my life.

[00:22:14] Greg Lambert: Well, Ed, let me follow up with that. So what doors does this throw open then for legal publishers or anyone that wants to take a government document and say there’s no copyright, therefore I can add my own annotation, I can package this and sell it. What does this throw the doors open to?

[00:22:40] Ed Walters: Well, just in a nuts and bolts way, at Fastcase, we’ve been publishing the economy class version of the Georgia Code, the exact thing that Chief Justice was worried about. When we go to publish the Georgia Code online for the last five years, we have a deal with the State Bar of Georgia. We provide Fastcase legal research for free to all members of the State Bar. But when we went to go publish the official Code of Georgia online, both the legislature and LexisNexis said, you can’t. We claim copyright in the catch lines, the titles, the top of the statutes, and certainly in the annotations. And so when Fastcase historically has published the Georgia Code, we’ve had to rewrite the catch lines, 30 some odd thousand of them, and remove the annotations, not because we didn’t think that they were public, we certainly thought that they were, but because we knew that it would be like a million dollar lawsuit with LexisNexis. And so I think for people like Fastcase or Cornell’s Legal Information Institute or any public spirited publisher who wants to publish these codes online, heck, even for Westlaw, for that matter, we now have a green light to do what we have known has been legal the entire time, which is to publish as public law that is public and to know that private companies can’t own public law. So now Fastcase publishes the entire Code of Georgia with the correct catch lines, the official catch lines, and with the official annotations. So we have promoted the entire State Bar of Georgia and all of its members to first class access to the law.

[00:24:25] Greg Lambert: Does this open up the door for any other states that have similar arrangements to what Georgia had?

[00:24:33] Ed Walters: I think every one of them, doesn’t it?

[00:24:34] Greg Lambert: That’s the question I’m asking. You’re the expert.

[00:24:37] Marlene Gebauer: Who’s going to test it?

[00:24:39] Craig Newton: I think it turns that million dollar litigation into like $500,000 litigation. You’ll be mad at it on summary judgment this way, Ed. Congratulations.

[00:24:46] Ed Walters: The Chief Justice seems to be pretty declarative about this. I think if you are a legislature and the only way that you have felt like you could codify your law in the past is by some sweetheart contract to a private publisher, it’s time to get an authorization of funds to your codification commission because from here on out, the public law is public and anyone can republish it. You don’t need to have a sweetheart contract with LexisNexis to publish public law.

[00:25:19] Marlene Gebauer: Okay. So Craig, as a self-proclaimed pessimist, how does this expand on the Legal Information Institute’s mission? Do you think it opens up doors for materials that you’ve previously not decided to put in your resources because of fear that states would sue?

[00:25:39] Craig Newton: So my co-director, Sarah Frug and I have talked about this and to be honest, we’ve had some initial conversations with some potential collaborators. First, the whole reason why state statutes were before the Supreme Court in the first place was because publicresource.org was putting them up. So Carl Malamud has them and I think there are probably other people who will be making them publicly available. And who knows, as I think Ed just addressed, who knows, you may even see some of these other states open up their code and sort of up their open access game, if you will. So the state statutes are probably taken care of and now I think there’s another question I hope we’ll get into about what else is open or possibly open under this opinion. I’m looking forward to disagreeing with Ed again and letting Kim be the tie-breaking vote again since she agreed with me on the first point. I don’t know that I did, Craig.

[00:26:43] Marlene Gebauer: Excuse me. Wow, what a setup there.

[00:26:45] Craig Newton: Nice try. Never stop litigating. But anyway, to answer your question, it’s really been a long time since we at the LII have seen ourselves of being in the business of just putting up materials that weren’t otherwise publicly available. I mean that’s the kind of thing we were doing in the first decade or two of our existence and we’ve been around almost 30 years now. Now we’re more about enhancing and connecting data in ways that other less comprehensive or less experienced free law folks might not have the wherewithal to do. So what we see ourselves bringing to the table in terms of state materials or other collections of this sort is being able to provide enhancements and readability or usability, if you will. And since state statutes are fair game, if we can find partners who want to do interesting things with them, then that’ll be really exciting for us. But as we were joking about, or maybe not joking about, the continuing specter of litigation over some of this stuff, I’m not sure that’s going to completely go away. And there’s so much to do in the open access community. If you’ve got this one bucket of projects that don’t have any copyright issues and you have this other bucket of projects where you have these copyright claims, no matter how dubious, then I think there’s going to be a natural gravitation to sort of still continue to steer clear of issues or collections where the copyright status is still a little bit up in the air. So we’ll see what actually changes. But again, we’re talking to people, we’re looking at some things, and we’ll see what happens.

[00:28:22] Greg Lambert: Well, now I think it’s time to get into some of those other issues that you’re talking about, Craig. The first thing that I thought about was, what’s the difference between these types of annotated statutes and copyright claims and, let’s say, standards regulations, where the state outsources this to some type of professional organization that creates the standards around, say, electrical codes. The publishers have kept an iron grip on those and has quickly slapped down anyone that’s tried to say that there’s no copyright claim to that. How does this Georgia decision affect other types of materials that the state may have outsourced to third parties?

[00:29:18] Kim Nayer: Oh, when I think about this Georgia decision, I find myself not surprised by it. And I don’t know if that’s because I also am an optimist or because I just found that 11th Circuit reasoning highly persuasive. I found the factums of the Amici very persuasive. And I also had just, you know, I was really go Carl on this one because he, as you might remember, did not have to bring this. He did not have to be at the Supreme Court. He could have taken his 11th Circuit victory and said, we’re clear in Georgia. But instead, he did not oppose the motion. And he said, yes, please, SCOTUS, I want to hear from you too on this case and a huge risk in his words, a squeaker of a result. And so where does that put other publishers? I think, you know, part of me wants to encourage publishers to take risks. I have been encouraging our friend Ed here to think of, for example, Canadian law as being game for inclusion in wonderful products like Fastcase. There are issues that concern for profit publishers that I don’t think would concern Carl. And I have to say that that’s a market that I would love to see publishers try to push in on. As you might know, when a similar issue of sorts was brought tangentially to the Supreme Court of Canada and the 11th Circuit case was one of our strong authorities that we argued on, as well as those. What were they, 18th century cases that relating to case law banks in Manchester and whatnot, really making the case that we need to move on from an era where law should exist in classes at all or in tiers at all. People cannot know their rights unless they can access the law and people cannot know their rights and access the law until they can access the official authoritative source of law and not what chunks and pieces they can find on the Internet.

[00:31:25] Ed Walters: Kim, would you mind saying a word just about what would happen if Fastcase, for example, published the case law for Canada? Would we be sued by the Queen of England?

[00:31:37] Kim Nayer: I’m trying to determine who would sue a publisher who did that. So, to date, you might know that the Canadian Legal Information Institute, or CANLI, inspired by Craig’s Legal Information Institute, publishes a good chunk of Canadian law, primary law and legislation and case law, large quantities of it. And they do that by agreements. I don’t know. I don’t work for them. I don’t know what’s exchanged, but they do that by permissions and agreements. There is also an executive order authorizing anyone to reproduce federal law. I should check myself, but there’s an executive order authorizing some republication of federal law. So, that exists. There is permission granted. Interesting, in that federal order, there’s no actual claim to copyright in the law. There’s just a statement that allows people to use the information on this site as official law.

[00:32:37] Ed Walters: Do you want to say just a word about Crown copyright, though? I think you’re very familiar with it, but a lot of the listeners of this podcast might not be.

[00:32:47] Kim Nayer: That’s right. So, I think a reason that, Ed, you’ve told me you’re hesitant to get into Canada, into the Canadian market, is this concept of Crown copyright, which is an ancient holdover from the UK. It’s ancient in Canada as well. The section hasn’t been substantively changed since 1911, I think. In the words of the statute, this is a section of the Canadian Copyright Act that sets a term of copyright protection when something is produced by or under the direction and control of the Government of Canada. It’s very similar to the Government Edicts Doctrine, and it’s a specified term. There’s also a portion of this section that is subject to the prerogatives of the Crown. That is where this supposed source of authority of ownership of the law comes into play, because very clearly, statutes and case law are not published by or under the direction of the government. Judges have said that in case law. There is a very clear and important case in Canadian law called CCH in the Law Society of Upper Canada, in which the court says very clearly it would not be an infringement of copyright to reproduce the judgments without the additional material that publishers may add. If it is the judgment alone of the court, that is free of copyright. They didn’t say quite so in those terms, but the point was it would not be an infringement of copyright to publish or reproduce the reasons alone. I think Crown copyright is a confused area of law. It has only been considered once at the Supreme Court of Canada. That was in a case that I was in last year where we brought this sort of tangential argument. They agreed that this section is confusing, is in need of amendment. They agreed that we raised a number of very good issues relating to the status of copyright and primary law, but they declined to rule on it until they could hear it argued more fully. So Crown copyright, there is no expression anywhere in it that creates a copyright in the Crown. The Crown copyright section merely sets a term of protection when copyright does rest in the Crown.

[00:35:13] Greg Lambert: Well, I think Ed should take the case and get sued in Canada. It would still be a million-dollar case, but it would be in Canadian dollars, so it would be like a 20% discount.

[00:35:23] Kim Nayer: It’s a good time to do it. I think it’s $1.40 to the dollar right now.

[00:35:28] Greg Lambert: There you go. See, Ed, it’s a bargain. Let me check with Ed on this. What about the codes, the regulatory codes that states outsource? Is that now open for someone to take and publish online and rely upon this decision to say, look, it’s got the enforcement of law. It’s been adopted by the states. This has the force of law, so therefore people need to be able to see this, and it shouldn’t be behind a paywall. Do you go that far?

[00:36:06] Ed Walters: Well, I think the short answer is we’ll find out pretty quickly because this exact issue is being litigated right now at publicresource.org. It’s the ASTM, I think.

[00:36:16] Greg Lambert: No moss grows on Carl.

[00:36:19] Ed Walters: No, he can see what the next steps are. The question is, for standard- setting bodies where they create a model code that is to be adopted by counties or states, by lawmaking entities, when those states adopt the model code into law, can anyone publish them? If there’s a model fire code or a model reg for the safety of child toys, when a government publishes that into law and it has the imprimatur of the state, does it then pass into the public domain so that anyone can publish it? Now, standards-making bodies have said, if that is the law, we’re going to go out of business. You won’t have any more standards because we are paid by the states for these proprietary standards to be included in that state’s law, and because we have the exclusive franchise in the standards that we make, we can afford to pay very smart people to put them together. I don’t think it’s much of a stretch to read the reasoning of the court here to apply to those standards very clearly as well. If an agency is acting on behalf of the people and it adopts a standard into law, and that is the only exposition of the official law, it’s a regulation, not a legislation. But I think the reasoning stands very clearly to say that when they are acting on behalf of the states, even if some of the work is done by a private publisher, the work that they produce is authored by the people constructively, and so there’s no copyright in that output. Again, I think there was an argument in the Georgia versus publicresource.org case, and there’s an argument in the ASTM versus publicresource.org case that goes something like this. If you say that these things are in the public domain, we will no longer be able to carry out this function. The private publishers can no longer carry out this function. There’s not enough financial incentive for LexisNexis to create the annotations to the Georgia code if they don’t get the exclusive franchise to publish exclusively the official code of Georgia annotated. If you don’t give standard-setting bodies the exclusive franchise in what they create, even when it’s adopted into public law, you will no longer have standard- setting bodies, to which I would say it might be true. It’s probably not true, but it might be true that people who have been able to claim some sort of exclusive franchise in the past on public law may have to change their business model. If your business is that you are the only authorized seller as a private publisher of something that has become public law, you need to change the business model. In this case, Georgia’s legislature argued before the Supreme Court, if we can’t have this kind of exclusive lockup with a private publisher and grant them the exclusive copyright to the official code of Georgia annotated, we won’t be able to do these annotations in the Georgia code.

[00:39:34] Marlene Gebauer: What are they going to do? How are publishers going to protect themselves?

[00:39:38] Ed Walters: Well, so I’m a publisher, right? And I would say that it’s two separate questions. How publishers protect themselves, I think, is maybe this much smaller question, the less important question. I think the bigger question is for the public. If we think that the annotated codes are important, how do we continue to protect this public resource? And I think the answer is probably the same in both cases, right? The way to do it, in my opinion, is to say we’re going to have an official code that is the one official code that is unannotated, that everyone can use, right? It is in the public domain. And then if LexisNexis wants to create an annotated version of it and sell that as their exclusive product, that’s great. They can use the official code of Georgia, unannotated, but the official version of it to create their own private code. They can annotate it. They can mark it up. They can do all kinds of editorial magic. Lexis is great at this, and sell it as a private collection. By the way, exactly how Lexis does this in states where there is only one official code, right? So do the same thing in states like Georgia as they do in states like Texas, right? And so I don’t think that there is a big threat to publishers here. You know, Fastcase does this all the time. We’ll take an official code, and we will add value-add tools to it. We’ll add our own annotations to it. We’ll add all kinds of interesting things that make it useful working with the public, open, official codes. Publishers, I think, are going to be okay. I think Lexis is going to make it. The real question for me is, how is the Code Commission going to be able to do its codification work, and how can it support that? And this may require additional allocation of funds. The Code Commissions may need to be staffed up a little bit more, or they may need to find some other, you know, really interesting tie-in with Lexis. I could imagine, for example, in Georgia, the Commission saying, Lexis, we’re going to pay you some amount of money to do the work that you’ve done in the past. We’re going to create a public, open, unannotated version of the Georgia Code. And then you can license the seal of the legislature, you know, from Georgia for your annotated version of the code. You create the Code of Georgia Annotated, not the official Code of Georgia Annotated, the Lexis Code of Georgia Annotated, right? Name it after a publisher like McKinney or Vernon or somebody, and, you know, release it as your proprietary product. But then through the licensing arrangement, the state gets some discount on the services. But I’ll hold out one more thing. Greg knows more about this than almost anybody. States can do this, right? States can be the publishers of their own codes. It is easier than ever to do this. States can create annotations for these codes. There are better tools than ever to do this. And I’ll make this claim right now. Any state that feels like it is jammed and can’t create its own annotations without granting some exclusive franchise to a private publisher for their codes and taking the public domain and paywalling it, Fastcase will help. We will step in to your state and help you create the annotations and help you create your official code. You absolutely can do it. There are so many states that do, and the tools are easier than ever.

[00:43:09] Greg Lambert: And my team and I will step in and we will do a lot of the heavy lifting to help you get there yourself. You can totally do it.

[00:43:18] Marlene Gebauer: Anybody else have any comment?

[00:43:20] Kim Nayer: I wanted to hear a little bit more from Greg, actually. Greg knows more than anyone. Tell us more, Greg.

[00:43:27] Greg Lambert: Yeah, that’s like 20-plus years of experience, right?

[00:43:33] Ed Walters: Greg was one of the first.

[00:43:34] Greg Lambert: Yeah, we did the same thing in Oklahoma, starting with the case law. And then we worked somewhat with the legislature. The legislature was actually pushing out the bare bones statutes. And then we would take it in the court system and add it into our information, and then we would cross-reference it with the cases. So if cases cited to the statutes, that showed up. And again, this was in 1997 through 2001 when I was there, so this is not new by any stretch of the imagination. It just takes some willpower on the state to make a determination that they’re going to make sure that their citizens have access to their law. You can ask almost any member of the Oklahoma Bar, and they will sing the praises of the state, allowing them to access the information freely, openly, and also officially. Those are the official decisions. And to cite to those is to cite to the official documents of the state. So it can be done. It’s just a matter of, does the state have the willpower to do that? And it might mean that you go up against a couple of the big publishers in order to kind of disengage them from the process of essentially owning the state laws.

[00:45:16] Ed Walters: This is OSCN, right?

[00:45:18] Greg Lambert: Yeah, the Oklahoma Supreme Court Network or State Court Network, I think, is what we refer to when we stop just doing the Supreme Court decisions.

[00:45:28] Kim Nayer: What I love about all of what you said, Greg, there is that you didn’t use the word copyright in there once. And that to me is one of the more troubling aspects of all of this is why we are talking about copyright in connection with making publicly owned, publicly created law available and accessible to the public. How this became an issue of copyright is a puzzling matter to me.

[00:45:57] Greg Lambert: Well, I’d say there’s probably three reasons to that.

[00:45:59] Craig Newton: It’s money, money, money, and more money. And on the issue of regulations, correct me if I’m wrong, Ed, or anyone else, but it’s, you know, even before you get to the issue of the work of standard setting organizations incorporated by reference, there are a handful of states that either claim copyright in their regulations outright, or put them, you know, either in some sort of licensing structure or limit access through terms of use online, etc. Such that even before you get to the incorporation by reference issue, you got a real problem if you’re trying to access these in a meaningful way.

[00:46:44] Ed Walters: Yeah, it’s true. We’re living proof.

[00:46:46] Greg Lambert: So I mean, there’s, you know, there’s, there seems to be there seem to be other, you know, easier questions in terms of in terms of where the next battleground, so to speak, should be on this stuff, even before you get to the harder questions of a case where a standard setting organization has done its work, and then a state comes along and essentially scoops it up and says, Hey, that’s the, you know, that’s the the code of our jurisdiction now.

[00:47:16] Kim Nayer: That issue, you know, it was actually litigated in Canada, there is a case from late 2018 called Knight and electrical safety, something I don’t know the exact name, but it’s Knight, K-N-I-G-H-T from the Federal Court of Appeal, the Supreme Court declined to hear an appeal of it, even though there was a dissent. But Mr. Knight wanted to be able to make use of standards that were incorporated by reference in regulation, but essentially could not, because there was copyright in the safety standard, even though it was incorporated by reference in the regulation. And there was a disagreement among the judges as well about whether copyright should exist. And again, in the context of Crown copyright, whether the Crown somehow owned copyright in that now that it was part of the law. It’s an interesting read. It ends where it ends. I don’t know if another body is going to try to bring a similar litigation on a different footing, because this actually preceded the other case that we talked about. It’s not really helpful to any party, the outcome is not really helpful to any party, in the sense that we have got a situation where something really is part of a law. And perhaps the earlier question was whether it really ought to have been a copyright contractual relationship between the government and the electrical safety standard body or not.

[00:48:49] Ed Walters: I think Kim and Craig have identified the three next frontiers. Now that we’ve established that legislation is not copyrightable as authored by the people. It is going to be statutes, it’s going to be standards incorporated by reference, and it’s going to be terms of service, not copyright. Those are the kind of three next frontiers for public law.

[00:49:12] Greg Lambert: Well, I think that’s probably the best place to stop with this cliffhanger. And then when we get into those cases, I’ll bring the three of you back in. Well, Craig and Kim and Ed, thank you very much for taking the time to talk with us about this. This has been fun. Thank you.

[00:49:28] Ed Walters: Thanks for having us, Craig.

[00:49:30] Greg Lambert: Well, thanks again to Kim Nair, Craig Newton and Ed Walters for joining us and wrapping up our discussion on Georgia v. PublicResource.org.

[00:49:40] Marlene Gebauer: Yeah, it’ll be really interesting to see what the publishers end up doing because, you know, clearly this is a money source for them and they invest in this, but they’re going to have to figure out, you know, some other way, I guess, depending on how you look at this. Rather than sort of. Being the official annotated statutes.

[00:50:03] Greg Lambert: Yeah, it’s going to be interesting to see how this either does or does not affect the other states.

[00:50:11] Marlene Gebauer: Yeah, it’s really about how broad it’s going to be, right?

[00:50:14] Greg Lambert: Yeah, well, and if our two people couldn’t decide on how broad this was, there might be some more court cases.

[00:50:23] Marlene Gebauer: Oh, my gosh, we’re going to have to bring them on all again. Well, before we go, we want to remind listeners to take the time to subscribe on Apple Podcasts, Spotify or wherever you listen to podcasts. Rate and review us as well. If you have comments about today’s show or suggestions for a future show, you can reach us on Twitter at Gabe Bauer M or at Glambert, or you can call the Geek & Review hotline at 713-487-7270. or email us at geekandreviewpodcast at gmail.com. And as always, the music you hear is from Jerry David DeSicca. Thank you so much, Jerry.

[00:51:05] Greg Lambert: Thanks, Jerry. All right, I’ll talk to you later, Marlene.

[00:51:08] Marlene Gebauer: Okay, bye-bye.

[00:51:25] Craig Newton: You’ll notice that it’s still daylight, and the devil’s back from the barn, and the devil’s back from the barn, and the devil’s back from the barn.

This week on the In Seclusion Podcast, the discussion began a pivot away from how are we adjusting to working remotely, to how are we planning the slow progress toward reopening some offices. Let’s be honest, it is very possible that some legal professionals never go back to the office full time ever again. But, for some, getting back to the office is seen as essential for both their job, and maybe even their sanity. Take a listen to the five episodes from this week from a diverse group of legal professionals around the globe.

Monday, May 18th – Navigating So Many Rules as We Start to Reopen – Mary Jenkins, Accufile

Mary Jenkins, Director of Research Solutions and Senior Law Librarian at Accufile, contracts with multiple law firms and corporations ranging from smaller firms companies all the way up to some of the largest national, and international law firms. Trying to navigate the individual rules of the businesses, the buildings, and the local, state, and federal governments can be quite complicated, but it gives her some insights on what is working, and where she thinks we are heading as we look to reopen offices, and how this pandemic is going to affect us long term.


Tuesday, May 19th – The Distance has Kept Us Together – Colin Lechance, VLex

One of the themes I’ve picked up on with the now 41 episodes of this series, is that the transition to remote working environments caused by the pandemic was helped immensely by the increase in cloud and communications technology, as well as our need to work between multiple offices across vast distances. Colin Lachance from vLex solidifies that theme and tells how his recent international merger didn’t seem to slow the transition at all, in fact, it may have helped make that transition even more efficient.


Wednesday, May 20th – Expanding Community, Creativity, and Clients during a Crisis – Aurelia Spivey, Digitory Legal

While we may be in the middle of a crisis, there are certain processes and relationships we need to maintain in order to make sure we have those as we make our way out of the crisis. Aurelia Spivey from Digitory Legal and the host of the Pricing Matters Podcast discusses the need to maintain our community, be creative, and focus on the needs of our clients. These three C’s will be determining factors on how well we perform both during and after the pandemic and economic troubles.


Thursday, May 21st – Continuing our Connectedness… Just in a Different Way – Sherry Kapple, Litera

Sherry Kappel from Litera, flew back to the US just in time to avoid the travel ban on March 11th, and then immediately began preparation and action to move employees across the world to work from home. In the more than two months since this time, she has focused on interacting with her fellow workers, customers, and the legal community through virtual conferences and even daily tv-style presentations. She sees a future that continues to stress our ability to connect to one another… it’s just going to happen in a different way.


Friday, May 22 – We’ll Be Two Meters Apart, But Still Face to Face – Justin North, Janders Dean

Janders Dean founder, Justin North, has seen many downturns in the economy and legal industry before but he thinks that the ability for us to keep our stories alive on how we handled downturns before, has helped many navigate this particular situation. And through a bit of planning, and a little bit of luck, he finds his company accidentally ready for this pandemic. When we make our way back to the office, we’ll be two meters apart, but we’ll find ways to essentially be face to face.