Recorded live at Harvard Law School's Corporate Capture of the Legal System conference
we're talking about Jones Day. The law firm jumps into bed with all manner of villains with the justification that "everyone deserves representation." But as David Enrich
0:00:00.0 Rhiannon: This is a mic check, so I'm gonna tell Rachel what I ate for lunch. I ate pizza from Harvard Law School, thank you so much.
0:00:12.6 Leon: Hey everyone! This is Leon from Fiasco and Prologue projects, on this week's episode of 5-4 Peter, Rhiannon and Michael are joined by New York Times Business investigations editor, David Enrich, live at Harvard. They're talking about Jones Day, a powerful law firm that helped Donald Trump shaped his 2016 campaign and represented Trump in lawsuits trying to stop the vote count in Pennsylvania in 2020. Jones Day partner, Don McGahn, who served as White House counsel while on hiatus from the firm, hand-selected the list of potential Supreme Court nominees that Trump would ultimately draw from. That list included justices Gorsuch, Kavanaugh and Coney Barett. This is 5-4, a podcast about how much the Supreme Court sucks.
0:01:01.4 Rhiannon: Thanks, thanks so much. Before we start, I just wanted to say something really quick. It might change the tone a little bit in here today, but Tyre Nichols, a photographer and a skateboarder, who lived in Memphis, was beaten to death by Memphis police officers a couple of weeks ago. Many in the room, I'm sure have heard about this, maybe just in the past 24 hours because body cam footage was released yesterday.
0:01:29.4 Rhiannon: I wanted to say his name and honor Mr. Nichols' life and the loss of his life, even though it isn't what we're talking about here. And maybe just point out to connect it to the conference this weekend, that corporate capture of the legal system, in addition to everything that's been discussed over the course of this conference. It also contributes to turning a blind eye in many legal spaces that relate to the public, that relate to our rights, that relate to the people, right? Corporate capture of the legal system contributes to the perpetuation, the permission given, the institutional upholding of police brutality, people die as a result. So Rest in Peace, Tyre Nichols. Sorry guys, okay. Let's have fun.
0:02:18.2 Peter: It's my job to transition out of that.
0:02:22.3 Rhiannon: I'm so sorry.
0:02:22.4 Peter: Thanks for coming to the recording. We are honored to be here, these are hallowed halls, of course, to alumn like Henry Kissinger, [laughter] Ted Kaczynski, Neil Gorsuch, right? Famous donors like Jeffrey Epstein, truly a magical institution. Sorry, Jay Willis, alright. And first of all, Jay, thank you, thank you for what was a pretty lengthy and heartfelt intro, I don't think any of us were ready. And that allows us the opportunity to intro David Enrich, who wrote a little book called "Servants of the Damned" last year, that was interesting enough that we thought it made sense to all speak together. The book is largely about the law firm, Jones Day. If you've been through OCI, you might have spoken to one of their awful partners.
0:03:42.4 Peter: But the book was sort of the story of their rise to the top of the conservative legal movement. We thought it made sense for us to discuss it with you, David, and I kinda wanna hand it off to you. The book is in large part about the trip that Jones Day takes from a relatively conservative, even Republican law firm into the pinnacle of the Republican Party, right? And into a firm that is so intertwined with the Trump administration that at the top, they're not really different things in a lot of ways. So I think it makes sense to maybe have you give an overview of a story and let me know if this sort of characterization makes sense.
0:04:36.9 Peter: When I read your book and what seems to have happened is that this kind of normal conservative law firm that represents a bunch of horrific corporations and things like that, rolls the dice on Donald Trump in 2016. Joins up to represent the campaign. And when Trump wins all of a sudden, they are in the halls of power and maybe the most powerful law firm in the country. So I don't know, I wanna know if that characterization is right and how you see the sort of trajectory of this firm from its sort of early stages and even from the early 2000s through the modern era.
0:05:21.8 David: Great. Well, first of all, before I... The answer is yes, I agree with that characterization. But before I go any further, I would just like to thank you guys for having us here. The last time I did an event at a law school, Jones Day got wind of it and sent a threatening letter to the organizers urging them not to have me, so hopefully that didn't happen here. And if it did, I'm glad you didn't tell me about it because it stresses me out.
0:05:46.7 David: So yeah, Jones Day was founded in the late 1800s in Cleveland. For a long time, it was just kind of a traditional corporate law firm specializing in litigation in defense of big companies, especially in the Midwest, there are a lot of big industrial companies, General Motors companies like that. It grew... It started expanding all over the country in the '70s and '80s as part of kind of a trend that was occurring in the legal profession at the time and then started going overseas as well. So that by 2000, it was one of the biggest law firms in the country. More than 2000 lawyers, more than, I believe about 40 offices around the world. And in a way, it had been run by a series of Republicans, but it was not a Republican law firm. I don't think it's... It would be fair to characterize it that way. There are lots of Democrats who worked there, they were not particularly ideological.
0:06:39.7 David: And then in around that period in 2003, the firm gets a new managing partner who runs the place, and his name is Steve Brogan. And Brogan is very conservative and very headstrong and very ambitious. And so among the big things that he starts to do is recruit a lot of similarly conservative from a Fed soc mold, if not literally from Fed soc. A lot of people to the upper echelons of the firm, and also to the kind of most influential areas in the practice groups within the firm, including the group called Issues & Appeals, which as the name implies, is an appellate practice that focuses in large part on bringing cases to important federal appeals courts and ideally to the Supreme Court.
0:07:29.2 David: And they played a big role in one of their kind of leading causes in the Obama era was leading the effort on multiple legal fronts to invalidate Obamacare, whether it was challenging the insurance exchanges or fighting the ban on the employers have to cover contraception for their employees under their health plans. And most of these cases didn't really succeed that well. So their influence was not as great as it is now. And the Obamacare cases are a case in point of that. Most of them, they lost at the Supreme Court. But in 2014, they made a very fateful decision, Brogan did, which was that instead of kind of sitting on the sidelines of politics, they were going to create a new political law practice. And to do that, they hired this team of kind of hotshot republican lawyers from Patton Boggs, so a guy named Don McGahn, Ben Ginsberg, and another guy whose name doesn't matter.
0:08:28.5 David: Sorry, Bill McGinley.
0:08:31.1 David: And they came over. So they came over at the end of 2014, in early 2015 the presidential campaign is just getting underway. And so this group of lawyers has free reign to basically start advertising that they are here to advise any would-be Republican presidential nominee who would like their services. And so they get a bunch of people at first. And there is Chris Christie was on their list, Scott Perry, the Texas governor was there, and a guy named Donald Trump who happened to have a connection going back generations with Don McGahn's family. And so, yeah. On basically, and I wouldn't say they gambled that Trump would win. I don't think they had any inkling that Trump would win, but they wanted a Republican winner, and so they threw their hat in the ring with Trump among others. And we all know what happened.
0:09:23.0 David: And along the way, Jones Day played this absolutely pivotal role in not only advancing the Trump campaign just by keeping it generally in compliance with campaign finance and election rules and things like that, but really cementing and solidifying its credibility in the Republican establishment through things like the creation of the list, which I assume most people know about. But it was basically Trump publicly committing to certain Supreme Court just... Or to pick from a list of kind of Federal society, pre-approved Supreme Court justices. And I'm cognizant, I'm just kind of going on here, so feel free to interrupt me here. But that was a kind of a key turning point, I think, in the Trump campaign, no less an authority than Mitch McConnell has credited the creation of the list, which literally took place in Jones Day's offices. It was mastermind by Don McGahn. Mitch McConnell said that was the moment that the Republican establishment realized that here was a guy they could support and they could rally behind, even though just a few years earlier, he had been very wishy-washy on issues like abortion.
0:10:26.1 Peter: This is how we are gonna get our name out there too, and establish our credibility [laughter] with establishment forces is by putting out a list of Supreme Court nominees. And I think it's gonna work. I think we're gonna get some Trump levels of power.
0:10:43.2 Michael: [laughter] And on a serious... [laughter] And on a serious point. I did want to...
0:10:45.8 Peter: That was a serious point.
0:10:49.2 Michael: I did want to continue with that. I feel like when I was reading the book, you sort of make the case, not just that Jones Day advised and hitched their wagon to Trump, but in some ways made Trump that the campaign was very fly by night and they didn't really know what they were doing, they weren't very professional and weren't getting along with the Republican establishment and Jones Day sort of made all that happen for them, turned it into a real campaign enmeshed with the Republican Party, is that it?
0:11:20.1 David: Yeah, I don't wanna overstate the professionalism of the campaign. This is [laughter], seriously, it was like even in victory, it was a complete shit show, right? But it definitely, and Jones Day and Don McGahn in particular played this absolutely crucial role bridging the wide gap between someone who is not just like a combustible and unpredictable and inconsistent candidate, but also someone who is running against the political establishment, right? And here he has Don McGannon in his corner, and McGahn is the embodiment of the political establishment. This is a guy who had worked for basically who's who, and Ben Ginsberg too. They had worked for a who's who of Republican candidates and party apparatuses and other causes for decades.
0:12:06.1 David: And McGahn had been the chairman of the Federal Election Commission presiding over the watering down of campaign finance law. So he is a very well-known quantity on Capitol Hill at organizations like the Federalist Society and just in the Republican firmament. So, they played an essential role really building up Trump's credibility and allowing people like Mitch McConnell to have a lot of comfort that this was someone that they could go to bat for. And even when things like, I don't remember exactly when this was, but when was Trump's like... The video that came out right before the election of Trump boasting about sexually assaulting people.
0:12:43.8 Michael: Yes.
0:12:49.2 David: Like at moments like that, you could see people tiptoeing away, but you also knew that in their heart of hearts, they actually believed that with Don McGahn behind the scenes, that someone like Trump for all his many flaws, was someone that was probably going to come in and do the thing that was most important to them, which was... And there was a Supreme Court vacancy right there waiting for them and because of Scalia's death. And so this was a huge priority for the Republican, for the conservative movement and the Republican party, and I think that despite all of Trump's many, many foibles, they felt comfortable committing and recommitting and recommitting to him.
0:13:20.7 Rhiannon: Yeah, can you talk a little bit, I think something that was, really illuminating for me in the book is about the sort of close personal ties that other lawyers at Jones Day who are bringing cases to the Supreme Court, right? Have not just with the political establishment, not just through the Trump campaign, but also direct connections with the Supreme Court justices themselves.
0:13:45.7 David: One of my favorite anecdotes from the book, unfortunately didn't make it into the book, because it happened after the book had physically been printed. But the day after the Dobbs decision, back, what was that? June, I guess July, there was a party at a home, right on the Long Island Sound in West Chester County, New York, which happens to be near where I live. And, the party was thrown by one of the top lawyers at Jones Day, a woman who ran at that point, their Issues & Appeals practice. And one, it was a 50th birthday party for her husband and one of the guests there, this is the day after Roe has overturned, was Amy Coney Barrett. And Amy Coney Barrett was there because she knew who were these people, because they'd all clerked together for various federal judges and Supreme Court justices over the years. And also, there was a guy named Noel Francisco who until recently had been the solicitor general in the Trump administration and had returned to his previous home at Jones Day. And it... Between the two of... Two Jones Day partners, among many others who were there, these were the people responsible for arguing Jones Day's cases before the Supreme Court, including one that at that moment was pending before the court.
0:14:57.8 David: It was the West Virginia versus EPA case that ended up... The court ended up kind of neutering the power of federal agencies to regulate things like the environment. And, so I actually saw a picture of this afterwards that there is Noel Francisco and Amy Coney Barrett have sitting in a corner together, chit-chatting. This case literally is pending before the court, and five days after this party, the case comes down, lo and behold, it's in favor of Jones Day's client. And I'm not suggesting that there's any connection between literally what they were talking about at the party, and the decision, which I'm sure was already written. But to me that was just such like a vivid illustration of the cozy, maybe somewhat say incestuous relationship between not just members of the corporate bar and the judges and justices that they are arguing for. But also like, in the conservative movement, they have done a really, really good job of building a network, building a community, and kind of staying connected and cultivating those ties to such an extent that a Supreme Court justice thinks it's appropriate to go party with the people who are arguing at that moment before their court. I don't know if that, actually... I forgot what your question was, but I really wanted to tell that story. [laughter]
0:16:15.4 Rhiannon: Yeah, no, that's great, it's an example of what I was asking about.
0:16:20.1 Michael: Yeah. And, so I think that also makes me think of... Something I was thinking reading your book is, it's about Jones Day, but it's also about the transformation of corporate practice in general. In, the 1900s, especially the latter half of the century. And I think something I walked away with was the idea, maybe, I don't think you ever explicitly say this, but that this was sort of the point, right? This is like the idea, this is the culture that they've been building in by deregulating and sort of unchaining business, loosening lawyer ethics rules, loosening advertising rules, creating profit incentives that the... Essentially that this is like... This has been the goal is to create a world where there's this sort of just sort of incestuous purchased influence, I don't know, is that fair?
0:17:20.0 David: I don't know if that's fair, honestly. I mean, I don't know if it's fair to call that the goal. That's certainly the effect. I think that there, as with the case with like basically everything in the world, like things are subtle and there are a lot of shades of gray, and they happen bit by bit in ways that you don't really recognize what's happening at the time. I actually, you guys on a recent podcast kind of got into this with someone who, I guess you had criticized previously and were, you kind of apologized for it because it was like, in the moment you don't realize quite what you're doing or the outcome it's gonna have 50 or a hundred years down the road. But I mean, there's no doubt... First of all, members of the corporate bar, by and large did set out and have consistently set out to make the law and the interpretation of the law much more favorable to their clients. I don't even really blame them for that, right? Like that's just... They're advocating for their clients and the effect is that, their clients are often accused of doing terrible things. And as a result of the increasing power of the corporate bar, it is harder and harder and harder to actually successfully bring cases and seek justice against those companies when they do bad things. And, I'm not sure to what extent that's deliberate or just kind of a beneficial coincidence and I just don't know.
0:18:34.0 Michael: Alright. I wanna be clear that we didn't actually apologize to Rick Pildes. [laughter] We just sort of equivocated a bit about our criticism. [laughter] That's... I don't want us to sound weak on a recorded episode...
0:18:49.4 David: There's nothing weak with apologizing when you're wrong.
0:18:54.9 Rhiannon: Bringing it back to the ties to the Trump campaign, the representation of the Trump campaign, I wonder if people would be interested just to hear about the 2020 election and Jones Day's role there.
0:19:09.3 David: Yeah, I mean, it was just kind of a crazy situation. So Jones Day represents the 2016 campaign Trump wins. And I think the important kind of context is that a whole lot of officials or lawyers from Jones Day, Don McGahn gets named White House Counsel and he basically imports his political law team from Jones Day and brings them into the White House Counsel's office. So there are probably 10 or 12 lawyers in the White House Counsel's office who were... Had been on Jones Day staff. They go into the White House. The upper echelons of the Justice Department are just stocked with Jones Day people.
0:19:40.7 David: They're senior people at other agencies as well, like the Commerce Department and some others I can't even remember. And so there's this huge exodus of talent from Jones Day into the Trump administration, and which is not... It's not uncommon for administrations, whether they're a Republican or Democrat, frankly, to draw very heavily from corporate law firms. But this was a really extraordinary kind of transfer of power from one particular firm into one particular administration. And so over the years... And they played a very influential role, not just in reshaping the federal judiciary. And McGann had the sole power granted to him by Trump to come up with lists of nominees, not just to the Supreme Court, but to the entire federal bench.
0:20:25.5 David: And he did that with great, kind of military precision and devotion. But anyway, as after a few years, a bunch of these people left the Trump administration and came back to Jones Day. Jones Day began... And meanwhile, Trump had, filed his papers for reelection the day he was inaugurated in 2017. And so Jones Day all along its staff is running... Is working on his 2016 campaign still, which has all these legal issues like the Mueller investigation among other things, and is also the outside counsel for his 2020 campaign. And it... The... I don't think it was a decision that Jones Day paid a whole lot of attention to stay on with the Trump campaign. And I think there was a little bit of internal debate, but not a whole lot. But by early 2020 Trump... Or by, maybe by mid 2020, Trump's rhetoric was veering in an especially, autocratic anti-democratic direction.
0:21:21.6 David: And he was, as I'm sure everyone knows, warning over and over again with no basis in fact, about the risks of fraud. The risks, if he didn't win the election would inevitably have been rigged. And a bunch of people inside Jones Day started finally, after five years of representing the guy started to feel pangs of their conscience. And one of those people in particular was Ben Ginsberg, who was of course the senior Republican lawyer who'd come over with Don McGahn five or six years earlier. And he voiced these concerns to Steve Brogan, the head of the firm of... On a couple of occasions at least, basically saying, there comes a point at which the rhetoric of our client starts to matter. And when he is clearly laying the groundwork to not stand by the election, that is maybe something we should think about the reputational damage it might inflict on our firm if we're not careful.
0:22:21.8 David: And as you can probably imagine those concerns, I don't know if they fell on deaf ears, but they certainly did not result in any change to how Jones Day was handling itself. And lo and behold, Trump loses the election and persists in trying to overturn the election unlawfully. And so Jones Day played a... Ginsberg by the way, a month or two before the election ends up resigning from the firm, basically in protest, saying he doesn't want his last political campaign to involve a demagogue destroying democracy. Jones Day, was not involved in the, crazed Sidney Powell -esque, legal challenges after the election.
0:23:01.4 David: What they were involved in was some very important litigation in Pennsylvania where, there were... The Republican party had challenged how they were going to cut the timing and the kind of, credentialing of absentee and mail-in ballots. And Jones Day on behalf of the Republican Party, and then later on behalf of Trump went out basically to make it as hard as possible for absentee and mail-in ballots to count in Pennsylvania. And that seems like a little with a benefit of, three years of memory loss, in a pandemic and stuff like that. That seems maybe not that important. But you have to remember that this is in the middle of the pandemic.
0:23:36.6 David: People were... There's a lot of concern about people going, physically going to polling places to vote. Pennsylvania was a crucial swing state. And so there was a real, and absentee in mail-in ballots were expected to skew very heavily, toward Biden. And so Jones Day took a very clear approach, which is that they were going to make it as hard as possible for those likely Democratic ballots to count. And this finally, after years of representing Trump, finally led people at Jones Day to kind of throw up their arms in protest. There was a series of conference calls that were held that where people were, outwardly rebelling, which is very unusual at a firm like Jones Day, which is a very hierarchical kind of, I don't wanna say dictatorial culture, but kind of a dictatorial culture and where dissent is not always encouraged.
0:24:24.2 David: And so it was a pretty extraordinary moment for the firm. Did it change anything there? I don't think it really did, to be honest with you. I mean, they took great pride and I think still do take great pride in representing unpopular polarizing clients. And Brogan, who just now has retired finally after 20 years in charge, is it seems to derive pure pleasure from thumbing his nose at the kind of political and media establishment and yeah.
0:24:57.6 Rhiannon: Cute, I...
0:24:58.9 David: See this is why you... You're funny.
0:25:03.8 Rhiannon: Thanks David, I just wanna make another note. I don't have a question. I think Peter might, but I just wanna make another note about the importance of that litigation in Pennsylvania is that, that is a kind of iteration, a sort of maybe baby argument, that ends up kind of rolling into independent state legislature theory, right? Which is now in front of the Supreme Court this term.
0:25:27.6 Peter: Yeah, it also came, the court was poised to buy a lot of these arguments potentially write off a bunch of absentee ballots. They basically punted the issue, but left it available to themselves in the event that it became decisive. So there was like... There was a... I mean the election ended up being too decisive to fuck with. But the possibility was very real, that they could have won that.
0:26:00.6 David: And look, I think, and this is kind of a hallmark trade of, certainly of Jones Day, maybe of corporate law firms or maybe all law firms, I don't know. But I... They didn't take... I mean, they took that case and litigated that case because they wanted to win it, and they were hopeful, I think that it would flip Pennsylvania. But they also, I mean, they do these cases with like a real view toward the long term. And in terms of setting precedent, not just like in... For the particular facts or laws at stake, but kind of to lay the groundwork for future appeals and future cases that they hope will set precedent. And this is something with Jones Day, and again, I'm not... I'm maybe unfairly singling them out here, I don't know. But I mean, they're just very methodical about it.
0:26:34.2 David: And it's the same, it's like, it's a system that they have learned over years of high stakes corporate litigation the tobacco, they were the main RJ Reynolds primary outside lawyer. And it was like, those are battles that taught them a lot about laying the groundwork effectively for appeals, slowing down the legal process and using... Even using defeats to translate into long-term victories. And so I mean, I think they attacked this with a lot of forethought and with an aim toward being able to use not just that case, but the type of legal arguments they were making to advance their agenda in future venues.
0:27:14.6 Peter: I do wanna talk a little bit before we sort of move on into bigger picture discussions, I would like to just talk a little bit of shit about Jones Day, if we can.
0:27:26.1 Michael: Yeah.
0:27:26.7 Peter: It's...
0:27:27.1 Michael: I think we can. Yeah.
0:27:27.9 Peter: Yeah. Because I mean, there are a lot of law... There are law students here, there are certainly some just listening to the podcast and they are like one of the worst places for a lawyer to work if you're not a partner and in... Back in my day, folks, [chuckle], that was sort of like common knowledge. And what I mean by the worst place is not necessarily the culture is particularly grueling because you can see that all over the industry, but associates are underpaid relative to their peers.
0:28:00.8 David: Yeah.
0:28:00.8 Peter: They don't get bonuses, there is no transparency on the pay scale, which is like very unusual for big law. I mean the big law is a pretty clear trade. Your time and your morals and then money in exchange. [laughter] And Jones Day doesn't even guarantee them money.
0:28:28.7 Peter: It's a very sort of bizarre dynamic, they've been intertwined with like the worst corporations on earth for years. You mentioned, tobacco companies, a friend of mine who worked there told me that the managing partner in Dallas had an office at Raytheon HQ [laughter], like just demonic. [laughter] Like a caricature of an evil place. But just... But also a place that like does not even respect the associates doing the work for them, I don't know. It... I don't even have anything poignant to say about that, it just seems like they are as awful to everyone in their vicinity as they can possibly be at all times.
0:29:08.5 Rhiannon: Well, David, I do think you know a little bit about like that culture of like churning people, right? Last week when we spoke, you talked about how they sort of reserve huge bonuses for Supreme Court...
0:29:20.5 David: Right?
0:29:20.5 Rhiannon: Clerks.
0:29:22.3 David: Yeah, I mean they do, there's, I'm sure many of you already know this, but there is a frenzied ever by many law firms to attract Supreme Court clerks and hire them and I think that it's kind of, everyone gives the same going rate in terms of the signing bonuses, which are astronomical. And it's, I think it's now like $450,000 signing bonus which ends up meaning that the person who then... The clerk ends up making substantially more than the Supreme Court Justice in their first year at a law firm, Jones Day, though...
0:29:54.3 Peter: I don't want to implicitly advocate for raising Supreme Court Justice salaries.
0:30:00.1 David: Jones Day snaps up as many clerks as they can, they've literally said that they want as many as they can get. And I think they've been very effective at doing that. They year in and year out get more clerks than anyone else, and it it... More Supreme Court clerks than anyone else. And it's an interesting question why they do that, I think, which is not... The answer is not entirely clear to me. And they say it just makes business sense and well, why? And there is... This is a firm that has an extensive practice before the US Supreme Court every term, they have at least a couple of major cases that they're arguing. So maybe it gives them knowledge of how the justices think, maybe it's kind of good for marketing purposes, I don't know. It's kind of a racket though, in part because a lot of these clerks who go there they have to stick around for at least two years, but many of them leave right afterwards because they don't have any interest in working at Jones Day.
0:31:00.4 Rhiannon: Right, because of the size of the bonus, it's often clerks who have clerked for liberal justices. Who go and then just do the two years and leave. And the firm knows and expects this.
0:31:10.5 David: Well, yeah, just to be clear, the liberal justices thing is a little bit of a red herring. I mean, that's the argument Jones Day made to me when I was asking about this. That, well, look, you say we're a conservative law firm. No, we're not, we have hired like all of these clerks from liberal justices. And I actually went back over 30 years and counted and first of all, they've... Two thirds of their clerks have come from conservative justices. In the past several years, every single one of their clerks... Or at least the past couple years, every single one of their clerks has come from conservative justices, and the liberal clerks who do come, there is a tendency of them to, as you said, stick around for two or three years and then bail. And yeah, I mean, I think from a... If you're a Supreme Court clerk, that may well be the economically rational thing to do if you're just looking at this purely in terms of maximizing your money.
0:32:01.8 Michael: Yeah, I do think firms like that, my experience with them is that they do get value even when associates leave, just from having personal connections with people who they think will likely end up being important. Being in government, being in the DOJ, being in an administration, working in Congress, or whatever, which Supreme Court clerks are likely to do. Now they have a personal relationship with someone, that's it?
0:32:30.0 David: To me though, it's a manifestation of something broader going on at Jones Day, and probably other firms, which is that they are... The leadership of those firms is thinking, again, very methodically, long term about building a network that is useful to them, not just for their client's purposes and winning cases, but to pursue the ideological goals.
0:32:50.6 Michael: Yes.
0:33:00.1 David: Of their leaders and their most important experience partners. And it's a... And Jones Day, stands out I think in the corporate bars being especially conservative, but I think this is the spectrum of ideology across big corporate law firms is maybe not that wide. And I imagine that that's kind of this... Whether it's the intent or not, it has the effect of everyone in this space is interacting with the same very exclusive group of people, and those are people who are making the law, interpreting the law, arguing the law. And I don't think it's a coincidence that you then see the outcomes in so many cases skewing in a particular direction.
0:33:34.2 Michael: Yeah, it's interesting you said across the spectrum of big law, 'cause I think the book is about Jones Day, but you try to show that it's just one of many. And you talk about Baker McKenzie, talk about Gibson Dunn, Paul, Weiss a bunch of different firms. But I noticed my alma mater, Sullivan & Cromwell didn't get a mention. So do you think it's fair to say that I'm...
0:34:00.5 David: I'm sorry to disappoint you.
0:34:01.7 Michael: Morally blameless?
0:34:04.4 David: You have a...
0:34:04.9 Michael: If I did a pro bono, maybe a morally praiseworthy.
0:34:09.4 David: I hereby award you praise. [laughter] Moral praise...
0:34:13.3 Michael: Well. I Knew it, I knew it.
0:34:24.0 Peter: This is a beautiful moment. [laughter] I think it makes sense to sort of zoom out a little bit and talk about big law in generally because the book covers an interesting narrative that takes place mostly in the '70s, where you have a series of free speech oriented challenges to restrictions on like lawyer advertising, etcetera, that completely change the profession and get the ball rolling in a weird way where you have then lawyers competing for clients, you get a culture of competition that spawns things like American Lawyer which then feeds into this cycle.
0:35:00.4 Michael: Magazine, not just the entity.
0:35:02.9 Peter: Right. [laughter] Not just the concept of the American lawyer. [laughter] And yeah, you have this reinforcing loop where lawyers are chasing after clients accumulating power. Law firms are getting bigger and that leads us to modern big law. So I just think it would be useful for everyone if you could just walk through like what happened there.
0:35:27.9 David: Yeah, well, it's complicated and there's lots of different things converging on one point. And first of all, I'm not a lawyer in case that wasn't obvious...
0:35:37.7 Rhiannon: Smartest person up here.
0:35:42.2 David: So I had no idea that there was a day not that long ago really, where law firms and lawyers couldn't advertise that just... I have been on many highways and I see many advertisements and I just assumed that was the way the world always worked. And I assume most of you know that's not the way the world always worked. But there was a couple Supreme Court decisions in the '70s that in... And they're interesting decisions because on their face, they seemed kind of, you got where the... Or at least I could get where the justices and where the plaintiffs in those cases were coming from.
0:36:15.3 David: And the most important one was Bates versus the State Bar of Arizona. And Bates was... He and a colleague from law school had set up a legal clinic providing basically cut rate legal services in Phoenix to poor people. And there was just two guys basically, they had no way to get the word out. And at the time, State, and local Bar Associations had enacted prohibitions on advertising. So that meant the normal way to get the word out would be, you run an ad in the newspaper or on TV, well, you weren't allowed to do that. You weren't even allowed to basically go and ask a reporter at the local newspaper, "Hey, do you wanna write a story about this cool new legal clinic?" You just couldn't do that, you had run afoul of these Bar Association rules.
0:37:03.0 David: And so Bates and his partner Van O'Steen decided, what do we have to lose? Fuck it. We're just gonna run an ad and see what happens. And so they ran this little ad in the Phoenix newspaper, and sure enough, the Bar Association filed a complaint. They were going to be basically have their law licenses revoked. And this case ended up going up all the way to the Supreme Court, which ruled that restrictions on lawyer advertising violated the First Amendment. And this is one of a kinda a series of cases in that era that were brought by Nader accolades actually, that were... It was widely viewed as a victory for kind of people that were trying to break up established monopolies like that existed in the legal system.
0:37:47.5 Peter: They were arguing it's anti-competitive, right? That if you're a small lawyer trying to get off the ground and you can't solicit, what are you supposed to do? It just, it's a built-in benefit for large firms.
0:37:56.6 David: Yeah. It was a built-in benefit. And the law firms, the big law firms were literally colluding. Like they would set prices together with the help of the Bar Association. So it was not... And it was a way that... Of locking out competitors. And it harmed clients also. Because it prevented competition to reduce prices. So these were bad things. The result of this decision though, which was not unanticipated. I think it was Rehnquist actually who had this dissent that proved, I think very farsighted, which was that this decision was going to set off not just an arms race in the legal industry, which it did, but in all sorts of industries. Like it opened the door to drug companies running advertisements, for example, and...
0:38:33.6 David: Anyway, in the legal industry it meant that lawyers could not only run ads, which they quickly began to do, but they could also start kind of promoting their services in a whole variety of ways. Whether that meant handing out business cards or talking to the media, or even soliciting clients and kind of coming up with strategies to solicit clients. And so it's... It kind of was this starter's pistol on law firms becoming much more proactive in marketing themselves and selling themselves, and that incentivized them to get bigger so that they could attract more clients all over the country. And when you start getting bigger, you need if you don't want to like dilute the amount of money you're paying to your partners, you need to hire more people so you can take on more cases and take on more assignments and then you have more people on the partner track, which means you need to expand the pie further. And it's like round and round we go.
0:39:20.0 David: And I don't think that was like the sole thing that kickstarted this, but it was definitely an important force. And you talk to a lot of like old corporate lawyers, and they remember this moment in the late '70s, or early '80s when all of a sudden they could go out and issue press releases and go out and like talk to their buddy at the American Lawyer Magazine and kind of boast about the way they were winning these clients. And at the same time, there was the creation of this specialized legal press that was built... I mean it wasn't liter... Well, I don't think the people behind it would've said that they were designing it to celebrate like corporate lawyers. But that was definitely the effect.
0:39:57.8 David: And it ranged from, like... It was kinda like treating corporate lawyers the way you would treat like an NBA star in terms of the coverage. And they also started publishing all these rankings of law firms by various profitability metrics, which would not have been possible for them to do a few years earlier when it was off limits in most places to even for a lawyer to talk to the media about anything about their firm really. And so it created this very visible public race to have the most profits per partner, to have the most offices, to have your, top lawyers profiled in the American Lawyer. And I think in hindsight, there's no question that that was a kind of a crucial turning point for the industry. Wow, I've left you speechless. That's... That's terrible.
0:40:42.9 Peter: Yeah.
0:40:43.5 Rhiannon: On the...
0:40:44.4 Peter: Go ahead.
0:40:45.1 Rhiannon: I was just gonna say on the topic of sort of, ethical responsibility, professional responsibility, Jones Day told you, and this is not uncommon across big law, Jones Day told you something specific about why they represent the unpopular, let's say destructive, I'll say evil, I'll say corporations that they represent. Johnson & Johnson among them whose products cause cancer, we talked about Big Tobacco, many other, the list goes on and on. But they say something interesting about legal ethics for why they take these clients.
0:41:22.8 David: They are very patriotic. Everyone is entitled to legal representation.
0:41:26.6 Peter: Yeah.
0:41:27.4 David: Don't you know that Rhi?
0:41:29.7 David: God, did you go to law school? Of course, everyone deserves representation no matter what. And the more heinous the client or the more heinous the client's crimes, the more they deserve legal representation.
0:41:42.6 Peter: Right.
0:41:43.1 Michael: Right.
0:41:43.3 David: And this is something honestly, I heard from many, many, many people at Jones Day, but also from everyone. Everyone I talked to about this book is like, but wait, everyone deserves legal representation. You're attacking these poor lawyers for just doing their jobs and zealously representing clients. And I like actually the first time I... Well, I've been hearing this argument since like the moment I started working on this book, but it gave me... Like I had to, again, I'm not a lawyer. I didn't go to law school. There's... So I spent a lot of time thinking about that and talking to people about that. And I just think it's like, there's obviously some truth to the argument, but it's like been perverted in this way, especially by big law to just go way beyond the entitlement to counsel under the Sixth Amendment. Like where, you know if you're an accused criminal, a human criminal, you have a right to zealous representation, which often you don't get because all of, or so many of the good lawyers from places like Harvard Law School are going to big law firms where they don't represent individual clients. I could just... I mean, I could talk about this for hours, so maybe, maybe give me some direction.
0:42:50.5 Michael: Yeah, no, I thought, sort of a compelling point you made, was that so much of what big law firms do now, doesn't fit in any, even if the most abstract idea of what, like lawyer advocacy and zealous representation even is. Right. Like David Boyd's hiring like Mossad agents or whatever to harass victims of sexual assaults.
0:43:15.5 Peter: Oh, you don't like that?
0:43:17.5 Michael: Right? That's, not lawyering, right? Like in any sense.
0:43:21.6 David: And that's like... Yeah, that's just the tip of the iceberg.
0:43:23.3 Peter: That's the zealousness.
0:43:27.9 David: Yeah. I mean, there is... If you like, stipulate the corporation's like people, deserve zealous legal representation when they're accused of crimes or even when they're accused of any sort of wrongdoing. Like let's pretend that that includes civil cases, which it doesn't for humans. But even in that context, like there is no constitutional or ethical entitlement to having a good law firm helping you avoid taxes or hide money or lobby for a law or threaten witnesses or intimidate plaintiffs or, you know, on and on we go. There's, and you know, big law firms, that is a lot of what they do. And not even in a illegal or legally improper way. It's just like they... The modern big law firm on the corporate side is not specializing in defending individuals or even institutions that are accused of wrongdoing.
0:44:23.8 David: They are helping at every turn figure out creative complicated ways for companies to avoid adhering to the letter or if not the... Or at least to the spirit, if not the letter of the law. And to hide their money in way and manage their money in ways that is outside the reach of tax authorities. And those are just not things that you have any right to, nor do you have a right if you're a politician to the best political lawyers in the country that you just do not have that right. And the law firms like John Saba, by no means limited to them, have mastered this argument of, we... Not only is what we are doing constitutionally and kind of constitutionally protected and kind of patriotic, but you questioning that like you journalists questioning that are betraying a complete ignorance of the constitution and the... Kinda the standards of the legal profession. So you should shut up and go to law school and...
0:45:22.5 David: It's... That's effective by the way. For people who are not lawyers, I've been doing journalism for a long time, so I've kind of learned to just... When people say things like, "You're an idiot. You don't understand how it works," to not pay attention to that. But I think that's part of the reason that big corporate law firms are not written about as much as they deserve to be in major mainstream news organizations. I work at the New York Times and I love the New York Times, but we have generally failed over the years at writing investigative pieces and just scrutinizing the inner working of these firms, which are multi-billion dollar institutions. And if they were in any other sector of the economy or in any other kind of place in society, we would be going nuts on this. We would be really digging in. We have teams of reporters covering these places and we just don't... And neither do our competitors. And I think that's, it's in part because these lawyers have really been so effective at taking this simple argument that everyone who's accused of a crime is entitled to lawyers to cover the whole waterfront of shit that they do that has nothing to do with what the Constitution actually says.
0:46:32.0 Peter: Yeah, it's... It's an interesting conversation because I... I don't even think that I disagree with the theoretical principle. "Everyone deserves representation". It's... The real problem is that it's this abstract theoretical conversation that is overlapping with a really practical one, right? Not everyone gets representation. And if you are Jones Day, you are choosing to some degree who your clients are, just like your clients are choosing you. It... That might be something that's defensible if literally no one else was representing Donald Trump or willing to, and then you were assigned by a court [chuckle], right? Donald Trump as a client. They are purposefully choosing clients like Donald Trump, like tobacco companies, weapons companies, because those companies are wealthy, right? This is...
0:47:19.7 David: And it's not like they're just sitting there waiting and being like, "Let's see who comes in our office today"
0:47:23.9 Rhiannon: Right.
0:47:24.2 David: "Seeking legal representation." They're actively out there designing legal strategies to market to particular companies and particular industries that they want to attract. So it is not... There's no passivity to it. And I think the notion that they're peddling that, and not just Jones Day, all of these law firms are peddling, is predicated on there being some type... That we are passively... Of course, we're not gonna turn away a client. Come on, you went out and sought that client. You did everything in your power to make yourself and your legal strategies not just attractive to those clients, but known to those clients. And so you're peddling this. You can't...
0:47:58.8 Peter: You're also not... I mean, you are... There are people without client... Without lawyers who need lawyers, right? You're not seeking them out and if you're not seeking them out to try to fulfill...
0:48:07.7 Michael: RJ Reynolds had attorneys.
0:48:10.2 David: Right.
0:48:10.8 Michael: Has always had attorneys. [chuckle]
0:48:12.4 Peter: Right. It's just... It just feels like turning a really material discussion about who needs lawyers and what they need them for into a sort of reflexive defense of taking up representation for anyone, for any purpose, etcetera.
0:48:28.7 David: Yeah. And I think... Just one other thing about this, and then I'll... The notion... There's no doubt that like our... The legal system is built on this representation or on this notion that zealous representation of all sides, everyone makes their argument in front of a judge or a jury as strongly and forcefully as possible. And then you have impartial jurists make a decision based on the facts as forcefully presented. That in theory works really well, but it's based on this idea that, and I think it hinges on this idea that there is some symmetry between the two sides and that the power of the, say the plaintiff versus the defendant have similar resources, similar time constraints, similar financial constraints. And that is just not how it works, right?
0:49:16.0 David: There's... We had this panel up here earlier of people from big plaintiff's firms. The reality is that most of these cases that in which someone or something is suing a big company, it's not a fair fight at all. It is not... It's lopsided. And I've seen this happen over and over and over again where firms like John Saba, by no means limited to them, going in there just steamrolling their opponents. Not on the strength of their arguments necessarily, but based on the paperwork that they're filing, the motions they're filing, the depositions they're doing. And it just...
0:49:47.6 Peter: The time that they can... That they can spend, right? If you're someone without resources and you need a lawyer, you're likely going to get a lawyer who's cheaper, who's a little bit overworked, who's going to spend considerably less time on your case, right? If you're in big law, you will see clients spend tens and hundreds of thousands of dollars on cases worth $25,000. Because they... They do it as a matter of principle and practice and for sort of bigger picture reasons. And there's no way that a lawyer that the other party can afford could ever compete with that. They just, don't have the time and resources.
0:50:26.2 David: And this is in part... These are not random unrelated forces, right? The fact that it is so hard for plaintiffs in product liability cases often to find good, competent lawyers or people who are accused of crimes to find good, competent lawyers. That's not just unrelated to the fact that these corporate law firms are so big and so rich and it's... They are hiring at places like this school, 70% of graduates. And that means that 30% are spread across, spread very thinly across a much larger kind of area of law. So these are...
0:51:03.4 Michael: I don't wanna give Harvard law students too much credit here. [laughter],
0:51:09.6 David: You get the point. I'm not... See, I'm not... I'm still from the outsider point of view where I'm like, "I'm at Harvard Law". It's very exciting and awing to me, you guys...
0:51:18.1 Rhiannon: No, it's cursed David. [laughter]
0:51:19.9 David: Yeah. I'm getting that sense. That was news to me.
0:51:23.4 Peter: And if you're attending this, you are at... In the bottom of the class. [laughter] That's just... The kids in the top 5% are interviewing for Supreme Court clerkships right now.
0:51:34.1 David: The rest of us are sitting here on a Saturday.
0:51:37.7 Rhiannon: On the topic of legal ethics, the ethics of representation, all big law firms do this. Jones Day touts it a lot. Let's talk about pro bono time, right? So I was on the Jones Day website. They boast about their "border project" that the firm has launched in South Texas.
0:51:57.6 Peter: By the way, we should clarify, the border project does do good work.
0:52:00.5 David: It does.
0:52:00.5 Peter: They are... I know it sounds when you think Trump administration...
0:52:04.1 Rhiannon: I'm explaining.
0:52:04.5 Peter: Border project. No, I know. Okay. I thought you were gonna move on to the next project. I wanted to explain that it's real pro bono.
0:52:10.3 Rhiannon: The firm has launched this project in South Texas. They say they have provided legal education to over 10,000 migrants. They have managed more than 600 individual cases for women, children and families. And they have had 1100 lawyers from Jones Day working nearly 300,000 hours on these cases. Okay. So there's that. And then the pro bono site for Jones Day also lists other projects, including a real vague paragraph about support for Ukraine. They also combat human trafficking. And then there's a...
0:52:47.2 Peter: That's the QAnon pro bono project. [laughter]
0:52:51.4 Rhiannon: Right. Right. Right. And then there's a project, "Advancing the rule of law in Africa."
0:53:00.7 Rhiannon: So David, are they absolved? They do so much pro bono.
0:53:05.4 David: No, they're not absolved. But I will just like... I'm sorry to like play straight man here. Like they... The border project is like a really good thing and it has saved lives. Like it's a really good piece of pro bono work that they have done. They're representing thousands of undocumented migrants who've been trapped in lawless detention centers.
0:53:22.3 Peter: By the policies of...
0:53:24.4 David: Well, the Trump administration. But that exists.
0:53:27.3 Peter: It's also...
0:53:28.0 David: I know. I'm not...
0:53:29.8 David: I know. I'm not talking generatrix here...
0:53:31.2 Michael: That was an anti- [0:53:32.8] ____ round of applause, by the way, [laughter]
0:53:34.7 David: Well, that is a problem that the Trump administration undoubtedly hugely exacerbated, but existed, I mean, prior to the arrival of Donald Trump. But there's... Anyway, yes. To get back to your point, there is... They do some good pro bono work for sure. What they don't have on their... The funny thing is when I started this project, they... I would hear through word of mouth about the great things they were doing on the border. And I went to them and I was like, look, will you talk to me about the great things you're doing? Because I genuinely wanted to understand what the firm was doing that was good, what was bad? And they were like, we are not going to talk to you about that because we don't like to boast. We're doing this... They cited some religious saying that I've long forgotten about how like you do good works and you don't boast about them.
0:54:18.0 David: And I was like, okay, well but I'm writing a book about you and I want to capture what, the good stuff as well. And they're like, we're not not gonna talk to you about this. Anyway, as the book is finishing. They... As far as I could tell, they redesigned their website to start boasting about this stuff. One of their partners sent me this like very glossy brochure that outlined some of the things you just listed as well as a whole bunch of other, like things. It seemed like really good, important pro bono work. What you will not find on any, or at least I have been unable to find on that brochure or on their website, is any mention of the other pro bono work they're doing. Which is that they represent interest groups and think tanks that are funded by big corporate interests or billionaires that are doing things that run very much counter to the ideals they are espousing on the pro bono section of their website.
0:55:08.3 David: And they have done pro bono work attacking the Affordable Care Act, attacking voting rights and the list goes on, and I don't have it all off the top of my head. But and they have... And so I talked to some of their lawyers about that and I said, this certainly doesn't seem to adhere to ABA guidelines of what constitutes pro bono work, where you're providing services to people or institutions that are financially in need. And they said, well, the ABA is full of shit, basically. And anyway, our definition of pro bono is that it's free and that it's for good. And our definition of good is doing...
0:55:43.0 Peter: Advancing the rule of law in Africa.
0:55:46.5 Peter: You don't know what that is, do you? If someone can ever find out what Jones Day means by advancing the rule of law in Africa? One of the most unsettling phrases I've ever heard in my life.
0:55:57.8 Rhiannon: You can guest it on this show if you know, yeah.
0:56:01.6 David: I do not know, but I bet it's not as bad as you're implying, would be my guess. Because they use these things... I don't wanna use that word. The effect of what they're doing with these things, and the reason they're boasting about it on their website is that they're trying to create an image out there that... The very kind of polarizing, controversial, some would say bad work that they're doing for giant companies, those profits that they are reaping from that are being recycled into acts of good that we wanna boast about. And they are... You can just again, stipulate that they are doing some good stuff, good pro bono stuff. I think they are. They've also contorted themselves to find ways to take credit for doing pro bono work in terms of the hours that their lawyers are booking, doing things that do not fit the normal definition of what would constitute pro bono. Like working for Americans for Prosperity and representing them is not... Like, that is not a group that is in financial need of their free help.
0:57:00.6 Michael: I can give you a little insight into this as well. I think pro bono practices serve two big functions at law firms. The first is, when you're inside, they're very explicit about this, which is, it's an opportunity for junior associates to get experience that they would normally have to wait years to get. So you don't have to wait to be a fifth year to lead a deposition or go to trial. You get to do this where you don't have one of their paying clients asses on the line. And you can go and be before a judge and write a brief that's gonna be read by a state Supreme Court.
0:57:38.5 Peter: This is super important because a problem that big law firms have that's sort of easy to not... Hard to see from the outside is that if you are a second year associate with no deposition experience or whatever, right? Philip Morris isn't going to want to be your first trial run, right? So what do you do? You put that kid in a pro bono deposition. They can get some experience that way without a paid client getting upset about it or even worse a paid client demanding that it get written off, right?
0:58:18.0 Michael: Right. Yes.
0:58:18.8 Peter: Which is what happens when junior associates do a ton of work that they're a little too underqualified for. So instead of writing it off, let them do pro bono work. It's the same difference plus good PR, right?
0:58:31.1 Michael: Yeah. And then the other thing is that most people don't go into the law imagining that they're going to be hiring the Mossad to track down sexual assault victims or defending RJ Reynolds against people who have cancer or...
0:58:49.3 David: You know, it's interesting you say that though. At Jones Day, one of their selling points as they're recruiting young lawyers is that at a very kind of early age or early maybe not age but like early in your legal career you will get trial experience. And the reason for that is not the pro bono work, is that down in Florida, they are dealing with this avalanche of RJR cases. And so they are cycling their young associates.
0:59:12.3 Michael: And they're very pinned by numbers.
0:59:14.2 David: Yeah, exactly. There's lots of template work and it's taking depositions where they're trying to dig up dirt on the plaintiffs in tobacco litigation cases. So RJ Reynolds for them is the gift that... And they've been representing them for almost 40 years now. And it's like it is the gift that keeps on giving not just in terms of the hundreds of millions of dollars that they're making in fees but just it gives the firm an opportunity to say to recruits, "You are actually gonna get trial turns. Yes, it is going to be in the Florida swamp representing a tobacco company if they try to dig up dirt on people who use their product and died." But it's like, "It's trial experience."
0:59:56.1 David: And so if you really want trial experience that is off to Florida you go.
0:59:58.9 Michael: Yeah. Yeah. And then it's a way to reconcile that, right? So you're like, "Okay, I'm doing something pretty bad but I'm also helping this family that's fleeing political violence in South America or whatever." And people need that reconciliation to feel okay with taking ungodly sums of money and giving away their soul.
1:00:23.3 Rhiannon: Yeah.
1:00:25.8 Peter: I have a question for Rhi because one of the common responses when we're talking like ethics of representation from corporate lawyers representing big corporations is sort of like, "Well, just like someone who committed a crime needs a public defender." So to Raytheon.
1:00:49.3 Peter: And I don't... I'm maybe curious in what you think about that sort of line of argument aside from the obvious?
1:00:54.6 Rhiannon: Yeah, yeah. I think this is very broad but something that's been on my mind really since law school and I don't think people talk about it enough is this private-public distinction in the law. We talked about the evolution of law firms, the practice of law over the course of American history where it used to be thought of more as a public good. Okay. Lawyers have always been bad. I'm not saying that but it used to be thought of as more of a public good that you were doing public service being a lawyer. And I think the proliferation if you will, of just the privatization of the practice that it's profit driven has completely changed, I think, the practice of law and what could be in general sort of morally good goals at the center.
1:01:48.8 Rhiannon: Specifically, yeah, you hear it a lot. "Well, you've represented murderers." So you don't have a leg to stand on if you're saying, "This law firm also represents bad clients." For me it's a question about the system. It's a question about material realities for people. It's a question about oppressed and oppressor. We are oppressed in this society by these massive corporations that have tons of money. And your common poor person who is accused of crimes, largely you're talking about not just poor but you're talking about marginalized in other ways, in intersectional ways. They're people of color, they're disabled, they're mentally ill. And so materially, you are talking about giving legal representation to a very, very different client. It's not somebody who has done wrong. You are talking about a corporation built on profit-driven ideals and fuck everybody else, versus somebody who has been marginalized and largely failed by every system that is supposed to support them throughout life. And so it is very, very different. It is an honor to stand next to somebody who is too poor to hire an attorney who is accused by the state of doing something wrong. And there's no honor in the other representation, to me.
1:03:26.2 David: Well, can I make a...
1:03:26.3 Michael: Well, I wouldnt go that far.
1:03:31.0 David: Yeah, I was gonna say there's a counterargument in terms of representing corporations. There are different ways of representing a corporation and I assume you've all read my book by now. But for those who haven't the book opens with this example in 1944 in Cleveland where there is the gas company there has built this network of big liquefied natural gas facilities. And one day in 1944, two of the tanks explode. And it basically levels like this entire neighborhood in Cleveland, like destroys all these houses. A lot of people die, many more are injured. And so the gas company goes to its law firm which is Jones Day and is like, "What do we do?" And so the explosions take place on a Friday morning. And so that weekend, Jones Day kind of... Their lawyers kind of hunker down in the library of their law offices and research... They research it in the case law and trying to come up with a strategy to present to the gas company.
1:04:24.9 David: And basically what they come up with is that there are a couple of different options. One is kinda the traditional strategy which is, you can just go to very great, very effective lengths to basically reduce the amount of money that the gas company whose exploding tanks just caused all this havoc, you'll reduce the amount of money the company's going to have to pay. You can cast blame elsewhere whether it's on like the steel company that manufactured the tanks or maybe on the homeowners who didn't fireproof their homes or the sewer and water authorities whose like underground tunnels were like conduits for this gas to spread all over the city.
1:05:04.6 David: You can do things like prolonging and protecting the litigation hoping to kind of kick things down the road far enough that people will give up and just accept low ball settlements. There's all sorts of stuff you can do right? So that's one option. That's not the option interestingly that they presented to the gas company. What they said is if you want to remain in Cleveland, you should do the right thing. And the right thing is you should pay people whose lives you just destroyed.
1:05:28.8 David: And so the the explosion was on a Friday. That Monday so two or three days later the gas company ran an ad in the Plain Dealer and newspapers saying you come to our offices on today, on Monday we'll write you a check on the spot. And so Jones Day set up in the lobby of this building tables and they processed all these claims and on the spot wrote checks and it was something like a hundred million dollars in today's money that they just wrote. And so I think this is by the way 1944. So what is that? 80 years ago.
1:05:57.6 Rhiannon: Yeah. And not how law firms operate today. [laughter]
1:06:00.1 David: It's totally not. And...
1:06:01.7 Peter: Today, Jones Day's advice would've been to blow up the rest of Cleveland.
1:06:05.9 Peter: So there are no witnesses.
1:06:07.3 David: Seriously, it is like they have become masters at doing the exact opposite. They fight tooth and nail against even the most legitimate claims because they're fearful and their clients are fearful of setting unhelpful precedent. And they are very well-equipped and very successful at doing that. As I've been working on this project, a lot of people have said, "Well you know this is stupid." Of course law firms are gonna do what it ever takes to help their client. And that may be true but like the conception of what it is that helps a client today has been... It's kind of we take it as self-evident that that will be something short term and we're gonna do in the immediate term what saves us a buck. I think in the long term Jones Day's advice to that gas company in 1944 was definitely the right advice.
1:06:53.7 David: That company, it paid out a bunch of money in the short term but it is still in Cleveland today. It's a big civic booster in Cleveland. It has a really good reputation. The place of the explosion is marked by this really lovely park with a playground. It's like not something that is a huge blemish on the company. In fact it's credited widely with having done the right thing. And to me that was probably in the best interest long term of their client and literally the polar opposite of the physical playbook that Jones Day has in its library today that shows you how to attack the plaintiff, how to kind of seek any advantage you can to threaten... Not literally threaten but basically threaten witnesses and to fight tooth and nail at every turn to destroy your opponent. But I don't think it's a giving that that is the way you need. There's no definition of practice in corporate law that involves being evil.
1:07:45.9 Michael: Yeah. I think... Unless you guys have anything else that might be a good point to wrap on.
1:07:51.4 Rhiannon: Well let's thank David.
1:07:52.8 Peter: Yeah. I guess we should thank David.
1:08:00.9 David: Thank you guys. I don't even like Podcasts but I'm becoming a fan of yours.
1:08:03.9 Michael: Well thank you. I thank you not just for for doing this but also for the excellent book.
1:08:10.2 Rhiannon: It's great.
1:08:11.4 Michael: It's obviously a ton of work and research. It's super engaging. If you haven't read it you should pick it up. I read it in big chunks 'cause I was very like captured by it.
1:08:26.3 Peter: It has a story that I think went kind of viral when the book came out of Donald Trump trying to pay a lawyer's fee with a prized stallion.
1:08:33.5 Michael: Yes. Yes.
1:08:39.5 Rhiannon: Good stuff in there.
1:08:39.6 Peter: It's so cool.
1:08:39.7 Michael: Yeah there's some... Definitely some good stuff in there.
1:08:40.4 Rhiannon: Yeah.
1:08:43.7 David: Thank you.
1:08:43.8 Rhiannon: Yay.
1:08:49.0 Peter: Hey guys it's Peter. Just wanted to pop back in to give a little thank you to everyone who helped us out up at Harvard. John Hansen of course, Jason, Matt and Sam who shepherded us around and everyone else at the Flaw, F Law. What whatever their little magazine is called, we thank them. Next week on the 5-4 premium episode about prosecutorial immunity, which means that when a prosecutor violates your civil rights they can get away with it. It doesn't matter, they can do whatever they want. Follow us on Twitter @fivefourpod. Follow us on Instagram and other types of social media. Subscribe to our Patreon, patreon.com/fivefourpod for premium episodes ad-free episodes, access to our Slack and special events all sorts of shit. We'll see you next week.
1:09:47.3 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at CHIPS NY. And our theme song is by Spatial Relations.