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David B. Lat, Above the Law

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David B. Lat is an American blogger and a former federal prosecutor. He is the founder and managing editor of Above the Law, a blog about law firms and the legal profession.

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David B. Lat, Above the Law

  1. 1. FeatureDavid B. Lat, Above the LawBy David B. Lat, Above the LawDavid B. Lat is an American blogger and a former federal prosecutor. He is the founder and managing editor of Above the Law, a blogabout law firms and the legal profession.Lat first began blogging under the pseudonym Article III I was doing that while balancing my day job as a prosecutor.Groupie, pretending to be a woman, for the judicial gossip And then eventually that blog developed a following and thatblog Underneath Their Robes, until he revealed his identity in was essentially my entry point into media.a November 2005 interview with Jeffrey Toobin of The NewYorker. Afterward Lat left his job as assistant U.S. attorney to I’m glad I made the move from law to media. I still practicewrite for the political blog Wonkette. a little bit because the blogging company that my site, Above the Law, is a part of, Breaking Media, has me as its in-houseIn August 2006, Lat launched Above the Law, a blog about law counsel. So I do a little bit of legal practice, but it’s really fivefirms and the legal profession, for the Breaking Media network or ten percent of my time as opposed to 100 percent of it. Andof sites. In July 2008, he became the managing editor of for me – everyone is different – for me, I just enjoy the day-Breaking Media, overseeing its stable of blogs out of its New to-day work of being a blogger more than the day-to-day workYork office. In December 2009, Lat announced that he would of being a practicing lawyer. But everyone’s different. Somebe returning to full-time writing and editing of Above the Law, people tell me, ‘’Oh, I would never want your job.’’after a new CEO and executive editor joined Breaking Media. Question: What was your fascination with gossip aboutLat’s writing has also appeared in various newspapers and judges?magazines, including the New York Times, Washington Post,New York Magazine, New York Observer, and Washingtonian. David Lat: In terms of Underneath Their Robes, I think that that blend of law and gossip reflected two aspects of myThe following is excerpted from a November 30, 2009 personality. On the one hand, I can happily sit down with anbigthink.com interview with David Lat: issue of The Harvard Law Review. On the other hand, I can happily sit down with Us Weekly. So I think it reflected my ownQuestion: How did you come to found a blog about the bifurcated personality in a way, these twin interests that I had.legal profession? The other thought that I had about it was people love to talkDavid Lat: Truth of why I moved from law to media, it was a about judges within legal circles. When they’re appearinglittle bit accidental, actually. I had always been interested in before a judge, they want to know what the judge is like.journalism. I had been involved in journalism in high school People also look at judges a little bit like celebrities of theirand college, where I worked on the school newspaper at legal world. These are the people who are making the bigHarvard, at The Harvard Crimson. And I then, after a number decisions, who are affecting the lives of millions. And atof legal jobs – I clerked for a judge; I worked at a law firm the time that Underneath the Robes was started, certainlyand then I went to the U.S. Attorney’s Office. I found myself there wasn’t a lot of attention paid to judges as people.wanting to get back into non-legal writing. And so kind of on People would examine their rulings, for instance, or theira lark, I started a blog anonymously because I didn’t really jurisprudence, but they wouldn’t really examine them much asknow how it would affect my day job. I started a blog called people.Underneath Their Robes, which was kind of like a People or UsWeekly, but focused on federal judges, oddly enough. One thing I think that has changed since I started Underneath Their Robes in 2004 and today is we have been through threeSo that, essentially, is how I first made the transition. I mean, Supreme Court confirmation hearings-Chief Justice Roberts,PAGE www.lawcrossing.com continued on back
  2. 2. FeatureJustice Alito and Justice Sotomayor. And I think now people Number 53 on this post, is inappropriate. Can you pleaseare much more attuned to the personal narratives of judges remove it?’’ Because we don’t time to – on some posts, wefor better or worse. But at the time that I started Underneath get – one post we did yesterday or two days ago has 500Their Robes, this was a little bit of a backwater. [0:03:26.03] comments on it. We don’t have time to read all 500 of them. We’re too busy writing the next post. Because one thing aboutQuestion: How do you handle commenting on Above the blogging is you have to continually be feeding the beast. EveryLaw? 30 minutes, every hour, people want to see new content up.David Lat: Commenting on our site is completely open, so Question: What is your position on free speech on thewe don’t even require registration. We thought about it, but Internet?lawyers are very paranoid about confidentiality. And if they’regoing to be commenting on an item about their law firm, they David Lat: I’m generally a fan of Section 230, which is thedon’t want to provide any information about their name or law that makes website operators essentially legally immunetheir email or anything. So it’s completely open. And a lot of from liability from comments posted by third parties. Becausetimes, people can say that they are somewhat – that they are I think it helps foster free speech on the Internet when anecessarily in the comments. So people might say, ‘’Oh, well, website operator doesn’t have to be worried about gettingI’m a partner at a law firm,’’ and perhaps they are not. Maybe in trouble because of something that someone else posted.they’re just a One L in law school. It would almost be like holding it– in a way, I almost see the Internet or a site like ours as a wall and people will writeSo it is a little bit of anarchic environment, which I think is things on it. And sometimes people will write things thatwhat makes it a little bit fun. And they develop their own are intelligent and substantive and sometimes people willmeans and their own inside jokes. There are sometimes times write things that are graffiti. And I don’t think necessarilywhen you wish that there was a better signal-to-noise ration we should be held liable for things that people write that arebecause sometimes the random comments drown out the inappropriate, especially when we do moderate them. We dosubstantive ones. But for the most part, I think the comments moderate. Then there’s this argument that well, because youare actually quite helpful. And I think that we get a much moderate, should you lose your Section 230 immunity? Thehigher proportion or number of comments, compared to our case law says no. Just because you make a good-faith effortother main competitors. And I think that is an advantage for to remove the really bad stuff, doesn’t mean you can be heldus. It can also be a headache because people might view liable for the stuff that you leave up. But it’s definitely a trickythe site as if you judge the site based on the commenters as issue.opposed to the material that we, the editors, are generating,you might think that it was written by a particularly juvenile Question: What tangible benefits does ATL add to thepeople, when really, the content that we put out under our legal profession?own bylines is rather professional. I mean, it has attitude, butwe do this fulltime. This is a professional operation. But the David Lat: I think one thing that Above the Law addscommenters can be quite rowdy. to a legal profession is transparency. Law firms and law schools can’t hide the ball from people. And so if they haveQuestion: Do you moderate comments on Above the problems, whether it’s problem in terms of how they treatLaw? their employees, problems in terms of job placement for their graduates, problems in terms of collegiality or partners whoDavid Lat: We do moderate comments on Above the Law with are abusive towards associates, we will try to expose those.some regularity. Usually for the typical reasons: Something is And so, in some ways, as Justice Brandeis said, ‘’Sunlightoffensive, something, really offensive because we do believe is the best disinfectant.’’ And we are trying to bring somein free speech. But if something is just horribly offensive, we sunlight to a world that is often covered in darkness. So Iwill moderate that. If something is potentially defamatory, we think that that is a huge advantage to be able to know aboutmight moderate that. But we get so many comments and we what you’re getting into and make an informed decisiondon’t have active real-time moderation. It tends to be more – should I go to law school; should I work at this law firm? Orof a notice and take-down kind of approach, a little bit like even if you’re a partner thinking of switching firms, you wantYou Tube uses, with respect to copyrighted videos. If someone to know what’s going on at the firm you might switch to. Sohas a problem with a comment, they should email us, tips@ I think that it has a lot of benefits. I think transparency andabovethelaw.com, and tell us, ‘’This comment, Comment greater information are the primary benefit.PAGE www.lawcrossing.com continued
  3. 3. FeatureThe secondary benefit, which I think I mentioned earlier, is uploaded and even reviewed and tagged for a fraction of thejust the entertainment value. A lot of what we cover is not cost that it would cost in the United States. And I think thatparticularly serious. We might cover industry developments law firms are probably going to have to start figuring out howlike layoffs or pay raises or, in these days, pay cuts. But we can we utilize these services as opposed to wall them off.also cover funny things about some lawyer or some judge who So I think one change is law firms will have to become moredid something really hilarious. And people want to have that efficient. The second is just globalization. They will have to –something to lighten up their day. That’s nothing wrong with as I was saying –recognize how to use resources from abroad.making people laugh, especially in a profession that takesitself very, very – I would say too – seriously. A third thing that I think is compensation may come down. I don’t know if that is going to be a long-term thing or not.We do have an increasing amount of cooperation from law We’ve already seen law firms cutting salaries for associatesfirms on layoff news. What typically happens is we will hear and profits per partner are declining at large law firms as well.rumblings of it from people at the firm who might drop us a It remains to be seen whether that is going to be a long-termline and say, ‘’We think layoffs are going down.’’ We might trend or not. But until the recent recession, profits and thethen reach out to the law firm. And sometimes the law firm salaries had reached record highs and I don’t know if that’swon’t comment, but sometimes they will. And if they haven’t necessarily going to be the case for awhile. Essentially, it’snotified everyone at the firm of the layoffs, what they might a matter of supply and demand. And right now, with all thedo is tell us, ‘’Hey, look, we’re going to be making this laid off lawyers, deferred lawyers, unemployed lawyers, youannouncement. Would you mind holding your coverage until just have a huge glut of lawyer talent. And when you thinkwe can notify our people?’’ Essentially, an embargo which of lawyer hours, that is essentially what you are selling yourentities do with news organizations all the time – And we are clients, billable hours. There is a huge surplus of potentialgenerally willing to do that, provided that we can preserve billable hours in search of work. And until that imbalance inour scoop, essentially. We don’t want them to say, ‘’Hold off the market is corrected, things are going to be a little bit grimon your coverage,’’ and then they turn around and they let in the world of big law.somebody else know. And generally firms are pretty goodabout doing that. Other times, we’re covering a layoff news Question: What is your advice to a deferred law firmafter it’s already gone out. We’ve been forwarded a firm-wide associate?email that announces the cuts. And in that case, we’ll justgo and publish it pretty quickly, as long as we think that the David Lat: In terms of associates who’ve been deferredemail is pretty reliable. from their law firm jobs, well, I guess I would say a couple of things. First, to be patient – you will start eventually,Question: How will the legal profession change in the hopefully. There have been a couple of cases of law firms thatupcoming years? told associates who thought they had jobs, ‘’Well, actually you no longer have a job.’’ But most firms seem to be honoringDavid Lat: I think we are going to see a lot of changes to that commitment. The second thing I would say is focus onthe legal profession over the next decade or so, especially developing your professional skills. So if you are working inin the world of large law firms. This is an area that I’ve also a public interest organization for that time, really take thebeen covering in the freelance writing for publications as well. ball and run with it. See what kind of responsibilities you canAnd law firms have to change; they have to adapt to new get. You might be able to get more responsibilities during thecircumstances. And I think the recession and the economic public interest year that you are waiting out, waiting to startpressures that the recession has placed on firms are forcing for the law firm, than you will as a junior associate at a lawwhat would have been a natural process anyway of evolution firm. So the second thing I would say is really try to make theto take place more quickly. I think that’s generally a good most of your time.thing. I think firms have to figure out how to provide legalservices more efficiently because their clients are no longer And the third thing I would say is enjoy your time. You willrich and fat and happy and willing to pay a lot of money have a lifetime to work. And if you want to work at a firm,for services that they can get more cheaply through, say, then you could work for decades if you make partner or if yououtsourcing. move to another if you don’t make partner. You could work at a law firm – one thing that’s nice about lawyers is it is aThere are outfits in India or the Philippines or other developing mental discipline. Granted, there are physical demands ascountries where you can have documents scanned and well, but it’s not like we’re baseball players. We can work intoPAGE www.lawcrossing.com continued on back
  4. 4. Featureour 60s, into our 70s. So you’ll have your whole life to work. Question: Why are lawyers known as some of the mostAnd if you are deferred right now and you are either at your depressed professionals?leisure or if you’re working at a job say at a public interestorganization with reasonable hours, enjoy it. Have dinner David Lat: I do think that law tends to be a profession thatwith your wife or husband or boyfriend or girlfriend. Go on can give rise to depression and other forms of mental illnessvacation. Do the things that you might not be able to do once and other difficulties and stress-related illness. We did athe economy turns around and you’re at a firm and you’re survey recently on the site where we asked our readers tobilling 2500 hours a year. So I guess that would be my advice. mention which various stress-related, work-related illnesses they had. And the results were really shocking. I can’tQuestion: What about a lawyer completely out of a job? remember the exact numbers, but a very high percentage of the people had suffered from depression, had suffered fromDavid Lat: We actually have a series on the blog called Career insomnia, had suffered from various ailments. I think it’s true;Alternatives, where we focus on interesting things that people it is a demanding profession. You are constantly on call. Wewho have law degrees are doing that don’t involve working at recently posted an email from a partner at a law firm that wasa law firm. So one thing that’s nice about – one silver lining, sent around to all the people at the law firm saying, ‘’You needI guess, to the recession generally is people are coming up to be checking your email constantly.’’ I think the partner saidwith business ideas. Partly, because perhaps they lost their something like, ‘’Unless you are asleep or in a tunnel, youlucrative, stable job at a big company and now they have to should be reading your email.’’ There’s this expectation thatcome up with something else. So we’ve talked to lawyers who you’re going to be available 24/7. And that takes a toll.have started tutoring and admissions consulting businesses, alawyer who has started a cupcake business. He drives around The other thing about the law – and I think one of the thingsManhattan in a truck selling cupcakes. We have talked to that I don’t miss about it – is you are essentially paid to worrylawyers who have done all kinds of things. There’s a lawyer about other people’s problems. You are paid to almost bewho owns a chain of Subway sandwich stores. And a lot of a stress ball. People are going through something horrible,them, even though they’re not necessarily using their legal whether it is a contractual dispute or a divorce or beingtraining, will talk about how valuable it is to have that kind of accused of a crime. And they give their problems to you soeducation – the critical thinking skills, the communication, the they don’t have to worry about them. And so there’s thisability to look over a contract when they are trying to launch thinking of well, my lawyer is handling that. And it can betheir businesses. These are all things that help. very stressful because you are thinking well, how I do on this particular project could determine whether or not my clientSo granted, a law degree is expensive. And so if you’re goes to jail for many years, or whether or not my client getsthinking about going to law school, I would urge you to think enough money from this divorce settlement, or whether orvery carefully about it. But once you have that degree, it is not my client/company ends up on the receiving end of aquite versatile. We’ve looked at lawyers who’ve gone into multibillion dollar judgment. So it’s a very stressful profession.public relations, who’ve gone into journalism, who’ve gone So between the stress and the long hours and the fact thatinto finance. There are a lot of things you can do with a law you’re often dealing with people who are in a state of conflict,degree. I think it’s a great credential to have. I think it’s a it all adds up.great education. There is just a question of bang for your buckbecause there are a lot of other things that are good to have,but do you want to spend $200,000 for them?PAGE www.lawcrossing.com

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