Big Think Interview With David Lat
David Lat is the founding editor of Above the Law. He previously served as editor of Wonkette, the widely read politics blog, and he founded Underneath Their Robes, the judicial news and gossip website.
Prior to that, David worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz, in New York; and a law clerk to Judge Diarmuid F. O’Scannlain, of the U.S. Court of Appeals for the Ninth Circuit.
David graduated from Harvard College, magna cum laude, and Yale Law School, where he served as book reviews editor of the Yale Law Journal.
Question: How did you come to found a blog about the legal profession?
David Lat: Truth of why I moved from law to media, it was a little bit accidental, actually. I had always been interested in journalism. I had been involved in journalism in high school and college, where I worked on the school newspaper at Harvard, at The Harvard Crimson. And I then, after a number of legal jobs – I clerked for a judge; I worked at a law firm and then I went to the U.S. Attorney's Office. I found myself wanting to get back into non-legal writing. And so kind of on a lark, I started a blog anonymously because I didn't really know how it would affect my day job. I started a blog called Underneath Their Robes, which was kind of like a People or Us Weekly, but focused on federal judges, oddly enough.
So that, essentially, is how I first made the transition. I mean, I was doing that while balancing my day job as a prosecutor. And then eventually that blog developed a following and that was essentially my entry point into media.
I’m glad I made the move from law to media. I still practice a little bit because the blogging company that my site, Above the Law, is a part of, Breaking Media, has me as its in-house council. So I do a little bit of legal practice, but it's really five or ten percent of my time as opposed to 100 percent of it. And for me – everyone is different – for me, I just enjoy the day-to-day work of being a blogger more than the day-to-day work of being a practicing lawyer. But everyone's different. Some people tell me, "Oh, I would never want your job."
Question: What was your fascination with gossip about judges?
David Lat: In terms of Underneath Their Robes, I think that that blend of law and gossip reflected two aspects of my personality. On the one hand, I can happily sit down with an issue of The Harvard Law Review. On the other hand, I can happily sit down with Us Weekly. So I think it reflected my own bifurcated personality in a way, these twin interests that I had.
The other thought that I had about it was people love to talk about judges within legal circles. When they're appearing before a judge, they want to know what the judge is like. People also look at judges a little bit like celebrities of their legal world. These are the people who are making the big decisions, who are affecting the lives of millions. And at the time that Underneath the Robes was started, certainly there wasn't a lot of attention paid to judges as people. People would examine their rulings, for instance, or their jurist prudence, but they wouldn't really examine them much as people.
One thing I think that has changed since I started Underneath Their Robes in 2004 and today is we have been through three Supreme Court confirmation hearings—Chief Justice Roberts, Justice Alito and Justice Sotomayor. And I think now people are much more attuned to the personal narratives of judges for better or worse. But at the time that I started Underneath Their Robes, this was a little bit of a backwater. [0:03:26.03]
Question: Is now a good time to start a blog?
David Lat: It's a tough time, I think, to start blogs. When I first started Underneath Their Robes in 2004 and then when I launched Above the Law in 2006, there were many fewer blogs than there are now. Now, everyone and their mother has a blog. Every news organization has dozens of blogs. And one of the challenges is to be heard above the noise. And there is definitely a first-mover advantage, too. So there are a lot of blogs that people go to. Not necessarily because they are in some abstract sense better than the rest, but because they've bookmarked them or they've put them in their RSS reader. And just by force of habit, they go to blogs.
So, in terms of when I started Above the Law – that was in 2006 – I had been working at Wonkette, the political blog. That was my first fulltime blogging job after I left the U.S. Attorney's Office. And I came up with the idea for Above the Law because I thought it was nothing like a Wonkette or a Gawker-type site for the law. At the time, there were a couple of blogs that focused on substantive legal developments like The Wall Street Journal's Law Blog, which focused on law and business cases, or How Appealing, which is a blog by Howard Bashman, which focused a lot on appellate developments, or SCOTUSBlog, which focused on the Supreme Court. But that wasn't a blog out there that offered a bit of fun and humor about the profession, as well as industry news and gossip. And so I thought that there was an opening there, that there was a need in the market that wasn't being filled, and so that's when I came up with the idea for Above the Law.
Question: How do you handle commenting on Above the Law?
David Lat: Commenting on our site is completely open, so we don't even require registration. We thought about it, but lawyers are very paranoid about confidentiality. And if they're going to be commenting on an item about their law firm, they don't want to provide any information about their name or their email or anything. So it's completely open. And a lot of times, people can say that they are somewhat – that they are necessarily in the comments. So people might say, "Oh, well, I'm a partner at a law firm," and perhaps they are not. Maybe they're just a One L in law school.
So it is a little bit of anarchic environment, which I think is what makes it a little bit fun. And they develop their own means and their own inside jokes. There are sometimes times when you wish that there was a better signal-to-noise ration because sometimes the random comments drown out the substantive ones. But for the most part, I think the comments are actually quite helpful. And I think that we get a much higher proportion or number of comments, compared to our other main competitors. And I think that is an advantage for us. It can also be a headache because people might view the site as if you judge the site based on the commenters as opposed to the material that we, the editors, are generating, you might think that it was written by a particularly juvenile people, when really, the content that we put out under our own bylines is rather professional. I mean, it has attitude, but we do this fulltime. This is a professional operation. But the commenters can be quite rowdy.
Question: Do you moderate comments on Above the Law?
David Lat: We do moderate comments on Above the Law with some regularity. Usually for the typical reasons: Something is offensive, something, really offensive because we do believe in free speech. But if something is just horribly offensive, we will moderate that. If something is potentially defamatory, we might moderate that. But we get so many comments and we don't have active real-time moderation. It tends to be more of a notice and take-down kind of approach, a little bit like You Tube uses, with respect to copyrighted videos. If someone has a problem with a comment, they should email us, email@example.com, and tell us, "This comment, Comment Number 53 on this post, is inappropriate. Can you please remove it?" Because we don't time to – on some posts, we get – one post we did yesterday or two days ago has 500 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 about blogging is you have to continually be feeding the beast. Every 30 minutes, every hour, people want to see new content up.
Question: What is your position on free speech on the Internet?
David Lat: I'm generally a fan of Section 230, which is the law that makes website operators essentially legally immune from liability from comments posted by third parties. Because I think it helps foster free speech on the Internet when a website operator doesn't have to be worried about getting in trouble because of something that someone else posted. 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 write things on it. And sometimes people will write things that are intelligent and substantive and sometimes people will write things are graffiti. And I don't think necessarily we should be held liable for things that people write that are inappropriate, especially when we do moderate them. We do moderate. Then there's this argument that well, because you moderate, should you lose your Section 230 immunity? The case law says no. Just because you make a good-faith effort to remove the really bad stuff, doesn't mean you can be held liable for the stuff that you leave up. But it's definitely a tricky issue.
Question: What tangible benefits does ATL add to the legal profession?
David Lat: I think one thing that Above the Law adds to a legal profession is transparency. Law firms and law schools can't hide the ball from people. And so if they have problems, whether it's problem in terms of how they treat their employees, problems in terms of job placement for their graduates, problems in terms of collegiality or partners who are abusive towards associates, we will try to expose those. And so, in some ways, as Justice Brandeis said, "Sunlight is the best disinfectant." And we are trying to bring some sunlight to a world that is often covered in darkness. So I think that that is a huge advantage to be able to know about what you're getting into and make an informed decision – should I go to law school; should I work at this law firm? Or even if you're a partner thinking of switching firms, you want to know what's going on at the firm you might switch to. So I think that it has a lot of benefits. I think transparency and greater information are the primary benefit.
The secondary benefit, which I think I mentioned earlier, is just the entertainment value. A lot of what we cover is not particularly serious. We might cover industry developments like layoffs or pay raises or, in these days, pay cuts. But we also cover funny things about some lawyer or some judge who did something really hilarious. And people want to have that something to lighten up their day. That's nothing wrong with making people laugh, especially in a profession that takes itself very, very – I would say too – seriously.
We do have an increasing amount of cooperation from law firms on layoff news. What typically happens is we will hear rumblings of it from people at the firm who might drop us a line and say, "We think layoffs are going down." We might then reach out to the law firm. And sometimes the law firm won't comment, but sometimes they will. And if they haven't notified everyone at the firm of the layoffs, what they might do is tell us, "Hey, look, we're going to be making this announcement. Would you mind holding your coverage until we can notify our people?" Essentially, an embargo which entities do with news organizations all the time – And we are generally willing to do that, provided that we can preserve our scoop, essentially. We don't want them to say, "Hold off on your coverage," and then they turn around and they let somebody else know. And generally firms are pretty good about doing that. Other times, we're covering a layoff news after it's already gone out. We've been forwarded a firm-wide email that announces the cuts. And in that case, we'll just go and publish it pretty quickly, as long as we think that the email is pretty reliable.
Question: How will the legal profession change in the upcoming years?
David Lat: I think we are going to see a lot of changes to the legal profession over the next decade or so, especially in the world of large law firms. This is an area that I've also been covering in the freelance writing for publications as well. And law firms have to change; they have to adapt to new circumstances. And I think the recession and the economic pressures that the recession has placed on firms are forcing what would have been a natural process anyway of evolution to take place more quickly. I think that's generally a good thing. I think firms have to figure out how to provide legal services more efficiently because their clients are no longer rich and fat and happy and willing to pay a lot of money for services that they can get more cheaply through, say, outsourcing.
There are outfits in India or the Philippines or other developing countries where you can have documents scanned and uploaded and even reviewed and tagged for a fraction of the cost that it would cost in the United States. And I think that law firms are probably going to have to start figuring out how can we utilize these services as opposed to wall them off. So I think one change is law firms will have to become more efficient. The second is just globalization. They will have to – as I was saying –recognize how to use resources from abroad.
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've already seen law firms cutting salaries for associates and profits per partner are declining at large law firms as well. It remains to be seen whether that is going to be a long-term trend or not. But until the recent recession, profits and the salaries had reached records highs and I don't know if that's necessarily going to be the case for awhile. Essentially, it's a matter of supply and demand. And right now, with all the laid off lawyers, deferred lawyers, unemployed lawyers, you just have a huge glut of lawyer talent. And when you think of lawyer hours, that is essentially what you are selling your clients, billable hours. There is a huge surplus of potential billable hours in search of work. And until that imbalance in the market is corrected, things are going to be a little bit grim in the world of big law.
Question: Do you think we’ll see a disappearance of the billable hour?
David Lat: I think that the billable hour is being eroded, but I don't think it will completely disappear, at least not in a very long time. One thing that's interesting is it's sort of like the devil you know. So I've talked to law firm partners who often say, "We want to do alternative arrangements. We want to do a contingent fee arrangement, or we want to do a flat fee, but with a premium for success." But the clients are a little bit nervous about it because at least a billable hour gives them some kind of metric. So, for example, say a firm handles a $100 million case for a client – Company X suing Company Y. And say the firm wants to do it on a contingency, so if they win, they get 30 percent, or 30 million. Well, that might be fine because if they win, it's a great result. But the in-house lawyer might think well, if I have to present a $30 million legal bill, my CFO – my finance guy, the company – will say, "Well, that seems really high." Why don't I try to do a billable arrangement and get a discount because oftentimes the firms will give a discount off their rates? And so he can say, "Well, I got X-million dollars in billable time, but I got a discount off it, and therefore I saved us money."
So the other thing is, people still tend to think in billable hours. So even when law firms are coming up with pitches – say they've been asked to submit a proposal to a client for a particular engagement. They will still think in terms of how many hours or how many people at their different rates will this project take to complete. So part of it is trying to figure out what is the alternative to the billable hour. So I think that these arrangements are definitely increasing. There's certainly statistical data on that. I think that in the past year – I believe this was mentioned in the Wall Street Journal – something like a selection on in-house councils were asked about alternative fee arrangements said that they went from being something like five or ten percent of their arrangements to somewhere between 20 or maybe even 30 percent. Like, they're definitely increasing, but the billable hour is still accounting for the majority of the work.
Question: What is your advice to a deferred law firm associate?
David Lat: In terms of associates who've been deferred from their law firm jobs, well, I guess I would say a couple of things. First, to be patient – you will start eventually, hopefully. There have been a couple of cases of law firms that told associates who thought they had jobs, "Well, actually you no longer have a job." But most firms seem to be honoring that commitment. The second thing I would say is focus on developing your professional skills. So if you are working in a public interest organization for that time, really take the ball and run with it. See what kind of responsibilities you can get. You might be able to get more responsibilities during the public interest year that you are waiting out, waiting to start for the law firm, than you will as a junior associate at a law firm. So the second thing I would say is really try to make the most of your time.
And the third thing I would say is enjoy your time. You will have a lifetime to work. And if you want to work at a firm, then you could work for decades if you make partner or if you 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 a mental discipline. Granted, there are physical demands as well, but it's not like we're baseball players. We can work into our 60s, into our 70s. So you'll have your whole life to work. And if you are deferred right now and you are either at your leisure or if you're working at a job say at a public interest organization with reasonable hours, enjoy it. Have dinner with your wife or husband or boyfriend or girlfriend. Go on vacation. Do the things that you might not be able to do once the economy turns around and you're at a firm and you're billing 2500 hours a year. So I guess that would be my advice.
Question: What about a lawyer completely out of a job?
David Lat: We actually have a series on the blog called Career Alternatives, where we focus on interesting things that people who have law degrees are doing that don't involve working at a law firm. So one thing that's nice about – one silver lining, I guess, to the recession generally is people are coming up with business ideas. Partly, because perhaps they lost their lucrative, stable job at a big company and now they have to come up with something else. So we've talked to lawyers who have started tutoring and admissions consulting businesses, a lawyer who has started a cupcake business. He drives around Manhattan in a truck selling cupcakes. We have talked to lawyers who have done all kinds of things. There's a lawyer who owns a chain of Subway sandwich stores. And a lot of them, even though they're not necessarily using their legal training, will talk about how valuable it is to have that kind of education – the critical thinking skills, the communication, the ability to look over a contract when they are trying to launch their businesses. These are all things that help.
So granted, a law degree is expensive. And so if you're thinking about going to law school, I would urge you to think very carefully about it. But once you have that degree, it is quite versatile. We've looked at lawyers who've gone into public relations, who've gone into journalism, who've gone into finance. There are a lot of things you can do with a law degree. I think it's a great credential to have. I think it's a great education. There is just a question of bang for your buck because there are a lot of other things that are good to have, but do you want to spend $200,000 for them?
Question: Do you think law school should be two years instead of three?
David Lat: I probably want to think a little bit more about the issue. But right now, my gut instinct is law school could be shorter. I think that you could probably get away with two years and then have perhaps some kind of apprenticeship program where lawyers might go to law firms and receive a somewhat lower salary than they do now, but be focused on training and professional development without having to worry about billing hours. So this is something we're seeing from a couple of firms that are already trying this. I think that law school does need to be shorter and less expensive.
Now, the law schools don't like to hear this because oftentimes law schools generate a lot of revenue for their universities. Law schools are often cash cows. It doesn't tend to be a very capital-intensive kind of education. It's not like you have to create multimillion dollar laboratories and you can charge an arm and a leg for it. But now that the law firms are having a hard time giving people jobs – the jobs that with the lucrative year-end bonuses would help people pay off law school loans very quickly – the law schools, I think, need to rethink their business model, too. So I think that if law firms need to become more efficient at delivering legal services, law schools need to become more efficient at delivering legal education to people.
Question: Why are lawyers known as some of the most depressed professionals?
David Lat: I do think that law tends to be a profession that can give rise to depression and other forms of mental illness and other difficulties and stress-related illness. We did a survey recently on the site where we asked our readers to mention which various stress-related, work-related illnesses they had. And the results were really shocking. I can't remember the exact numbers, but a very high percentage of the people had suffered from depression, had suffered from insomnia, had suffered from various ailments. I think it's true; it is a demanding profession. You are constantly on call. We recently posted an email from a partner at a law firm that was sent around to all the people at the law firm saying, "You need to be checking your email constantly." I think the partner said something like, "Unless you are asleep or in a tunnel, you should be reading your email." There's this expectation that you're going to be available 24/7. And that takes a toll.
The other thing about the law – and I think one of the things that I don't miss about it – is you are essentially paid to worry about other people's problems. You are paid to almost be a stress ball. People are going through something horrible, whether it is a contractual dispute or a divorce or being accused of a crime. And they give their problems to you so they don't have to worry about them. And so there's this thinking of well, my lawyer is handling that. And it can be very stressful because you are think well, how I do on this particular project could determine whether or not my client goes to jail for many years, or whether or not my client gets enough money from this divorce settlement, or whether or not my client/company ends up on the receiving end of a multibillion dollar judgment. So it's a very stressful profession. So between the stress and the long hours and the fact that you're often dealing with people who are in a state of conflict, it all adds up.
Recorded on November 6, 2009
A conversation with the founder of Above the Law.
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