Judicial Notice (01.27.24): Don't Mess With Texas—Or Kaplans

An $83.3 million verdict against Trump, the passing of an eminent academic, more Cravath partner departures, and other legal news from the week that was. Judicial Notice (01.27.24): Don't Mess With Texas—Or Kaplans An $83.3 million verdict against Trump, the passing of an eminent academic, more Cravath partner departures, and other legal news from the week that was. DAVID LAT JAN 28 ∙ Shawn Crowley, E. Jean Carroll, and Roberta Kaplan, outside the federal courthouse at 500 Pearl Street (photo by GWR/Star Max/GC Images). I spent a lot of time this week on domestic and parental duties, like replacing our broken dryer, working on getting passports for our boys, accompanying Harlan to piano lessons, and taking Chase to the pediatrician for his six-month checkup. I’m happy to report that he’s happy, healthy, and growing very nicely. He’s a big boy—and a very cute one, in my admittedly biased opinion. This week’s testimonial for Original Jurisdiction comes from one of the country’s top criminal-defense attorneys, David Oscar Markus of Markus/Moss, PLLC: “David Lat is one of the OGs of legal news. From Underneath Their Robes to Above the Law and now to Original Jurisdiction, David’s writing is a must read every week… because it’s insightful, fun, and accessible. Every lawyer—from first-year associates to senior rainmaker—should subscribe immediately.” Thanks to David for his kind words, which mean a lot to me because he’s also a fellow legal blogger and podcaster (who broke some noteworthy news this week, discussed below). Lawyers of the Week: Roberta Kaplan, Shawn Crowley, and the entire E. Jean Carroll trial team. The big legal news of the week was the $83.3 million defamation verdict secured by writer E. Jean Carroll against Donald Trump, consisting of $18.3 million in compensatory damages and $65 million in punitive damages. This trial was only on the issue of defamation damages for Trump’s continued public attacks on Carroll; in an earlier trial, a jury found that Trump sexually abused and defamed Carroll, awarding her $5 million in damages. It’s another big victory over Trump for Roberta Kaplan, Shawn Crowley, and their colleagues at Kaplan Hecker & Fink. As the title of this Times article by Maria Cramer and Kate Christobek aptly puts it, In Trump’s Bitter, Yearslong Brawl with Roberta Kaplan, He Keeps Losing. Here’s an excerpt from the piece (which quotes and links to my podcast interview of Robbie Kaplan in multiple spots): [The trial] was a clash of two New Yorkers, both of them formidable combatants and talkers, but in different ways and from different worlds. Mr. Trump, 77, has a libertine past, a salesman’s flair and an extraordinary instinct for insult. Ms. Kaplan, 57, an openly gay lawyer who married her wife in Toronto in 2005, is methodical and disciplined. But they are both shrewd, competitive power players in their respective realms, and unusually deft at using the press. They rely on their own outsize confidence to achieve their aims, making their showdowns occasionally charged—and tinged with drama. Drama indeed: during Kaplan’s closing statement, Trump strode out of the courtroom, leading Judge Lewis A. Kaplan (S.D.N.Y.) to note, “The record will reflect that Mr. Trump just rose and walked out of the courtroom.” (Robbie Kaplan is not related to Judge Kaplan—even though they both have a talent for dealing with Trump, which is why they’re Lawyer and Judge of the Week, respectively.) Like any good drama, the Carroll v. Trump trial elicited emotional reactions. See, e.g., the viral CNN appearance of former Wachtell Lipton partner and leading Trump antagonist George T. Conway III, who first connected Carroll and (Robbie) Kaplan and can therefore take some credit for the outcome. (Speaking of George, I’ve been telling him for years that he should launch a podcast—and a Substack newsletter too—and he finally took my advice, at least as to the podcast.) Runners-up for Lawyers of the Week: Plaintiff-side IP litigators have been on a roll lately. See, e.g., Jason Sheasby of Irell & Manella ($67.5 million verdict); Kerri-Ann Limbeek of Desmarais ($57 million verdict); and Natalie Bennett and Jason White of Morgan, Lewis & Bockius ($45 million verdict). Meet the Identical Twins Who Saved the Pac-12. That’s the title of a great story for the American Lawyer by Patrick Smith, who profiles twin brothers David Silbert of Keker Van Nest and Greg Silbert of Weil, Gotshal & Manges. ‘Not Going Away’: A Star Greenberg Traurig Litigator Lost Her Voice. AI Brought It Back. That’s the title of another remarkable story for the American Lawyer, this time by Stephanie Wilkins, about Lori Cohen of Greenberg Traurig—who “achieved an impressive 58 defense verdicts before suddenly and inexplicably losing her voice.” Thanks to advances in GenAI, Cohen is back to arguing in court, even if her voice is not. In memoriam: One of the nation’s most controversial prosecutors, former New Orleans district attorney Harry Connick Sr.—widely criticized for his office’s extensive record of prosecutorial misconduct and wrongful convictions— passed away at 97. One of the nation’s greatest legal minds, Charles Fried—a Harvard Law School professor for around six decades, a former U.S. solicitor general, and a former justice on the Massachusetts Supreme Judicial Court—passed away at 88. (I offered additional thoughts on Professor Fried’s passing on LinkedIn.) Judge of the Week: Judge Lewis Kaplan. While presiding over Trump’s civil-fraud trial, Justice Arthur Engoron of New York Supreme Court sometimes struggled to control the courtroom. But just down the street in federal court, Judge Lewis Kaplan did a better job of tamping down Trump during the two E. Jean Carroll trials. On Thursday, Judge Kaplan allowed the ex-president to (briefly) take the stand. And it went relatively smoothly, as reported by Monica Hesse of the Washington Post: Judge Kaplan, it became apparent from news coverage and trial transcripts, was in control of both himself and of the circumstances.… As a result, Trump was under oath for about three minutes total—deprived of the grandstanding, tangents and verbal runoff that often define his public speaking.… [I]n this trial, Trump was not able to thwart the rules of the courtroom. Yes, he might have stormed out of the room in the middle of closing arguments, but the jury would still hear closing arguments. Yes, he could hold news conferences, but those would be out of earshot for the jury deciding the outcome of his case. The legal system managed to do what debates, news media, primary challengers, voters and democratic norms had been ill-equipped to do: Cut his mic. Judge Kaplan also did a fine job of reining in Trump’s legal team (and, occasionally, Carroll’s). Collected Kaplan quips are available at the ABA Journal. Other judges in the news, both in the U.S. District Court for the District of Columbia: Judge Christopher “Casey” Cooper heard oral argument on the Federal Circuit Judicial Council’s motion to dismiss Judge Pauline Newman’s constitutional challenge to her suspension. He seemed sympathetic to the argument that the case against her—handled by colleagues with whom she has messy personal and professional relationships, making them far from impartial—should have been transferred to another circuit. Judge Royce Lamberth, a Republican appointee (Reagan), told us how he really feels about Republican politicians offering “meritless justifications of [the] criminal activity” committed during the January 6 attack on the Capitol... Keep reading with a 7-day free trial Subscribe to Original Jurisdiction to keep reading this post and get 7 days of free access to the full post archives. Start trial A subscription gets you: Subscriber-only posts (e.g., SCOTUS clerk hiring, Biglaw industry analysis) Judicial Notice, an insightful, time-saving roundup of the week’s legal news Podcast transcripts, commenting, and full archives LIKE COMMENT RESTACK © 2024 David Lat 1200 Morris Turnpike, Suite 3005, Short Hills, NJ 07078

Judicial Notice (01.20.24): Back To The Future The fate of Chevron, a major move in the D.C. boutique world, another Biglaw discrimination lawsuit, and other legal news from the week that was.

What was I up to this week? When I wasn’t freezing my tuchus off—have I mentioned how much I hate the cold?—I did a lot of podcast recording. In addition to the next installment of the Original Jurisdiction podcast—in which David Boies, who argued Bush v. Gore for Al Gore, offers his take on the Donald Trump disqualification case headed to the Supreme Court—I recorded a great new installment of Movers, Shakers & Rainmakers. Zach Sandberg and I caught up with Supreme Court superstar Kannon Shanmugam, who this month celebrates the fifth anniversary of his move to Paul, Weiss. And as you’d expect from an acclaimed appellate advocate, Kannon ably fielded my probing questions about the sustainability of the firm’s aggressive expansion. I also appeared on Friday night’s Dateline, a two-hour, in-depth examination of the Dan Markel murder case. Much of it will be familiar to folks who have followed the case, but the end of the episode includes fascinating audio and video footage from the night of Donna Adelson’s arrest at Miami International Airport. This week’s testimonial for Original Jurisdiction comes from Peter Kalis, Chairman Emeritus of K&L Gates: “Original Jurisdiction has assumed must-read status in my life. There is very little writing in our legal culture that qualifies at once as extraordinary analysis and extraordinary synthesis. David accomplishes this in Original Jurisdiction. The fact that he pulls this off in real time as events break in the legal world is humbling to us mere mortals. Keep it up, David. We depend upon you.” Considering that Peter is one of the most influential and innovative figures in the history of Biglaw, I’m especially grateful for his gracious praise. And I’m still happily taking testimonials; if you’d like to submit one, please complete this form. Now, on to the news. Lawyers of the Week: the attorneys at the Cause of Action Institute and the New Civil Liberties Alliance behind the Loper Bright and Relentless cases. The biggest legal news of the week were the Supreme Court oral arguments in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, challenges to the 1984 landmark precedent of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. As discussed in more detail below (see Litigations of the Week), these cases have the potential to dramatically transform administrative law as we know it. Chevron, in a nutshell, calls for showing deference to an administrative agency’s interpretation of a statute in cases where the statutory language is ambiguous—and is therefore hated by conservatives for allegedly aggrandizing the administrative state. The cases were ably argued by Paul Clement of Clement & Murphy, for Loper Bright; Roman Martinez of Latham & Watkins, for Relentless; and Solicitor General Elizabeth Prelogar for the federal government. All three have been previously recognized as Lawyers of the Week—and Clement and Prelogar are three-time winners, reflecting my admittedly heavy focus on the Supreme Court. Today I’d like to spread the love and shine the spotlight away from One First Street. Setting aside cases within the Court’s original jurisdiction (holla), cases like Loper Bright and Relentless typically get to the Court only after years of intense legal battle. So the lawyers who file those cases in the first place and shepherd them through the lower courts deserve much of the credit (or blame) for Supreme Court outcomes. My latest Lawyers of the Week are the attorneys at the Cause of Action Institute and the New Civil Liberties Alliance who back in 2020 filed Loper Bright and Relentless, respectively. The Loper Bright complaint was signed by Ryan Mulvey and Eric Bolinder of the Institute—who have stayed on the case all the way up to the high court, with their names on the Supreme Court brief (along with Clement, who argued). The Relentless complaint was signed by John Vecchione and Kara Rollins of the Alliance (along with Kevin Holley, local counsel in Rhode Island)—and Vecchione is actually counsel of record at the Supreme Court, even though Martinez argued. Also on NCLA’s SCOTUS brief, besides Vecchione, Rollins, and Martinez, are Mark Chenoweth and the Alliance’s founder, Philip Hamburger. (NCLA is busy these days: this coming Thursday, Greg Dolin will argue before Judge Christopher Cooper on behalf of Judge Pauline Newman, whom I interviewed and featured this week in both audio and video recordings—so you can watch, listen, and evaluate the 96-year-old judge’s mental acuity for yourself.) Conservatives have been trying to get Chevron overturned for years, but I suspect that the Court’s willingness to finally hear a frontal challenge to the doctrine was helped by the well-chosen plaintiffs and well-constructed complaints in these cases. The plaintiffs are fishermen who earn modest wages but must shoulder the cost of paying for monitors aboard their vessels who ensure compliance with various fishing regulations. If the justices are going to overturn an important, 40-year-old precedent, doing so in favor of fishermen—or is that ”fisherpeople”?—looks much better than doing so to benefit an oil giant like Chevron. So congratulations to the Institute and the Alliance on getting their cases heard by the high court. Other lawyers in the news: In a follow-up on the most recent Lawyers of the Week, damaging revelations continue to surface about Fulton County District Attorney Fani Willis and her alleged paramour Nathan Wade, whom she hired to serve as a special prosecutor in her sprawling prosecution of Donald Trump and more than a dozen co-defendants. Willis is trying to get out of testifying in Wade’s ongoing divorce case—but she’ll have to explain herself by February 2, the deadline set by Judge Scott McAfee for Willis’s office to file a written response to allegations that she and Wade engaged in an illicit relationship and mishandled public funds. Yale Law School Dean Heather Gerken, who presided over YLS during a series of controversies over free speech, is reportedly a “frontrunner” for the presidency of Yale University, according to Aaron Sibarium of the Washington Free Beacon. Judge of the Week: Judge Don Willett. If you’re a lower-court judge who aspires to be Judge of the Week, try releasing two or more interesting or important opinions in a single week (outside of May or June, when it’s all SCOTUS, all the time). It worked last week for Judge Kevin Newsom (11th Cir.), and it worked this week for Judge Don R. Willett (5th Cir.)... © 2024 David Lat 1200 Morris Turnpike, Suite 3005, Short Hills, NJ 07078 Unsubscribe Get the appStart writing