Category: News Feeds

On October 5, Practising Law Institute will host Building Trust: Client Confidentiality and Attorney Privilege, a live, interactive webcast featuring a new interface with advanced learning and engagement tools. Program Speaker Alicia Aiken, Director of the Danu Center’s Confidentiality Institute and a Principal at the Danu Center for Strategic Advocacy, explains why attorneys will benefit from this one-of-a-kind program.

What is the program about and who is it for?

Building Trust is about getting back to the fundamentals — in a way that we didn’t all get in law school. We haven’t always done a great job in training lawyers on these basics: How do we think about information when we work with clients? How do we think about who owns it, who controls it, and who decides when we use it or when we don’t? The idea is to go back to the fundamentals of privacy, confidentiality, and privilege, to pull those three strands apart, and understand how we use them to improve the client relationship and get a better outcome.

This program is focused on the individual client-lawyer relationship, not on the issues that arise when representing a corporation. That said, there is nothing different about representing an individual on an eviction or on buying a $4 million home. Either way, you’re working with a person, making them promises and building a relationship.

What are some misconceptions attorneys have about these issues?

One of the pitfalls is confusing confidentiality and privilege. Confidentiality is a pretty broad requirement that prevents a lawyer from voluntarily sharing most of what an attorney and a client talk about when they work together. Privilege says neither the attorney nor the client can be forced to share something in court — a narrower rule. Many lawyers tend to conflate the two. This affects how we work with our clients in a really practical way.

Can you tell us about your beach ball analogy?

Think about an empty beach ball — as a lawyer, you’re handing it to your client and saying, “Tell me things that would help me to represent you.” In sharing with you, they’re choosing how much to blow up, when to put a cap on it and hand it to you; your duty is to protect it. Think about how easy it is to lose track of a beach ball; if you’re careless, it’s out in the ocean in no time. That’s the client’s privacy.

With confidentiality, you’re going to protect the beach ball, and you’ll talk with the client before you decide to let any air out. Once you let the air out, it’s gone — you can’t get that control back.

Privilege is if somebody official like a police officer or a judge comes along and tries to take the ball away. You and the client get to say no; you can’t be punished. But if the client says, “actually, give them the ball,” you would hand it over, because the privilege doesn’t belong to the lawyer — even if the lawyer thinks handing it over is a terrible idea. These are important elements of your relationship with the client from the beginning.

What are the consequences of not knowing how to handle client information?

If your clients don’t trust you, they’re not going to tell you things. In the most extreme example, from my experience of working with domestic violence survivors, I know this can have tragic consequences. These are clients who have experienced the most extraordinary breach of trust in their most intimate relationships. They are endangered often because somebody who knows them incredibly well is trying to hurt them, and now they just don’t trust – and they may have good reason not to. As a lawyer, if I don’t communicate the principles of privacy and confidentiality correctly, a client can end up feeling betrayed by the way in which I manage their information, even when I’m technically following the ethical rules.

When clients feel they’ve been treated like people with value, they’re more likely to be satisfied with the outcome of their work with you, whether they win or lose their issue.

Are there other reasons attorneys should take this program?

We all know that Ethics credits can be a challenge. This is the least boring Ethics credit you can get during the pandemic – or any time, really! PLI has done a great job, even before we all went remote, of adapting its content online, with interactive features like quizzes and real-time Q&As. Plus there are cartoons! I think this program effectively mixes the law and the theory of privacy with practical, actionable things you can do in your practice – the afternoon after you take the course.

Learn more and register for PLI’s program: Building Trust: Client Confidentiality and Attorney Privilege

About PLI

Practising Law Institute is a nonprofit learning organization dedicated to keeping attorneys and other professionals at the forefront of knowledge and expertise. PLI is chartered by the Regents of the University of the State of New York and was founded in 1933 by Harold P. Seligson. The organization provides the highest quality, accredited, continuing legal and professional education programs in a variety of formats which are delivered by more than 4,000 volunteer faculty including prominent lawyers, judges, investment bankers, accountants, corporate counsel, and U.S. and international government regulators. PLI publishes a comprehensive library of Treatises, Course Handbooks, Answer Books and Journals also available through the PLI PLUS online platform. The essence of PLI’s mission is its commitment to the pro bono community. View PLI’s upcoming live webcasts here. 

I’ve been working since I was a preteen with a paper route. For most of those early years of low-wage work, throughout high school, college, and eventually law school, like most taxpayers, I had a tax refund to look forward to at the end of the year. When I became a lawyer, I started earning a much higher income, and I also stopped withholding too much from my paychecks. That means that most years now, I have to stroke a check to Uncle Sam at the end of the year.

And, you know, I don’t really mind doing it. Yeah, I have to get over the initial pangs of tightwaddedness that anyone who remembers earning $5.15 an hour feels whenever they have to pay for anything. But once that feeling passes, I like to think about all the roads, schools, and parks my tax dollars are helping fund. I like to wave to the mailman who never fails to bring the crap I ordered from Amazon, and I like to see veterans getting the free healthcare they’ve earned every time I go to the VA for a pro bono legal-advice clinic. I’m less thrilled about the police tank that is often parked a couple blocks from my house and about the many government purchases of God knows what from Raytheon. Still, all things considered, we get quite a bit out of our tax dollars, and we all get the chance to give quite a bit back too. With only a small minority of young people even eligible for military service and with veterans representing less than seven percent of the U.S. population, simply paying your fair share in taxes every year to keep your country running is arguably the most patriotic thing most Americans will do over the course of their lives.

So, it didn’t really come as much of a surprise to learn that noted nonpatriot Donald Trump didn’t just dodge the draft with fake bone spurs, he also paid no income tax at all in 10 of the previous 15 years and had an annual income tax bill of just $750 for 2016 and 2017. The reason Trump paid nothing (or next to nothing) is that he reported that he lost much more money than he made.

Finally acquired by the New York Times, Trump’s tax returns contain the information that he disclosed to the IRS. Under 26 U.S.C. § 7206 of the Internal Revenue Code, any person who:

Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter … shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution.

That means Trump is either a liar and a felon who has grossly underreported his income, or he is lying about how rich and successful he’s constantly claiming to be. Rich, successful people don’t almost always lose huge amounts of money on an annual basis.

Journalist and author Timothy O’Brien, who published TrumpNation: The Art of Being the Donald in 2005 (toward the early end of Trump’s staggering run of annual losses reported on his tax returns), estimated Trump’s real wealth at the time at $150 million to $250 million. Trump, who claimed to have at least $5 billion at the time, sued O’Brien for defamation, and lost. If O’Brien was even close, that spells big financial trouble for Trump. After years of annual losses, Trump now has $421 million in personally guaranteed debts coming due within the next four years, according to his taxes.

If there is one thing Trump has in common with the American public, it’s being swamped in debt. It’s certainly not his annual obligation to pay taxes — as of 2016, the Congressional Budget Office calculated that the middle 20 percent of U.S. income earners (those households making about $60,000 annually) paid an average of $2,200 in federal income taxes, which is, of course, more than $750 or zero.

But if you’re paying more taxes than Trump (and you almost certainly are), you don’t have to be upset about it. The president of the United States pays the tax rate of a preteen paperboy because he is worse at making money than a preteen paperboy. He’s a loser who can’t keep himself afloat without resorting to fraud. Your skills, on the other hand, allow you to earn an honest income, to pay your bills, and to help out your country by patriotically contributing a reasonable amount in taxes. Take pride in that.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

For many Biglaw firms, the worst of the economic upheaval caused by the coronavirus crisis seems to be over. Some firms that conducted austerity measures like salary reductions are now reassessing their finances and either partially or completely removing those compensation cuts. Other firms are rolling out COVID-related bonuses that range up to $40,000 (or in some cases, $50,000). Things seem to be coming along quite nicely — but unfortunately, it looks like there are some firms that are still struggling.

Across the pond in the United Kingdom, Ince Gordon Dadds, an international Biglaw firm that’s listed on the London Stock Exchange, revealed in its most recent financial disclosure that layoffs had occurred due to the pandemic. It’s been reported that approximately 50 lawyers and support staff were let go across all of the firm’s offices.

The Global Legal Post has additional information on what’s happening at Ince:

The measures are revealed in an AGM statement and trading update published today that also confirmed that dividend payments remain suspended in the light of the pandemic’s impact on business.

The statement said a “limited global programme” of redundancies had taken place affecting lawyers and support staff “in areas where it is not expected that business will recover sufficiently in the medium term” from the Covid-19 pandemic.

And, in recognition of the fact “that working practices are likely to change over coming years” and that its current office space “may be too large or may no longer be suitable” it noted that it had the opportunity to make “significant further operational cost savings” in the medium term.

Yikes, it certainly sounds like more cuts could be coming for this firm. Best of luck to all those who are affected by the layoffs at Ince.

If your firm or organization is slashing salaries or restoring previous cuts, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

Ince reports 50 Covid-19 staff layoffs and signals ‘significant’ post pandemic office space savings [Global Legal Post]

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Screaming about a Deep State conspiracy? Accusing the judge of bias? Throwing colleagues under the bus while pretending that the unprecedented actions at Bill Barr’s DOJ are normal and pro-forma? Nefariously altered exhibits? Technical snafus and unmuted mikes that force multiple adjournments for the court clerks to scramble to reconnect all parties?

Check, check, check, check, and CHECK. Yesterday’s hearing the Michael Flynn case had it all.

U.S. District Judge Emmet Sullivan assembled the parties digitally to determine what should be done with the former National Security Advisor now that an en banc appellate panel ruled that the court is not obligated to dismiss the case just because the Justice Department decided after three years that it no longer feels like prosecuting it.

Hashim Mooppan, the Deputy AG in the Civil Division, appeared for the DOJ to argue that there was no legal basis for the case to continue, since the government has “absolute” prosecutorial authority. He also vouched for the independence of the DOJ, saying that he’d personally discussed the case with Attorney General Bill Barr and been assured that his decision to drop the charges five minutes before sentencing had nothing to do with pressure from the White House, where the president fired off dozens of tweets demanding exactly that.

Ken Kohl, the Deputy Chief of the U.S. Attorney’s Office for D.C., was on hand to argue (the DOJ’s latest version of) the facts. Perhaps Michael Flynn simply forgot about his conversation with the Russian ambassador on December 29, despite it having dominated every news cycle since the Washington Post reported on January 12 that the two had discussed sanctions relief and an upcoming UN vote. In Kohl’s telling, Flynn was just so darn forgetful that he misspoke on January 24 when FBI agents came to ask him about it, since they’d picked up the call on wiretaps and knew that the NSA’s public denials made him a blackmail risk.

And despite Trump saying that he fired Flynn for lying, and Flynn admitting this lie under oath and in open court multiple times, the DOJ couldn’t possibly prove to a jury (which did not exist, because he’d already pled!) that Flynn lied because, ummm, all the FBI agents lacked credibility. And thus the government was forced to drop the case, which is just how it always goes at DOJ.

Kohl was also shocked and appalled, that anyone would suggest that the holy Department of Justice would bend to political pressure. How very dare you, sir!

Debevoise partner John Gleeson, a former Eastern District of New York judge appointed by Judge Sullivan as amicus to assess the propriety of the DOJ’s abrupt about face, appeared to shout “I FEEL LIKE I’M TAKING CRAZY PILLS!” Except slowly, and in a soporific monotone, for seemingly hours on end.

And bringing up the rear on the crazy train was Flynn’s nutbag counsel Sidney Powell, who spent months tweeting that Judge Sullivan was going to come down on the government like a ton of bricks the way he did in the case of Alaska Senator Ted Stevens, and has never gotten over the shock of being wrong.

Powell’s opening gambit was to deny the legitimacy of the proceedings and accuse Judge Sullivan of bias. When he patiently asked her if she’d filed a motion for recusal, she admitted she had not. But she still might!

She went on to insist that her client’s first allocution and guilty plea was a legal nullity because it was given under oath to U.S. District Judge Rudolph Contreras, who later recused himself, perhaps due to his acquaintance with FBI Agent Peter Strzok.

The second allocution in Judge Sullivan’s courtroom is also a nullity, in her telling, due to ineffective assistance of counsel. See, Flynn’s former lawyers at Covington & Burling, who represented him in the instant criminal matter before she took over the case, also prepared his defective Foreign Agents Registration Act (FARA) filing claiming that he wasn’t being paid to advocate for the Turkish government. (He was.) Flynn waived this conflict, but actually it was unwaivable — at least according to Sidney Powell — and thus his repeated admissions under oath that he knowingly lied to the FBI disappear like magic. Poof!

Powell defended her own ex parte communications in a letter demanding that Bill Barr drop the case — a letter sent before she even entered an appearance, and which she was treating with the “utmost confidentiality.” Very cool and very legal, she insisted, while simultaneously calling a letter from Peter Strzok’s attorney Aitan Goelman, pointing out that someone had doctored his client’s handwritten notes which appear as exhibits, as “extra-judicial.”

When asked if she’d spoken to the president himself about the case, she admitted she had, but attempted to assert a claim of executive privilege for the substance of their conversation. Civilians claiming privilege for presidential communications is… a new one.

Powell went on to admit that she’d urged the president not to pardon Flynn and that Jenna Ellis, the president’s campaign counsel, was present for the discussion. Which is also… a new one.

In an extended, Infowars-style rant, she shouted about James Comey, Peter Strzok, Andy McCabe, insurance policy, coup, crooked FBI, and referred to Judge Gleeson as a “special prosecutor” picking up the “mantle” of the “corrupt prosecution” launched by Barack Obama and Joe Biden.

At the conclusion of the hearing, Judge Sullivan said he would take the matter under advisement and issue a ruling expeditiously, only to be interrupted by an agitated Powell demanding a rush transcript of the hearing.

“You’d have to talk to the clerk about that,” Judge Sullivan replied. And then the sad spectacle was mercifully over.

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Remember when the Illinois Board of Admissions to the Bar decided to respond to a rumor they started by bad mouthing the former dean of Northwestern Law School? It turns out that this is more of a feature than a bug when it comes to bar examiners trying desperately to cling to the fiefdom as unnecessary gatekeepers that they’ve carved out for themselves.

After applicants pointed out that hacking into bar exam materials was not only easy, but already happening, we learned that applicants in multiple jurisdictions specifically flagged that for their local bar examiners. In response to these serious concerns, they got back more petty insults.

Sean Silverman posted one response that an applicant received on Twitter and it’s a doozy. Off the top, they claim that everything’s fine because there’s an 18-character password, which would be useful, though it would be a new one for ExamSoft. For the Michigan bar exam, they were using passwords like “brown89,” which might explain a bit of the concern here. Nevertheless, despite a major cybersecurity event with their vendor TWO MONTHS AGO, the examiners just get salty:

It is frustrating to me that Reddit cretins making fantastical claims qualifies as news, but with respect to this year’s bar exam, “news” means clicks, so here we are.

Far from the “fantastical” rantings of “cretins,” I actually took the time to speak with someone who is not only a computer expert, but a former ExamSoft employee who confirmed to me that this hack was absolutely possible. In fact, the source referred to it as a “stupendous risk” to have “files out in the wild for days and days before the exam.” It’s not clear if the bar examiners know how Reddit works, but the author of that post wasn’t making any money off of “clicks.” For that matter, neither is Above the Law. I generated more clicks in one hour of the debate drinking game than I did for a whole week of bar exam stories. We’re covering this topic because, while not a popular story, we feel it’s critically important to advancing the profession. Perhaps bar examiners might want to consider a similar worldview.

This theoretical “way to cheat” also assumes that examinees who have worked so hard to get through law school and have had a longer period to study than any other group to prepare for an exam containing half the usual content would nonetheless risk their careers by enlisting unknown Redditors to help them gain supposed access to exam files.

Agreed! But then… why have bathroom break rules or ban snacks… or f**king insulin. If all threats to the integrity of the exam can be brushed away by placing faith in the fact that applicants are overwhelmingly if not entirely hard-working, upstanding people, then why have any of these rules at all?

This offer would afford this same unscrupulous person on Reddit the ability to blackmail the bar applicant with this information forever, whether or not the Redditor was able to accomplish the goal of accessing the actual exam questions. The Redditor could supply exam questions from prior bar exams and pass them off as the real thing. The flimsiness of this claim is just amazing.

These are reasons why people shouldn’t try to hack the test, not reasons why the test is secure. It’s like that kind of bar exam question where someone fails to answer the actual prompt. And then throws on an empty conclusory sentence for effect.

Then the bar examiner goes after me specifically. Oh nos!

Using critical thinking skills, one can see that this article is not an unbiased piece of reporting.

What is it with the “critical thinking skills” thing? This is the same trope they lobbed at Dean Rodriguez. These people fancy themselves the sole arbiters of critical thinking — as opposed to the accredited law schools who just spent three years performing iterative testing — and therefore anyone who questions their effort must not be doing critical thinking hard enough.

For the record, my article does have a bias, but one born of months of actually taking the time to talk to experts and research while these folks push ahead with a slapdash exam to justify their own existence.

The snarky tone of this piece and the author’s expressed views regarding the bar exam let us know that he is gleefully picking up any piece of news on Twitter.

I do try to make the news as entertaining as it is informative, so thank you. In this instance, Twitter was clearly the starting point for the article because it’s a forum rich with leads. But “using reading comprehension skills,” one could see that wasn’t the end of the inquiry. Instead, the post cited a Reddit post that made a number of detailed claims, which I verified with former ExamSoft personnel, cited independently advertised hacks, and framed based on the empirical example of the Michigan exam’s password breakdown. Tone does not trump warrants.

This article doesn’t “explain” anything; it just repeats past criticism after “reporting” unfounded Reddit claims of unconfirmed hacking skills being offered for a relatively cheap price.

Is the argument that secondary sources are bad? Yes, I’m not the computer expert. But I talk to them and then pass the information along to the audience. That’s how this all works, actually. Not for nothing, the Reddit post doesn’t make claims of cheap hacks — it explains how this hacking could be done and a separate inquiry revealed that this hacking has apparently been done. I guess it’s a distinction you only see if you’re using your critical thinking skills.

But let’s assume my article actually did fail to “explain” anything. That’s an opening for the examiners to explain what’s really going on rather than shrug and say, “I’m sure that’s not true.” Claiming that the passwords are now 18-characters long is an excellent start. Even better would be admitting that this was done in response to the Michigan attack and therefore the exploits described in the post and seemingly hacked in the past will no longer work. Engaging honestly with the detailed criticism and saying that it’s been addressed generates trust in the process. Dismissing the criticism and hoping it disappears does not.

Because if this person actually read my article — or any of the articles I’ve written on this — they’d recognize that “building trust” is a recurring theme. Every one of these posts about the tech problems with the online exam boils down to pleading with examiners to focus on regaining the trust of the applicants and not going forward if they can’t do so.

Responding to “hey look, people claim to have hacked this platform that’s already proven hackable this year” with “that’s flimsy” and comically misplaced slights about “critical thinking skills” ain’t doing it.

Earlier: Illinois Bar Examiners Use Website To Show Their Utter Contempt For Applicants, Former Law School Dean
Software That Could Allow Applicants To Cheat On Bar Exam Available For About $100

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Rut-roh. What do they say about three being a trend? Now we have three prestigious Biglaw firms declining to pony up fall bonuses, creating a clear haves/have-nots line — at least until end-of-the-year bonuses come in.

So, let’s walk through a little bonus history, shall we? It was only two weeks ago (but in 2020 time, that’s practically a lifetime) that Cooley started the COVID appreciation bonus game. And remember how exciting it was when Davis Polk came over the top of the Cooley scale? And firms quickly started piling on this new bonus scale. Weil did their own, seemingly unpopular, hours-based bonus, but, still, it was better than no bonuses at all.

But, sigh, Kirkland — the world’s richest law firm — begged off fall special bonuses, and seemed to be asking the market not to follow the trend. And Cravath seconded that.

And now O’Melveny & Myers — ranked the best firm to work for in the country — has taken a pass on fall bonuses too. As a tipster at the firm notes:

Firm management at O’Melveny announced at a firmwide Zoom townhall that there will be no fall bonuses. Instead, there will be “enhanced” bonuses for select associates and counsel in February 2021, which is when the firm normally pays out bonuses.

I mean, maybe those “enhanced” bonuses will make up the difference to the market standard? Well, insiders aren’t super hopeful:

It’s unclear what “enhanced” bonuses means and no further details were provided. The firm’s bonuses are always slightly individualized, so it’s unclear how these bonuses will be different from any other year.

Of course, we do have to wait until the year-end bonuses to pass judgment, but it sure seems like a knock on that best firm. And… it doesn’t bode well for the industry as a whole (or at least for associates hoping for a COVD appreciation bonus). It’s now a lot easier for other Biglaw firms to pass on fall bonuses now that Kirkland, Cravath, and O’Melveny have paved the way.

We reached out to the firm about their bonus decision, but have yet to hear back.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

* A lawyer has been suspended from practice for being arrested for allegedly driving while nude. The bar examiners can rest assured that this attorney had nothing to hide… [ABA Journal]

* A lawyer for Michael Flynn admitted yesterday that she briefed President Trump about Flynn’s case. [Politico]

* A new lawsuit is claiming that one of Texas’s largest counties is approving voter registrations for noncitizens. [Fox News]

* The son of a federal judge who was fatally shot in an attack over two months ago has finally been laid to rest. [New York Post]

* A Massachusetts lawyer has pleaded guilty to defrauding the U.S. government by applying for federal funds to rehabilitate apartments and then never completing the work. This sounds like a scheme depicted in The Sopranos. [Mass Live]

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

The first presidential debate is about to start, and it strikes me that we usually put together a legally themed drinking game for these events. Honestly, this was a slog to get up the energy for this one. With everything that’s happened in the last every single minute of 2020, it almost seemed too depressing to put one of these together.

But we shall persevere because this is our job here at Above the Law. Moreover, as soon as I did take a few seconds to think about it, this is going to be one of those rare instances where the legal system is likely to garner significant attention and after historically quipping that we’d be lucky if they even mention the Supreme Court, it might well be the first question this time.

So grab a nice beer (or whatever) from the comfort of your own locked down home, take some adderall as a performance-enhancing debate drug, and let’s do this thing.

All references require a sip unless otherwise noted.

“Supreme Court”: Just limiting this to when they say the words could well be enough to put you out before the third question. Sip, um, judiciously.

Mentioning Roberts, Gorsuch, or Kavanaugh: Obviously there will be some mention of Justice Ginsburg, the legal lioness whose passing put us in this mess, but will anyone else get mentioned? The Chief, by default, is more likely than most to get a shout. Gorsuch, whose appointment violated the very rule Republicans demand the country follow today, is another obvious contender. Justice Keggy Assaultington is also a favorite to get namechecked.

Mentioning any other of the remaining Supreme Court justices (finish your drink): An Elena Kagan reference is not coming through that door, but just in case.

“Merrick Garland”: (Take your drink, put it aside, promise not to touch it until after the election, abruptly change your mind and down it all immediately because it must be finished before the election.)

Court packing: It’s been asked about already this cycle, and liberals are asking for it. Could Biden get asked about it point-blank or could Trump try to bring it up to insinuate that Biden is controlled by the pundits?

Candidate touts legal expertise: Biden mentioning his law degree or his tenure on the Judiciary Committee. Trump claiming that since Tiffany went to Georgetown, “a lot of people are saying” he’s as qualified as any other lawyer.

Specific cases from this term: DACA, the tax cases (probably now eclipsed by the release of the returns but whatever), trans rights… all options.

ACA as a subject of litigation: On a healthcare question, this kind of alcohol poisoning could land you in the ICU with no way to pay your bills because of Amy Coney Barrett. But if the ACA is mentioned in the context of the Supreme Court, it’s worth a sip.

Roe: Democrats are working hard to minimize this as a theme of the upcoming Supreme Court fight, which is interesting because reproductive rights poll incredibly well across the country. Apparently not in states they see as battlegrounds though. Still, between Chris Wallace’s moderation and Trump’s adoration for his base at the expense of actual suburban swing voters,one imagines the decision will receive air time.

Michael Flynn: Flynn’s hearing today was bonkers. Is Trump going to clutch Flynn’s admittedly unlawful tunic to his breast? For that matter, take a sip the first time any of Trump’s now convicted fellow travelers gets namechecked: Paul Manafort, Michael Cohen, Roger Stone, etc.

Pardons: Piggybacking off the last one, will someone ask him point blank if he plans to pardon a sophisticated, well-represented defendant who swore under oath that he committed a crime… twice. Or will he get a softball about helping Kim Kardashian pardon some people who then didn’t deserve to be turned into political props? Will he pardon himself for tax evasion?

Anyone asks, “Hey, where’s Kanye?”: Double if Trump declares that it’s “very unfair” how state election boards are treating West.

Crime Bill: Biden’s involvement with the infamous Crime Bill was even more pronounced than Hillary’s. It’s not shocking to think Trump tries to use it to posture himself as the one commuting the sentences of the people Biden helped harm with that law.

Emoluments: I’ve looked back at a lot of Biden debate performances over the years and he has a history of dredging up talking points that have gone out of the public consciousness. It’s like when grandpa talks about the Brooklyn Dodgers out of nowhere. Remember 2016, when this was the Trump crime everyone talked about? We were all so young then.

Florida 2000: Since Trump is being conned into thinking this Supreme Court pick is about avoiding election chaos and it feeds his “don’t trust elections” messaging this moment might sneak its way into the discussion.

A DOJ case without any details: Bill Barr got caught talking about a case involving 1,700 fake ballots that never happened. Then he gave Trump the go ahead to leak about a Pennsylvania discarded ballot case that seems bad but ultimately inconsequential. What case of dubious credibility comes up next?

Anarchy (finish your drink and put on Howling at the Moon by the Ramones because there’s “no law, no law anymore”): Any reference to anarchy or anarchist jurisdiction — the fever dream of the Barr Justice Department designed to strip New York, Portland, and Seattle of public school funds deserves some recognition. Double shot if this is met with a question about how any of this jives with states’ rights.

FBI: James Comey was fired, Trump still complains about former director Bob Mueller, and he’s reportedly considering firing Christopher Wray. If anything about the FBI is mentioned, up to and including the whereabouts of Samantha Mulder you should drink.

Alan Dershowitz (take off everything but your underwear and drink): We’ll see if Trump’s favorite legal scholar is cited approvingly.

Amendments (see description): Shots corresponding with the number of the amendment when mentioned. In other words, one shot for the First Amendment, Two shots for the Second Amendment, etc. God help us if Trump muses about Biden’s health and the Twenty-Fifth.

Enjoy your Twenty-First Amendment rights tonight!

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.