May 11, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Elie Mystal, former litigator at Debevoise & Plimpton turned Editor-At-Large at Above The Law.
Q. While anyone moderately familiar with the blawgosphere will know your name, many won’t know how Elie Mystal came to be the first non-Lat editor at Above The Law. Some of us old-timers, on the other hand, remember well David Lat’s stroke of brilliance back in 2008, ATL Idol. What made you decide to join in the beauty pageant? Back then, ATL’s stock in trade was snark, and you won a contest for who’s the snarkiest guy around. Were you all about the snark? Was legal gossip your focus? Were you really that interested in sexy judges and drunken lawyers?
A. When my origin story is written, let’s not forget Kashmir Hill. She’s the one who planted the “ATL Idol” idea in Lat’s head, because she is an impish hellcat like that who drinks other people’s tears. (Kash was also the one who pulled Staci Zaretsky’s resume out of the pile, when I was on the “she went to WHAT law school?” wagon.)
Matt Levine (former Dealbreaker editor, current Bloomberg View editor) was a friend of mine in college, and a friend of Lat’s in law school. He put in a good word for me with David. My goal, initially, was just to get some clips and maybe a recurring column out of the experience. I wasn’t there for the sexy judge profiles, I just wanted to show that I could write about “legal topics” in a humorous, readable way that wouldn’t make the eyes of non-lawyers glaze over. After I left Debevoise, I had been *close* on some “breakthrough” jobs. I was close on a job at Huffington Post. I was close on a writing job at the Daily Show. I put in a lot of work and writing and stress to pursue those positions, and when they went to other people, I had nothing to “show” for the effort. ATL Idol seemed like a way to show my skills to the market, even if I didn’t get the job in the end.
Of course, I hoped to win. ATL Idol was supposed to be anonymous, so we all had to pick “avatars” for our work. I agonized over my choice. I had it down to a picture of Shaka Zulu (playing up a justice warrior persona) and “The Brain” from Pinky and the Brain (playing up the frustrated elitist persona). I talked to everybody I knew, and eventually went to my mom. She said “Do you want to make a statement, or do you want to win?” I went with the educated (white) mouse. Funny how things work out.
Q. You were a double Harvard guy, undergrad and law, which puts you in the top .001% of most privileged people on earth. What was the plan when you took off for Cambridge? Did you always want to be a lawyer? Was there a greater purpose to going to Harvard, or were you going to figure it out later? Did you feel any responsibility to use that privileged education wisely?
A. Yes, I’ve had every educational opportunity in the world laid out before me, and I’ve transubstantiated it into a career of writing dick jokes about lawyers. Mother couldn’t be more proud.
When I went to college, I wanted to be involved in politics. My undergraduate degree is in Government. I applied to 11 colleges, got into 10 (fuck you, Stanford), and my final choice was between Harvard and Claremont McKenna – a small school in Southern California with a top-notch poli sci department. I figured I’d run for office or, worst case, be the press secretary for somebody running for President. I never wanted to be a lawyer, especially when I was actually a lawyer.
But the way I got into being a lawyer, for the few horrible seconds I was one, was out of a sense of “responsibility.” Understand, when Debevoise offered me the job at the end of my 2L summer, they were offering me a salary that was more than anybody in my family has ever made. Ever. My mother, Elizabeth Ying, is an incredibly accomplished woman, she’s at the top of her field and has been at the top of her field for most of my life (she’s currently the speech language co-director at the Center for Hearing and Communication). She’s an *expert,* and Debevoise was offering me more than she ever made in my first year out of school.
I did feel like I owed it to her, my Dad, everybody in my family who had given something up so I could go to a museum or see the Space Shuttle or get the hell out of public school, to try to enjoy making that much freaking money. I mean Christ. Saying “I tried, I hated it, I have to do something else,” is one thing. Saying “pfft, it looks stinky,” would have felt like a betrayal to all who invested in my future.
THAT SAID: I do think that I am, post-law, using my privileged education responsibly. My family is proud of my work. People have come up to my mom and told her, “my son was going to go to law school until he started reading your son.” That’s nice. I’ve saved my one lamb.
Q. Graduating from Harvard Law School is about as close as one gets to having a get rich quick card. Was Biglaw always your direction? Did you go in dreaming of the day you could do securities law? Did you ever consider putting your considerable talents to use in criminal law? Civil rights law?
A. When I quit, I spent six months on my couch, mainly playing Madden Football and re-imagining my life. I did at that point wonder if I might have been better off using my law degree for something less corporate. Battered women or civil rights or something.
But Debevoise was great about pro bono work, and my experiences there told me that actually doing “noble” legal work was not at all for me. Waaay too much pressure when your clients are real, desperate people looking to you to save them from the horrible system. I did some family law stuff with In Motion. That shit made me sick to my stomach. Some lady who is probably going to get the hell beat out of her if we don’t get her this restraining order? No, no, no. That’ll keep you up at night. Give me an impossibly rich corporation fighting the government over the size of their fine ANY DAY over an actual human who is counting on me to make things right.
In my writing, too, I try not to think of the people I write about as “persons.” I don’t want to get invested in the individual. I want to talk about the cause, the issue, the greater good. It’s like Leo McGarry says on the West Wing, “first thing my kid does is name all the lobsters, and then I can’t eat ‘em.”
Q. While you were in HLS, you became involved in some political campaigns on the Democrat side. Did you consider a future in politics? You come from a political family, your father having been the Deputy Presiding Officer of the Suffolk County, Long Island, Legislature. Did you see Harvard as being a good launching pad for a career in public service? President someday? What type of politician would Elie Mystal have been?
A. Yup. I thought Harvard and HLS would propel me towards elected office. I figured I was too “black” to be President, but Mario Cuomo? I thought I could totally be that guy.
I applied to five law schools, and got into four (Fuck. You. Stanford.) But I wasn’t choosing between Harvard and Yale so much as I was choosing between Harvard/Yale OR working for Hillary Clinton’s first NY Senate run as a press person based on Long Island. I didn’t staff Clinton because, ultimately, I didn’t want to be staff. I wanted to be the candidate, and candidates generally had law degrees and some kind of independent career *prior to* entering politics. I decided on law school strictly as a stepping stone towards an elected future.
Now there are many reasons those dreams never panned out, but one of the biggest is that I would have made a bad politician. I don’t have the temperament. I, quite literally, can’t keep my mouth shut when I’m supposed to keep my mouth shut. (Which was also a challenge in my legal career, “keeping client confidences” does not at all come naturally to me.) I would not have been a Barack “No Drama” Obama type. I would have been a loud, self-regarding, indignant politician. I’d be an Anthony Weiner who could keep his dick in his pants, but would still be an annoying prick.
Luckily, I learned that about myself before I tried to make a go of it. Being around a lot of politicians, volunteering and the like, just watching them, as I matured I learned what they had that I didn’t.
I can’t be Anthony Weiner. Keith Olbermann… that I could do, if somebody would just give me the chance.
Q. Your first job after graduating HLS in 2003 was at Debevoise & Plimpton, where you were a commercial litigation associate. Was there any part, other than the paycheck, you liked about Biglaw? Were you cut out for law firm life? While you still have warm feelings for the firm, what part of the practice did you hate most? Some say Biglaw is dying since your day. Is it? Can it be saved?
A. I liked the intellectualism. Harvard College was the most intellectually stimulating place I’ve ever been in. Harvard Law School was one of the least. In law school, so often it just devolved into hundreds of students trying to figure out what Oliver Wendell Holmes would have done. Fuck that guy. Fuck that guy in the ear. I remember being in office hours with Elena Kagan (I had her for CivPro) and asking why I should give a rat’s ass (I’m paraphrasing) about what some dead, probably racist, white man said about where I could sue WalMart. She had an answer: yada yada, must understand the system to change it, blah.
Law schools, almost all law schools, take really smart people and then say, “here is the box. You can do whatever you want within this box, but if you don’t stay between the lines, you will not get an A.” BOO.
In law school, I got a B+ on a paper and the comments back were “this is good, but you didn’t sufficiently tie your argument to precedent.” In college, I got a B+ and the comment was “This is good, but sometimes it feels like you are just telling me what others have already said. What’s the new idea here?” That’s the difference.
Debevoise was closer to the college ideal than the law school box. I think the whole “pound on the law, pound on the facts, or pound on the table if you have nothing else” that happens in a place focused on client outcomes allowed for much more intellectual freedom. In the law firm, the hunt for on point, in jurisdiction precedent requires creativity because there is not a predetermined “right” answer that the professor is looking for.
The thing I hated was, obviously, the hours. Ye Gods, the hours. You know what I learned from Debevoise, that there is nothing IN LIFE that I still want to do for the 11th hour in a row. I don’t want to play the same video game for 11 hours straight, I don’t want to have sex for 11 hours straight. If you see me sleeping for ten hours, please wake me up, because I’m hungry and I need to pee.
Q. After Debevoise, you left law to write about New York politics. Why quit law? Even if Biglaw wasn’t for you, what about using that snazzy degree for the benefit of others, as in working for the Legal Aid Society? Had you come to the realization that law wasn’t the right place for you? Did you feel there was a writer in you desperately trying to come out? How hard was it to walk away from Debevoise? And the paycheck?
A. Quitting was probably the most important decision I made until I had children. So it was a serious decision, but not a particularly “hard” one. I didn’t know what I wanted to do, but I knew I didn’t want to be a lawyer. Once I got there, like, every day I spent at Debevoise was one more day not making progress on what I would ultimately be doing with my life.
When I told my partner/mentor that I was quitting, he said “Well Elie, I would have been more surprised if you came in here and told me you desperately wanted to make partner.” Nice. He thought I was just burned out though, so initially they put me on sabbatical. For six months there, I could have walked right back into work, no questions asked. And I think I probably could have gotten my old job back right up until the recession hit. I wasn’t a “bad” lawyer, I just didn’t like it very much.
The paycheck wasn’t nearly as hard to walk away from as it could have been. My wife was a Biglaw attorney, but because she graduated after me and there was some issues getting her Visa situation worked out, for most of my time at Debevoise, we were living on *one* Biglaw salary. It was pretty much paycheck-to-paycheck. When she started working, and our expenses remained flat while our income doubled, suddenly I could see how people could get used to the money. I felt the golden handcuffs grasping for me. So I became even more motivated to get out before we forgot how to live without the money.
For the most part, I’m the only person I know who was able to quit Biglaw without taking a major hit to his standard of living. We didn’t move out of our crappy Upper East Side starter apartment until I’d been with Above the Law for a few years, but we never had to *downsize* because I quit.
The hard part was that I didn’t know what I wanted to do next. I didn’t know that I wanted to be a writer. I knew, by that point, that I was not going to run for office. So the two careers that had motivated my entire life were suddenly off the table. I was very self-directed in high school and even middle school. Quitting was really the first time in my life where I contemplated the possibility that I could do “anything,” and that was totally unnerving.
I did know that whatever I was going to do, I wasn’t going back to school to do it. One useless degree per life is enough.
I started blogging because I was bored. I did a site with a friend, and I really liked it. The site sucked. *I* sucked at writing it. But I realized that if I could write, if I could get my thoughts out to a wider audience, I could get 90% of everything I ever wanted out of politics. I just wanted to be (and still just want to be) part of the “conversation.” Writing was a way for me to make a living out of how I think and how I communicate. How cool is that?
So, I sent my resume to pretty much every media organization in New York. My cover letter was basically, “I have two Harvard degrees and am willing to work for free.” Eventually, the New York Press brought me on as an intern with a minimal stipend. It was a bit humbling to go from a Manhattan law firm to getting people’s coffee and being told that I don’t know how to use a comma (I don’t know how to use a comma; that’s what “secretaries” are for.) But they were giving me my experiential J-school degree without wasting my time in a classroom. By the time the ATL opportunity came along, I knew what I was doing.
Q. The Above the Law today is hardly the same as the ATL you fought to join eight years ago. What was then David Lat’s gossip and obsession with federal judges morphed into a business. What changed? How did going corporate affect what you were writing? Over time, it began seeking outside content, and its early “columnists” were some formidable, albeit more serious, voices in the blawgosphere. From there, it seems the need for more content drew in a very different type of contributor, that some might describe as decidedly less formidable. Was this a conscious choice? Did eyeballs take over? Was anything that filled empty space the new rule?
A. Hi Scott, I was wondering when you were going to ask that question.
I like to say, in the early days of ATL, Lat and I were like cult leaders. We had a small but passionate following that generally read every word we wrote as part of an ongoing conversation. Now, we are like bishops in the Catholic Church. We each have our own parishes. There is a nominal leader somewhere in a far off land. And… I own a house now, instead of living in a trailer drinking Kool-Aid with my friends.
That big change started to happen during the recession, when we gained a ridiculous market share. We were positioned to report first and accurately on the layoffs firms were trying to keep quiet. We were in a position to report first and accurately on the upheaval in the entry level job market. And things haven’t been the same since.
So, the first premise I reject is the notion that we went more corporate to get eyeballs. The eyeballs were there before the advertisers showed up. If there has been a corporate change, it’s been to service and monetize those eyeballs differently.
I think a more pretentious organization would say: “Oh, our core writers can service all these new people.” But that’s not how we went. Take in-house lawyers. I’ve never worked in-house, Lat’s never worked in-house. Instead of having me or Lat write about “the in-house life,” where we’d just look foolish, we’ll bring on people to write about in-house stuff. Our core audience, they might not like that content. But it’s there now for the people who do.
But our core still gets serviced, I believe. In 2008, Lat and I were writing about 7 posts a day. Now, we publish sometimes 20 posts a day, but you’ll still get 6 or 7 posts out of me, Lat, Staci, Joe, or Kathryn, the full time people. We publish enough now that I often tell people, “just don’t read the posts you don’t like, and read the ones you do.” Lord knows, that’s what I do.
That approach makes a lot of sense to me in the social media era. That’s the other “sea change” that has happened at Above the Law (and, you know, ALL of online media) since I started. So much of our traffic now is driven through Facebook and the other sharing sites. Comparatively fewer people just pop open ATL at lunch and say “I wonder what they’re talking about today.” They see a story through their social media networks, come in for that, and then, if we’re lucky, go down a clickhole into other stories on the site. Having a ton of columnists, each with their own social networks, is helpful to the site.
I know your question was more, “why do your columnists suck now,” and I don’t want to dodge that aspect, since I disagree. Obviously, quality is going to be more variable over 30 columnists than it was when we had two or three. But I think every one of our columnists is capable of hitting the ball out of the park on a particular issue.
If *I* write 4 columns, and I’m *on* my game: 1 will be very good, 2 will be okay, 1 will be a stinker. I’ll sign up for that right now. It’s freaking hard to come up with interesting things to say all of the time. I think our columnists often have a similar distribution, only they write once a week, so you might not see the really good one.
Q. Just before joining ATL, your father became embroiled in a residency issue that forced him to resign from the legislature. He was prosecuted and, in 2010, pleaded guilty to lying about living in Copiague. How did this affect you? What impact did this have on your view of politics? Of law? Of criminal law? Was his lawyer son able to help?
A. Yeah, that sucked.
Fun story about my Dad though, when he resigned he faxed in his resignation. From Florida. Not Copiague. Like a boss.
Q. One of the pet issues you adopted at ATL was the law school scandal, that law schools were sucking in kids with glossy promises when there was little hope of landing a decent job on the way out. What made you embrace this problem? You were a strong voice telling college kids to do something, anything, other than law school. Why? Don’t we need lawyers? Aren’t smart hard-working lawyers a critical part of the system? What if the next Clarence Darrow decided to become a physician because of you? How can you live with yourself?
A. I initially started on the law school beat as a way to differentiate myself from Lat, who was already well known as a Courts guy and a Biglaw guy before I came along. Focusing on the students while he focused on judges and managing partners was a nice complement.
It was also a way for me to get in some of my subversive, “these Biglaw jobs SUCK BALLS, don’t you know,” without directly alienating our audience of (then predominately) Biglaw lawyers. Telling students to think more critically about Biglaw jobs (as I wish I had done) put me in the perfect position to have something to say when even those jobs dried up. Remember, we get a ridiculous amount of emails per hour. In 2009 and 2010, a lot of them were from students who were getting totally screwed.
Obviously, we do need lawyers. We need more lawyers. But we need lawyers who are economically capable of servicing low-income clients, and that simply does not happen when people graduate with a quarter of a million dollars of debt hanging over them. When the recession hit, and law school tuition still went up, when it became clear that law school tuition was somehow “recession-proof,” well, the stories started writing themselves.
The next Clarence Darrow didn’t become a physician. He became a contract attorney because he couldn’t get a job, graduated with no idea how to attract clients, and is struggling to pay down some of his law school debt that he cannot discharge through bankruptcy. He wishes he had listened to me five years ago.
Q. You’ve taken charge of ATL Redline, where you’ve written forcefully, if snarkily, about criminal and social justice issues. Do you wish you had more experience in criminal law to better address these problems? ATL certainly provides a big soapbox for your thoughts, but is passion enough? Where does your interest in crim law come from? As to social justice, how is your old law school doing, now that it’s rid itself of the yoke of the Royall Shield? Do you draw a distinction between cops killing unarmed people in the street and ancient, symbolic microaggressions?
A. This is a fun question. Do I wish I was better at my job? I guess the honest answer is “no, not really,” but it’s a bit more nuanced than that.
I wish I had an intern, a legal researcher, or basically a first year associate whom we could pay to sit around all day, waiting for me to ask them a question, then pull up relevant statutes and cases to my point, then go away and let me get back to my narrative. I’d also want somebody to look over my finished pieces, pre-publication, and say, “You know, the contributory negligence standard is a little different in Missouri,” (I don’t know If MO has such a standard and I honestly don’t even give enough of a shit to look it up right now) so I could say “good catch,” or “yeah, I thought about that, but It’s not germane.” A more detail oriented legal mind would improve my offerings, and of course I’d like to produce the best content I can.
BUT… I think one thing that dogs lawyers who write (or blog) is that they get their heads too far up their legal asses. Some of it is comes from a noble desire to be as accurate as possible. Some of it comes from a less defensible place of trying to show how “smart” they are, and how all that legal training and experience is really paying off. But the risk whenever you are dealing with a lawyer/writer is that caveats, statutory interpretations, and generally prudent ass-coverings lead to BAD writing. Boring writing. Writing that is technically correct and proficient, but is physically painful to read.
Nobody cares about the deep-cut analysis of the NY CPL and how it pertains to arresting Donald Trump for threatening to shoot people in Times Square. Or at least, the two other people who care ALSO have law blogs and their own, competing interpretation. It might sound counter-intuitive, but when I’m writing about law, I’m trying to get the law out of the way as much as possible so we can talk about the more fundamental social or political, or sometimes even the “legal principle” at play. Often, I find the actual statutes and holdings obscure that effort (at least in 800 words) rather than elucidate the questions.
Should so and so be charged with MURDER for doing such and such? That could be a fun post. Does the manslaughter statute in Florida even apply given that the aggravating circumstance there isn’t determined by the trier of fact but … JESUS GOD I’M SO BORED, I WONDER WHAT DRAKE IS POSTING ON INSTAGRAM?
People think I’m joking when I say this, but I don’t need my writing to be *right* on the law. I need it to be *not wrong.* “Right” is a matter for interpretation. Being right requires so much time and effort that I used to get paid much more money just to *attempt* to be right about the law. In this role, as long as I’m not demonstrably incorrect, then I can keep the discussion moving, entertaining and thought-provoking.
But sure, if I could hire 15-years-ago me, and his Westlaw account, I’d put him to work.
Q. You’re almost 8 years in at Above The Law. Is that where Elie Mystal plans to end his days? What’s next for you? Have you considered going back to law? Will you continue to write? Maybe a screen is in your future, whether large or small? Have you ever considered going back to try a case to a jury? What’s the end game?
A. I would never, ever, go back to being a lawyer (see, e.g., my answer to the last question.)
I would sign up to be a T.V. judge in a heartbeat. I’d race-bait it up too. “Judge Black Guy.” Wouldn’t you watch a show with me just *destroying* privileged white litigants? “You are in this court, disputing ownership of a dog. Not a child. Not a human child. But a dog. We’re talking about a dog. A DOG.”
More realistically, there’s a movie called “Game Over” about the heyday for Atari (the gaming system). Apparently, back in the day, Atari was the very best place you could work in the Valley. Party atmosphere, individual freedoms, a belief that as long as you get the work done, who cares how (or when) you did it. One of the main guys in that movie talks about how Atari “ruined him” from having any other “regular” job for the rest of his life.
I feel like Above the Law has done that to me, a little bit. I have near total editorial control over my own work. I don’t necessarily *have to* wear a shirt in the office. My co-workers bring their dogs to the office. I can have long conversations in an open office about whether a joke that is CLEARLY offensive is *really* too offensive to write. It’d be hard for me to go from where I am to a more hierarchical organization, just to continue writing columns. I mean, I have a price, but it’s no longer cheap.
But, T.V., radio (especially podcasts,) sure I could see that. I have… “things to say,” and I’m interested in saying them to as many people as possible. If I wasn’t writing professionally, I would likely be standing on a street corner shouting at passers-by. I’m serious. When I was at Debevoise, in my limited spare time, I would go to bars, get drunk, and just loudly “make points” towards anybody in earshot.
I can’t do this forever. Blogging is a young man’s game. I was actually on a show with Andrew Breitbart just weeks before he died. We had waaaay more in common than I ever would have thought possible. And you know how he died? Keeled over after getting into a debate at a bar.
I don’t want to go out like that. My ultimate endgame: I’d like to teach. (Don’t laugh.) I’ve been up in “the blogosphere” for some time now, and I know some things about how to do it successfully (both in terms of content production and on the business end.) I’d also have something to add about dealing with, and dodging, some of the legal issues that pop up while writing on the internet. I really enjoy being around young people. I enjoy being in a campus environment. And I enjoy a captive audience that kind of has to listen to me if they want to get a good grade.
Doesn’t that sound like a useful journalism professor to you? I have two kids and don’t manage my money very well… let’s ASSUME that I’ll never be able to retire. But if I could live out my days imparting what I’ve learned to young people, and getting good seats to football games, that sounds about as close as a guy like me will ever get to “dying in his own bed.”