The “breaking” news caused waves of outrage among lawyers. It was outrageous that some male lawyer accused a female lawyer of getting pregnant to obtain a delay of trial. It was outrageous that he wouldn’t consent to an adjournment when the trial date coincided with her delivery. It was proof, conclusive proof, of how literally awful and sexist male lawyers were.
Christen Luikart of Murphy Anderson is due in October, and a product liability trial she’s been lead counsel on is set for the same month. Luikart asked for a continuance to accommodate the final weeks of her pregnancy and the birth of her child, and Reid, of course, objected — and boy, did he object. Not only did he say in his opposition that her parental leave wasn’t a “compelling circumstance” for a continuance, but you should check out the transcript from their appearance in court.
Not only did Reid compare Luikart’s pregnancy to an illness and suggest that she pass the case on to another attorney at her firm, but he alluded to the fact that she may have gotten pregnant in an attempt to further delay the proceedings. Reid says that his critics are taking his words out of context, but in any context, they are abhorrent.
The outrage was palpable. Who would be so horrifying and exhausting as to doubt this conduct was abhorrent. David Bernstein at Volokh Conspiracy.
Staci Zaretsky of Above the Law publishes an outraged blog post on the situation, with the following headline and subheadline: Biglaw Partner Accuses Small-Firm Litigator Of Getting Pregnant To Delay Trial: No, a woman would not carry a pregnancy to term and bring a child into this world in a sick effort to delay a case. (The headline was later modified slightly to Biglaw Partner Accuses Small-Firm Litigator Of Using Pregnancy To Delay Trial.) Zaretsky claims, without providing any quotes from either the motion or the transcript (because there aren’t any?), that Reid “alluded to the fact that she may have gotten pregnant in an attempt to further delay the proceedings.” Zaretsky’s post is widely shared on social media.
Enjoying his male privilege, Bernstein “mansplained” to Zaretsky using the most powerful weapon of the patriarchy, facts. Reid was “disappeared” from Shook Hardy as a result of the mob outrage, and the firm disavowed its duty to its client in favor of its emotional bonding with a pregnant woman. But as David shows, Reid’s “crime” was putting his client first, as is his duty.
As for the mob, Zaretsky and Shook Hardy, not only has the duty to zealously represent a client become secondary to social justice, but rarely has a story demonstrated so as clearly as this, particularly in juxtaposition to David’s post, how the outrage machine cares nothing for facts.
That David Bernstein wrote his post, called out the lies and distortions, was an incredibly bold move. One might hope that in the Legal Academy, there would be some desire, however small, for accuracy, even if it meant that a great story of horrific misogyny was lost. After all, these are professors, and a core aspect of their existence is the search for truth.*
It’s no longer the case. Indeed, lies and distortion within the academy has not only become normal, but valued. If any story can be twisted to fit the feminist, identitarian, or progressive narrative, it’s incumbent on academics to do so. That they’re compelled to lie is of no moment. It’s not just forgivable, but oblitatory. At the absolute least, they must remain silent in the face of their fellow** prawfs lying, not questioning, not challenging, and god forbid, not calling out their lies.
That Zaretsky and Above The Law offered a hysterical and factually false story will surprise no one who isn’t either intellectually challenged or a slave to their deepest feelings of self-serving despair. The once-snarky “judicial hotties” and biglaw layoffs blog has morphed into lawyer SJW central, seeking to milk the eyeballs of that contingent of young lawyers who passionately believe, as well as that substantial group of academics who enable them.
David Bernstein took a huge risk telling the truth. Facts are frowned upon. Facts are literally awful when in conflict with the narrative. But Bernstein’s credibility and boldness, not to mention tenure and that he’s the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, Virginia, should protect him. The Antonin Scalia Law School is one of the few that hasn’t forsaken intellectual diversity.
Had he been a prawf at Harvard or Yale, would the same be true? Or more to the point, would Harvard or Yale have a professor more inclined toward the facts even if it meant disproving Staci Zaretsky’s story?
The profession is hardly awash in the unduly passionate, as notably reflected in the impending bankruptcy of the ABA since it devolved into a wing of the progressive machine. But the shrieks of the baby lawyers, the unduly passionate, the dissemblers for the cause, are far louder than the vast majority of lawyers who still grasp why people entrust their lives to them. The SJWs believe themselves to be the majority, and mobs of them on social media believe they represent the profession. They don’t. At least not yet.
The law firm of Shook, Hardy and Bacon threw partner Paul Hardy under the bus for raising the cackles of the outraged children. They didn’t want to suffer the slings and arrows of the children’s crusade. Will David Bernstein suffer a similar fate for calling out the false narrative? Is there any hope for facts and reason to survive in the Legal Academy, even if it makes the unduly passionate furious?
Some of us feel compelled to remain faithful to facts and our duty as lawyers to zealously represent our clients, rather than adhere to the orthodoxy of social justice, and are willing to tolerate the outrage machine. Judge Kopf has taken more than his share of punches for it. And yet, the SJWs are as emboldened as ever to reject facts, deny their responsibility, and seek out witches to burn at the stake. What David Bernstein did here is remarkably bold. It should be utterly banal to tell the truth. This is what the legal profession is facing.
*Sure, there’s also teaching, but let’s not go down the trade school road again.
**Can the word “fellow” still be used?
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pro tip: flippant quagmire “some of us”;
can absolutely hear your-of the “peoples” plastic button cuffs- disturb
the formica end table in search of a drink of water with a cap.
go hydraulic?
https://www.youtube.com/watch?v=Fh1_RnKlALo
more clubbing?
But now we’re done for the day, k?
Why is there not a movement of intellectually honest bloggers, journalist, and academics who are willing to publicly shun outlets like ATL (let’s be honest, this stuff is primarily on twitter, so block would be the appropriate verb)? Instead, the vast majority of law celebs choose to amplify ATL and similar outlets when they misbehave. Then a week later they’ll share a neat story about how Judge Jones on the 13th Circuit hired a 43 year old former WWE wrestler as a clerk. Stupidity is a win win for ATL.
Look, if Staci Zaretsky says “These thoughts and legal theories are absolutely, positively INSANE” then it must be true. After all, she capitalized INSANE. That’s good enough for me.
Bernstein tries to pull the wool over our collective eyes by looking at the transcript and pleadings. How 20th century.
And Ms. Luikart told the court she is “vice-president of the diversity committee”. ‘Nuff said.
A close look at what went on here is revealing. The defendants, with two sets of lawyers, blew off the expert disclosure deadline in a case where no experts means a fast settlement, and since it’s a leg-off case, a big one. The plaintiff did what any lawyer would do–he moved to strike the experts.
Two defense firms had an “Oh shit, we’re gonna get sued by our clients and eat this leg-off case” moment. One firm, one the same day as the motion to strike moved for a continuance. They knew that motion would be granted because there were no prior continuances. Though I doubt it was in the motion, the reason for the continuance was to remove prejudice for not disclosing experts. Done all the time when one screws up. The pregnant lawyer filed her motion a couple weeks later, in early May, saying she was due in October. The filing probably coincides with when she discovered the pregnancy, so her motion added an additional reason, one far better than the original, for the continuance.
Reid responds to the motions, mostly saying, “they’re just doing this so the experts aren’t stricken.” He also addresses the pregnancy by noting the usual: other lawyers can try the case or we can do it before she takes her leave. At the hearing, only the pregnant lawyer brings up the issue by saying she didn’t get pregnant just to get a continuance–Reid didn’t. He didn’t need to because he knew the continuance would be granted on the first motion. This is a good judge. She knows that if she struck the experts in the first instance, the district court of appeal would send the case back after trial. Who needs that?
So knuckleheads at ATL get twisted around an event that not only didn’t happen, but also didn’t matter. The pregnant lawyer only took issue with her perception of two arguments: that her involvement in the case was minimal and comparing pregnancy to illness. Reid took the first back by explaining that although she was the primary lawyer for that defendant, other lawyers could try the case. As for the second, how many Florida cases discuss what to do with a pregnant trial lawyer? I guess he could have compared the situation to lawyer disbarment, arrest or insanity. Would that be better?
I don’t know what happened at Shook. It took me less than an hour to read and figure this out. Zaretsky could have done the same. This was very basic trial lawyering. The arguments made are made thousands of times a day. To turn this into something it’s not is just the opposite of the touchy-feely manner these people want to shove into the way lawyers deal with each other. The result is a very good trial lawyer covered in shit.
“Zaretsky could have done the same. ”
Skink, I understand the notion of credit where credit is due, but I think maybe you give too much credit here.
Thank you though for a really great summary of what went on!
Indeed, like most media writers, Staci has never practiced law. She has a JD, but no license, and would not readily have grasped the procedural nuances unless somebody explained it to her.
The ATL piece really rides the line of defamation. Reid never said word one about the whiner having deliberately gotten pregnant, but “alludes to” is probably weasel-y enough that they could successfully argue that it was opinion (“well, he didn’t outright say it, but we’re sure he meant it”). A thoroughly dishonest piece, abhorrent in any context.
So par for the course for anything at ATL, really.
Staci Zaretsky is one of their better writers, but unfortunately succumbs to blind feelz whenever anything female plays the “victim” card.
Staci is one of their better writers, even though that’s faint praise, but she has embraced her role as avenging angel of female trauma with a fervor that would embarrass Lesley Gore. You can’t simultaneously expect recognition as an intelligent person while digressing into feigned hysteria whenever possible.
This is one where I wouldn’t mind a defamation suit going forward. Even “alluding to” requires Reid to have actually said *something* about her pregnancy and the timing, which is seems he didn’t do. If Reid never even mentioned such a thing or even remotely referenced it, then you can’t say he alluded to it. And, if in fact it was someone else who actually said that she got pregnant to delay the trial, then saying that it was Reid who said (or alluded to) it would certainly be a “reckless disregard for the truth,” not that that standard is even necessary here.
F ATL here. They ruined a guy’s career by getting their facts completely wrong. The writer should pay for that mistake.
Staci wrote something that wasn’t true, but it was the firm’s absence of moral fiber that caused it to suspend Reid, and Staci isn’t responsible for that.
This is worth a read: Dan Packel , After Shook Suspends Partner, a Backlash to the Backlash? American Lawyer (July 27, 2018 at 03:11 PM).
All the best.
RGK
You realize that I would not allow this comment from anyone not confirmed by Congress and without senior status.
Meh. You probably would have greenlighted it in a state of shock if Bill had sent it in.
SHG,
The Senate made a mistake. Get over it.
All the best.
RGK
PS The President who nominated me who is a wonderful person, should be forgiven.
You were but one of a thousand points of light. I, on the other hand, am a black hole.
“In the land of the blind, the one-eyed man is king” isn’t untrue, exactly, but the activist Left is demonstrating why it should* be balanced with “In the land of the blind, the one-eyed man learns to keep it secret, or perishes”.
*I wonder if it would be useful to use the pseudo-superscript (wt), a la ™ but more filling the function of (sic) in cases like this, to indicate that one knows that it’s wishful thinking to say what’s being said. Ah, well. Seems it’s my day for wishful thinking.
Regards,
Nemo
There was indeed an outrage, which was that Shook, Timid & Eunuch would suspend an attorney for opposing a continuance the client wanted to oppose. The ethical violation here is by the spineless wonders in the firm, who have suspended an attorney for following the professional conduct rules.
I can only assume ABA will be awarding one of its “courageous lawyer” medals to Reid, for following the rules at the cost of his job.
This afternoon, while I was reading a novel set in Russia in the 17th century, SWMBO was watching old episodes of Criminal Minds.
I kinda sorta noticed part of one and remarked “This would never be made today, because of The Terror”. She looked it up and said “It was made four years ago”. I replied “The Terror came on pretty quick, didn’t it?”
There will be no medal and, as the protagonist in the excellent novel “Small Town Antichrist” liked to say, “It’ll get worse, you know.”
I thought that pregnancy was about a choice. And that all of the costs of making that choice, from birth control products to fertility treatments to post delivery child care and postpartum depression counseling should be covered by health insurance (ie, the same as all other illnesses). But now we are told that it’s not an illness, or a choice. I am confused.
If Ms Zaretsky gets a whole blog post on your ire, I’m scared to even guess your responses to ATL’s Editor, Mr Elie Mystal. Disagreement with his daily posts serve as a self-check insanity test for me.