Latest / Coopers' Code / Clem Glynn on AI in Law, Brief Writing, and Courtroom Integrity
Transcript
- 0:00I do think civility is underestimated.
- 0:05And by that I mean that is not only something that is expected
- 0:10of us by our profession. It's good for us.
- 0:15You know, judges appreciate civility, juries appreciate
- 0:20civility, the clients appreciate civility.
- 0:24But civility allows you to have conversations and, you know, if
- 0:29you get into a good relationship where there's mutual respect and
- 0:31trust, I often if I get brought into a case, I'll call a
- 0:35plaintiff's lawyer or the on the plaintiff, the defense lawyer
- 0:38and say, look, let's figure out what we can do informally.
- 0:42You've always got the right to quality control.
- 0:44Check it, you know, with a deposition if you want.
- 0:47But you know, I'm, I'm all for getting it out there and seeing
- 0:51what we think of the case and getting to that point as quickly
- 0:54as we can. When you've got civility, you've
- 0:57got a much greater chance to have that kind of honest broker
- 1:02relationship. Howdy, and welcome to the show.
- 1:07Cooper's Code focuses on legal issues and notable
- 1:09practitioners, distilling wisdom so we all achieve the best
- 1:12results for our clients. I'm Miles Cooper and I'm
- 1:16thrilled to show Part 3 of this conversation with Clement Glen.
- 1:23You talk about robots and one of the things that is is very top
- 1:29of mind right now is AI, generative AI in particular, and
- 1:35how that may be reshaping how cases are staffed, how law firms
- 1:40are staffed. Have you and your partners had
- 1:44any conversations or done any sort of evaluation as to what
- 1:48the future might look like a year, 2 years, three years from
- 1:51now with that on the horizon? More conversations than
- 1:56planning, but it's probably among the fact you know, so I'm
- 2:04I'm 51 years into the practice. I don't practice cuz I need to.
- 2:09I practice cuz I like the people I'm with and I like being
- 2:12relevant and I like solving problems and I suck at golf, but
- 2:17I really do have some of the technology resistance or, or
- 2:23allergy to learning certain new things.
- 2:30You know, it's, it's pathetic, but I really do feel that's,
- 2:34that probably describes parts of me.
- 2:35For example, I don't text. I can, but I don't want to be
- 2:41typing with my thumbs and all that.
- 2:43So I I don't and people, especially younger people,
- 2:48including my grandkids, it's like you don't text.
- 2:52What is this? Are you able to communicate with
- 2:54your grandkids? I I, I don't know that I can
- 2:56communicate with my children if they're out of the house without
- 2:57texting. No, I yeah, I can.
- 3:00And they're, they're really good.
- 3:02They're a good bunch. But but I do sense that.
- 3:04So there's a long way of saying that probably the AI decisions
- 3:09are not going to be made or certainly not designed by me.
- 3:14I'll do what I have to. But if at some point I have to
- 3:17learn too much, then given my estimated lifespan, I don't
- 3:22think I'll want to do that. But you know, what'll happen is
- 3:24if I, I mean, I still to this day, I, I don't set up my own
- 3:29Zoom calls because I, I've chosen not to learn and it's
- 3:34stupid, but I just say, Hey, could you come in and you know,
- 3:37could you set up a zoom call with miles at such and such and
- 3:40then they do it. So I suppose when AI comes, I
- 3:44can say that to the robot. Hey, could you?
- 3:46But you know, the idea that briefs may be written by robots
- 3:49is frightening to me. It's repugnant to me.
- 3:52And that again is maybe get off my lawn grandpa talking.
- 3:56I don't know. There it is.
- 3:57I think that there are ways that I have seen foreshadowing where
- 4:06the legal practice may improve. We may have more opportunities
- 4:09to do the fun parts of our job. Nothing is going to replace your
- 4:13evaluation, your conversation with that woman at the
- 4:18mediation. There's no bot that can do what
- 4:20you did there. And building discovery shells
- 4:25and taking information from client documents and putting it
- 4:29into special interrogatories. Nobody likes that.
- 4:34No paralegal, no junior associate.
- 4:37And if there's a way to make it so that that is easier and we
- 4:41can do higher level than the most fun parts of our job, I.
- 4:44Get your point And I that makes sense.
- 4:47I've heard people talking about, you know, even in my shop
- 4:49saying, you know, might be able to write a better brief.
- 4:56I mean, but you know, if the AI is doing the case research,
- 4:59etcetera. I mean, and that I don't know if
- 5:02you get comfortable and say well if they if the AI read the the
- 5:05case, then I guess they got it right because reading cases is
- 5:08an art. I mean, there's that New York
- 5:10incident that is of I think it's two or three years ago at this
- 5:15point, a New York lawyer in an aviation case has was dealing
- 5:19with I think it was a 12B6 and dispositive motion.
- 5:23And he used AI to write the brief, got some case citations
- 5:28that were really good for him in this case.
- 5:31So good that he asked the AI are, are these real cases AI
- 5:36said, yes, they're real. He didn't go and look for them
- 5:40though, and but the judge did and the Article 3 judge was not
- 5:47particularly pleased when there were cases being cited that were
- 5:51complete hallucinations. They didn't exist.
- 5:53So how? Yeah.
- 5:54From 2001, yeah. So I, I think that you're right
- 5:58it there are ways it will make light lifts easier.
- 6:04You know, why do we need to look up the standard for summary
- 6:09judgement and write that boilerplate?
- 6:11I mean, you're cutting and pasting it from a previous
- 6:12special anyway, but that won't stop us.
- 6:15If you're signing your name on it, you you own it.
- 6:18It's certainly a function of my life experience, including my,
- 6:24you know, early days in journalism where I have a
- 6:28reverence for the words. And I mean, I I love writing
- 6:31briefs. You know, the art of a brief is
- 6:33not just a clear sentence, but it's what goes where and what
- 6:39doesn't even make it. How do you develop a theme that
- 6:45works and doesn't have distractions?
- 6:48And I mean, for me, the hardest thing is to squeeze out all the
- 6:51extraneous stuff that when I start might be in my brief, you
- 6:55know, I start big and come down usually.
- 6:57But we'll see. I think I'm not against the AII,
- 7:01don't own any, own any Bitcoins and don't want to understand
- 7:05that world. But you know, probably bitcoins
- 7:08are a good thing, new president says.
- 7:10So there you go. It looks like that is the
- 7:13direction that we're headed. Yeah.
- 7:16Are there any points of wisdom cases, experiences that you feel
- 7:22would be beneficial for our listeners to to know?
- 7:24Depends who the listeners are. Well, I think one subject that
- 7:30is really important, it's it's important to Aboda, but it's
- 7:33important to the State Bar is civility.
- 7:37And you know, on the one hand, discussing civility can be
- 7:42virtue signaling, right? Oh, yes, I'm above, you know,
- 7:46we've all seen that. And, you know, since sometimes
- 7:52when you see somebody else who's in a boat or American College or
- 7:55whatever, and you know that civility is emphasized by both
- 7:59organizations, you say that's son of a bitch sitting here, you
- 8:01know, that kind of thing. We all know that.
- 8:04And there's probably people that said it about me, you know, like
- 8:07God, what a jerk. Because even though I believe in
- 8:10civility and I start with that as my assumption, my default,
- 8:15you know, let's be adults on this case.
- 8:18If somebody is a nasty SOB and wants to take it to the street,
- 8:23then we're we'll, we'll return fire.
- 8:25We're not going to cross lines, but we're not going to curl up
- 8:28in a ball and say, oh, can we talk about civility?
- 8:32Because there's certain people that aren't going to talk or
- 8:35practice it. But with that introduction, I, I
- 8:39do think civility is underestimated.
- 8:44And by that I mean that is not only something that is expected
- 8:49of us by our profession, it's good for us.
- 8:54Judges appreciate civility. Juries appreciate civility.
- 8:59Juries, they might like to see a good cross examination of a
- 9:03person who's inherently dislikable or who they've grown
- 9:07to distrust as they hear him or her testify.
- 9:10By and large, the confrontations that we, you know, dream about,
- 9:17you know those the, the Perry Mason moments, Jurors are
- 9:21uncomfortable with a lot of that stuff.
- 9:23They just want to know what what do I need to know to decide this
- 9:25case? Don't give me drama.
- 9:27So those are your two of your audiences.
- 9:30The next is the clients. If you are, you know, if you're
- 9:36a discovery game player, what are you going to do?
- 9:42You're going to harden feelings, make the case more difficult to
- 9:44settle and drive up the cost of the case dramatically.
- 9:48I mean, discovery is the most wasteful part of what we do it
- 9:52many times. Because of that, there's people,
- 9:54you know, I used to work with a lawyer who had, he'd go through
- 9:58all the documents and stuff, not in not in my firm, but he was a
- 10:01lawyer of Pillsbury and he would, he had three tiers, you
- 10:06know, first wave production, next wave he produces is if
- 10:09there's, you know, emotion and then, you know, then the hot
- 10:13docs that you know, he'd go to, he'd die for you.
- 10:16They're all responsive. But he put up these wall, these
- 10:19doors that you had to get through.
- 10:20And I thought, God, what kind of crap is that?
- 10:23So clients appreciate civility. You know, they're our clients
- 10:28who want a junkyard dog, you know, unless it's a woman and,
- 10:32and they don't want it because they think that's unseemly,
- 10:34right? There's, that's one of the great
- 10:36double standards. You know, my lawyer's a junkyard
- 10:38dog. And then if it's a woman, oh,
- 10:40what a bitch. You know, that sort of thing is
- 10:42still around, but much less so than I used to, in my
- 10:46experience. But civility allows you to have
- 10:49conversations and, you know, if you get into a good relationship
- 10:54where there's mutual respect and trust, I often, if I get brought
- 10:57into a case, I'll call a plaintiff's lawyer or the on the
- 11:00plaintiff, the defense lawyer and say, look, let's figure out
- 11:03what we can do informally. You've always got the right to
- 11:07quality control. Check it, you know, with a
- 11:09deposition if you want. But you know, I'm, I'm all for
- 11:13getting it out there and seeing, seeing what we think of the case
- 11:17and getting to that point as quickly as we can because I, I'm
- 11:23oriented to try to solve the problem.
- 11:26I've never tried to keep a file alive, you know, for economic
- 11:29reasons. I want, I want to win by getting
- 11:32it done, not necessarily by conquest, but just let's get it
- 11:36resolved because we're going to resolve it probably 90, what,
- 11:39five, 8% of the cases are going to get resolved.
- 11:43So doing it earlier is better than doing it later.
- 11:46And when you've got civility, you've got a much greater chance
- 11:54to have that kind of honest broker relationship.
- 11:58And the other thing is, every lawyer has experienced an
- 12:05opponent who you just don't want to deal with.
- 12:08You know what I see his letters or his emails.
- 12:09You don't want to talk to him or her on the phone because you
- 12:12know it's going to be so nasty and so unpleasant.
- 12:17And even if you can withstand it, it's like that.
- 12:20Who wants to spend part of their day dealing with that kind of
- 12:24Arrested Development case? Because it usually is.
- 12:26I mean, there's no rational reason to be that way unless
- 12:30you're being mistreated yourself.
- 12:32And then conversely, oh shit, that's Miles on the phone.
- 12:36We're probably going to talk about one of his podcasts before
- 12:39we even talk about our case together.
- 12:42To me, the friendships and the relationships that I've been
- 12:47able to make over the arc of a long career is probably the the
- 12:52most it's right up there. It's one of the two or three
- 12:56most gratifying parts of being a lawyer.
- 12:58And and to this day, you know, if I'm drawing a blank on an
- 13:02expert, I'll call plaintiff lawyer.
- 13:03Friends of mine say, here's the kind of case I got.
- 13:07I can give you a name, but don't I didn't give it to you.
- 13:10That kind of thing, you know, so there's a utility in it as a in
- 13:16addition to everything else. So in one sense, it's harder for
- 13:19young lawyers to have that vision because they're coming of
- 13:22age in the profession. They want to show they know what
- 13:24they're doing. And so sometimes they think,
- 13:27well, the only way to really do that is to be tough.
- 13:29But there are young lawyers who are very good at recognizing
- 13:34that professionalism and civility are not signs of
- 13:38weakness. They're signs of confidence.
- 13:41You know, and smart lawyers know that on on the receiving end.
- 13:44So and when I see a lawyer who's young and has those traits, I'm
- 13:50immediately like, OK, well, this is somebody I can, I don't have
- 13:54to get to the next level up. I can deal with this person.
- 13:56This is a good, this is a smart person.
- 13:58So I think that's a big part of the future of our profession.
- 14:02I'm smiling a little bit because I think back to when I was a
- 14:05young lawyer and drafting letters for my mentor, Cynthia
- 14:11Mcguinn, and having her rewrite them multiple times because and,
- 14:18and telling me. I understand that's what you
- 14:20think a lawyer should be doing, but that is not how we approach
- 14:23this. And and and and, whipping that
- 14:25civility into me. That's a lesson over a lifetime
- 14:28of, of this and you know, I, I again, I don't want a virtue
- 14:33signal. I'm sure I've had my moments
- 14:35because I've got a good Irish temper, but it ain't like it
- 14:38used to be. And I don't want to get
- 14:41political here, but we have a lot of things that are new
- 14:46aspirations in our culture on the part of some that other
- 14:53people think, oh come on, you know, you're just virtue
- 14:56signalling. And I think it would be easy for
- 14:58people to think that's what the the professions focus on
- 15:03civility is about. And I think that would be a
- 15:06mistake. And civility as a part of being
- 15:13a lawyer is all good. It's not a trade off.
- 15:17It's all good. You get more flies with honey
- 15:20than with vinegar. They tell me I've never tried
- 15:22either. And, and it's just true.
- 15:25It's just part of human nature. You know, think about the
- 15:27average litigating lawyer, whether it's he or she's in a
- 15:30big firm and they think that they're just God like creatures
- 15:35or in a a small firm or meaningful sized firm.
- 15:40What is common among most litigators?
- 15:43If they are aggressed, they aggress back.
- 15:49If somebody aggresses, they raise the ante.
- 15:52I'm tougher than you are. I'm not intimidated.
- 15:55Now what have you started? You've started a a forest fire,
- 16:00and whereas civility has the opposite effect, as I said
- 16:04before, it allows you to have a conversation.
- 16:07If you're enjoying what we're doing here with Cooper's Code,
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- 16:20dot Law. You mentioned having an Irish
- 16:23temper that may not flare as much as it used to.
- 16:26Do you have examples of because I can think of times where I, I
- 16:33espouse civility. I, I try to do my best and I'm
- 16:37not always perfect. And how, how have you course
- 16:40corrected when you've had what we'll, we'll just call it a
- 16:44failure in terms of an engagement with the other side?
- 16:47I don't know that I have kind of lost it and, and then said, Oh
- 16:53God, but there may be times when I was severe, but just, you
- 16:57know, they deserved it. So nothing to apologize about.
- 17:01But my, my pattern, like for example, you know, married for
- 17:0750-6 years and my pattern always has been to kind of go up fast.
- 17:13If I, you know, if something gets to me the wrong way and I,
- 17:16I get and then come down very quickly.
- 17:19And always, I think I've always maintained, I mean, I got a
- 17:22great wife who's never going to let me skate if I try to, but I
- 17:28always try to look OK, It was my behavior over a line.
- 17:32And if so, that to acknowledge it, to own it.
- 17:35And I, if I have done it in the profession and it sounds silly
- 17:39to say I've never done it, but I can't think of a time where I
- 17:41was mortified, where I said, oh, jeez, I should never have done
- 17:44that. Oh God, I lost my cool.
- 17:46I'm usually able to maintain my my temper professionally now on
- 17:52the basketball court. That was probably not always
- 17:55true. I used to play in the Bar
- 17:57Association League every year when I was at Pillsbury.
- 18:01We had a good team and we were always trying to get to the
- 18:05finals and sometimes we get semi, sometimes we get to the
- 18:07finals and one night we were playing the Dai think it was the
- 18:14DAS team and it had had Gordy Barranco, Leo Dorado who both
- 18:18became judges, both great basketball players.
- 18:22Perker Meeks played for him for a while, later MPD and then
- 18:25became judge and I think it was in that game.
- 18:29And anyhow, for some reason Ira Brown was there and Ira Brown
- 18:34was the former law in motion judge and for years in San
- 18:37Francisco and an interarim judge really smart, really didn't
- 18:42suffer fools and had shivelets that, you know, if you came in
- 18:47wearing a raincoat, he would just light you up and.
- 18:52I've heard stories of of Judge Brown.
- 18:54He preceded me. Yeah, he was.
- 18:56And he was big man. He was very heavy.
- 18:58And it was kind of like he didn't raise up and you know,
- 19:01it's just, and so he intimidated the hell out of me because I was
- 19:05a young lawyer. He was on the he was on the
- 19:07bench when I was a new lawyer and we were playing Thielen and
- 19:10maybe and that was his Old Firm, Thielen, Marron, Johnson and
- 19:13Bridges. And Brown is in the stands and I
- 19:17take one on the end of my pink and dislocated it.
- 19:20You know, it's like right angle dislocation.
- 19:23You know, I'd probably drop in a few F bombs.
- 19:26And they had to go to the hospital, I think SF General,
- 19:29where they said it and all that. And I had to appear the next
- 19:34morning in his courtroom. And I was thinking, oh, God, he
- 19:38saw me at my worst. And, and instead of him having
- 19:45some sort of scolding that he felt he had to give me, he he
- 19:50asked how I was, you know, just very, you know, human to human.
- 19:53And it was a good moment. It was a good moment.
- 19:56I said, you know, I held it up, said no, it's, it's pretty good.
- 19:59But I would say more in the athletic contest than in the
- 20:03legal contest. Would there be occasions where I
- 20:06would say I kind of lost my crap there, didn't I?
- 20:10But I'll think about that because it's a good question.
- 20:13And maybe the fact that I don't remember them tells you a lot
- 20:16about me, less about my civility and more about my ability to
- 20:21compartmentalize, as I told you earlier.
- 20:24I think though, I've, I've come across lawyers who don't rise.
- 20:26I, I, I know that I have risen on occasion, particularly in
- 20:30depo. I've snapped and then I try to
- 20:32apologize as quickly as I can. Yeah, well, you got the voice
- 20:35for it though, that's the thing. Clem, I've I've really enjoyed
- 20:38our conversations. Is is anything else that you
- 20:41feel that we should cover before we wrap up?
- 20:43I was telling somebody this story recently because I have
- 20:47had a few Perry Mason moments. The one that I remember most
- 20:52vividly, I was trying a case for Chevron in out of the Richmond
- 20:58refinery. So not a popular client and the
- 21:01plaintiff was a woman who was a an alleged safety whistleblower
- 21:07who claimed she'd been terminated for blowing the
- 21:10whistle. So dangerous case.
- 21:13Her lawyer was not civil. He's still practicing.
- 21:17I look him up every now and then.
- 21:18He's a young guy, big guy. And so when he's taking
- 21:22depositions of my people, he's literally leaning.
- 21:25His face is bright red and he's leaning across the table.
- 21:29He had a big booming voice, not a good mellow voice like yours,
- 21:32but a booming voice that came out of his chest and just trying
- 21:36to intimidate. So I'm sure I said some things
- 21:39to him, but I don't think I, I don't think I owed him an
- 21:44apology. Anyhow, so we go to trial and
- 21:49the plaintiff was in charge of what they call turnarounds at
- 21:54the refinery. That's when they shut down major
- 21:57vessels and they come in and they Weld and they clean and
- 22:00they refurbish and they replace parts and so forth.
- 22:03It's a big deal. They bring in massive amounts of
- 22:06people to do it. So they don't.
- 22:07They're not down. Production's not down any longer
- 22:10than necessary. Her job was to oversee the
- 22:14independent contractors who came in and just crack the whip.
- 22:19And it was a completely male dominated world, the refineries,
- 22:23and they wanted more female participation.
- 22:28And she fit the bill perfectly for this tough cookie.
- 22:32And so despite her having to make sure that the contractors
- 22:37toe the line, she persuaded some number of them to come to her
- 22:40home one weekend and move about 40 yards of topsoil using some
- 22:45of the heavy equipment that was on lease to Chevron for the
- 22:48Turner. This was found out about.
- 22:50It was a clear violation of conflict of interest policy.
- 22:53The head of HR told her boss, who loved her, she's got to go.
- 22:59Her boss said no, I can't afford to lose her.
- 23:01I need her. The head of HR says we either
- 23:06have a conflict of interest policy or we don't.
- 23:10If we don't terminate her, our policy is meaningless.
- 23:13It's not a progressive discipline kind of case.
- 23:19So he continues to internally fight the battle for her.
- 23:25And his son, in the midst of all this suffers an accident, might
- 23:28have been a bicycle accident and he had a serious head injury.
- 23:32And he's in the hospital and the dad, her of this woman's
- 23:39supervisor, Chevron, is at his son's bedside and he gets a
- 23:42call. You got to get down here because
- 23:46it's about to go down. And if you're going to try to do
- 23:49anything, you're going to have to be.
- 23:51So he leaves his son he was worried about and goes to the
- 23:55refinery and is ultimately unsuccessful and she's
- 23:58terminated. She complained about everything
- 24:01that was part of who she was. So she did have some safety
- 24:04complaints in the long list of things she complained about so
- 24:08she could piece together the story.
- 24:11It was not why she was fired. And so the she makes the huge
- 24:16mistake of suing both Chevron and her supervisor guy who would
- 24:22fight for her to the and did and she wrote it up.
- 24:26I can't remember the language anymore, what the particular
- 24:29point was, but she attributed to him things that were completely
- 24:32false. And I knew this and I had a way
- 24:35to prove it. And so I've got her on the stand
- 24:38on cross examination. So the first time I formulated
- 24:41the question, I said, I read that part of the report and I
- 24:45said, now miss so and so when you said blankety blank, that
- 24:50was not correct, was it? Well, you know, I, I, I had just
- 24:54this long non responsive answer. So in certain instances you, you
- 25:02have casting that you didn't create that allows for dramatic
- 25:05pauses. It's I can look over at the jury
- 25:10and they're kind of looking down.
- 25:11And I so I went to now, I escalated the question, miss so
- 25:16and so when you said, and I read it again, that was untrue,
- 25:24wasn't it? Blah, blah, blah, blah, blah.
- 25:30So I turned, it was Judge Berniers, who's I went to the
- 25:32DCA and I said, Your Honor, would you please instruct the
- 25:36witness to answer my question. Miss so and so you need to
- 25:39listen and answer counsel's question.
- 25:42So this time I took the question up a notch, Miss so and so when
- 25:48you said, and I read it again, that was a lie, wasn't it?
- 25:53And she knew she had to. And she says yes, but that's the
- 25:56only time I lied. So the case was pretty much
- 26:01over. Yeah.
- 26:02Yeah. So those are the moments we
- 26:04dream about. And she was a bad person.
- 26:06You know, this wasn't a jump ball case.
- 26:08She was a liar. And the whole case was a lie.
- 26:11And she was so vibrous that she attacked a guy who had left his
- 26:16son's bedside to come to go to bed for her.
- 26:20Yeah. Evil.
- 26:22Well, thank you very much, Clem for taking the the time to sit
- 26:24down with us. That's my pleasure, enjoyed it.
- 26:27And thank you for listening today.
- 26:29Please e-mail us at podcast at Coopers dot law with questions,
- 26:32comments, feedback and suggestions for who we should
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- 26:37Share us with a colleague and leave us a five star review on
- 26:39your podcast platform of choice. To all of you doing justice out
- 26:42there. Happy hunting.