Latest / Legal Late Night / Jimothy the Raccoon, Crisis Litigation, and Fixing Federal Courts with Adam Hersh

Transcript

Jimothy the Raccoon, Crisis Litigation, and Fixing Federal Courts with Adam Hersh · Legal Late Night

• Jared Correia (00:00:00): Hello everybody. We've got to show the promises to be at least mildly interesting for your listening and watching enjoyment. For the monologue, I think it's time to uncover a list of internet famous animals throughout the history of the internet. In the interview, we're talking with Adam Hersh, the principal of blue chip law about litigation and arbitration. Yeah, that's right. Real legal shit. In the counter program, I'm bringing back one of my favorite segments. That's right. For the first time ever on legal late night, it's the return of what would Florida man do? Now, let's discuss how a raccoon with a back problem became the internet's favorite animal. (00:00:45): A couple summers ago, it was Brat Summer, courtesy of Charlie XCX. That did not turn out so well since it was supposed to be the lead up to Kamala Harris winning the presidency. But damned if the country wasn't like this elderly treasonous pedophile rapist intrigues me. He seems to have new ideas about gold leaf. But this summer is the summer of Jimothy, which will hopefully lead to a more sane result in the upcoming midterm elections in November. In any event, if you haven't heard of Jimothy, he or she is a raccoon living in Seattle. I say he or she not because I'm extremely woke, but because Jimothy is a wild raccoon with sex yet to be determined. Or maybe Jimothy is just sexless like an eel. What makes Jimmothy special and not just a shitty random raccoon, raccoon suck in real life, is that Jimothy is afflicted with short spine syndrome, an issue mostly seen in dogs. (00:01:48): This makes him or her look like sonic hedgehog in ball form, which is, I think, the best description I've heard yet of what he or she looks like. See, there he or she is right now. Jimothy doing Jimothy things. When Jimothy walks, it looks like he or she is kind of tiptoeing around, sort of like the Jean Ralphio and Mona Lisa Saferstein. Don't be suspicious bit. He or she, Jimothy, is legitimately great who couldn't love Jimothy. But the obvious question you're probably asking is how was he or she named Jimothy? Is Jimothy a unisex name like Leslie? Was that his or her given name? Well, in a way. Jimothy gained viral fame when Seattle resident Guyana Hall posted about him or her on Instagram in July. She thought he or she looked like a Jimothy. And I guess now he or she does. Jimothy Fever has gone crazy ever since. (00:02:51): He or she was awarded an honorary degree from the University of Washington. The Seattle Mariners held a Jimothy night. And if you search Jimothy on Google and click on the paw icon that comes up, Jimothy scampers across your screen. And because the internet ruins everything according to Wikipedia, some entrepreneurs have attempted to apply for intellectual property ownership around Jimothy. Though from a US legal standpoint, Jimothy has no legal owner and this no one can claim rights to him or her. The good news is, as of this moment, Jimothy continues to roam free. This all got me thinking about other internet famous animals of which there had been a number. When I was talking about developing this monologue with one of my consulting clients, I learned about Punch, the baby monkey. Well, a Japanese macoque specifically. Punch lives in the Ishkawa City Zoo in Japan. Punch was abandoned by his mother, potentially due to the stressful birth taking place during a heat wave and was subsequently bullied by the other snow monkeys in his enclosure. (00:03:56): So zookeepers gave him a plushy monkey from Ikea, which he treated as a surrogate mother. I mean, look at him. There he is right there. When I asked my daughter about Punch, she told me that she has known about him for fully two years. Then she muttered Boomer under her breath. Even though I am not a boomer, the script just writes itself, honestly. This is definitely going to be a Disney+ movie, right? Baby animals, of course, are always gold. The upgrade on just the standard adult animal. Mudang, the baby pygmy hippopotamus from Thailand, parents Jonah and Tony who live on Long Island was a viral cessation in 2024. Mudang, by the way, translates to bouncy pork, which is actually pretty perfect. While it was naturally occurring, Disney again figured out something similar with the launch of Grogu, originally known as Baby Yoda, which was just that. (00:04:55): A baby version of Yoda appearing at the tail end of season one of the Mandalorian TV series. Baby Yoda just had his own movie come out, in fact, which also featured a mass vigilante. Locally, we've had something of a celebrity animal in my own town as well. In Beverly, Massachusetts, there's a local manmade pond, which was originally created by a shoe company. The pond is creatively called Shoe Pond. Yes, really? There are no shoes in it, but there's something else in it because it's connected to the ocean via a culvert and a river. And during the summer of 2022, a large harbor seal found its way into the pond. Local residents named him Shoebert. Correct. S-H-O-E, Burt Shoebert. Schubert would pop out from time to time or sun himself on the shore as we would drive by. Marine biologists tried to relocate him because food was going to become a problem, but Shoebert was too slippery. (00:05:55): Eventually, he crawled out of the pond under his own power and walled over to the police station, thereby turning himself in where experts were called in to get him back to the ocean. This is all true. I swear to God. I was there. Shoebert was a local sensation. Merch was sold. My daughter still has a Shoebert T-shirt to this day. There are, of course, more entries in the Animals of the Internet Hall of Fame. There have been athletes like Tillman, the skateboarding dog, who, as the name implies, was the world's fastest skateboarding dog and who also competed in surfing competitions in his spare time. Tillman died in 2015, 60 dog years old, RIP Tillman. Closely related is Twiggy, the water skiing squirrel, who you may have seen in the movie Anchorman and a Brad Paisley video. There have been 11 Twiggies. Some of them have retired to open Ben Breakfast in Vermont. (00:06:52): There's also Kabosu, the Shene Inu dog. I'm definitely mispronouncing that, who effectively became the logo for Dogecoin. The original grumpy cat looked that way due to an underbite and feline dwarfism, which I didn't know the thing. You learn something new every day. Probably the first internet famous animal was Mr. Winkle, which is my nickname for. Nevermind. The real Mr. Winkle was found on the roadside by a documentary photographer in 1996. She started taking glamor shots of the dog and the rest is history. Or not because the mrwinkle.com website is still active and an admirable relic of the late '90s. If you ever wanted to see what a Geo Cities page was, take a look at that mrwinkle.com website. Of course, none of this even includes television or movie animals like Mr. Ed or Lassie or Benji, Hooch and others or anthropomorphic creatures, half human, half animal, or human-like animals like the Morlocks, the eight people from the Planet of the Apes, Simba, or even Hanzo from Cobu into Two Strings. (00:08:06): See, despite the fact that I'm allergic to every animal in existence, I can at least appreciate them from afar inside of my bubble with plenty of Benadryl by my side. Long-lived Jimothy. Although realistically, Jimothy will be dead by next summer. Anyway, now I say it's time to inspect the furless, but equally wild world of litigation. We'll do that next. Starring Adam Hersh of Blue Chip Law. Don't worry. I believe he's had all his shots. (00:08:43): Well, I've effectively run out of things to say, which is awkward because this is a podcast. So I'm going to simply now do a back flip until I can think of something. No, I'm just fucking with you. I definitely could not do a back flip without severely injuring myself and I'd like to keep my ACLs today. Let's just introduce our guest before I do something stupid. Our guest today is Adam Hersh, the founder and principal of Blue Chip Law. Adam, welcome to the big show. How are you? Adam Hersh (00:09:13): Well, you just said you didn't want to do something stupid and you brought me on here, so Jared Correia (00:09:17): Take your own Adam Hersh (00:09:17): Hands. You never know what I'm going to say, so that's always the dangerous thing. Jared Correia (00:09:23): Well, thank you for coming on regardless. We'll see if we can get into some stuff here. The audience does not quite know you yet, but I've known you for a little while. And you kind of strike me as someone who was almost born to be a litigator, which is what you do. Do you feel that way? Adam Hersh (00:09:42): I mean, I didn't know what I was going to do. Graduate in college and senior year. One of my professors said of, "We knew you were going to law school the day you got here." Jared Correia (00:09:55): Right. I kind of feel the same way. So you went undergrad at University of Florida. Adam Hersh (00:10:03): I did undergrad at Stetson and then Ball School of Florida. Jared Correia (00:10:06): Oh, gotcha. Okay. And so your college professors were like, "You should go to law school. You're definitely going to law school?" Adam Hersh (00:10:13): I had taken a sports law class, really liked it, did really well in it. And then I started thinking like, "Okay, what am I going to do?" And then it was, "Well, let me take the LSAT, see how I do," and got into UF and the rest is kind of there. Jared Correia (00:10:31): So what was your interest in the law? Were you just like, "Because I went to law school because I couldn't think of anything else to do." Was it kind of the same for you? Adam Hersh (00:10:40): Well, I mean, I was a sport management minor. So it was one of the courses you had to take for sports law. I was doing really well in it. And it was okay, senior years approaching, what am I actually going to do now? I know I have uses. I don't know what those uses are. I probably still don't know what those uses are. Jared Correia (00:11:02): I joined the club. Adam Hersh (00:11:04): But it became, okay, what should I do next? And then it was, yeah, you're going to law school, aren't you? Oh, I guess that happened. And then it kind of just happened. That's also what I tell people with people going into undergrad or sort of people kind of commenting of like, what am I going to do? Well, things sort of find you. I took a law course, really liked it. It just came easier to me. That's so funny. Certain things come easy to you, certain things don't. Do something that comes easy to you. Jared Correia (00:11:42): We have another show on the network called Dream Job Cafe where Larry Port, who used to run the software company, interviews people about their dream job. And I feel like a lot of people are. I just kind of fell into it. All right. So you graduate from UF. UF, U of F, what's the appropriate nomenclature? UF. UF. Now you're practicing law. How'd you find a job? How was it starting out? I want to talk about your firm, but before we get there, what was it like practicing law for someone else? Adam Hersh (00:12:13): Well, I'm sure it doesn't surprise you that sometimes you just find your way into opportunities. I've always been a believer that if you find yourself into an opportunity, do the best you possibly can at it, and you do not know what will come of it from there. So I thought I was going to be a bankruptcy lawyer. I interned for a bankruptcy judge. I wrote my law school seminar paper on bankruptcy law. I had taken a ton of bankruptcy stuff. Okay, I'm going to be a bankruptcy lawyer. And well, I ended up with an internship with a biotech company that had just gone through a merger to become a public company. Had done just good enough work that they thought I should hang around. You just want to do just good enough because if you don't do good enough work, they won't ask you to do more. Jared Correia (00:13:09): That's funny. I always tell people the bar exam is a minimum competency exam. Adam Hersh (00:13:14): I mean, but no, in all seriousness, when you do. They though I had done a good job. I had worked hard there and then it sort of just turned into things from there. And then it was, okay, it was one of those situations where you do not have to leave, but when you find the right opportunity, go take it. We'll set you up with whatever you need. And then when I had joined the firm I was with prior to starting mine, they had a client that needed the same stuff I had done for the startup that went public. Then it sort of went from there. Oh, do you know how to do this? We need someone that's done that. Perfect. And then it was you had galling references from them whenever the right timing hit. Jared Correia (00:13:59): So you worked with the biotech company, but you also worked in private practice for a little bit, right? Am I correct on that? Yes. That's Adam Hersh (00:14:05): What Jared Correia (00:14:05): I'm Adam Hersh (00:14:05): Saying is my Jared Correia (00:14:06): Private Adam Hersh (00:14:07): Firm, they hired me from the biotech company. Jared Correia (00:14:10): Gotcha. Okay. Adam Hersh (00:14:12): So it was the work I did there that my firm at the time, one of their largest clients needed the work I did for the biotech company. Jared Correia (00:14:21): That makes sense. What was that shift like though? Moving from a biotech company in-house to working as a private practice attorney? I mean, it wasn't different right away, it didn't sound like, because you were doing similar work. I honestly Adam Hersh (00:14:36): Think working at the biotech company really created the right mindset as to working with salespeople. And it really gave you the mindset of, look, your clients want to get deals done. When you're on the transactional side of it, your clients want to get deals done. They do not want to see you as a hindrance. If you are a hindrance from getting deals done, they will circumvent you. So you have to find ways to get things done. Because otherwise, if you're going to say not to do something, and I'm not saying they're not times where I haven't had to say that. You better have a good reason because I promise you, whether it's the CEO or somebody's going to be asking at your desk and you're already going to be on the defensive, why are you holding this up? Jared Correia (00:15:26): Yeah, right. Adam Hersh (00:15:27): And if it's over something stupid, well, because there's a comma here and it should be there. Not saying the commas don't matter. There are plenty of cases where. But - Jared Correia (00:15:39): You're clearly not an English major like me. Adam Hersh (00:15:42): But it's over some trivial issue that if on the fourth Tuesday after the third Wednesday, something like that, that's small, but it's also a sign of. The other thing it does is it gets the sales group or other individuals to bring things to your attention that they might otherwise not want to come to you on because they know you'll find a way to make it happen. If you're just going to say no to everything, no one's going to come to you, they're going to circumvent you. That's Jared Correia (00:16:18): Interesting. Adam Hersh (00:16:19): Most companies are sales companies first. You're judged by what you sell, which means revenue is generally always going to win out. That doesn't mean you don't have reasons, but that was the mindset instilled. Find a way to get these deals done. Jared Correia (00:16:36): And that served you pretty well in your entire practice life. Yeah. Adam Hersh (00:16:39): And that's just been the mindset from there. Well, clients seem to like that because you found a way to make their deal happen. Look, if you could go on level 10 protections, I can write you a contract. It could be ironcloud. Problem is someone's got to sign it. And that's the reality. And okay, well, how does that play out where, okay, how much revenue's coming in the door versus the level of risk that you're taking on? And is it, well, this is a big deal. We should be willing to do this and we got to find a way to get this relationship to happen. Jared Correia (00:17:22): So you've got a good sense for business. You kind of take to law practice. Now you've got this corporate experience. You're working for a private practice firm. What makes you decide to start your own firm? Adam Hersh (00:17:38): Well, a lot of things are about timing. It's sometimes the opportunity wasn't right and then it became right. So the right opportunity happens where there's a number of factors at play where sometimes you know that somebody might be leaving. You might know that a client loves you, but's not happy with others and talks to you about it. Others may say you don't necessarily agree with the direction. And I'm not saying these are any one particular of these things that happened, Jared Correia (00:18:22): But Adam Hersh (00:18:22): You may not agree with the way something's going. It's sometimes just the timing is there. And so much of it is about the timing to see, okay, what is or isn't there? Okay. Sometimes it may be time to start your own firm. Sometimes it may be another firm's recruiting you. Sometimes Jared Correia (00:18:42): It Adam Hersh (00:18:42): May be, oh, well, this is coming out there. I may want this. Jared Correia (00:18:49): So you start your own firm. How do you go about getting clients? Do they come with you? Are you starting from scratch? What was that like? Some of Adam Hersh (00:18:57): Them knew that I was coming with them and some of them had said specifically I didn't actively try to recruit. Some said very. I just don't believe in doing that. Yeah, Jared Correia (00:19:07): That's fair. Adam Hersh (00:19:08): And I had told my old firm at the time, there was a meeting where I saw there was another attorney in there meeting with my old firm. And two days after that meeting, I had gotten a LinkedIn message from them offering like, "Hey, why don't you come with us?" And I had went to my boss and said to her, "Look, at the time, I can't promise you I'm going to be here forever, but I'm not doing it that way." Jared Correia (00:19:37): Yeah, that's cool. Adam Hersh (00:19:38): That's not how I'm going to go about this. And when you do things like that, it makes when you're wanting to move on, it can be done in a way that no one's really upset about it. Just some things have run their course. And (00:20:00): The firm may want a different type of direction. The firm may want different types of clients. You may want to be doing certain other types of claims that don't necessarily align with what the firm is doing. You may realize, okay, well, this cases are ending. So where you don't really have to transition some of these cases over. They're just going to be at an end. And just the timing is there. So much of it is the timing opportunity that was there that a year ago might not have been there and 12 months from then might not have been there. But during Jared Correia (00:20:38): That Adam Hersh (00:20:38): Particular window was there. Jared Correia (00:20:41): And a willingness to take advantage of an opportunity, which not everybody is. You have to Adam Hersh (00:20:44): Be able to see opportunities that when they hit the market. That's anything in life. You can get your best deals off of when opportunities hit. Whether it's about there may be a window to settle a case that. And that goes to starting practice, just talk about whether or not to settle a case. Oh, Jared Correia (00:21:02): There Adam Hersh (00:21:02): Could be a window right then and there. Somebody's got to make a big tax payment and could use the cash. Somebody's got to. That window is there that might not have otherwise been Jared Correia (00:21:16): There. Let's talk about the. You went with a brand name for your law firm, which not everybody does. Blue Chip Law. How'd you come up with that? Adam Hersh (00:21:24): Well, no one knows how to spell Hersch, so that becomes part of it to begin with. Jared Correia (00:21:29): Right. Fair point. Adam Hersh (00:21:31): I mean, but in all seriousness, that does become a big thing where. I know that sounds stupid, but yes, it's spelled like the candy, H-E-R-S-H. But there's a lot of people that spell Jared Correia (00:21:46): H-I-R - Could we C in there? Adam Hersh (00:21:48): Could a C in there. And all of a sudden I could come up with the best thing possible, but if you type it wrong in the Google machine and you type it wrong with when you're typing it, well, you're not going to get. So it took us a while and we were playing with a lot of different names. I'm always a believer in what brand names, what domain names can I get? Because if I can't own the domain, it doesn't really matter Jared Correia (00:22:21): How - I'm right there with you. I'm always buying domain names. Adam Hersh (00:22:24): I don't buy domain names. I have a lot of them that are always interesting ideas. It's Jared Correia (00:22:28): A great hobby. Adam Hersh (00:22:29): Well, then I was looking at just what are business terms? And so I saw Blue Chip on a list and I was like, there's a focus group of a few of us on a group text message coming up with ideas. What about Blue Chip on? It's Jared Correia (00:22:44): A cool name. Adam Hersh (00:22:45): You can get that. Jared Correia (00:22:45): Yeah. Very unique. Adam Hersh (00:22:47): And then like, okay. Then okay, let's get this. And that was really how it went. Yeah. Jared Correia (00:23:01): I want to talk to you a little bit about your practice itself. So you're a litigator. I am. Litigation's hard enough. I want to talk first about this notion of crisis litigation. Can you sort of tell people what that is and means? And then talk to me about how you engage in that in an effective way. Adam Hersh (00:23:22): Well, for instance, litigation is its own breed of sort of everything. Every business crisis could be different, but some situation happens that you've got to deal with ASAP, whether that could be the news has shown up at your business. Some employee did something really, really stupid and all of a sudden now you've got a potential mess on your hands. A situation that if you don't handle it right, it can cause an entire mess. It could be the police are there. It could be because a death happened. It could be because some situation happened or your biggest, the person that you get 90% of your revenue from, some situation happened there. It could be somebody stole your situation. It could be that you got hijacked. Jared Correia (00:24:27): Yeah. Yeah. Adam Hersh (00:24:29): There isn't one set crisis. Jared Correia (00:24:32): All bad things. Adam Hersh (00:24:34): I mean, in other situations, well, we were talking about Florida before this. And apologies to anybody that may hear it. I live in Florida. It can storm. And you get a flood. There's a thunderstorm going on there. You get a flood. That alone can be some situation that happens that time, some situations you have to see how they play out with time. Crisis ones, you've got to deal with this quickly. And you don't necessarily have the luxury of, let me wait a month and see how this plays out. If your local eyewitness, if you're running a business and you're running a retail store and the local news on your side or whatever action news or Jared Correia (00:25:30): On Adam Hersh (00:25:30): Your side. Jared Correia (00:25:30): The investigative team? Yeah. Adam Hersh (00:25:32): Yes. And they're showing up at your door, you don't have a month to get around to dealing with this. You don't have that. Jared Correia (00:25:41): So you can get creative, right? Because every situation's different. Adam Hersh (00:25:45): Every situation's different. You have to be able to operate without a playbook. Jared Correia (00:25:52): Which Adam Hersh (00:25:53): I realize that might not be the direct answer to your question, but there Jared Correia (00:25:58): Is a Adam Hersh (00:25:58): Direct answer. Jared Correia (00:25:58): No one answers my question directly. Well, okay, let's do this because I think this is interesting. Remember the CEO guy who was at the Coldplay concert? Adam Hersh (00:26:08): That was about a year Jared Correia (00:26:09): Ago. Yeah. With not his wife. That's a crisis litigation situation, right? Adam Hersh (00:26:16): It certainly was. Jared Correia (00:26:17): So you got to put the brakes on that. Yeah. Adam Hersh (00:26:20): It's because of a media storm where you're having to issue press releases or you're having to do something because a lot more people knew Astrogeneca. I think it was Astrageneca. I've Jared Correia (00:26:32): Heard of Adam Hersh (00:26:33): Them than ever before. Now, sometimes you can make that a sales opportunity too to bring awareness to your brand. Oh, Jared Correia (00:26:41): Interesting. Adam Hersh (00:26:43): You may have to look at it, okay, is there any way we can make a Jared Correia (00:26:45): Positive now? Just with a different CEO, potentially. Adam Hersh (00:26:49): You're fighting in different courts. And when you're dealing with crises sometimes, you sometimes have the court of public opinion and the judiciary courts. And what you do in one, you don't necessarily do in the other. And yes, I'm an attorney saying this. Sometimes how you operate one may be more important than the other. Jared Correia (00:27:17): I'll Adam Hersh (00:27:17): Give you an example. Okay. You may lose a breach of contract claim that you, let's just, for easy purposes, may lose $2 million and get hit for that. You could lose your biggest customer if you don't manage this right and lose 10. Jared Correia (00:27:31): Yeah. Adam Hersh (00:27:31): Which is the more important? Which is the more important court? Not saying all of them. Each of them are very different. You have to evaluate all of this. Jared Correia (00:27:41): Interesting. As I was thinking about the coldplay thing, I was also thinking about the Mike Vrabel stuff that happened earlier this year too. That's another similar scario. I'm sure the Patriots lawyers are working overtime. Adam Hersh (00:27:54): That's another similar situation. But in that one, you've got so many different stakeholders as to where it is everybody. Who are you looking at this as a crisis to? Who is the crisis towards? Who are you trying to look at this at? And I'm happy to go through it if you want to. What angles are you looking at this for what? Jared Correia (00:28:19): So who do you want to represent? Patriots, Diane Rosini, the athletic - Adam Hersh (00:28:25): Everyone there has got a different situation. Jared Correia (00:28:28): Yeah. Adam Hersh (00:28:29): I don't advocate this, but is that the first time somebody in a high profile situation cheated on their spouse? No. Jared Correia (00:28:36): Yeah, probably not. Adam Hersh (00:28:36): It is not the last. It is not my job to judge whether or not in that particular relationship that is. Look, if they're cool with that and they have some deal where, look, don't do this in public. Jared Correia (00:28:52): Right. Yeah. Adam Hersh (00:28:54): Who am I to be the one to say, "Oh, that's that. That doesn't mean that that's what I do or what I value over what I believe in, but that doesn't mean that that doesn't go on." But in the scope of Mike Vrabel's career or the scope of Diana Russini's career, well, that's what happens. And well, also, you don't sometimes want to know how the sausage gets made. And well, how do you think sometimes stories get broken to certain people? Don't always ask about what's all going on there. You don't always want to know. So for the two of them, I don't see this as much of a crisis. Fricking hotel, I could see this as an absolute. We don't want. We're Jared Correia (00:29:44): Having Adam Hersh (00:29:44): That - Jared Correia (00:29:45): Because they were at that resort in Arizona where people saw them. Yeah. Yeah. Adam Hersh (00:29:51): We charge a lot of money here so that people are private. Not to say if Rabel's understanding with his wife was, "Look, if you do this stuff, just do it privately. Do it okay." Where the issue becomes is don't embarrass me in front of everyone where we have to do those things. Where I look at it as more the hotel, like any talk about this for the hotel. Jared Correia (00:30:20): Yeah, that's bad for that. Because Adam Hersh (00:30:21): It looks like we're supposed to have this private secluded facility. We're paying a lot of money. Our guests are paying a lot of money for that. That's what we're selling. And that is a mess. You've got, I mean, the photographer. The bigger issue is for the hotel, for the crisis standpoint, we got a lot of bookings here. We got a lot of clients. We can't have our guests are going to be potentially subject to this because probably that's not the first time that's going on there. Jared Correia (00:30:58): Probably not. I would suspect that this hotel is one of the go-to spots. Adam Hersh (00:31:03): It's just if you're at a private resort, the reason that you're charging those things are because you don't want the cameras up on you. I mean, you don't want that. I realize it may sound a little bit ridiculous, but with the Taylor Swift and Travis Kelcey wedding, just think about it from perspective of if you want a private wedding and you're Taylor Swift, you do not want the proverb, where else are you going to do it? How can you do this in a way, if you want a private wedding, how can you do this in a way where it's, I don't want everybody watching this. I don't want to have to do that. Jared Correia (00:31:49): I think my invite for the Taylor Swift wedding got lost in the mail. Adam Hersh (00:31:52): Yeah, I know. It was disappointing. I always hoping to have been there. Jared Correia (00:31:55): Can we do a little hardcore legal stuff before we finish up? We hardly ever do this on this podcast, but you were talking to me the other day about federal diversity jurisdiction and the amount in controversy. And I thought you had some interesting points to make. You think they're too low. So can you talk a little bit about that? And then there's one other question I want to hit before we finish up the interview. Adam Hersh (00:32:19): So I would start with the amount in controversies and where one of the struggles in trying a case is in the work required for certain cases doesn't matter the dollar amount. It's a lot of the same work whether or not you were. In Florida state courts, once you hit 50,000 in $1, it's the same court, whether it's 50,000 in $1 or $50 million. Now, Florida in the state court over the past decade has upped that number from 15,000 to 50. In the federal system, that $75,000 amount in current controversy number hasn't been updated since 1996. Jared Correia (00:33:16): Yeah, that's wild. Adam Hersh (00:33:18): Now there's a bill by one of the senator. Yeah, I think it's senator now. Laurel Lee. I tried a case in front of her. Yeah, I think Jared Correia (00:33:27): That's right. Adam Hersh (00:33:30): I think she took. Yeah, I think she's holding Rubio's seat when he became secretary of state, but to try to up that to a half million dollars. And the point that I'm really trying to get at is when we're looking at ways to try cases more effectively, in the federal system on a diversity case, and just in case anyone's unfamiliar, diversity is when you have different people of different states fighting of the amount. If you have to have different states and $75,000. Jared Correia (00:34:09): Right. Yeah. Adam Hersh (00:34:09): Well, the $75,000 number hasn't been updated in now close to 30 years. But the point that I'm really looking at is the work associated with the $75,000 case in federal court, whether it's $75,000 in $1 or 75 million, you've got to do the same things, but that's not necessarily fair. And I do think there could be a lot of benefits by adjusting the amount in controversy and treat like claims alike. If you want to make a claim, because there are a lot of claims that are legitimate claims in the 75,000 to a half million dollar range. Jared Correia (00:34:59): Oh, sure. Yeah. Adam Hersh (00:35:00): There are. But at the end of the day, it's a half million dollars is the total amount of exposure. It's a different set of issues than 50 million or 500 million. Jared Correia (00:35:14): There Adam Hersh (00:35:15): Are different sets of issues. The judicial labor required for those shouldn't be the same. In theory, they say the same. They're not. There's different issues associated with it. There's different levels. Well, yeah, you can have a case declared complex or certain things, but I think a lot of people would be better serviced and you can use tools differently. Because in a certain amount of cases, if you're going to try the case and you get it below that $250,000 number and you're really going to try the case and there's any bit of complexities to it, you may spend more on legal fees than you're going to than the total sum. Jared Correia (00:35:56): And Adam Hersh (00:35:57): Then it becomes a case about legal fees, whether or not your fees are recoverable. The second you start trying to chase that, if it's a million dollars or $2 million or $20 million, fees aren't going to exceed the amount in controversy unless it's or in most typical cases. I'm sure you can give examples as to where it would and wouldn't. Jared Correia (00:36:22): But Adam Hersh (00:36:24): That's really where if we're looking at how to really focus on getting cases tried, getting people their day in court, letting people really take part in judicial proceedings, let's find a way to treat like cases alike. You can use a lot more informalities if it's $100,000 case. There are things you could do. There are things you could do to move the cases along quicker. There are things you could do to set aside dockets. Maybe you have, look, these two judges in every circuit handle what we call high dollar cases. And from there, going back to your point - That makes sense. On diversity jurisdiction, if you go back to the concept of diversity jurisdiction, when the federal courts were invented, it was designed to be that there was a big difference in you run a real risk of you as a defendant appearing out of state in front of a jury and an elected official. (00:37:30): Not that that doesn't exist anymore, but it's a lot more common for people of different state with the advent of technology. It's a lot more common for people of different states to be working together than it was in a pre-internet age. (00:37:47): It's not that things weren't necessarily you couldn't work there, but you deal with a lot with Teams and Zoom and all of the different platforms that are out there. You can communicate and you can have employees all over or work with people all over that you couldn't before. Jared Correia (00:38:06): Yeah, that all makes sense. Okay. So one other point of this, which I think is interesting that you brought up the other day when we were talking was this also affords people an earlier opportunity or actually kind of forces them to prove damages, right? Which would be helpful for moving the case along. Adam Hersh (00:38:23): Part of what I was saying with this is if you're going to adjust court to jurisdictional thresholds and say, okay, if you want a half million dollars or more or you want $2 million or whatever we want to say this top number is, part of me says as part of that, the plaintiff should need to give an estimate of their damages. It does not have to be binding. But on the defense side, when someone's saying I want $5 million, how? And you can't get, well, how do I move the case forward? If there's a plaintiff that has legitimate damages, and I'm typically more on the defense side, I'm not doing my client any favors by just fighting this for the sake of fighting it. If they are legitimate damages that my client could legitimately owe. Jared Correia (00:39:21): Yeah, Adam Hersh (00:39:21): That Jared Correia (00:39:22): Makes sense. Let me know Adam Hersh (00:39:22): That now. Let me know, look, I've got a real problem on my hands. If you want to get to those levels of courts, you want several million dollars in damages or whatever we say that amount is, give an estimate of your damages from the start. You can still hire your experts later on, but you can still say damages are ongoing. But if you're saying I'm entitled to whatever we say this threshold is, but you can't explain your damages as to why you're entitled to that, that becomes the real problem. Let the judges handle those issues Jared Correia (00:40:05): Because Adam Hersh (00:40:05): That's going to really dictate the case. If you can't prove your damage, because that's why are you there? "You damaged me, you owe me money. "Okay, how much money do I owe you? Well, I need to have someone tell me. Okay, I get that. But I also need to be able to show some degree as to why you're there. Why should. And this would be part of. Part of my thought was, okay, before a plaintiff gets to take discovery, they should have to give some estimate of damage. (00:40:38): The other part, and if they can't, go to the judge and make some form of motion where the judge under good cause could allow a scenario where damages aren't being provided or why damages aren't there. But if you can't show damages, that becomes a real problem. So let's make this there. Now, if you're in the under half million dollar range or whatever this is, you can deal with these problems a little bit differently where you can try more ways to do them. You still have to prove your damages, but you want to be in these top level courts. Okay, let's move cases along. Let's find ways to treat like cases alike. You can focus a lot more on ADR in smaller, in Jared Correia (00:41:29): The Adam Hersh (00:41:29): Under half million dollar cases. I'm Jared Correia (00:41:32): Glad you brought this up. This is the last thing I wanted to ask you about. You feel like, I don't want to put words in your mouth, so tell me if you don't think this is correct. You feel like arbitration is underutilized and there are different types of arbitration that attorneys could use that they're not as aggressive about using. Adam Hersh (00:41:49): I think there's value in. There's a lot of. Florida happens to be a leader in alternative dispute resolution Jared Correia (00:41:55): In Adam Hersh (00:41:55): Different ways to resolve disputes. A lot of people really do. When we get into what type of arguments are we arguing, when we're in that bracket of that under 250 range, I do think that most business owners do realize that when you're under 250, there becomes a line where the expense becomes greater than what you could recover. Jared Correia (00:42:24): Yes. Right. Adam Hersh (00:42:25): And there is a line where it is where it is that if there are ways to get this thing resolved quicker, they should be looked at. And so in Florida, and I don't know other states that have these things, we have something that by statute, it's called non-binding arbitration. Jared Correia (00:42:48): And Adam Hersh (00:42:50): I think this is something that I'm a big believer in this. I've done it on several occasions. I think more people should do this. When you take a case to non-binding arbitration in Florida the way it works, and I'm oversimplifying this. Jared Correia (00:43:04): Yeah, yeah, of course. But Adam Hersh (00:43:06): Basically you go, you put on your case in front of an arbitrator, it's somebody you hire. The statute dictates how they're going to be paid and all of that. And it can be a retired judge. There are plenty of organizations that provide this. This is not necessarily a AAA person. This is a statutory based thing. This is not through JAMS, through AAA. This not through that. And basically what happens are you put on your case. It specifically says under the statute, the rule should be relaxed. You can put on your testimony, you can put on some evidence. You don't have to focus on as many of the formalities. Let's put this on. And you know what? Unlike mediation, the arbitrator is going to make a ruling. Jared Correia (00:43:50): Yeah. Right. Adam Hersh (00:43:51): And now what'll happen is with that ruling, let's say it's non-binding is either side can reject it. And then there's a fee trigger associated with if you reject it and you don't beat it by a certain. If Jared Correia (00:44:08): It's Adam Hersh (00:44:08): Better than a certain percentage. I don't want to get into that for the purposes of this. Jared Correia (00:44:12): Yeah, we don't need to. Adam Hersh (00:44:13): But you got somebody listened to this and somebody made a ruling. It then opens up the door to have, okay, this is a $100,000 case. You can go to your client and say, look, this is what somebody's now listened to this. You've heard it. Okay. Do you want to spend another hundred to maybe if we fight this at trial, maybe we can get it to 60? Maybe you find a way to win, but you're probably going to owe something. But what's the ROI on this? That's the key thing is to what are you throwing good money after bat? You can do a lot more things like that in these cases because the dollar amounts aren't there to justify the spend. And when you get into that million dollar case range, the dollar amounts are there that you can justify the spend there. Jared Correia (00:45:15): Yeah. That's interesting. Yeah. Adam Hersh (00:45:17): You have to look at it from the ROI standpoint. If you're treating these cases the same. The same judge is going to hear a dispute, whether it's $50,001 in Florida or it's $50 Jared Correia (00:45:30): Million. Adam Hersh (00:45:34): That there could be different work where you should be able to. Now, Florida, to their credit, has upped that amount. And about 10 years ago, that amount was 15,000. They have upped Jared Correia (00:45:46): It Adam Hersh (00:45:46): Significantly. The federal system has not updated it years. I think we had looked at this the other day, like 75,000 then Jared Correia (00:45:54): Is 136 Adam Hersh (00:45:54): Now. Jared Correia (00:45:55): Right. Right. We got some work to do. Adam Hersh (00:45:59): But I think you can go to. What I'm suggesting is a massive jump is because it is different. You're not denying anyone their day in court. You're actually giving it to them a little bit quicker because you're able to treat like cases alike. The issues associated with $2 million cases, the issues associated with $10 million cases. Okay. You know you're going to have a bunch of lawyers showing up. You know you're going to have the discovery issues going to be different. There's going to be a lot more things going on or Jared Correia (00:46:42): The Adam Hersh (00:46:42): Type of experts you're going to need to bring in. Jared Correia (00:46:45): It makes good sense to me. Adam, this was instructive. Thank you for coming on. Will you stick around for one last segment before we finish up? Yeah, of course. I'll be around. Great. Welcome back everybody. It's my favorite part of the show, The Counter Program. It's a podcast within a podcast. This is a conversational space where we can address usually unrelated topics that I want to explore at a greater depth with my guests. Expect no rhyme and very little reason. Adam, you just mentioned you're from Florida. You have sometimes described yourself to me as Florida man runs law firm. But more often than not, Florida man is not doing something anywhere near that productive. So I'm personally excited because this gives me the opportunity to roll out for the first time on this new show, one of my favorite trivia games called What Would Florida Man Do? (00:47:43): Let's find out, shall we? Adam, here's how the game works. I'm going to read something some dip shit did somewhere. And you just have to tell me whether it happened in Florida or somewhere else. Are you ready? Adam Hersh (00:47:57): Let's go with it. Jared Correia (00:47:58): You're going to like this. All right. I have six scenarios for you. Scenario number one. A suspected drunk driver was pulled over after a crash. And when the police arrived at the scene and asked him how he was doing, he told them he was totally perfect. And then the officer asked him what was on his finger. Apparently during the crash, the driver's finger had become lodged in a can of White Claw hard seltzer and he couldn't get it out. So much for totally perfect. Adam, was this a Florida man? Feel free to use all your powers of logic and deduction. Adam Hersh (00:48:39): I was like when I drive down the roads and sometimes see signs and I think somebody have had to have done that, which is why we have a warning sign not to do that. Jared Correia (00:48:51): Very true. Adam Hersh (00:48:52): I feel like that, that probably happened. Yeah, I could see that one happening here. Jared Correia (00:48:56): In Florida, you think? Yes. Yeah, I can see that. Florida man. That happened there. Okay. This was an Arizona man. This is an Arizona resident. You got to cool off with your White Claw. Adam Hersh (00:49:10): I mean, it's the middle of the desert. I could see it. Jared Correia (00:49:16): Believe it or not, that's only the first one. Are you ready for number two? Scenario number Adam Hersh (00:49:21): Two. Well, that surprises me. See what you got. Jared Correia (00:49:25): You might not be surprised by anything that I talk about today, but hopefully you'll find it at least a little bit humorous. I do find Adam Hersh (00:49:32): That. Jared Correia (00:49:33): Scenario number two. A particularly enterprising thief, dressed up in full scuba gear, swam to a lakefront restaurant just after it closed. He took off his scuba gear, walked into the restaurant, tied up two employees, stole $20,000 worth of cash, put his scuba gear back on and swam off. He was in and out in under two minutes, even taking the time to spray paint over a security camera lens before he left. This guy hasn't even been caught. The suspect is still at large. Was the scuba burglar a Florida man? Adam Hersh (00:50:10): I mean, they have a lot of lakefront restaurants. So I mean, there's a lot of. Jared Correia (00:50:17): I Adam Hersh (00:50:17): Mean, we've got a lot there. Yeah, I could see somebody doing that here. I can see that going down. Yeah. Jared Correia (00:50:24): Okay. You are correct. Florida man. Do you want to take a guess as to where it happened? Adam Hersh (00:50:34): He said it was a lake. Jared Correia (00:50:36): Lake? Yep. Adam Hersh (00:50:37): So I could see one of the lakes in Orlando potentially around that area. Jared Correia (00:50:42): All right. You're warm. You're very warm. Are you familiar with Lake Buena Vista at Disney Adam Hersh (00:50:48): World? No, it's right in the Orlando area. A lot of lakes. I've been right outside. Why not? Jared Correia (00:50:54): Paddlefish restaurant in Disney Springs was where this happened. Adam Hersh (00:50:58): There we go. Jared Correia (00:51:00): You were a one for one, which is pretty good. I've never had anyone complete this perfectly, but your batting average is good so far. You're hitting 500. Are you ready for scenario number three? Adam Hersh (00:51:13): Yeah, why not? Jared Correia (00:51:15): One business-minded man started hitting up national and state forest locations to steal life-sized Smokey the Bear signs, which he intended to flip on Facebook Marketplace for $1,900 a piece, which is an oddly specific price point. When he was apprehended, the police who had a real sense of humor brought someone dressed as Smokey the Bear along for the arrest. That is a perp walk. This is a real story. Adam, was the Smokey Bandit a Florida man? Adam Hersh (00:51:49): I don't think that happened here. Jared Correia (00:51:51): Okay. Tell me why. Adam Hersh (00:51:53): I could feel like because Smokey the Bear, I could associate more with the Tennessee mountains. Jared Correia (00:52:00): Great Smoky Mountains. Yeah. Adam Hersh (00:52:02): And that's where I could see that. And that's where I could see that because we don't have mountains here, and that's where I could see that really. Jared Correia (00:52:10): What do you think about the $1,900 price point? I though that was interesting. Seems very specific. I would sometimes Adam Hersh (00:52:15): Wonder sometimes that too. When you look at some of the things people do, and it's oddly specific, it's like, where'd you get that from? Jared Correia (00:52:22): Right. Right. Adam Hersh (00:52:24): How Jared Correia (00:52:24): Was that idea Adam Hersh (00:52:24): Created? Jared Correia (00:52:26): I know you do merchandise. As we can see, if you're watching on the video, you can see some Adams jerseys back there. Would you buy a Smokey the Bear cutout for 1,900 bucks on Facebook Marketplace? Adam Hersh (00:52:41): See, 1900 was a little high. I mean, I was thinking more the marketability of a Smokey the Bear being closer to 12.50. Jared Correia (00:52:52): Believe it or not, this was a Florida. Man, this occurred in Florida. Interesting. Yes. All right. Scenario number four. Matthew Pancake, that's his real name, Matthew Pancake, broke into a pet store and freed a number of puppies, birds, ferrets, and rabbits by smashing their cages open with a rock. When he was apprehended by police an hour later, pancake was found in a big lots parking lot, of course, wearing a leopard print onesie in which he was storing several live gerbils, arrested with gerbils in his pants. Was the gerbil smuggler a Florida man? Adam Hersh (00:53:36): Kind of like this, that I miss watching live PD where they would just come in and you just watch what would go on. Jared Correia (00:53:47): I check into hotels under the name Matthew Pancake. Adam Hersh (00:53:51): I just want to watch. What do you do if you're the officer getting called out here? Jared Correia (00:53:58): My question is they had Adam Hersh (00:53:59): A parking lot. Yeah. There are a lot of big odds down here. So yeah, go with what happened here. Jared Correia (00:54:04): Ohio. This was in Ohio, man. This happened in Columbus, Ohio. My question was like several gerbils? How many gerbils are we able to fit in a single leopard onesie? And how long would they be able to survive? Adam Hersh (00:54:20): I mean, this is where we need to be getting PETA and really, really be asking these types of questions. But these are the types of things that I really would like to understand. I just want to know what the thought process was. Okay, you were going to do this. Where was the next step of what you were going to do with this? Jared Correia (00:54:42): Where do you go from the Big Loss parking lot with gerbils in your pants? Agreed. Stage Adam Hersh (00:54:48): Two. I don't know. All Jared Correia (00:54:52): Right. I think we're warm now. I got two more for you. Scenario number five. A man and a woman were driving around in a stolen car when they were pulled over by police. Following a search of the car, police discovered a large amount of methamphetamine, most of which was contained in a zip up tote bag with the words definitely not a bag full of drugs embossed on the front of it. Narrator, it was definitely a bag full of drugs. Where was this Fashion Forward couple arrested? Was it in Florida or someplace else? Adam Hersh (00:55:28): Did you say they arrived at a border? Jared Correia (00:55:32): No, no border. They were just pulled over on the street with not a bag of drugs. Adam Hersh (00:55:38): With not a bag of drugs. It absolutely was. Yeah. I'm not Jared Correia (00:55:42): Very good at this. I'm not the way folks are interested. As you think about this, there is a Reddit thread dedicated to this particular crime where you can see the actual bag if you'd like to purchase one for yourself or have one made on Etsy. Adam Hersh (00:55:56): This is certainly not what it's. It's like the all I got was this shirt on. Jared Correia (00:56:01): Right, right. Adam Hersh (00:56:04): I guess I'll go with that happened here. Jared Correia (00:56:06): This happened in Oregon, not a Florida case. Adam Hersh (00:56:13): I got at this. Jared Correia (00:56:15): Well, in your defense, no one really is, but it's actually like if you look at the tote bag, it's nice. Adam Hersh (00:56:22): I mean, hey. I mean, hey, I think this is what you can give out as gifts. If you're looking to see as you're trying to build this is to like the studio audience is to. Jared Correia (00:56:31): Oh, that could be our swag. Definitely not a bag of drugs. Tote bag. I watch for those. Adam Hersh (00:56:39): Now see, that's where you go in front of the TSA agent and you bring the bag in and you just see. Jared Correia (00:56:46): I told you. Adam Hersh (00:56:47): See, this is the play stupid games, win stupid prizes type thing. When you show up with that bag. Oh, I didn't know it. Yes, it's funny, but okay, we'll watch. Jared Correia (00:56:58): Watch for the definitely not a bag full of drugs tote bag available soon from the legal broadcasting company store. Okay. And Adam Hersh (00:57:05): Then the merch store. Jared Correia (00:57:08): I've got one more. I'm having so much fun. I'm joking. Okay. Scenario number six. Again, we've got a driver pulled over by police who had removed a passenger side seat and cut off the passenger side roof and door of his Ford Crown Victoria and replaced the door with metal fencing. Why? So that he could take a full-grown bull named Howdy Duty out for a ride in his vehicle. Even better, the car itself has a set of makeshift bullhorns affixed to the hood to complete the theme. Police let the driver off with a warning. Was this bullshit artist pulled over in Florida or someplace else? Adam Hersh (00:57:49): The Jared Correia (00:57:50): Gas cattle in the crown bit. Adam Hersh (00:57:51): Somebody done something so ridiculous that you just kind of. Jared Correia (00:58:00): I feel like the cops were like, "Not today." Adam Hersh (00:58:04): I'm just going to. I don't really quite know how to explain this. There's not really a citation number for this. Right, Jared Correia (00:58:14): Right, right. Adam Hersh (00:58:17): I mean, yeah, why not it happened here? Why Jared Correia (00:58:21): Not? Okay. Okay. I think your instinct is correct. I know your instinct is correct because this happened in Nebraska. Not a lot of cattle in Florida, I don't think. I could be wrong. Adam Hersh (00:58:33): No, I mean, go down. Yeah. With a bull though. Jared Correia (00:58:38): Southern Florida. Adam Hersh (00:58:40): I mean, USF is the bulls. Oh, Jared Correia (00:58:42): Right. Right. Adam Hersh (00:58:44): That's what triggered that. So it was like, yeah, maybe it could have been. Jared Correia (00:58:48): Could be the USF mascot, but you guessed correctly. You tried your best. I'll leave it at that. Adam, thank you for putting up with our bullshit today. I appreciate that. Adam Hersh (00:58:59): You brought me here. I mean, hey, it's one of those, you never know what happens when we show up. Jared Correia (00:59:05): Right. Right. Thank you for coming on. We'll have to do it again sometime. Adam Hersh (00:59:10): All right, sounds good. Jared Correia (00:59:11): Thanks for our guest today, Adam Hersh, who is the founder and principal of Blue Chip Law. To learn more about Adam and Blue Chip, visit bluechiplaw.com. Now, because I'll always be a '90s kid who always threw away the bubblegum in the baseball card package. It was really hard. But his true passion is burning CDs. For anyone who would listen, I'm now just doing the modern version of that, which is creating a Spotify playlist for every podcast episode that I record where the songs are gently rated tangentially, that's a hard word to say, related to an episode topic. For this week's playlist is animal songs. That's right. We've got songs about or related to animals, internet famous or otherwise. And it's brought to you by Chewy, the online pet store I never use because I'm a masochist. Well, that's not true. That's true that I don't use it, but Chewy hasn't sponsored shit. (01:00:05): That is unless we're talking about chewy granola bars, yeah, they haven't sponsored us either. I guess we just can't chew at all, which is going to make it extremely hard to swallow. Join us next time when I walk an entire half marathon and then take a long hot bath.