Harvey Not-So Marvy, Booze Lose, Fox Shox

Over 60 years ago -- even more if you count the stage version -- a movie called "Harvey" told the story of a man, Elwood P. Dowd, whose sister wanted to put him in a retirement home called (and I am not making this up) Chumley's Rest. Dowd had a best friend named Harvey, a tall rabbit that only he could see. It's a wonderful movie with James Stewart as Dowd, and I don't want to spoil the story for you, only to say it's worth your time -- the original, that is. Remakes are just never as good.

Why do I mention "Harvey"? Because there's now a brand-new AI creation called Harvey. It's customized for every law firm user.

In his discussion of GPT-based legal app Harvey (the new AI, not the movie), Bob Ambrogi says that "Some users of ChatGPT for legal purposes have noticed its tendency to 'hallucinate' -- to make up answers from whole cloth. Pereyra and Weinberg [the creators] say that Harvey's method of fine tuning the AI dramatically reduces occurrences of hallucinations and, in highly context-specific applications, eliminates them almost entirely."

Contrast that with the Harvey who inhabits Elwood P. Dowd's imagination. There are times when an imaginary rabbit might be the best friend a person has.

Dowd's imagination could not probably compete with some of the "what were they thinking" aka stupid lawyer faux pas. They range from a paralegal punching above his weight to a corporate behemoth who seems to have adopted the approach of Mad Magazine's Alfred E. Neuman, that is, "What, me worry?"

Rocky times in London as a paralegal poised to become an associate challenged an existing associate to fight at a Biglaw social event. There was liquor (surprise, surprise) and the paralegal who had too much to drink ripped his shirt off, spoiling for a fight while making racist comments. Would it make sense to cut off those after a certain number of drinks? Or even better, make such events alcohol-free? The latter would at least reduce the number of embarrassing incidents that can adversely impact career movement.

Then there's the issue of reputation risk, which law firms sometimes don't consider in making good choices. An update on one from several months ago: the North Dakota firm that sued former associates for not billing enough hours won in the North Dakota Supreme Court. The firm's employment contract permitted recovery of monies paid if an attorney did not achieve the billable hours requirement and left the firm. What does that say about the firm? What does that say about the court that ruled in the firm's favor on summary judgment and that the state supreme court upheld that ruling and denied the motion for reconsideration?

Sure, the court shot down the various contract defenses, and the firm won, but what about reputational risk? The firm seemed to care more about reimbursement than reputation. So be it. Will any attorney go to work for that firm knowing that if they don't bill the requisite number of hours, money will be clawed back? Based on this opinion, what do you think? Clawbacks of pay in law firms are something new, but hopefully not trendsetting.

But that's not the end of the story. The firm took PPP loans totaling almost $800K that were subsequently forgiven, but still sued to recover the salaries that the PPP money had paid for. How do you say chutzpah? (And it's not pronounced "chutz-pa.")

Appellate lawyers often use the "straight face" approach to an argument, that is, if the argument can be made with a straight face, even if the argument is wonky, then make it. This may well be the position that the Trump Organization lawyers take when they argue that there is no such thing as the Trump Organization. Wait, what? There's a saying that goes something like this: "when the facts are on your side, argue the facts, when the law is on your side, argue the law, and when you have neither, argue like hell." Given that the court commented upon more than 300 pages of answers that the Trump Organization filed to the complaint as just a teensy bit beyond the pale, it appears it will have to argue like hell.

I wonder who instructs Fox executives and on-air talent about the perils of emails, DMs, IMs, and all the other permutations of written life today. Has anyone told them about e-discovery? About how nothing is private in the workplace anymore unless it's written to or from an attorney and labeled as attorney-client privilege (and even then, not always)? Is there anything in the Fox employee handbook about employee privacy and lack thereof? A variety of cringeworthy documents are included in a now-unsealed motion for summary judgment filed by Dominion in its suit against Fox for defamation. These missives are precisely the kind of supporting documentation that plaintiff attorneys drool over. However, being the irascible network that Fox is, it's apparently going to duke it out. Just hand Fox the shovel to continue digging a hole that gets deeper and deeper.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She's had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact -- it's not always civil. You can reach her by email at oldladylawyer@gmail.com.